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Under Massachusetts Law an Unavailable Witness’s Deposition Testimony Can Be Used at Trial

Under Massachusetts law, hearsay is not admissible testimony at a trial. There are exceptions to this rule, however, which allow certain testimony that is considered hearsay to be admitted. The Appeals Court of Massachusetts recently held in Hasouris v. Sorour, a medical malpractice action, that a witness’s deposition testimony can be used at a trial under the prior recorded testimony to the rule against hearsay, due to the witness’s refusal to testify. If you or a loved one suffered injuries due to medical malpractice, you should retain a personal injury attorney seasoned in handling Massachusetts medical malpractice cases to pursue your claim, to ensure all relevant testimony and evidence that will support your case is obtained and preserved.

In Hasouris, Plaintiff sued Defendants for medical malpractice and wrongful death, alleging negligent medical care provided by physicians during Plaintiff’s wife’s knee replacement surgery, which resulted in pain and suffering and Plaintiff’s wife’s ultimate death. A Doctor involved in Plaintiff’s wife’s care was deposed. The Doctor was then indicted for Medicare fraud. Doctor filed a motion to stay and bifurcate the trial and set forth his intent not to testify at the trial by invoking his privilege against self-incrimination. His motion was denied. A Second Doctor filed a notice of his intent to use Doctor’s deposition testimony at trial, due to Doctor’s unavailability, arguing that it fell under the prior recorded testimony exception to the rule prohibiting hearsay. Doctor settled prior to trial, and stated he would not appear at the trial. The judge advised the parties if Doctor did not appear at trial he would admit Doctor’s deposition testimony. Plaintiff made objections to certain portions of the deposition transcript, which were sustained in part. A jury found in favor of Second Doctor, and Plaintiff filed a motion for a new trial. The judge denied Plaintiff’s motion and Plaintiff appealed.

On appeal, Plaintiff argued the judge erred in admitting Doctor’s deposition testimony. The court noted the trial court judge relied on the exception to the rule against hearsay that permitted prior recorded testimony of a witness that is unavailable to be admitted into evidence. The court noted that the issue in the subject case was whether the witness was truly unavailable due to his refusal to testify by invoking his right against self-incrimination. The court noted a witness asserting the right against self-incrimination cannot be forced to testify unless it can be proven the testimony will not be incriminating. In analyzing whether the testimony sought will be incriminating, the court must consider what information will be sought and whether the answers may incriminate the witness. This inquiry was not done in the subject case but the court found the invocation of the right to be valid regardless. Further, the court noted that the deposition testimony was admissible under the Massachusetts Rules of Civil Procedure, because Doctor’s attendance could not be procured for the trial, due to his refusal to comply with a subpoena to attend. As such, the court affirmed the trial court ruling.

Medical malpractice cases are complex and the medical providers you are up against may try to avoid liability through a variety of tactics.  If you or a loved one were injured due to medical malpractice it is in your best interest to retain an experienced personal injury attorney as soon as possible. The personal injury attorneys of Karsner & Meehan have the skills and experience to help injured parties recover compensation for their injuries. We work diligently to assist our clients in recovering the damages they are owed. For a free, confidential consultation, contact our office at 508-822-6600.

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