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Massachusetts Court of Appeals: Instructional Videotape Not Learned Treatise

On March 15, 1990, a Massachusetts court of appeals ruled that an instructional medical videotape was not a learned treatise and was therefore inadmissible as evidence in a medical malpractice case.

Stanley G. Simmons, 69, was a patient of Dr. Peter M. Yurchak, a cardiologist. Simmons has previously been given a heart valve transplant, replacing a valve with a prosthetic one. Simmons developed an infection, then suffered a stroke which left him unable to work. This medical malpractice lawsuit resulted from Simmons allegation that he had a bacterial infection of the heart valves which caused the stroke and that Yurchak had misdiagnosed his infection as viral. A jury found that Yurchak had not been medically negligent. Simmons appealed some evidentiary rulings.

In one evidentiary ruling, the trial court refused to allow into evidence a videotape produced by the American Medical Association on fevers of unknown origin. The trial court ruled it was inadmissible and not covered by the learned treatise exception, G. L. e. 233, § 79C. The court of appeals agreed, holding that to add videotapes to § 79C would constitute judicial legislating. The court of appeals held that the legislature would have to add instructional videotapes to § 79C should it desire their inclusion in that statute.

The trial court also excluded portions of the testimony of Simmons’s son regarding how his father felt while going through the two-week ordeal of the infection prior to the stroke. It was alleged that the father’s stroke had affected his memory and the son’s testimony was thus necessary. The trial court held that the son’s testimony was largely excluded by the hearsay rule. The son did testify as to his own first-hand observations of his father’s condition, but was not allowed to relate what the father had said about how he felt. The court of appeals upheld this ruling, noting with approval the trial court’s determination of the untrustworthiness and cumulative nature of the son’s proffered testimony.

In a final significant evidentiary ruling, the court of appeals held that a medical specialist was not excluded from testifying outside his or her field of specialization provided “the witness has sufficient education, training, experience and familiarity with the subject matter of the testimony.” However, as this ruling did not affect the outcome of the trial, the trial court’s decision was affirmed. See: Simmons v. Yurchak, 28 Mass.App.Ct. 371; 551 N.E.2d. 539.

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Related legal case

Simmons v. Yurchak