Spotts v. Reidell

• Decision Date: 16 August 1985
• Parties: Carl SPOTTS & Florence Spotts, His Wife, Appellants, v. John S. REIDELL, M.D. 225 Harrisburg 1984
• Court: Pennsylvania Superior Court

Page 630

497 A.2d 630

345 Pa.Super. 37

Carl SPOTTS & Florence Spotts, His Wife, Appellants, v. John S. REIDELL, M.D.

225 Harrisburg 1984

Superior Court of Pennsylvania.

Argued March 11, 1985.

Filed Aug. 16, 1985.

Jay H. Feldstein, Pittsburgh, for appellants.

Grant H. Fleming, State College, for appellee.

Before TAMILIA, LIPEZ and BUCHER, JJ. ^*

TAMILIA, Judge:

This is an appeal from the Order of the lower court denying appellants' post-trial motions for a new trial and/or judgment n.o.v. We reverse and remand for a new trial on the basis that the lower court improperly admitted hearsay testimony which was substantially prejudicial to appellants' case.

The facts are as follows. In June of 1980, appellant, Carl Spotts, telephoned his family doctor, A. Reed Allison, Jr., M.D., after noticing blood in his stool. On July 1, 1980, Dr. Allison performed a direct visual examination of the appellant's rectum with a rigid sigmoidoscope. After noting that the bleeding was emanating from a polyp, Dr. Allison referred appellant to the appellee/defendant, John Reidell, M.D. Dr. Reidell examined appellant with a proctoscope and discovered a polyp in the posterior part of the rectum. (N.T. 534-35) Additionally, Dr. Reidell estimated the size of the polyp to be about two centimeters and stated that "[it] appeared flat. It had a sessile appearance. I could not see any stalk on it." (N.T. 534).

Dr. Reidell took multiple biopsies of the polyp and had them examined by a pathologist at Centre Community Hospital, who issued a tissue report with a diagnosis of "villous adenoma". ¹ On July 7, 1980, appellant was admitted to Centre Community Hospital. A barium enema was administered and x-rays were taken. A retrolesion was diagnosed, approximately two centimeters in diameter, posterior in location, and about three or four centimeters above the anus. No other lesions were found and nothing indicated whether the retrolesion was malignant or benign.

On July 9, 1980, Dr. Reidell performed a low anterior resection upon the appellant, which involved the surgical excision of six to seven inches of appellant's bowel. While still operating, Dr. Reidell sent the removed portion of appellant's bowel to the pathology laboratory and awaited the result. The resulting tissue report diagnosed a "villous-adenomatous colonic polyp with foci of atypia." This report also indicated that the polyp rested upon a pedicle (i.e., a stalk) and resembled a mushroom in form. Dr. Reidell then performed an anastomosis, which consists of attaching both ends of the bowel together.

Consequently, appellant experienced seepage of fecal matter from his rectum, resulting in his having to frequently change clothes and to use tissues and sanitary napkins.

Appellant suffered a constriction or tightness of his rectum where the bowel had been reattached for eleven months following surgery. As a result, approximately once every three weeks, Dr. Reidell would manually dilate this constriction with his fingers in an attempt to enlarge the opening in appellant's colon.

On May 26, 1981, appellant once again visited Dr. Reidell for a manual dilation of the rectal constriction. However, after this procedure was performed, appellant began to bleed from the penis. Subsequently, a urologist performed tests which indicated that Dr. Reidell, during the manual dilation, had caused a fistula (i.e., had punched a hole through the wall of the rectum and into the bladder). Immediately thereafter, a total colostomy was performed upon appellant. This procedure consists of the sewing of the colon to an opening in the wall of the abdomen. Specifically, the anus is bypassed and the feces pass through an abdominal opening. As a result of this operation, the appellant must permanently wear a colostomy bag, which collects fecal matter from the large intestine and requires constant changing.

On March 15, 1982, appellant brought an action in trespass against Dr. Reidell alleging medical malpractice. Appellant's suit alleged that Dr. Reidell fell below the medical standard of care when he elected to perform a resection of the colon instead of a snare wire polypectomy. ² Appellant's expert, Dr. Richard Raizman, contended that had the snare wire procedure been utilized, appellant would have been spared all of the unfortunate complications which followed. Appellant also produced the expert testimony of Dr. Howard Reidboard, a pathologist, who stated that the medical term "villous adenoma" essentially refers to a benign, non-malignant tumor as opposed to a malignant, cancerous tumor.

Dr. Reidell, on the other hand, testified that the excision of appellant's bowel was justified due to the allegedly cancerous nature of the tumor. Dr. Reidell attempted to justify his decision by stating that the polyp was not pedunculated; therefore it was incapable of being removed safely with a snare wire cauterization.

The jury returned a verdict in favor of the appellee, Dr. Reidell. Appellant filed timely post-trial motions which were denied and this appeal followed.

The narrow issue before us is whether the lower court erred in permitting Dr. Reidell to testify that Dr. Velkoff, a pathologist, told him prior to the operation that the pre-operative biopsy specimen of the polyp indicated the presence of atypia. We find that the testimony relating to this out-of-court conversation was clearly hearsay as Dr. Velkoff was never present during the trial and was never confronted or cross-examined by the appellant. The lower court, however, admitted this testimony as a state of mind exception to the hearsay rule. The lower court noted that "[t]he conversation was not offered to prove the presence of atypia, but to explain why the surgical procedure was chosen." (Slip Op. at 2.) We disagree for the following reasons.

It is well-established that an out-of-court declaration constitutes hearsay if it is offered for the purpose of proving the truth of the matter contained in the declaration. Carney v. Pennsylvania Railroad Co., 428 Pa. 489, 240 A.2d 71 (1968); Klischer v. Nationwide Life Insurance Co., 281 Pa.Super. 292, 422 A.2d 175 (1980). See Fed.R.Evid. 801(c). However, an out-of-court statement is not hearsay when it is introduced purely for the purpose of establishing that the statement was made and not to establish its truth. See, e.g., Baldino v. Castagna, 308 Pa.Super. 506, 454 A.2d 1012 (1982); Commonwealth v. Tselepis, 198 Pa.Super. 449, 181 A.2d 710 (1962); Wagner v. Wagner, 158 Pa.Super. 93, 43 A.2d 912 (1945). Likewise, an out-of-court statement is not hearsay if it is offered to explain a course of conduct, Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980), or to reflect the declarant's state of mind. Commonwealth v. Wright, 455 Pa. 480, 317 A.2d 271 (1974). See also, McCormick, On Evidence, § 294-96 (3rd. Ed. 1984).

However, the problem here is that we are not concerned with the declarant's state of mind, but rather with Dr. Reidell's reliance on the medical opinion offered by Dr. Velkoff in their conversation. When questioned on direct examination regarding Dr. Velkoff's report, Dr. Reidell attempted to testify concerning an out-of-court conversation with the pathologist who authored the report:

Q. Now, did the pathologist give you a written report?

A. Yes, the following day I had a written report.

Q. Is this the report which is labeled Plaintiffs' Exhibit No. 2, which we have heard testimony about before?

A. Yes, that's correct.

Q. In addition to receiving this report, did you do anything to pursue the information that was on the report?

A. Yes. This confirmed my impression as I looked at it, my gross or microscopic impression, that this was a villous adenoma. In addition, I went to the laboratory and spoke with Dr. Velkoff, who had read these slides that morning, and discussed this with him and reviewed the tissue with him. In our conversation there--(N.T. 542-43)

At this point, appellant's trial counsel raised a hearsay objection. After hearing arguments by counsel for both parties, the trial judge permitted Dr. Reidell to testify as follows:

A. He pointed out to me areas of atypia within this biopsy, which also agreed with what I would expect from what I had seen at the time of examining the tumor.

Q. Did you observe the tumor when you looked at it to be ulcerated?

A. Yes, micro-ulcerated, which is very small, irregular areas.

Q. And upon the pathologist's report of atypia, what did that indicate to you?

A. It confirmed my impression at that time that this tumor had a very high likelihood of being invasively cancerous.

Q. You also knew that it was a villous adenoma?

A. Yes.

(N.T. 546)

Viewing this testimony in the context from which it arose (i.e., a medical malpractice action), we would be hard-pressed to hold that it was elicited solely to show that a conversation occurred between Dr. Reidell and Dr. Velkoff or merely to reflect Dr. Reidell's pre-operative state of mind. In fact, we find that proof of the existence of a conversation between appellee and Dr. Velkoff is simply irrelevant and not a fact at issue in this case since the appellants have never contested the existence of this conversation.

Our careful review of the record convinces us that this hearsay testimony was offered for its substantive effect of proving the truth of the matters asserted therein (i.e., that the polyp had a high probability of being cancerous). This is evident from the outset of the trial when Dr. Reidell's counsel, in his opening statement, made clear reference to this hearsay testimony for its substantive value. ³

An instructive case concerning hearsay evidence in a medical malpractice action is Rosario v. New York City Health & Hospitals Corp., 87 A.D.2d 211, 450 N.Y.S.2d 805 (1982). In Rosario, the plaintiff alleged that injections of a drug (Sotradecol) to treat her condition by oral surgeons constituted a deviation from accepted medical practice and that subsequent surgery for this...