Opinion
C.A. No. 05C-02-031 WLW.
Submitted: June 15, 2007.
Decided: June 20, 2007.
Upon Defendant Nanticoke Surgical Associates, P.A.'s Motion for Reargument. Denied.
William D. Fletcher, Jr., Esquire of Schmittinger Rodriguez, P.A., Dover, Delaware; attorneys for the Plaintiffs.
Dennis D. Ferri, Esquire of Morris James LLP, Wilmington, Delaware; attorneys for the Defendants.
ORDER
Defendant Nanticoke Surgical Associates, P.A. ("Nanticoke Surgical") filed a Motion for Reargument concerning the Court's May 25, 2007 Order denying the Defendant's Motion for Summary Judgment. Plaintiffs' expert, Dr. Elliot R. Goodman, opined that given the condition of Paige Henry ("the Decedent" or "Mr. Henry") and the content of the communication that was sent to Dr. Miller's pager, the appropriate standard of care required the treating physician(s) to direct Mr. Henry to report immediately to the hospital emergency department or the treating physician's office for evaluation. Dr. Goodman further opined that it would be a breach of the standard of care for the physician to fail to respond promptly to the communication.
The following message was sent to Dr. Miller's pager by a Redi-Call operator: "PAGE HENRY AT [PHONE NUMBER] / MAJOR GAS PROBLEM / JUST RELEASED LAST NIGHT." The message included Mr. Henry's home phone number, which the Court intentionally excluded.
Dr. Goodman's Affidavit, dated October 5, 2006, at Paragraph 5(A).
Id. at Paragraph 5(B).
The Court determined that it could not find as a matter of law for Nanticoke Surgical, because the record was unclear whether anyone from Nanticoke Surgical contacted Mr. Henry in response to receiving the communication or whether anyone directed Mr. Henry to go to the hospital or physician's office after receiving the message. In denying the Motion for Summary Judgment, the Court concluded that it would be more desirable to inquire more thoroughly into the facts, and that a jury may be able to conclude that the Defendant breached the applicable standard of care.
Nanticoke Surgical now argues, for the first time, that the communication sent to Dr. Miller's pager is not a statement under D.R.E. 801(a). The Defendant further argues that the message is a summary interpretation of a purported conversation between Mr. Henry and a Redi-Call operator, and "the fact that the summary interpretation is reduced to writing does not prevent it from being hearsay, since hearsay can be either oral or written."
Plaintiffs contend that the Defendant's new argument should not be considered by the Court, because the Defendant is raising the argument for the first time in its Motion for Reargument. Based on the Court's substantive ruling, Plaintiffs' argument on this issue does not need to be addressed.
Nanticoke Surgical's Motion for Reargument at Paragraph 2.
Discussion
The Court previously found, for the purposes of Summary Judgment, that Mr. Henry used his home phone on March 8, 2003 to contact the work related private phone number that was assigned to Dr. Miller, the on-call physician. Dr. Miller's private phone number was distributed to the Decedent with his discharge papers. When Mr. Henry made the phone call to Dr. Miller's private number, the phone call was received by a Redi-Call communications operator. An employee of Redi-Call communicated with Mr. Henry for thirty-six (36) seconds during the phone call.Following the conclusion of the phone call, the Redi-Call employee transmitted a message to Dr. Miller's pager, which summarized the substance of the employee's conversation with Mr. Henry. The message read as follows: "PAGE HENRY AT [PHONE NUMBER] / MAJOR GAS PROBLEM / JUST RELEASED LAST NIGHT." The message was transmitted to Dr. Miller's pager at 5:34 p.m. on Saturday, March 8, 2003.
This was the procedure Redi-Call followed in relaying messages to Doctors.
As stated earlier, Mr. Henry's home phone number was in the message delivered to Dr. Miller, but the Court intentionally excluded the number.
Based on the facts set forth above, the Court determined that Summary Judgment could not be granted in favor of the Defendant. Plaintiffs' expert, Dr. Goodwin, testified that it would be a breach of the standard of care if a physician failed to direct Mr. Henry to go to the hospital or the physician's office in response to receiving the communication that was sent to Dr. Miller's pager. Further, Dr. Goodwin opined that it would be a breach of the standard of care for the physician to fail to respond promptly to the communication. Therefore, the Defendant's focus on the purported conversation in its Reargument Motion is misplaced, because it is the communication that was sent to Dr. Miller's pager, itself, that is relevant.
Nanticoke Surgical's arguments in the present Motion appear contradictory. First, the Defendant argues that the message, "PAGE HENRY AT [PHONE NUMBER] / MAJOR GAS PROBLEM / JUST RELEASED LAST NIGHT," is not a "statement" under 801(a). Hearsay by definition is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Thus, if the message is not a statement (as the Defendant articulates), then the message cannot be hearsay (and is admissible). However, the Defendant goes on to argue that "the fact that the summary interpretation of the purported conversation between Mr. Henry and the Redi-Call operator. . . is reduced to writing does not prevent it from being hearsay, since hearsay can be either oral or written." It appears that Nanticoke Surgical changed its position when it argued that the message, which is the summary interpretation of the purported conversation, is hearsay.
D.R.E. 801(a) provides: "Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion."
D.R.E. 801(c). (emphasis added).
For the purposes of this Motion the Court will assume that the written communication sent to Dr. Miller's pager is a "statement" under the Hearsay Definitions (D.R.E. 801(a)). The Court finds that the message, "PAGE HENRY AT [PHONE NUMBER] / MAJOR GAS PROBLEM / JUST RELEASED LAST NIGHT," is not hearsay, because the statement is not being offered to prove the truth of the matter asserted. The message is not being offered to prove that Page Henry had major gas problems nor that Mr. Henry was released the night prior to the date the message was sent. The message is being offered to show that it (the message) was sent from Redi-Call to Dr. Miller. Dr. Goodwin based his expert opinions on the message itself, and not on the purported conversation that took place.
"A statement is not hearsay if offered only to prove that the statement was made, rather than for the truth of the matter asserted." The message that Redi-Call sent to Dr. Miller's pager in the case sub judice is being offered only to prove that the message was sent (or that the statement was made). Plaintiffs offer the message in evidence only to show that Dr. Miller received the message from Redi-Call. Consequently, the statement is not hearsay, and the message is admissible.
Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co., 866 A.2d 1, 21 (Del.Supr. 2005) citing D.R.E. 801(c); Fawcett v. State, 697 A.2d 385, 387 (Del. 1997).
Plaintiffs contend that the Defendant breached the standard of care in its response/non-response to the message.
Assuming arguendo that Plaintiffs planned to offer the communication sent to Dr. Miller's pager to prove the truth of the matter asserted (that the Decedent had major gas pains), the communication is admissible as an exception to hearsay under the D.R.E. 803(6) ("the business record exception"). The business records exception to the hearsay rule provides for the admission of: a memorandum, report, record or data compilation, in any form, of acts events conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, . . ., unless the source of the information or the method or circumstances or preparation indicate lack of trustworthiness.
Trawick v. State, 845 A.2d 505, 508 (Del.Supr. 2004) citing D.R.E. 803(6).
One of the business functions of Redi-Call is to receive phone calls from patients, and in turn, relay the substance of those conversations to the pagers of the relevant Physician. Redi-Call's systems take detailed records of incoming calls, outgoing messages, etc. These records evidence the incoming call from the Decedent, and the outgoing transmission to Dr. Miller's Pager, which read "PAGE HENRY AT [PHONE NUMBER] / MAJOR GAS PROBLEM / JUST RELEASED LAST NIGHT." The records pertaining to the phone call and transmission, including the record of the communication itself, are kept in the course of Redi-Call's regularly conducted business activity, which is adequately testified to by a qualified expert, Ms. Heck (an employee of Redi-Call). Further, the preparation of Redi-Call's business records do not indicate a lack of trustworthiness. Therefore, if Plaintiffs' offer the communication to prove the truth of the matter asserted, the business records of Redi-Call would be admissible as exception to hearsay under D.R.E. 803(6). Based on the foregoing, Defendant Nanticoke Surgical's Motion for Reargument is denied.
Redi-Call has been performing this function for Nanticoke Surgical since 1985.
Ms. Heck, a Redi-Call employee who is intimately familiar with Redi-Call operations, testified about Redi-Call's procedure and the records that are made when a patient calls Redi-Call.
IT IS SO ORDERED.