Leroy E. Brookover, Father and Guardian of Ronald Brookover v. Mary Hitchcock Memorial Hospital

893 F.2d 411, 29 Fed. R. Serv. 391, 1990 U.S. App. LEXIS 295, 1990 WL 828
CourtCourt of Appeals for the First Circuit
DecidedJanuary 9, 1990
Docket89-1340
StatusPublished
Cited by34 cases

This text of 893 F.2d 411 (Leroy E. Brookover, Father and Guardian of Ronald Brookover v. Mary Hitchcock Memorial Hospital) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leroy E. Brookover, Father and Guardian of Ronald Brookover v. Mary Hitchcock Memorial Hospital, 893 F.2d 411, 29 Fed. R. Serv. 391, 1990 U.S. App. LEXIS 295, 1990 WL 828 (1st Cir. 1990).

Opinions

BOWNES, Circuit Judge.

Defendant-appellant Mary Hitchcock Memorial Hospital (Hospital) appeals from a jury verdict holding it liable in this diversity jurisdiction medical malpractice case. The case arose from a fall by a patient, Ronald Brookover (Ronald), in his room at the Hospital. Plaintiff-appellee Leroy E. Brookover is the parent and guardian of Ronald Brookover. There are two issues on appeal: the admission of statements under Fed.R.Evid. 801(d)(2)(D); and the admission of statements under Fed.R.Evid. 804(b)(5).

I. The Facts

The basic facts are uncontested. Ronald was age 36 at the time of the accident. When he was nine years old he was in an automobile accident and incurred injuries resulting in periodic epileptic seizures. As Ronald grew older his seizures became more severe and more difficult to control. These seizures included grand mal seizures that caused Ronald to convulse violently and lose consciousness and akinetic seizures that caused him to drop uncontrollably to the floor. Both types of seizures caused Ronald to fall on numerous occasions and resulted in injuries that included [413]*413two fractured ankles, broken teeth and various bruises. Ronald is also mentally retarded.

After trying various methods to improve Ronald’s condition, the Brookovers finally decided to try a corpus callosotomy, a surgical procedure in which the left and right hemispheres of the brain are separated. If successful, the operation reduces epileptic seizures significantly. The procedure requires two phases: the first is a partial dissection, the second phase completes the separation of the brain hemispheres.

Ronald was admitted to the Hospital in April of 1983 for the first phase of the corpus callosotomy. Ronald responded well to the first phase of the operation and returned to the Hospital in November of 1983 for the second phase. The operation was performed on November 10, 1983. On November 13, Ronald, who was not physically restrained, got out of his bed to go to the bathroom and fell, breaking his hip. Prior to getting out of bed Ronald had pressed his call bell for assistance, but no one came immediately.

A medical malpractice suit was brought by plaintiff for the injuries suffered by Ronald as a result of the fall. At trial there were two basic issues: whether the Hospital was negligent in not restraining Ronald to prevent him from getting out of bed; and, whether the Hospital’s response time to Ronald’s call for assistance was unreasonably slow.

II. Nurses’ Statements to Plaintiff

In order to prove that the hospital should have used a bed restraint, Mr. Brookover sought to testify about conversations that he had at the hospital after the fall with nurses. The nurses told him that Ronald should have been restrained to prevent him from getting out of bed. Plaintiff sought to have the statements admitted as vicarious admissions under Fed.R.Evid. 801(d)(2)(D) which provides:

A statement is not hearsay if.... Th[e] statement is offered against a party and is.... (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.

After considerable discussion, the district court allowed the plaintiff to testify about the conversations.1 Defendant assigns error to the admission of these statements on two grounds: that there was no proof that the nurses who spoke to plaintiff were employees of the Hospital; and, that the nurses lacked personal knowledge of the events about which they commented.2

A. Waiver of the Agency-Employee Objection.

In order for a vicarious admission to be allowed in evidence under the under Rule 801(d)(2)(D) the person making the admission must be an agent or employee of the party against whom it is being offered. There was no proof here that the nurses with whom plaintiff spoke were employees of the Hospital. If an objection on that ground had been made in the trial court, it should have been upheld. Defendant’s protestations notwithstanding, we have been unable to find any objection in the record based on a failure to prove that the nurses were employees of the Hospital.

We set forth the objections made in detail. The first objection was stated as follows:

Your honor, in order to meet that predicate, that necessity under 801(d)(2)(D), it has to be relating to a matter within the scope of that particular agency. Now this, in this particular case I think that the testimony will demonstrate that this [414]*414nurse didn’t have any personal knowledge of the events that took place during the previous evening and for that reason it doesn’t fall within the scope of 801(d)(2)(D).

No mention was made of the nurse’s status relative to the Hospital.

Defendant’s second objection was in greater detail:

Your Honor, our position is the same position that we articulated to the Court before, which is in order for this, these statements to come in they must have been made by nurses who had some personal knowledge regarding the circumstances regarding the fall. Mrs. Brook-over’s testimony and I’m sure that Mr. Brookover’s testimony will be the same in the sense that these were statements made by nurses, if they were made at all, by nurses who were not employed during the evening shift and had no personal knowledge regarding the circumstances surrounding Ron Brookover’s fall.
Under those circumstances in light of the fact that these nurses don’t have any personal knowledge and that they’re unidentifiable, that doesn’t make it admissible. The rule of the case established thus far by your Honor’s evidentiary rulings is that this type of evidence is inadmissible because they don’t have personal knowledge.

We think the district court judge would take this statement as an objection based on lack of personal knowledge by the nurses.

Defendant restated its position:
And our position is in light of the fact that they weren’t employed during the evening that criticism, because they can’t be identified, does not fall within the ambit of the rule that Brother Felmly cites. It’s clearly hearsay. It’s being offered for the truth of the matter asserted and it does not fall within the ambit of an admission by a party opponent.

This objection was broader and more ambiguous than the first two and it conceivably could be argued that it covered both status and personal knowledge. Whatever foundation this objection might have had on the question of agency-employee, however, was completely eroded by defendant’s final statement of his objection to the testimony of the plaintiff as to what the nurses had stated:

Your Honor, I’ll stand on my comments with regards to this particular issue as it was raised with regards to Dorris Brook-over, because we believe that the factual circumstances regarding Mr.

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Bluebook (online)
893 F.2d 411, 29 Fed. R. Serv. 391, 1990 U.S. App. LEXIS 295, 1990 WL 828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leroy-e-brookover-father-and-guardian-of-ronald-brookover-v-mary-ca1-1990.