Simmons v. Yurchak, 88-P-950

Citation28 Mass.App.Ct. 371,551 N.E.2d 539
Decision Date03 May 1990
Docket NumberNo. 88-P-950,88-P-950
PartiesStanley G. SIMMONS v. Peter M. YURCHAK.
CourtAppeals Court of Massachusetts

Jack J. Mikels (Rochelle S. Nelson, Boston, with him), for plaintiff.

Craig M. Brown (Robert P. Ingram, Boston, with him), for defendant.

Before WARNER, C.J., and ARMSTRONG and KASS, JJ.

KASS, Justice.

On special questions, a jury returned a verdict that the defendant Yurchak, a physician, had not been negligent in treating the plaintiff Stanley G. Simmons. We discuss some evidentiary issues which the plaintiff has raised and then comment in comparatively abbreviated fashion on the residual appellate points.

On November 17, 1978, Simmons, then age sixty-nine, suffered a stroke and was admitted to Massachusetts General Hospital. As a consequence of the stroke, Simmons is no longer able to work, he has trouble walking, and his field of vision is limited. During four weeks preceding the stroke, Simmons had complained to Dr. Yurchak about fever, fatigue, aches in his legs, chills, and headaches.

The plaintiff's case is that Dr. Yurchak negligently failed to diagnose his patient's subacute bacterial endocarditis, an infection of the valves of the heart, and that the disease led to the stroke. The alleged causal sequence was that the subacute bacterial endocarditis produced a mycotic (infectious) aneurysm in the brain. As to these claims the evidence was detailed and greatly in conflict. The defense position is that: Dr. Yurchak checked for subacute bacterial endocarditis; ordered and reviewed a blood culture 1 and muscle chemistry tests, among other diagnostic procedures; and reasonably arrived at a judgment that his patient was afflicted with a viral process. There was evidence that Simmons did not, indeed, have subacute bacterial endocarditis, i.e., there was no failure to diagnose that disease, and that the stroke had not been induced by an infectious aneurysm but was spontaneous.

The possibility of endocarditis was in the picture from the outset of the plaintiff's illness because in 1970 he had a deformed heart valve (mitral stenosis) replaced with a prosthetic one and at that time had been treated by Dr. Yurchak, whose specialty is cardiology. Persons with artificial valves have a high risk of endocarditis, particularly after dental procedures. Simmons knew this and had called Dr. Yurchak to tell him he was facing a tooth extraction and had been taking penicillin. Dr. Yurchak instructed Simmons to omit his regular dosage of an anti-coagulant medication, Coumadin, and to double the dosage of oral penicillin he was taking. 2

1. Exclusion of hearsay about Simmons' physical condition. The plaintiff's son, Stuart, testified about his own firsthand observations of his father's physical condition in the weeks preceding the stroke. Under the hearsay exception that contemporaneous expressions of pain may be admitted, the son was allowed to describe with some detail what he learned about how his father felt. See Bacon v. Charlton, 7 Cush. 581, 586 (1851); Weeks v. Boston Elev. Ry., 190 Mass. 563, 565, 77 N.E. 654 (1906); Murray v. Foster, 343 Mass. 655, 658, 180 N.E.2d 311 (1962); Liacos, Massachusetts Evidence 346 (5th ed. 1981). So it was that the son described how from November 1 to November 9, 1978, his father had experienced a burning sensation on the top of the head, pain in his tendons, and pain in his arms and legs. From November 11 to November 15, 1978, the burning sensation increased as did the pain in his tendons, with consequent increased weakness and lethargy. When he suffered the stroke, he was still weaker and lethargic, his head felt as if it were on fire, and he had pain in his muscles.

Such specific observations and statements of physical distress, the plaintiff argues, failed to round out the picture. They lacked the spice which would give flavor to the quality of the father's illness in the period before the stroke. 3 The father had testified that he had felt "ten times worse" than the flu and otherwise described his condition in poignant terms. The plaintiff's description of his condition his counsel argues on appeal, was likely to have been discounted by the jury when pitted against that of Dr. Yurchak, a respected cardiologist at the Massachusetts General Hospital, especially as the plaintiff's memory had become impaired by his stroke. 4 What plaintiff's counsel proposed to the trial judge, and what he presses on appeal, is that the occasion called for application of Proposed Mass.R.Evid. 803(3), which allows receipt of hearsay statements of the declarant's then existing state of mind, emotion, sensation, or physical condition. 5

The trial judge rightly resisted the invitation. She expressed her unease about the trustworthiness of generalized narrative statements about how a person feels which are offered for their truth, not through the declarant, but through the person to whom the statement was made, thus shielding the original statement from effective cross-examination. The judge ruled, as she would be bound to do were she operating under the proposed rules, on the question whether the capacity to mislead exceeded the probative value of the evidence offered. See Proposed Mass.R.Evid. 403. That question she resolved against receiving the statements. See Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 422-423, 517 N.E.2d 152 (1988). Between the judge's determination of untrustworthiness and the cumulative nature of what the son, Stuart, had to offer in amplification of what had already been received from him and other witnesses, there is no occasion to consider whether a more expansive hearsay exception than the existing one (i.e., expressions of pain) should have been applied. 6 There is still less reason to apply--as the plaintiff also suggests--the catch-all exception to the hearsay rule which appears in Fed.R.Evid. 803(24) (1987), an exception prominently absent from the proposed Massachusetts rules.

2. Admissibility of videotape under G.L. c. 233, § 79C. Precisely what was inducing the fever and aches which afflicted Simmons for some four weeks had not been isolated when his stroke occurred. He had what the medical profession calls a "fever of unknown origin." Simmons sought, under G.L. c. 233, § 79C, 7 relating to learned treatises and articles, to place in evidence and allow to be viewed a videotape produced by the American Medical Association about "fevers of unknown origin." The videotape would demonstrate how a physician should approach the diagnosis and treatment of such fevers and, presumably, would illustrate Dr. Yurchak's deviation from the norms described. The judge ruled that G.L. c. 233, § 79C, did not apply to a videotape and excluded the proffered evidence.

Certainly G.L. c. 233, § 79C, does not by any of its express language, extend to videotapes. That is unremarkable as videotapes did not exist in 1949, when § 79C was introduced into the statutory scheme by St.1949, c. 183, § 1. If, in 1965, when the statute was last amended (St.1965, c. 425), videotapes existed, they were not common currency. The plaintiff urges that the statute should be read contextually to effect its purpose and scope. See Commonwealth v. Welosky, 276 Mass. 398, 401-402, 177 N.E. 656 (1931); Chipman v. Massachusetts Bay Transp. Authy., 366 Mass. 253, 256, 316 N.E.2d 725 (1974); Murphy v. Bohn, 377 Mass. 544, 547-551, 387 N.E.2d 119 (1979). Videotapes, the argument runs, are a contemporary variant of a published treatise, periodical, book, or pamphlet.

One may accept that videotapes are now frequently used for informational and instructional purposes, without accepting that there is a natural line of descent, for purposes of the statute, from learned treatises, periodicals, books, and pamphlets to videotapes. Published written works, with the added protection of the statute that the author be qualified as an expert on the subject at hand, 8 have an imprimatur of reliability flowing from the careful, professional criticism which attends the editorial and publishing process. So the Legislature might have determined when it enacted § 79C. See generally Kehoe, Massachusetts Malpractice Evidentiary Statute--Success or Failure?, 44 B.U.L.Rev. 10 (1964). Films, after all, were in wide use when § 79C was enacted and are not mentioned in it.

Whether similar care is attendant on instructional videotapes we do not know. The Legislature has resources superior to ours to investigate how videotapes are produced in the scientific community, what use is made of them, and to what extent that community accepts videotapes as authoritative. There may be sufficient difference between how written materials and videotapes are prepared for publication that our adding videotapes to the list of materials in § 79C would constitute judicial legislation. Judges may not legislate simply because a statute lacks provision for a particular event or contingency. Prudential Ins. Co. v. Boston, 369 Mass. 542, 546-547, 340 N.E.2d 858 (1976). Cox v. Boston Consol. Gas Co., 67 F.Supp. 742, 744-745 (D.Mass.1946), aff'd, 161 F.2d 680 (1st Cir.1947). 9

3. Exclusion of the "lesser standard" questions. Among the witnesses whom the plaintiff called was a specialist in infectious diseases, Dr. Spivack. On two occasions, plaintiff's counsel put questions to Dr. Spivack about what might be thought to be a less refined standard of care than would be expected of one practicing cardiology, the defendant's specialty. Those questions were excluded. The first excluded question solicited Dr. Spivack's opinion whether the advice Dr. Yurchak gave to the plaintiff on August 14, 1978 (to double the dosage of oral penicillin), was in accordance with the degree of care and skill of the average qualified physician. The second excluded question inquired of Dr. Spivack how he would evaluate the...

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