Riccio v. Horwitz, No. 99-0445-A (Mass. Super 1/12/2004)

• Decision Date: 12 January 2004
• Docket Number: No. 99-0445-A,99-0445-A
• Parties: FREDERICK M. RICCIO, Administrator of the Estate of ONESTA RICCIO v. TINA HORWITZ, M.D.
• Court: Massachusetts Superior Court

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FREDERICK M. RICCIO, Administrator of the Estate of ONESTA RICCIO v. TINA HORWITZ, M.D.

No. 99-0445-A

Superior Court of Massachusetts.

January 12, 2004.

MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANT, TINA HORWITZ, M.D.'S MOTION TO EXCLUDE THE "CAUSE OF DEATH" PORTION OF THE DEATH CERTIFICATE OF ONESTA RICCIO

David A. Lowy, Justice of the Superior Court.

Nature of Proceedings

Frederick M. Riccio ("plaintiff"), Administrator of the Estate of Onesta Riccio, filed this civil action in March 1999. The complaint alleges that Tina Horwitz, M.D. ("defendant"), committed medical malpractice in her care and treatment of Onesta Riccio ("Mrs. Riccio"), plaintiff's decedent. The matter is currently before this Court on defendant's motion in limine to exclude the "cause of death" portion of the death certificate of Mrs. Riccio. For the reasons discussed herein, defendant's motion is DENIED.

BACKGROUND

On May 31, 1997, Mrs. Riccio sought treatment for various maladies at the Valley Medical Associates, where defendant saw her. On June 1, 1997, the next day, Mrs. Riccio's family found her in poor condition and called an ambulance, whereupon she was transported to a hospital emergency room. Despite efforts at the hospital to relieve her condition, Mrs. Riccio was pronounced dead at 7 a.m. the next morning. Plaintiff filed this action claiming that defendant was negligent in failing properly to evaluate, diagnose, and treat Mrs. Riccio and, as a result, Mrs. Riccio died. Defendant denies plaintiff's allegations, maintaining that her treatment of Mrs. Riccio was within the standard of care required of her and that nothing she did, or did not do, substantially contributed to plaintiff's decedent's death.

DISCUSSION

Defendant moves to exclude the entire "cause of death" portion of Mrs. Riccio's death certificate, arguing that it is inadmissible hearsay. Mrs. Riccio's actual cause of death is a contested matter in this case, and defendant argues that the "cause of death" entry reading "Respiratory Arrest due to or as a consequence of Probable Pulmonary Embolism" relates directly to the issue of her liability and, therefore, must be excluded by this Court. Further, defendant claims that the "cause of death" entry constitutes an opinion that is inadmissible hearsay.

The relevant applicable statute, G. L. c. 46, § 19, states in pertinent part: "the record of the town clerk relative to a . . . death shall be prima facie evidence of the facts recorded, but nothing contained in the record of a death which has reference to the question of liability for causing the death shall be admissible in evidence."

The Supreme Judicial Court has stated that, with regards to entries by medical examiners on death certificates, "[t]he opinion fact becomes prima facie evidence by virtue of the statute and not because of probative force necessarily inherent in it or in the underlying facts." Krantz v. John Hancock Mutual Life Ins. Co., 335 Mass. 703, 711 (1957).¹

In Blake v. Southcoast Health System, Inc., 206 F. Supp. 2d 174, 179 (D. Mass. 2002), rev'd on other grounds, Blake v. Pellegrino, 329 F. 3d 43, 44-45 (1st Cir. 2003), in considering whether a death certificate was admissible under Massachusetts law, the United States District Court for the District of Massachusetts concluded that "[t]here can be little doubt but that the medical examiner's opinion as to the cause of death is generally admissible."² Cf. Noseworthy v. Allstate Life Ins. Co., 40 Mass. App. Ct. 924, 925 (1996) (holding that it was proper to admit an unredacted death certificate in evidence listing the cause of death as suicide, though noting that liability for cause of death was not a contested issue). More pertinently, the Blake court noted that "in Massachusetts, it is arguable that the death certificate was admissible in its entirety." Blake, 206 F. Supp. 2d at 181. This discussion of admissibility under Massachusetts law, while tangential to the court's holding, was not criticized on appeal by the First Circuit in Blake, 329 F. 3d at 43.

Further regarding the admissibility of the "cause of death" entries on death certificates, the Supreme Judicial Court has held that "[w]here the words have reference to the injuries of the deceased, they are admissible, even though incidentally they may have some bearing on the question of liability." Wadsworth v. Boston Gas Company, 352 Mass. 86, 93 (1967).³ The words "Probable Pulmonary Embolism" refer to a medical condition and circumstances which, when viewed in isolation, do not ascribe fault to any particular person and, when viewed in the context of this medical malpractice action where the cause of death is vigorously contested, the words are not dispositive. See Blake, 206 F. Supp. 2d at 181. They are merely a building block in plaintiff's case. The standard of admissibility is not sufficiency of the evidence to meet the burden...