29 Mass. App. Ct. 948 | Mass. App. Ct. | 1990
In this medical malpractice action, a Superior Court jury found that the defendants were negligent, but that their negligence was not the cause of the plaintiffs
We summarize the pertinent evidence that forms the backdrop for the evidentiary ruling. The plaintiff was employed by Memorial Hospital as a pharmacist. On January 12, 1978, he suffered a seizure at work and was admitted to the hospital. While there, he fell from his bed when he was left unattended with the rails lowered by a resident physician and a medical student, the individual defendants in this case. The plaintiff returned to work one month later. Because of reports regarding his performance and behavior, he was informed in January, 1981, that he could not continue working without clearance from the hospital’s health clinic. Subsequently, he consulted a psychiatrist, his expert witness at the trial, who diagnosed his illness as “dementia, an organic form of psychosis,” resulting from hitting his head during the above-described fall. The defendants’ experts, a neurologist and neurosurgeon, refuted any causal relationship between the plaintiff’s “dementia” and the fall. In their opinion, if the plaintiff’s “dementia” were due to such a fall, the worst effects of his illness would have been immediately apparent and would have interfered immediately with his ability to function.
Anticipating the testimony of the defendants’ experts, the plaintiff called as a witness the hospitál’s vice president of personnel, who produced under subpoena the plaintiff’s personnel file. Over the general objection of all defense counsel, the plaintiff introduced in evidence, ostensibly as a business record,
“I told Mr. Burke that I had noticed a distinct change in his personality since his illness [of January, 1978]. He is often forgetful and late for work .... In addition I have noticed a change in Jim’s*949 attitude and appearance .... I told Mr. Burke that I had received numerous complaints from Nursing, Fiscal Services, and most of the members of the Pharmacy Department concerning his performance.”
During cross-examination, counsel for the defendant hospital elicited from this witness that employees were evaluated regularly on standard forms, that the plaintifFs performance had been evaluated regularly, and that these evaluations were performed in good faith and in the regular course of business. Upon request, the witness produced from the plaintifFs personnel file four sets of performance evaluations
The personnel records were admitted as business records under G. L. c. 233, § 78. The judge’s ruling imports a finding that the preliminary factual predicates
We turn now to the plaintifFs objection that the documents contained statements of opinion. Opinions contained in business records are not admissible unless they fall within some other exception to the hearsay rule. Julian v. Randazzo, 380 Mass. 391, 392-393 (1980). Irwin v. Ware, 392
The above determination does not end our inquiry. The defendants assert that even if the performance evaluations were inadmissible as business records they were admissible on other grounds. We agree. Performance evaluations prepared by the plaintiff after January, 1978,
The plaintiff’s objection to the performance evaluations for the years 1977-1980 was made to the records as a whole. No request was made to strike out or exclude those portions constituting inadmissible opinion. Consequently, even if some portions of the records were inadmissible, it was not error to overrule the plaintiffs objection where portions of the documents were admissible as discussed in this opinion. Vinal v. Nahant, 232 Mass. 412, 424 (1919). Oehme v. Whittemore-Wright Co., 279 Mass. 558, 565-566 (1932). Bryer v. P.S. Thorsen Co., 327 Mass. 684, 686-687 (1951). Commonwealth v. Hollyer, 8 Mass. App. Ct. 428, 432 (1979).
Judgment affirmed.
In this opinion “the plaintiff” will be used to refer to plaintiff James M. Burke.
The trial judge himself initiated a series of questions to the witness, all of which were directed to the establishment of the preliminary facts for admissibility of a business record under G. L. c. 233, § 78.
Each form provided for evaluation by the supervisor and evaluation by the employee in six categories — productivity, quality of work, dependability, self-development, development of others, and leadership. Each category contained five boxes to indicate the employee’s rating, from “clearly in need of overall improvement” to “clearly exceeds the normal standard for that position.” The supervisor’s form also provided for an explanatory statement; the employee’s form did not.
The required preliminary findings are that the entry was made (1) in good faith (2) in the regular course of business (3) before the beginning of the proceeding and (4) that it was in the usual course of business to make the entry at the time of the event or within a reasonable time thereafter.
The admission of the forms prepared by the supervisor before January, 1978, would not amount to reversible error because they were duplicative of the plaintiffs evidence that he functioned well in his job.