Commonwealth v. Palacios

90 Mass.App.Ct. 722

65 N.E.3d 17

COMMONWEALTH

v.Marlin PALACIOS.

No. 15–P–711.

Appeals Court of Massachusetts, Suffolk.

Argued Oct. 24, 2016.

Decided Dec. 8, 2016.

William T. Harrington, Boston, for the defendant.

L. Adrian Bispham, Assistant District Attorney, for the Commonwealth.

Present: GREEN, WOLOHOJIAN, & MASSING, JJ.

MASSING, J.

At the defendant's jury trial for operating a motor vehicle while under the influence of intoxicating liquor (OUI), the Commonwealth relied in part on ambulance and hospital records that referred to her consumption of alcohol. The defendant claims that the ambulance records were erroneously admitted as hospital records, that references to her intoxication should have been redacted, and that the Commonwealth failed to prove the element of operation. Discerning no error of law or abuse of discretion in the admission of the ambulance and hospital records, and finding the evidence of operation to be sufficient, we affirm.

Background. The defendant ran a stop sign and crashed into the passenger side of another driver's car. When the other driver got out of his car, the defendant approached him, yelling that he was at fault for not stopping. Nobody else was in the defendant's car.

The responding police officer found the defendant to be glassy-eyed and unsteady on her feet. She gave the officer her identification and stated, in response to his questioning, that "she had been drinking and had approximately two to three drinks." Because the defendant claimed to be injured and wished to go to the hospital, she was not then arrested. Instead, an ambulance operated by Cataldo Ambulance Services (Cataldo) transported her to Whidden Memorial Hospital (Whidden).¹

Cataldo emergency medical technicians (EMTs) made several observations of the defendant, which they recorded on a form that was admitted as an exhibit in redacted form. The "clinical impressions" section of the form states, "Primary Impression: pain—arm; Secondary Impressions: intoxication—alcohol acute." The "narrative" section of the form included details of the defendant's condition, including references to her consumption of alcohol:

"Pt found with PD and FD at scene of a MVA in which pt was the driver.... Pt is A & Ox4 but smelling of alcohol. PD is preparing to arrest pt when she begins complaining of left arm pain. Arm is scratched [but] no swelling or deformities are noted. Pt requests to refuse treatment but because she is inebriated pt is counseled to be transported to hospital for evaluation and agrees."

The Whidden records of the defendant's visit were also admitted in evidence in redacted form. The Whidden records convey that the defendant was "the restrained driver" and that she had neck and arm pain. The hospital records contain notes about the defendant's alcohol consumption including, " alcohol intoxication"; "Acute alcohol intoxication"; "Patient ... also intoxicated"; and "Pt admits to drinking tonight."

The Commonwealth filed a motion in limine, citing G.L. c. 233, §§ 78, 79, 79G, and 79J, seeking to admit the Cataldo and the Whidden records. The defendant filed a cross motion to exclude the records, arguing that the references therein to intoxication were inadmissible because they were not sufficiently related to her treatment or medical history and touched on the ultimate issue of her guilt. The judge ordered the words "alcohol acute" to be redacted from the ambulance records, and the words "alcohol intoxication" to be redacted from the hospital records. Both sets of records, so redacted, were admitted in evidence over the defendant's objection to the remaining references to her intoxication.

Discussion. Admissibility of ambulance and hospital records. This appeal requires us to consider the application of two statutes governing the admissibility of medical records: G.L. c. 233, § 79, and G.L. c. 233, § 79G. Section 79, as appearing in St.1959, c. 200, provides that "[r]ecords kept by hospitals, dispensaries or clinics, and sanatoria under section seventy of chapter one hundred and eleven shall be admissible ... so far as such records relate to ... treatment and medical history." So long as they are "certified by the affidavit of the person in custody thereof to be a true and complete record," delivered to the clerk of the court, and made available for examination by the parties, such documents "shall be deemed to be sufficiently identified to be admissible in evidence if admissible in all other respects." Ibid. See Mass. G. Evid. § 803(6)(B) (2016).

Similarly, G.L. c. 233, § 79G, as appearing in St.1988, c. 130, provides for the admissibility of "an itemized bill and reports, including hospital medical records, relating to medical, dental, hospital services, prescriptions, or orthopedic appliances rendered to or prescribed for a person injured, or any report of any examination of said injured person." Such records are admissible as evidence of the cost of medical treatment, of the necessity of treatment, or of the diagnosis, prognosis, or opinion of a "physician or dentist" as to the proximate cause of an injury or as to an injured party's disability or incapacity. Ibid. See Commonwealth v. Irene, 462 Mass. 600, 611–612, 970 N.E.2d 291 (2012).² To be admitted, such records must be "subscribed and sworn to under the penalties of perjury by the physician, dentist, authorized agent of a hospital or health maintenance organization rendering such services." G.L. c. 233, § 79G. Furthermore, the party intending to offer such documents in evidence must give the opposing party ten days' notice by certified mail and file a copy of the notice and the return receipt with the clerk of the court. Ibid. See Mass. G. Evid. § 803(6)(C) (2016).³

The defendant now contends that the ambulance records were erroneously admitted as hospital records under § 79 for the simple reason that § 79 by its own terms is limited to records kept by hospitals, dispensaries or clinics, and sanatoria, as defined by G.L. c. 111, § 70. Because the language of the statute does not expressly include ambulance companies, the defendant's argument has some force. See McClean v. University Club, 327 Mass. 68, 75, 97 N.E.2d 174 (1951) ("The records which are admissible are those of hospitals of the class defined in § 70 which under that section they are required to keep. The statute has no application to the records of other hospitals"). On the other hand, "[o]ur decisions have demonstrated liberal interpretation of the statute in the admission of hospital records." Commonwealth v. Franks, 359 Mass. 577, 579, 270 N.E.2d 837 (1971).

The defendant's argument suffers from two principal flaws. First, at trial she objected only to the judge's refusal to redact certain references to intoxication; she did not argue that ambulance companies are not within the definition of hospitals. Accordingly, any claim of error in this regard is unpreserved and reviewed only for a substantial risk of a miscarriage of justice. Commonwealth v. McLaughlin, 79 Mass.App.Ct. 670, 673, 948 N.E.2d 1258 (2011). Second, the records were not offered as hospital records under § 79, but rather as records of medical services under § 79G.

We conclude that the records produced by Cataldo were admissible as proffered, under § 79G. While § 79G refers to the opinions of a "physician" or "dentist," the statute defines those professions broadly to also include "chiropodists, chiropractors, optometrists, osteopaths, physical therapists, podiatrists, psychologists and other medical personnel licensed to practice under the laws of the jurisdiction within which such services are rendered " (emphasis supplied). The professions listed in § 79G are all licensed under G.L. c. 112, whereas EMTs are certified under G.L. c. 111C, § 3(b )(3). See 105 Code Mass. Regs. §§ 170.900 (2005) (certification and training requirements for EMTs). Nonetheless, we see no distinction between the registration and licensing regimes of c. 112 and the certification requirements of c. 111C that would exclude EMTs from the category of other licensed medical personnel. Compare Ortiz v. Examworks, Inc., 470 Mass. 784, 792, 26 N.E.3d 165 (2015) (term "physicians" in personal injury protection statute, G.L. c. 90, § 34M, "encompasses not only medical doctors ... but also other appropriate licensed or registered health care practitioners," specifically, licensed physical therapists).⁴

Section 79G, like § 79, is intended to relieve physicians, nurses, dentists, and the other listed professionals of the hardship of attending court as witnesses, depriving patients of their care, where they are unlikely to remember specific patient interactions and their testimony "would ordinarily add little or nothing to the information furnished by the record alone." Irene, 462 Mass. at 614, 970 N.E.2d 291, quoting from 6 Wigmore, Evidence § 1707 (Chadbourn rev. ed. 1976). These principles apply equally to EMTs. The Cataldo records, prepared by licensed EMTs, were properly admitted under § 79G.⁵

Moreover, even if the ambulance records had been offered and admitted as hospital records under § 79, any error would not have created a substantial risk of a miscarriage of justice. The records admissible under § 79 are those that hospitals are statutorily required to maintain under G.L. c. 111, § 70. These include, "in the case of a patient brought to a hospital by an ambulance service licensed pursuant to chapter 111C, a copy of the call summary set forth in paragraph (15) of subsection (b) of section 3 of said chapter 111C." G.L. c. 111, § 70, as appearing in St.2000, c. 54, § 5. The completed records admitted in evidence under the Cataldo certification had all the hallmarks of a call summary. See G.L. c. 111C, § 3(b )(15), inserted by St. 2000, c. 54, § 3 (ambulance services "shall ensure that the responding personnel will complete a call summary for each call to which they respond containing such information and on such forms as prescribed by the department [of...