Bouchie v. Murray

• Decision Date: 10 October 1978
• Citation: 381 N.E.2d 1295,376 Mass. 524
• Parties: Robert A. BOUCHIE et ano 1 v. Harriet E. MURRAY, Administratrix. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1295

381 N.E.2d 1295

376 Mass. 524

Robert A. BOUCHIE et ano ¹ v. Harriet E. MURRAY, Administratrix. ²

Supreme Judicial Court of Massachusetts, Essex.

Argued May 1, 1978.

Decided Oct. 10, 1978.

I. Irving Kline, Gloucester, for plaintiffs.

Samuel F. Hyland, Salem, for defendant.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

In this negligence action the plaintiffs, Robert A. Bouchie and Salvatore LoGrande, appeal from judgments for the defendant administratrix. The only issue before us is whether the trial judge erred in admitting certain portions of Bouchie's hospital record. We find error in the admission of the record and conclude that this error requires reversal and a new trial.

We summarize the facts. On April 1, 1966, at approximately 10:30 P. M., the plaintiffs were traveling in Bouchie's automobile in a westerly direction on Essex Avenue, a three-lane road running from Gloucester to Essex. Bouchie was driving, and LoGrande was seated in the front passenger seat. At the point on Essex Avenue where the plaintiffs were then located, the road has two westbound lanes, which are separated from each other by a broken white line, and one eastbound lane, which is separated from the westbound lanes by a solid yellow line.

While attempting to pass a slower westbound automobile, Bouchie's vehicle collided with an eastbound automobile which was being driven by Wallace Parsons. There was conflicting testimony concerning whether the impact occurred in the eastbound or in the westbound lane. LoGrande suffered an injury to the right knee, and Bouchie sustained a cerebral laceration to the left frontal temporal area.

At the trial Bouchie introduced testimony from Dr. Sidney Paly, a full staff member at Salem Hospital and a specialist in neurosurgery. Dr. Paly examined Bouchie on three occasions from April to October, 1966, for possible brain damage sustained by Bouchie as a result of the automobile accident. Dr. Paly stated that Bouchie was suffering from anosmia, a loss or impairment of the sense of smell.

On direct examination, Dr. Paly read the following notes from his October, 1966, office examination of Bouchie: "Working very hard. Works nights. Has bizarre habits. Hunts. Has bought new guns. Now has lost interest in the whole idea of guns. Sleeps a great deal. No ambition. Used to be very ambitious. Smell and taste still poor to absent. RE, olfactory deficit. No headache now. Cried a great deal. Wants to die."

Dr. Paly recommended that Dr. Charles M. Storey, a psychiatrist, evaluate Bouchie's psychiatric status. Dr. Storey examined Bouchie and forwarded his findings to Dr. Paly in a consultation record of the Salem hospital. During his cross-examination of Dr. Paly, the defendant attempted to introduce the entire Salem hospital record which included Dr. Storey's consultation record. The plaintiffs objected to the admission of the following sentences in the consultation record: "Wife says it occurred when (Bouchie) enraged and out of control. . . . (S)he felt he was going to have a nervous breakdown, but had the accident instead." The plaintiffs objected on the grounds that the statements made by Dr. Storey in the consultation record referring to what Mrs. Bouchie said were inadmissible and prejudicial and related more to the question of liability than to treatment or medical history. The judge declined to delete the sentences objected to by the plaintiffs.

The defendant continued his cross-examination of Dr. Paly. Without objection by the plaintiffs, Dr. Paly read the following from his notes of an April 14, 1966, office examination of Bouchie: "Nervous. Very flat effect. Irritated with children. Wife very agitated. Was very agitated and upset before the accident. Hit wife a lot before the accident. Watches T.V. with no effect, no humor. Emotionally disturbed. Valium, 5 milligrams, four times daily. Question of accident relation to his personality disorder. Patient was in a rage."

The plaintiffs first contend that the challenged portions of the hospital record were inadmissible under G.L. c. 233, § 79, because they related to liability rather than to Bouchie's treatment and medical history. We need not decide this issue, however, since we conclude that in any event Mrs. Bouchie's statements contained in the hospital record are inadmissible. At least two of the statements do not relate to diagnosis or treatment and both of them are second-level hearsay which is not rendered admissible by the statutory hospital records exception to the hearsay rule, G.L. c. 233, § 79. ³

General Laws c. 233, § 79, as amended through St. 1974, c. 225, provides in pertinent part: "Records kept by hospitals . . . under (G.L. c. 111, § 70) shall be admissible . . . as evidence . . . so far as such records relate to the treatment and medical history of such cases . . . but nothing therein contained shall be admissible as evidence which has reference to the question of liability." This statute in effect provides an exception to the hearsay rule which allows hospital records to be admitted to prove the truth of the facts contained therein, in so far as those facts relate to treatment and medical history. Commonwealth v. Copeland, --- Mass. ---, --- - --- ^A, 377 N.E.2d 930 (1978).

The legislation was "enacted primarily to relieve the physicians and nurses of public hospitals from the hardship and inconvenience of attending court as witnesses to facts which ordinarily would be found recorded in the hospital books." Leonard v. Boston Elevated Ry., 234 Mass. 480, 482, 125 N.E. 593 (1920). See COMMONWEALTH V. COPELAND, SUPRA, AT ---, 377 N.E.2D 930.^B More importantly, however, the statute allows admission of the substantive content of hospital records because of the presumption of reliability which attaches to statements relating to treatment and medical history in these records. This presumption of reliability of the information contained in hospital records arises primarily from the fact that entries in these records are routinely made by those charged with the responsibility of making accurate entries and are relied on in the course of treating patients. See Standard Oil Co. of Cal. v. Moore, 251 F.2d 188, 213 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958); McCormick, Evidence § 313 (2d ed. 1972); 4 J. Weinstein & M. Berger, Evidence par. 803(6)(01) (1977); Note, Revised Business Entry Statutes: Theory and Practice, 48 Colum.L.Rev. 920, 922-923 (1948). See also Mayor v. Dowsett, 240 Or. 196, 225-226, 400 P.2d 234 (1965).

In interpreting the medical records exception to determine whether certain portions of records, which might relate to treatment and medical history, are admissible, the purpose of the statute to admit presumptively reliable evidence without the necessity of calling numerous hospital personnel as witnesses must be kept in mind. The statute is not to be interpreted as rendering admissible all the contents of hospital records; rather the medical records exception statute makes admissible only those portions of records relating to treatment and medical history which possess the characteristics justifying the presumption of reliability. See Commonwealth v. Dawn, 302 Mass. 255, 259-261, 19 N.E.2d 315 (1939); Yates v. Bair Transp., Inc., 249 F.Supp. 681, 683 (S.D.N.Y.1965); Note, Revised Business Entry Statutes: Theory and Practice, 48 Colum.L.Rev. 920, 927 (1948). Hence entries made in the regular course of the institution's operation from the personal knowledge of the recorder or from a compilation of the personal knowledge of those who have an obligation in the course of their employment to transmit that medical information to the recorder are admissible under the exception. Any other statements in the record which relate to treatment and medical history and which are offered for the truth of the matter contained therein must fall within some other exception to the hearsay rule in order to be admissible. See Kelly v. O'Neil, 1 Mass.App.Ct. 313, 316-317, 296 N.E.2d 223 (1973); Juaire v. Nardin, 395 F.2d 373, 379 (2d Cir.), cert. denied sub nom. Juaire v. Walter Marshak, Inc., 393 U.S. 938, 89 S.Ct. 302, 21 L.Ed.2d 274 (1968); McCormick, Evidence § 313 (2d ed. 1972); 4 J. Weinstein & M. Berger, Evidence par. 803(6)(02) (1977); Green, The Model and Uniform Statutes Relating to Business Entries as Evidence, 31 Tul.L.Rev. 49, 61-64 (1956); Laughlin, Business Entries and the Like, 46 Iowa L.Rev. 276, 296-303 (1961); Note, Revised Business Entry Statutes: Theory and Practice, 48 Colum.L.Rev. 920, 926-929 (1948).

For this reason, therefore, the physician's record of the patient's own account of his medical history generally would be admissible because of the presumptive reliability of the patient's statement to a physician consulted for treatment. See, e. g., Barber v. Merriam, 11 Allen 322, 324-325 (1865); W. B. Leach & P. J. Liacos, Massachusetts Evidence 247-248 (4th ed. 1967); McCormick, Evidence §§ 292, 313 (2d ed. 1972).

As we have said, the hospital records statute is only designed to eliminate the cost and inconvenience of locating and calling as witnesses all those who wrote in a hospital record as well as all those who performed medical services for the patient and reported their results to a person authorized to enter the information in the hospital record. What gives the hospital records presumptive reliability is the fact that persons treating the patient rely on this information. However, the force of the presumption of reliability underlying the statute diminishes substantially where the statements contained in the hospital record derive neither from the personal knowledge of the physician nor from the patient himself,...