PETROCELLI V. GALLISON 679 F.2d 286 (1st. Cir. 1982) CASE BRIEF

PETROCELLI V. GALLISON

679 F.2d 286 (1st. Cir. 1982)

NATURE OF THE CASE: Petrocelli (P) appealed a judgment for Gallison (D) in P's wife's medical malpractice action. P asserted that excluded evidence in a medical record was admissible under the business records exception, Fed. R. Evid. 803(6).

FACTS: Petrocelli (P) sued Gallison (D) for medical malpractice related to a hernia operation. D performed the operation on P and after the operation, P suffered intense pain in his groin area. Several months later he consulted with another physician and had a second operation done. This effort failed as well and P underwent a third operation. During trial, P described the pain he was in and his wife testified that when D was called D told her there was nothing that could be done to relieve the pain as he had cut a nerve. A consulting physician testified that the ilioinguinal nerve was injured or traumatized by the first operation but could not say it was severed. This was gleaned only by the statements of P and the distribution of the pain and not by any actual examination of P by D. The physician also gleaned information from hospital and medical records. D attacked this expert testimony pointing out that the person giving it was a thoracic surgeon and not a neurologist and that he had not performed a hernia operation in 16 years and that he socialized with P's attorney. D denied his conversation with P's wife and their expert, a neurologist, testified after examining P that the sensation of the nerve appeared intact. The jury gave the verdict to D and P appealed; during trial the court excluded evidence of nerve severance from medical records.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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