Gallagher v. Goldstein

• Decision Date: 07 June 1988
• Citation: 402 Mass. 457,524 N.E.2d 53
• Parties: John GALLAGHER 1 v. Garry A. GOLDSTEIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 53

524 N.E.2d 53

402 Mass. 457

John GALLAGHER ¹ v. Garry A. GOLDSTEIN.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Feb. 3, 1988.

Decided June 7, 1988.

Jan Richard Schlichtmann, Boston, for plaintiff.

Charles P. Reidy, III (Carol A. Kelly, Boston, with him), for defendant.

Before WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

LIACOS, Justice.

In this medical malpractice case, the plaintiff alleged that the defendant physician was negligent in failing to diagnose that Haline R. Gallagher was suffering a subarachnoid (cerebral) hemorrhage. The jury returned a verdict for the defendant, and the plaintiff appeals. We allowed the plaintiff's application for direct appellate review.

The record discloses the following facts. In early April, 1981, the Gallaghers were working in their yard. After a short while, John Gallagher observed that his wife had stopped raking. She was standing with her hand on her forehead, appeared pale, and complained of being dizzy. After they went inside their house, she complained of seeing "circles and stars in front of [her] eye." She experienced alternating chills and fever and complained of a "terrific" headache and pain radiating down her neck and back. After approximately three hours, her symptoms, other than the headache, neck, and back pain, abated. Haline's headache, neck, and back pain persisted. Three days later, she went to see the defendant. The defendant took her medical history and conducted a physical examination. He diagnosed her ailment as being a viral illness. He prescribed Empirin # 3 (codeine and aspirin), and advised her that the illness would last five to seven days. He told her to call him if things changed or if she did not feel better.

Two days after her visit with the defendant, Haline's symptoms remained. Her husband telephoned the defendant, who arranged for Haline to undergo blood tests. Later that day, the defendant telephoned the plaintiff and informed him that the results of the blood tests indicated that Haline had a viral infection. Two days after the blood test, Haline suffered a subarachnoid hemorrhage. As a result, she suffered brain damage and memory loss, and she is a nearly total quadraplegic. She is mentally incompetent and was unable to testify at trial.

At a bench conference during the trial, opposing counsel and the judge had a discussion regarding testimony which the plaintiff sought to admit. The proposed testimony of the plaintiff dealt with the substance of a conversation between him and his wife regarding a list of her symptoms (in reverse order of importance) which list she had prepared and had intended to go over with the defendant when he examined her. The plaintiff also proposed to testify as to conversations in which Haline had said she did go over the list with the defendant and did inform the defendant that her headache was extremely severe and had a rapid onset. ² Defense counsel objected to the admission of this testimony on the ground that G.L. c. 233, § 20, First, disqualifies, as incompetent, evidence of private conversations between marital partners. The judge indicated that he would allow the list to be introduced in evidence but would not allow testimony relating the private conversations between the Gallaghers. The list was admitted in evidence.

The defendant testified as to what Haline had told him when he examined her. He testified that she described her headache as a "moderate" one that was "not unduly severe." He further testified that the headache "was not something that bolted her out of the blue."

General Laws c. 233, § 20, First (1986 ed.), provides in pertinent part: "Any person of sufficient understanding, although a party, may testify in any proceeding ... except as follows: First, Except in a proceeding arising out of or involving a contract made by a married woman with her husband ... neither husband nor wife shall testify as to private conversations with the other." The rule established by the statute is one of disqualification rather than privilege. Commonwealth v. Gillis, 358 Mass. 215, 216-217, 263 N.E.2d 437 (1970). Kaye v. Newhall, 356 Mass. 300, 304, 249 N.E.2d 583 (1969). P.J. Liacos, Massachusetts Evidence 179-182 (5th ed. 1981 & Supp.1985). The contents of private conversations are absolutely excluded, Commonwealth v. Cronin, 185 Mass. 96, 69 N.E. 1065 (1904), but the statute does not bar evidence as to the fact that a conversation took place. P.J. Liacos, supra at 181. Testimony as to the contents of a private conversation is inadmissible even if both spouses desire the evidence to be admitted. Kaye v. Newhall, supra.

The plaintiff concedes that, based on the law as it now stands, the judge properly excluded the evidence. ³ Plaintiff urges us to adopt an interpretation of G.L. c. 233, § 20, First, so that evidence of a private conversation is excluded only when exclusion satisfies an underlying purpose of the statute or, in the alternative, to change the rule from one of disqualification to one of marital privilege so that the rule could be invoked only by spouses. The plaintiff argues that the exclusion of the testimony in this instance runs contrary to the purpose of the rule. Wigmore lists five historical and policy reasons on which the rule rests: (1) the husband and wife were considered one entity at common law; (2) a marital couple has only one interest, and thus nothing could be gained by allowing a spouse to testify for or against the other; (3) a spouse has a "bias of affection" and would not testify truthfully; (4) allowing testimony might disturb marital peace; and (5) if a wife is a witness for her husband, she "must be subjected to a cross-examination which might call for truths unfavorable to his cause" and result in marital disharmony. 2 J. Wigmore, Evidence § 601 (Chadbourn rev. ed. 1979). See 8 J. Wigmore §§ 2227, 2228 (McNaughton rev. ed. 1961). Another policy reason often stated is the desire to preserve the confidentiality of marital conversations. Note, Pillow Talk, Grimgribbers and Connubial Bliss: The Marital Communication Privilege, 56 Ind.L.J. 121, n. 4, 127 (1980). These underpinnings of the marital disqualification rule have fallen in extreme disfavor among courts and commentators alike. See 2 J. Wigmore, supra. In this historical context, the statutory disqualification as to evidence of private conversations between spouses may be viewed as a statutory preservation of a...