Court Orders New Trial to Include Testimony on Student's Statements about Cause of Surgical Injury

In a case in which a patient alleged that she suffered sciatic nerve injury during surgery, the Supreme Judicial Court of Massachusetts has held that the trial court must admit into evidence the patient's testimony that a medical student told her he may have leaned on her leg during surgery. During a deposition, the medical student testified that he did not remember whether he leaned on the patient's leg during surgery and did not remember any discussion with the patient about him leaning on her leg. In deciding the case, the state supreme court adopted a rule that would allow hearsay to be admitted if the person who made the statement testified that they did not remember the events in question. The state supreme court vacated a jury verdict in favor of the surgeon who performed the procedure and remanded the case for a new trial.

The surgeon performed a vaginal hysterectomy on the patient, assisted by a third-year resident and a third-year medical student. Right after the surgery, the patient reported pain, tingling, and numbness in her left leg and foot. The day after surgery, the patient told the medical student that she had experienced horrible leg pain the previous night. The medical student responded, "I am awfully sorry, we had a hard time positioning that leg." He told the patient he had been holding the retractors and may have been leaning against her left leg. A neurology consultation determined that the cause was likely sciatic nerve...