KAILEIGH N. BRUSARD & another [Note 1] vs. TERENCE J. O'TOOLE

MARSHALL, J. Kelly L. Brusard (Brusard) brought this medical malpractice action on behalf of herself and her now nine year old daughter, Kaileigh, against obstetrician Terence J. O'Toole alleging that Dr. O'Toole's malpractice resulted in severe neurological brain injury to Kaileigh. At issue on appeal is an evidentiary ruling by the trial judge excluding from evidence a

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chart contained in a medical treatise, but prepared by someone other than the author of the treatise.

Brusard commenced her action in December, 1992. In November, 1995, after a seven-day jury trial, the jury returned a verdict in favor of Dr. O'Toole. The judge denied Brusard's motion for a new trial. She took an appeal from the judgment and the denial of the motion for a new trial claiming error (1) in the judge's exclusion of the medical chart for the purpose of cross-examining defense expert witnesses pursuant to Proposed Mass. R. Evid. 803 (18), adopted by Commonwealth v. Sneed, 413 Mass. 387, 396 (1992); and (2) in his refusal to admit the chart under G. L. c. 233, s. 79C. Brusard also alleged error in the judge's exclusion of Brockton Hospital's written policies and procedures in effect at the time of Kaileigh's birth. The Appeals Court reversed the judgment and ordered a new trial, concluding that it was error to exclude the medical treatise evidence for the purpose of cross-examining defense witnesses. Brusard v. O'Toole, 45 Mass. App. Ct. 288, 290-294 (1998). We granted Dr. O'Toole's application for further appellate review. We vacate the judgment and remand this case to the Superior Court for a new trial.

I

Brusard became a patient of Dr. O'Toole's approximately ten weeks into this, her first, pregnancy. Dr. O'Toole treated her throughout the course of her pregnancy. Brusard was twenty-one years old at the time, and her pregnancy was uneventful prior to her delivery. Her estimated date for delivery was April 13, 1990. On April 18, 1990, because Brusard was one week past her estimated due date, Dr. O'Toole ordered an oxytocin challenge test to assess the well-being of the fetus [Note 2]. The results were normal. On April 21, 1000, when Drusard still had not delivered her baby, Dr. O'Toole ordered a second oxytocin challenge test. The results again were normal. A biophysical profile,

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another test to assess the health of the fetus, was performed the following day at approximately 11 A.m [Note 3]. The biophysical profile indicated a "flunking" score of two out of a possible eight, and showed that the fetus had a "[l]ack of movement, lack of breathing effort and lack of tone." The amniotic fluid level was normal. Brusard was admitted to Brockton Hospital at 12:10 P.m., in active labor. The electronic monitoring of the fetus commenced by the nursing staff indicated minimal fetal activity.

When Brusard was admitted, Dr. O'Toole was seeing patients at another facility and did not arrive at Brockton Hospital until 2:10 P.m. He determined then that Brusard was "in quite active labor" and "decided to watch her closely as long as she was in labor to see what happened." The record indicates that Dr. O'Toole was not on site at the hospital from approximately 2:45 P.m. until 7:30 P.m. At 5:34 P.m., the fetal heart rate dropped precipitously for several minutes. The labor nurse called Dr. O'Toole, who ordered preparation of Brusard for a caesarian section. Brusard's labor progressed normally during this period of time, and the caesarian section was not performed after the fetal heart rate rebounded.

Dr. O'Toole next examined Brusard at 7:30 P.m. At 8:45 P.m., he concluded that Brusard's labor had failed to progress and that a caesarian section was necessary. He delivered Kaileigh by caesarian section at 9:45 P.m. Kaileigh required resuscitation and intubation, and was unable to breathe on her own for five minutes after her birth. She was transferred to Boston Children's Hospital where she was treated for birth asphyxia (oxygen deprivation). From birth, Kaileigh has suffered from a serious seizure disorder, behavior problems with attention deficithyperactivity disorder, speech difficulties, and motor coordination difficulties of both upper and lower extremities which will "persio for the remainder of her normal life expectancy."

Brusard's theory at trial was that the poor score on the biophysical profile indicated that the fetus was suffering from asphyxia, mandating immediate delivery. Through the expert testimony of an obstetrician- gynecologist and a pediatric

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neurologist, she sought to establish that the fetus had suffered a major insult at some point after the second oxytocin challenge test showed normal results. Her expert pediatric neurologist testified that, in his opinion, Kaileigh had suffered three strokes as a result of blood clots blocking arteries in her brain, one of which occurred at 5:34 P.m. when the fetal heart rate dropped so dramatically, and that a lack of oxygen in the brain, a drop in the fetal blood pressure, and blood clots that formed in the brain caused the strokes. In his opinion, "the bulk of the damAge to this brain occurred in the last ten hours of [Ms. Brusard]'s labor and particularly in the last six hours of the labor," i.e., after the biophysical profile was performed. He opined that, by waiting until 9:45 P.m. to deliver Kaileigh, Dr. O'Toole's treatment fell below the accepted standards of care and caused Kaileigh's brain injury.

Dr. O'Toole proffered an alternative theory. Through the expert testimony of an obstetrician-gynecologist, pathologist, and pediatric neurologist, he sought to establish that the stroke that caused Kaileigh's brain injury had occurred prior to the time of the biophysical profile, and that the low profile score reflected the stroke, not fetal asphyxia. His theory was that multiple emboli [Note 4], blood clots that originated in the umbilical cord, traveled through Kaileigh's body and ultimately lodged in the arteries of her brain, causing the stroke. His expert pediatric neurologist testified that, based on the positive results of the second oxytocin challenge test and the poor results of the biophysical profile, it was his opinion that the stroke had occurred between the two tests, that is before the biophysical profile was performed. He opined that Kaileigh's outcome would have been no different had she been delivered immediately after Dr. O'Toole obtained the results of the biophysical profile.

II

The critical points of contention were whether fetal asphyxia had caused Kaileigh's stroke (or strokes) and resulting brain

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injury, whether the biophysical profile score indicated fetal asphyxia, and whether Dr. O'Toole should have delivered Kaileigh immediately upon learning the results of the biophysical profile. Brusard sought to introduce in evidence a chart on biophysical profiles taken from the 1993 edition of a medical text, Williams, Obstetrics (19th ed. 1993). The chart contains three columns: one entitled "Biophysical Profile Score," the second entitled "Interpretation," and the third entitled "Recommended Management." According to the chart, a biophysical profile score of "0-2" (column one), the range in which Kaileigh's score fell, corresponds to an interpretation of "Almost certain fetal asphyxia" (column two) and a recommended management of "Deliver" (column three). The chart was authored by and credited in the Williams text to "Manning and colleagues (1987), with permission." The judge excluded the entire chart from admission in evidence under G. L. c. 233, s. 79C. Relying on Proposed Mass. R. Evid. 803 (18), the judge allowed Brusard to cross-examine certain defense witnesses with the information contained in columns one and three only.

A

Proposed Mass. R. Evid. 803 (18), which we adopted in Commonwealth v. Sneed, 413 Mass. 387, 396 (1992), provides in relevant part:

"The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . .

"(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established ag a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. if admitted, the statements may be read into evidence but may not be received as exhibits [Note 5]."

The question is whether the language "established as a reliable

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authority" modifies "statement" (here, the chart), as Dr. O'Toole argues, or "treatise," as Brusard contends. Under the rule, an opponent of the expert witness seeking to use a statement of another incorporated in a treatise must establish that the treatise itself, and not the statement (or chart) contained therein, is "a reliable authority."

When we adopted proposed rule 803 (18) in Commonwealth v. Sneed, supra at 396, we stated:

"Proposed rule 803 (18) requires that an opponent of the expert witness bring to the witness's attention a specific statement in a treatise that has been established, to the judge's satisfaction, as a reliable authority. The witness should be given a fair opportunity to assess the statement in context and to comment on it, either during crossexamination or on redirect examination. The judge, of course, will have to determine the relevance and materiality of the statement and should consider carefully any claimed unfairness or confusion that admission of the statement may create." (Emphasis added.)

We also said:

"We see potential benefit, and little risk of harm, in adopting the proposed Massachusetts rule of evidence, which permits a party challenging an expert's opinion to interrogate that expert about a relevant, divergent opinion expressed in a reputable book. See Reilly v. Pinkus, 338 U.S. 269, 275 (1949). Admission in evidence of a statement from a treatise of the kind referred to in proposed rule 803 (18), whose authenticity and reliability are shown, which was not written for use in litigation, and which expresses an expert opinion on a subject relevant to the case on trial, will tend to enhance, rather than detract from, the truth-finding function" (emphasis added).

Id. We think it a logical reading of the language both of the rule and of our decision in that case, that the rule contemplates that an authored treatise, and not the statements contained therein,

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must be established as a reliable authority. See W.G. Young, J.R. Pollets, & C. Poreda, Evidence s. 803.18, at 188 (1998) ("party seeking to admit the learned treatise [on crossexamination] must first lay a foundation that the treatise is a reliable authority").

The defendant relies on cases addressing the admissibility of articles published in journals under the cognate Fed. R. Evid. 803 (18) to support his contention that a plaintiff must establish the chart, and not the treatise, as reliable authority. Twin City Fire Ins. Co. v. Country Mut. Ins. Co., 23 F.3d 1175, 1184 (7th Cir. 1994) (author of particular article must be shown to be an authority); Meschino v. North Am. Drager, Inc., 841 F.2d 429, 434 (1st Cir. 1988) (must show article itself to be reliable authority). This reliance is misplaced. The circumstances in which a treatise author incorporates the materials of others into his or her own work are very different from those in which a journal editor publishes articles authored by others, or in which an editor assembles chapters authored by others in a compendium. That the author of a treatise, established as a reliable authority, incorporates or relies on information attributable to others in his or her own work, published under his or her own name, is sufficient to vouch for the reliability of the material contained therein [Note 6]. We presume that, when writing a treatise, an author includes material he or she believes to be authoritative or illustrative. In the context of a journal or periodical, however,

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"[i]n these days of quantified research, and pressure to publish, an article does not reach the dignity of a 'reliable authority' merely because some editor, even a most reputable one, sees fit to circulate it." Meschino, v. North Am. Drager, Inc., supra at 434 [Note 7] A party seeking to introduce a statement contained in an authored treatise, as distinguished from an edited compendium, journal, or periodical, for the purpose of cross-examination under proposed rule 803 (18), must establish that the treatise, not the statement itself, is a reliable authority [Note 8].

The extent to which the text makes clear that the author either disavows the material, or that it is plainly irrelevant to the subject of the treatise, is the proper subject matter of the expert's redirect examination, once admitted. In this case, Dr. O'Toole's objections to the context and meaning of the chart may be addressed by "a fair opportunity to assess the statement in context and to comment on it, either during cross-examination or on redirect examination." Sneed, supra at 396.

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The judge in this case properly evaluated the reliability of the treatise, as opposed to the chart itself, when deciding whether the chart was admissible for use on cross-examination pursuant to proposed rule 803 (18). We agree with the Appeals Court's conclusion that, based on his ruling, it is "reasonable to infer from his decision to permit use of two-thirds of the chart that the judge considered the text Williams on Obstetrics to be 'a reliable authority [Note 9]."' Brusard v. O'Toole, 45 Mass. App. Ct. 288, 291 (1998). No apparent reason exists for excluding only one of the three columns [Note 10]. Had the judge determined that the treatise was not a reliable authority, we presume he would not have allowed Brusard to use any aspect of the chart on crossexamination. The exclusion of column two for the purposes of cross-examination pursuant to proposed rule 803 (18) was error.

B

The judge excluded the chart from evidence under G. L. c. 233, s. 79C, which provides:

"Statements of facts or opinions on a subject of science or art contained in a published treatise, periodical, book or pamphlet shall, in so far as the court shall find that the said statements are relevant and that the writer of such statements is recognized in his profession or calling as an expert on the subject, be admissible in actions of . . . tort for malpractice . . . . "

In affirming the judge's exclusion of the chart under G. L. c. 233, s. 79C, the Appeals Court focused on whether the plaintiffs had established that "Manning and colleagues" are recognized as experts in their profession, relying on the statutory phrase "the writer of such statements is recognized in his

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profession . . . as an expert on the subject," Brusard v. O'Toole, supra at 294-295 (emphasis added), concluding that the "writer" of the chart in question was "Manning and colleagues," not the authors of the Williams treatise [Note 11].

When determining the admissibility of a published treatise under G.L. c. 233, s. 79C, we interpret the "writer of such statements" to mean the treatise author, not the author of each individual item incorporated into the treatise text. There is nothing to suggest that G. L. c. 233, s. 79C, contemplates a reliability analysis different from proposed rule 803 (18). Our discussion regarding the difference between the reliability of an authored treatise and a periodical published by an editor in the context of proposed rule 803 (18) is equally applicable in the context of G. L. c. 233, s. 79C. In our view, the "writer" of a statement contained in an authored treatise is the author of the treatise, and the "writer" of a statement contained in a periodical or similarly edited publication is the author of the specific article in which the statement is contained [Note 12]. The exclusion of the chart, to the extent that the judge based his ruling on Brusard's failure to lay a proper foundation regarding "Manning and colleagues," was error [Note 13].

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C

We have no difficulty concluding that these errors were prejudicial to Brusard. The critical issues at trial were whether Dr. O'Toole complied with the standard of care in treating Kaileigh and whether fetal asphyxia, as the plaintiffs contended, or emboli, as the defense argued, caused Kaileigh's stroke or strokes. As the Appeals Court correctly discussed at greater length, Brusard v. O'Toole, supra at 292-294, we cannot "say with substantial confidence that the error would not have made a material difference." DeJesus v. Yogel, 404 Mass. 44, 49 (1989). The opportunity to cross-examine the defense experts as to their opinions, in light of the chart, that Dr. O'Toole complied with the relevant standard of care and that emboli, not asphyxia, caused Kaileigh's strokes may well have changed the jury's evaluation of the experts' testimony.

The defendant argues, however, that in any event the chart contained in the 1993 edition of Williams, Obstetrics, was irrelevant to the standard of care to which he was held in 1990, and that any error caused by its exclusion was harmless for that reason. We disagree. A physician is held to the "standard of care and skill of the average member of the medical profession practicing his specialty" at the time of the alleged negligence. Stepakoff v. Kantar, 393 Mass. 836, 841 (1985). Defense experts cannot be cross-examined about discoveries or other knowledge developed after the acts complained of. But in the circumstances here, they were not required to do so. As noted in the 1993 edition, the chart at issue was published in the American Journal of Obstetrics and Gynecology in 1987, three years prior to the defendant's alleged negligence. Williams, Obstetrics 1043 (19th A 1993). The same chart is contained in the earlier 1989 edition of Williams, Obstetrics. Compare Williams, Obstetrics Table 45-4, at 1040 (19th ed. 1993), with Williams, Obstetrics Table 15-4, at 294 (18th ed. 1989). Even if the chart had not been contained in the 1989 edition, the information contained in the chart printed in the 1993 edition was relevant to the opinion of the defense experts, rendered at trial in 1995, regarding whether fetal asphyxia caused Kaileigh's brain injury.

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D

We agree with the reasoning and conclusion of the Appeals Court that Brockton Hospital's written policies and procedures constitute inadmissible hearsay and did not come under any exception. Brusard v. O'Toole, supra at 295. The judge properly excluded this evidence.

The judgment is vacated and the case is remanded to the Superior Court for a new trial.

So ordered.