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Stang-Starr v. Byington - 248 Neb. 103, 532 N.W.2d 26 (1995)

Rule:

When offered to prove the truth of matters asserted in them, learned writings, such as treatises, books, and articles regarding specialized areas of knowledge, are clearly hearsay. There was no exception for learned treatises at common law, and medical textbooks and professional articles are not admissible to prove the substantive facts stated therein. Neither do the Nebraska Evidence Rules contain such an exception to the hearsay rule. Neb. Evid. R. 801 and Neb. Evid. R. 803; Neb. Rev. Stat. §§ 27-801, -803 (Reissue 1989). 

Facts:

On May 23, 1986, defendant-appellee Dr. Byington performed an examination and a Pap smear of plaintiff-appellant Stang-Starr. The June 1986 report indicated moderate dysplasia or abnormal cell growth. It was not until October 1986 that a nurse from Byington's office informed Stang-Starr that her May Pap smear report showed an abnormal finding of class II and that she should make an appointment to return to the office for a second Pap smear. The November report from the October Pap smear indicated class I, negative for malignant cells. A nurse from Byington's office informed Stang-Starr of the reported results from this second Pap smear and instructed Stang-Starr to contact Byington in six months for another Pap smear. A third Pap smear and a biopsy were performed in February 1987. The biopsy revealed the presence of cancer. Byington's office contacted the examining laboratory to inquire about the November 1986 report which had failed to report any malignant cells or abnormalities in the second Pap smear. According to the examining laboratory, a mistake had been made. Stang-Starr filed suit against her doctor for damages from his negligent failure to properly diagnose and treat abnormalities in her cervix. The trial court sustained several of Byington's hearsay objections to Stang-Starr's proffered testimony by two physicians regarding the standard of care required of a board-certified obstetrician. The trial court entered a judgment for Byington. Stang-Starr appealed.

Issue:

In an action for the alleged negligent failure to properly diagnosis and treat a cervical abnormality, did the trial court err in sustaining defendant physician's hearsay objections to plaintiff patient's proffered evidence in the form of doctors providing research from medical literature?

Answer:

No

Conclusion:

The Supreme Court of Nebraska affirmed the decision entering a judgment for defendant-appellee physician in the action for the alleged negligent failure of the physician to properly diagnosis and treat a cervical abnormality. The Court held that plaintiff-appellant patient was attempting to use her witnesses to recite the opinion of learned writings instead of eliciting her witnesses' expert opinion derived from the witnesses' own knowledge and experience. Accordingly, the proffered evidence or the offers of proof were hearsay, and the trial court did not err in sustaining the physician's objections made in regard to the authoritative evidence. Further, the trial court did not err in admitting the laboratory's explanation of its classification system because it was not offered to establish the truthfulness of its contents, and thus, was not hearsay.

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