## Facts

- Dr. Davis T. Gallison performed a left inguinal hernia repair on James E. Petrocelli, Sr. on March 18, 1975.
- Petrocelli reported severe, persistent groin pain after the surgery and later underwent additional hernia surgery and other procedures aimed at reducing pain by deadening nerves.
- The malpractice theory was that Gallison negligently severed Petrocelli’s ilioinguinal nerve during the first operation.
- Beverly Petrocelli testified that, when she called Gallison about her husband’s pain, Gallison said he could prescribe Darvon but it would not help “because I cut a nerve.”
- Plaintiffs offered expert testimony (from a non-treating physician who reviewed records) opining that Petrocelli’s ilioinguinal nerve had been injured or traumatized.
- Plaintiffs sought to admit two Massachusetts General Hospital record notations stating, in substance, that the ilioinguinal/iliofemoral nerve was severed or transected.
- The trial court excluded the two notations as hearsay because the source and basis for the statements were unclear.
- The jury returned a defense verdict, and plaintiffs appealed the evidentiary ruling.

## Issues

1. Whether the two hospital-record notations were admissible under the business-records exception, Federal Rule of Evidence 803(6).
2. Whether the notations were admissible as statements for purposes of medical diagnosis or treatment under Federal Rule of Evidence 803(4), or as treating physicians’ diagnostic conclusions rather than patient history.
3. Whether excluding the notations was an abuse of discretion requiring reversal of the defense verdict.

## Decision

- The First Circuit affirmed the judgment for Dr. Gallison.
- The court held the trial judge did not abuse discretion in excluding the two notations.
- The court found the entries’ origin was uncertain: they could have been independent physician assessments or merely unverified repetition of what the patient or his wife reported.
- Because plaintiffs did not establish a reliable foundation identifying the declarant and basis for the “severed/transected nerve” statements, the trial court could deem the entries insufficiently trustworthy under Rule 803(6).
- The court declined to second-guess the trial judge’s trustworthiness assessment, particularly given the deferential standard governing Rule 803(6) rulings.

## Legal Principles

- Hospital records may qualify as business records under FRE 803(6), but individual statements within them are not automatically admissible.
- FRE 803(6) requires that recorded information be supplied by a person with knowledge and that the source, method, or circumstances not indicate lack of trustworthiness; ambiguous sourcing can defeat admissibility.
- When a medical-record entry may reflect patient history rather than a medical professional’s verified observation or conclusion, a court may exclude it as unreliable hearsay within hearsay absent an adequate foundation.
- Even when a patient’s account could be admissible under FRE 803(4), the proponent must still establish that the particular record entry offered in evidence satisfies applicable reliability requirements (including trustworthiness concerns under FRE 803(6)).
- Appellate review of Rule 803(6) admissibility determinations is deferential; reversal generally requires a showing of abuse of discretion.

## Conclusion

The court upheld a defense verdict in a malpractice action after concluding that two medical-record notations asserting a severed or transected nerve were properly excluded because plaintiffs failed to show the statements were trustworthy, physician-based conclusions rather than unverified patient-reported history, and the trial judge’s reliability determination under FRE 803(6) fell within permissible discretion.


Petrocelli v. Gallison, 679 F.2d 286 (1st Cir. 1982)