In its decision filed on September 10, 2015, the Massachusetts Supreme Judicial Court decided whether certain materials obtained from the Internet qualify as published treatises, periodicals, or the like within the meaning of the “learned treatise” exception to the hearsay rule in a Massachusetts medical malpractice case.
The Massachusetts Supreme Judicial Court (“Appellate Court”) held that the pages taken from two Internet Web sites and used during the plaintiff’s examination of the defendant emergency room physician did not qualify under the learned treatise exception to the hearsay rule but that reversal of the judgment in favor of the plaintiff was not required because in the circumstances of this case the errors did not result in undue prejudice to the defendant.
The Underlying Facts
A 23-year-old man went to a local hospital emergency room on August 14, 2006, at which time a triage nurse noted that he had chest congestion and discomfort, fever, cough, and pain in taking deep breaths. The nurse recorded the young man’s heart rate as 115 beats per minute (over one hundred beats per minute indicates tachycardia).
Less than twenty minutes after he arrived at the emergency room, the man was seen by the defendant emergency room physician, who noted that the man had a cough, fever, slight sore throat, malaise, pleuritic chest pain, and the need to cough with deep inspiration, but that the man had a regular heart rate. The defendant emergency room physician examined the man and ordered a chest x-ray. The chest x-ray showed no abnormalities and the silhouette of the heart was normal; the defendant did not order an electrocardiogram or any blood tests. The defendant emergency room physician diagnosed the man with bronchitis and prescribed an antibiotic and Vicodin; the defendant did not consider a diagnosis of myocarditis, which typically begins as a respiratory infection and spreads to the heart. The man was discharged home; the defendant emergency room physician’s interaction with the man lasted approximately five minutes.
The following morning, the man was found dead in his bed at home. An autopsy determined that the man died of cardiac dysrhythmia (an irregular heartbeat that results in the heart ceasing to beat) due to viral myocarditis (myocarditis, which can cause sudden death, is often secondary to bronchitis – the autopsy determined that bronchitis was a contributing cause of the man’s death).
The Massachusetts medical malpractice trial resulted in the jury returning a verdict in favor of the man’s mother in the amount of $2,925,000 in her capacity as the administrator of her son’s estate, but the jury did not award any damages for the pain and suffering of her son. The defendant appealed.
The Learned Treatise Exception To The Hearsay Rule
The plaintiff’s attorney showed the defendant and questioned him about two printouts of Internet Web site pages, both titled “Myocarditis” and both listing what the pages described as common symptoms of myocarditis, from the Web sites of Johns Hopkins University School of Medicine (Johns Hopkins) and Mayo Clinic. The defendant testified that he was familiar with the two medical institutions, but not with the content of their Web sites concerning myocarditis.
After the defendant reviewed the Web site pages, plaintiff’s attorney asked him to read the text of each. The defendant complied, which amounted to him testifying that Johns Hopkins’s Web site referenced fatigue, shortness of breath, rapid heartbeat, fever, chest pain, and congestive heart failure as symptoms of myocarditis, and that Mayo Clinic’s Web site listed as common symptoms chest pain, rapid heartbeat, shortness of breath, fluid retention, fatigue, aches, and fever. The defendant then confirmed that the plaintiff’s son exhibited certain of these symptoms when the defendant examined him. The Web pages themselves were marked for identification but were not admitted in evidence; no other expert witness testified as to the reliability of the two Web site pages and the judge did not take judicial notice that they were reliable authorities. The defendant’s attorney objected to this entire line of questioning but the trial judge overruled the objection.
The Appellate Court Decision
The Appellate Court agreed with the defendant’s argument that the use by the plaintiff’s attorney of the Web pages to cross-examine the defendant was impermissible under Mass. G. Evid. § 803(18)(B), because (1) the defendant was not testifying as an expert witness, and (2) in any event, the printed Web pages should have been excluded as unauthenticated and unreliable because they were undated and without a named author.
Mass. G. Evid. § 803(18)(B) allows a party on cross examination of an expert witness to bring the expert’s attention to, question the expert about, and read in evidence “statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.”
The Appellate Court stated that the Johns Hopkins and Mayo Clinic Web pages are very different from a treatise and resemble far more closely articles in a journal or a periodical – the content of the Web pages indicates that they are not medical “treatises” of any sort intended to be read and used by physicians, but rather are directed at laypersons: both Web pages list symptoms of myocarditis and direct the reader to call a doctor if he or she develops them, and the Web pages list no author or authors.
The Appellate Court held that to establish the admissibility of the statements taken from the Johns Hopkins and Mayo Clinic Web sites, the plaintiff’s attorney was obligated to show that the author or authors of the Web pages was or were “a reliable authority” – the credibility of Johns Hopkins and Mayo Clinic as highly respected medical institutions or facilities is not enough to demonstrate the reliability of statements on individual pages of each institution’s Web site (there was nothing to say who wrote each Web page, or whether the author of each Web page was an appropriate source of information regarding the common symptoms of myocarditis)
The Appellate Court held in the present case, given that the Web pages in question did not reference a particular author or authors, it was not possible for the plaintiff’s attorney to establish their reliability as required by the evidence rule, and therefore the evidence concerning the content of the Web pages, introduced for its truth, constituted inadmissible hearsay and the defendant’s objection should have been sustained.
With regard to the issue whether the defendant suffered any prejudice as a result of the trial court’s failure to sustain the defendant’s objection, the Appellate Court stated that in light of other evidence properly admitted in this case, it could not conclude that the defendant was materially prejudiced: the symptoms of myocarditis read from each Web page were cumulative; the defendant and his own expert witness both testified, independently of the Web pages, that substantially all of the symptoms are associated with myocarditis. Therefore, reversal on account of the judge’s error relating to the Web pages was not warranted.
Source Kace v. Liang, SJC-11827.
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