Petrocelli v. Gallison

After Dr. Davis Gallison (defendant) performed a hernia surgery on James Petrocelli (plaintiff), James began suffering from intense pain in his groin area, as a result of which he consulted with Dr. Swartz, who determined that the hernia had reoccurred. Dr. Swartz performed a second surgery to correct the hernia, but the pain persisted and James had to undergo a third surgery. James and his wife, Beverly Petrocelli (plaintiff), sued Gallison for malpractice alleging that Gallison had severed James’ ilioinguinal nerve. Beverly testified that Gallison told her that James was suffering from pain after the first surgery because he had severed a nerve, but Gallison testified that he had not severed a nerve and denied telling Beverly that he had severed a nerve. Additionally, conflicting expert testimony was offered by both sides regarding whether the nerve was severed, damaged or intact. The court excluded however, two statements contained in James’ medical records. The first appeared in Dr. Swartz’s report under the caption, “Indications,” and stated in reference to the first surgery performed by Gallison, “During the course of that surgical procedure, the left ilioinguinal nerve was severed.” The second excluded sentence appeared in a physician’s report in the surgical clinic after the second surgery and stated, “Hernia well healed but very worried about pain from transected ilio femoral nerve.” The jury returned a verdict for Gallison and the Petrocellis appealed, asserting that the excluded statements were admissible hearsay under the business records exception in Federal Rule of Evidence (FRE) 803(6).