Ricciardi v. Children's Hosp. Medical Center, 86-1501

Citation811 F.2d 18
Decision Date06 February 1987
Docket NumberNo. 86-1501,86-1501
Parties22 Fed. R. Evid. Serv. 752 Peter J. RICCIARDI, Plaintiff, Appellant, v. The CHILDREN'S HOSPITAL MEDICAL CENTER, et al., Defendants, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Philip F. Mulvey, Jr., with whom Philip F. Mulvey, III, Boston, Mass., was on brief, for plaintiff, appellant.

William J. Dailey, Jr., with whom Robert G. Eaton and Sloane and Walsh, Boston, Mass., were on brief, for defendants, appellees.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

BOWNES, Circuit Judge.

This is an appeal from a directed verdict for defendants. In a medical malpractice suit, plaintiff-appellant Peter Ricciardi attempted to introduce into evidence on various grounds a note entered into his medical chart stating that an unscheduled event occurred while he was undergoing surgery. The physician who made the entry did not have personal knowledge of the event and could not recall the source of the information. Ricciardi appeals the district court's rulings that the note was inadmissible hearsay and that his expert witness would not be allowed to rely on the note in forming an opinion as to the cause of Ricciardi's injuries. We affirm.


On July 11, 1979, Ricciardi underwent surgery at the Children's Hospital Medical Center (the Hospital) in Boston, Massachusetts, for the replacement of his aortic valve. He suffered neurological difficulties after the operation because, according to him, someone was negligent during his operation. He brought a malpractice suit against the Hospital, surgeons William Norwood and Rosalyn Sterling, and the anesthesiologist, "John Doe."

Ricciardi's only proof of negligence was a note dated July 13, 1979, two days after the operation, entered into his medical chart by Dr. Krishna Nirmel, a neurology resident at the Hospital. The note, contained in a three-page handwritten consultant's report, said: "during surg. episode of aortic cannula accidently out x 40-60 secs." An aortic cannula provides a means of circulating blood from the heart-lung machine back into the body when the heart is being bypassed for surgery. The note was the basis for Ricciardi's theory that a cannula being used during his operation came out because of someone's negligence and an air embolus was introduced into his blood stream. Dr. Nirmel, however, did not have personal knowledge of the alleged event and did not know where he obtained the information he recorded in the note. He said he usually spoke with the nurses and staff attending to the patient before, during, and after surgery, but in this instance he could not recall speaking with any members of the surgical team. He assumed that he obtained the information from "professional people."

At pretrial the case was defined as involving only two issues: (1) whether the cannula came out; and if so, (2) whether this caused Ricciardi's injuries. The note, therefore, was crucial to Ricciardi's case. The district court rejected his various attempts to introduce the note at trial. The court ruled that the note was hearsay not within any exceptions and that it did not become an adoptive admission of party-opponent Dr. Norwood when he heard of it. The court also refused to allow Ricciardi's expert witness, Dr. Harold Kay, to rely on the note in forming his opinion about the cause of Ricciardi's injuries. Because there was no other evidence of negligence, the court directed a verdict for defendants.


Dr. Nirmel's note clearly is hearsay. It is a statement made by someone other than the declarant offered to prove the truth of the matter asserted. See Fed.R.Evid. 801. 1 The note, therefore, is not admissible evidence unless it comes within an exception to the general rule excluding hearsay. See Fed.R.Evid. 802. Ricciardi argues that the note is admissible on five grounds: (1) under the hearsay exception provided in the Massachusetts hospital records statute, Mass.Gen.Laws Ann. ch. 233, Sec. 79 (West 1986); (2) as a record of a regularly conducted activity under Fed.R.Evid. 803(6); (3) as a recorded recollection under Fed.R.Evid. 803(5); (4) as a statement not specifically covered by other exceptions under Fed.R.Evid. 803(24); and (5) as an adoptive admission by party-opponent Dr. Norwood under Fed.R.Evid. 801(d)(2)(B). Ricciardi also contends that the court erred when it refused to allow his expert witness to rely on the note in forming an expert opinion.

A. The Massachusetts Statute and Federal Rule 803(6)

Mass.Gen.Laws ch. 233, Sec. 79, provides a hearsay exception for certain hospital records required to be kept by law. 2 The parties agreed that this statute had "at least something to do with the admissibility of this particular note." The court then considered whether the note fit within the state exception and concluded that it did not.

The correlative Federal Rule governing the admissibility of hospital records is Rule 803(6), the hearsay exception for records of a regularly conducted activity. 3 In general, the Federal Rules apply to all cases in the district courts, including diversity actions. McInnis v. A.M.F., Inc., 765 F.2d 240, 245 (1st Cir.1985); Fed.R.Evid. 1101(b). Congress' power to promulgate rules of evidence for use in federal court, even though they may differ from state rules, has been established since Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). "Of course, federal courts and Congress are constitutionally precluded from displacing state substantive law with federal substantive rules in diversity actions." McInnis v. A.M.F., Inc., 765 F.2d at 244. The question here, then, is whether application of the federal business records exception impinges on some substantive state policy embodied in the state rule. We do not see how applying the federal rule in this case would be such an intrusion.

The Massachusetts Supreme Judicial Court, in construing its statute, said that "[a]pparently the legislation making this hearsay evidence admissible 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, 593 (1920). Arguably, all hearsay exceptions are premised on a conclusion that the utility and reliability of certain kinds of hearsay outweigh the difficulties and burdens of obtaining the declarant's testimony. Although the federal rule is not specifically aimed at hospital records, it provides a hearsay exception for records kept in the course of any regularly conducted business activity, which would include publicly supported hospitals. The federal rule, therefore, is consistent with the state legislature's concern about the undue burden of requiring medical personnel in publicly supported hospitals to testify despite the availability and usual reliability of regularly kept records.

Moreover, the statute functionally is evidentiary in nature. The Supreme Judicial Court described it "in effect" as an exception to the hearsay rule that "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." Bouchie v. Murray, 376 Mass. 524, 527-28, 381 N.E.2d 1295, 1298 (1978). The federal rule does the same thing. See 4 J. Weinstein & M. Berger, Weinstein's Evidence p 803(6), at 803-175 (1985); Bouchie v. Murray, 376 Mass. at 528, 381 N.E.2d at 1295 (Supreme Judicial Court cited to federal cases and commentary concerning Rule 803(6) in construing the purpose of the state hospital records exception). In fact, these two rules are very similar in application. In this case, the note is inadmissible under both rules. Therefore, even if we could discern some substantive policy at stake in the state hospital records exception, there would be no conflict with that policy in applying the federal rule here.

The Supreme Judicial Court has recommended a four-part analysis for determining the admissibility of hospital records under the state rule. Bouchie v. Murray, 376 Mass. at 531, 381 N.E.2d at 1300. "First, the document must be the type of record contemplated by [Mass.Gen.Laws ch.] 233, Sec. 79." Id. There is no dispute that Dr. Nirmel's consultation report, in which the note was contained, was such a document. "Second, the information must be germane to the patient's treatment or medical history." Id. The district court concluded that the note would be germane to Ricciardi's care and treatment plan because it would be of some help in identifying the cause of his problem. We agree. "Third, the information must be recorded from the personal knowledge of the entrant or from a compilation of the personal knowledge of those who are under a medical obligation to transmit such information." Id. The district court correctly ruled that this requirement was not met because Dr. Nirmel did not have personal knowledge of the event he recorded, nor had it been shown that he obtained his information from someone with an obligation to supply it. A transcribed note of unknown origins does not "possess the characteristics justifying the presumption of reliability" normally accorded hospital records. Id. at 528, 381 N.E.2d at 1298.

Under the fourth part of the analysis, the Supreme Judicial Court instructed that if the information was not recorded from personal knowledge, but instead was volunteered by a third person, the statements "are not admissible unless they are offered for reasons other than to prove the truth of the matter contained therein or, if offered for their truth, come within another exception to the hearsay rule." Id. at 531, 381 N.E.2d at 1300. Simply stated, such information is only admissible if it would come in on some other basis.

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