## Facts

- A patient with chronic abdominal pain was referred to a general surgeon for evaluation and possible gallbladder removal.
- Preoperative testing included a negative ultrasound and an abnormal hepatobiliary scan showing very low gallbladder ejection fraction; the surgeon recommended laparoscopic cholecystectomy and discussed possible non-improvement and possible conversion to open surgery.
- The patient had an extensive history of prior abdominal surgeries, increasing the likelihood of intra-abdominal adhesions.
- The surgeon performed a laparoscopic cholecystectomy using a closed (“blind”) entry technique with a Veress needle and trocar placement at the umbilicus.
- Operative conditions included adhesions and bowel adherence near the entry site, limiting visualization; the patient later developed a perforated bowel.
- The patient sued the surgeon and hospital for medical negligence, disputing the standard of care, including whether a closed technique was appropriate given the patient’s surgical history.
- At trial, cross-examination sought to use medical publications (including a course manual and a textbook chapter) to impeach defense testimony about proper technique and risk management; the trial court restricted that use.
- The jury returned a defense verdict; the court of appeals affirmed; the Supreme Court of Ohio accepted review.

## Issues

1. Under Ohio law (pre-Evid.R. 706), when may statements from medical literature be used to impeach an expert witness in a medical malpractice trial?
2. Must an expert expressly admit that a text is “authoritative” or that the expert “relied” on it before the literature may be used for impeachment?
3. Did the trial court commit prejudicial error by barring impeachment with publications that the surgeon and defense expert treated as reliable or used in forming opinions?

## Decision

- The Supreme Court of Ohio reversed the court of appeals and remanded for a new trial.
- The court held that statements in published medical literature may be used to impeach an expert when:
  - the expert relied on the literature in forming an opinion, or
  - the expert’s testimony otherwise establishes the literature as reliable authority, or
  - the literature is part of the expert’s own publication.
- The court held that reliance or reliable-authority status may be shown without an express acknowledgement by the expert.
- The trial court’s refusal to permit impeachment using the course manual and textbook chapter, given the witnesses’ testimony about their reliability and use, was prejudicial error.

## Legal Principles

- Learned treatises and similar medical publications are hearsay and are not admissible as substantive evidence to prove the truth of their contents; they may be used for impeachment.
- Impeachment with medical literature is permitted if the testifying expert relied on the literature, if the expert’s testimony establishes it as reliable authority, or if it is part of the expert’s own publication.
- The foundation for impeachment does not require “magic words”; courts may infer reliance or reliable-authority status from the substance of the expert’s testimony about the text and its role in training, practice, or opinion formation.
- Excluding impeachment literature can be reversible error when the case turns on competing expert views of the applicable standard of care and the excluded materials bear directly on credibility and disputed technical judgments.

## Conclusion

The Ohio Supreme Court ordered a new trial after concluding the plaintiff was improperly barred from impeaching defense experts with medical publications that the witnesses effectively treated as reliable and, in one instance, used in forming opinions; explicit admissions of “authority” or “reliance” were not required to permit such impeachment.


Freshwater v. Scheidt, 714 N.E.2d 891 (Ohio 1999)