Commonwealth v. Palacios ( 2016 )

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15-P-711 Appeals Court
COMMONWEALTH vs. MARLIN PALACIOS.
No. 15-P-711.
Suffolk. October 24, 2016. - December 8, 2016.
Present: Green, Wolohojian, & Massing, JJ.
Alcoholic Liquors, Motor vehicle. Intoxication. Evidence,
Hospital record, Intoxication, Medical record. Ambulance
Worker. Motor Vehicle, Operating under the influence,
Operation. Practice, Criminal, Required finding.
Complaint received and sworn to in the Chelsea Division of
the District Court Department on July 26, 2013.
The case was tried before James H. Wexler, J.
William T. Harrington for the defendant.
L. Adrian Bispham, Assistant District Attorney, for the
Commonwealth.
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
2
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
1
It appears that Whidden now is known as Cambridge Health
Alliance Everett Hospital.
3
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
4
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
5
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 (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
2
In one respect, § 79G is broader than § 79 in that it
explicitly provides for the admissibility of opinions as to
proximate cause, disability, or incapacity -- matters that
"pertain to issues commonly involved in personal injury claims
and litigation. Thus, the concerns that require redaction of
information not germane to the patient's treatment in medical
records under § 79 are overridden by express language in § 79G."
Commonwealth v. Schutte, 52 Mass. App. Ct. 796, 800 (2001)
(citation omitted). See Mass. G. Evid. § 803 note (2016).
3
The attestation need not accompany the copy of the report
served on the opposing party. See Knight v. Maersk Container
Serv. Co., 49 Mass. App. Ct. 254, 256 (2000). Medical records
created in the ordinary course of business "are not usually
created or written with attestations of the author; the
6
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 (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 (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 (2011). Second, the records were not offered
attestation is later obtained and at trial either accompanies or
is affixed to the report." Ibid.
7
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 (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
4
Although "licensed in the commonwealth," an EMT is not
considered a "provider of health care" under the medical
8
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, 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
malpractice tribunal statute, G. L. c. 231, § 60B, inserted by
St. 1975, c. 362, § 5. See Perez v. Bay State Ambulance & Hosp.
Rental Serv., Inc., 413 Mass. 670, 675-676 (1992). Unlike
§ 79G, the list of the professionals included within the medical
malpractice tribunal statute is exhaustive; it lacks the open-
ended, "other medical personnel" clause.
5
The Cataldo records were signed contemporaneously by the
EMTs and later certified under penalties of perjury, pursuant to
G. L. c. 233, § 79G, by "Diana M. Cataldo, Treasurer."
9
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 public health]").
Accordingly, Whidden, as a hospital, was required to
maintain the Cataldo ambulance call summary, and had Whidden
produced it along with its own records that were delivered to
the clerk's office, the call summary would have been admissible
under § 79. See Commonwealth v. Moquette, 53 Mass. App. Ct.
615, 619 n.3 (2002), S.C., 439 Mass. 697 (2003) (based on
amended definition of hospital records in G. L. c. 111, § 70, if
declarants "had been taken to a hospital . . . , their
statements, as recorded in the EMT's trip log, would now likely
be admissible as hospital records under G. L. c. 233, § 79").6
References to intoxication. At trial, the defendant
objected to the references to her intoxication in the ambulance
6
Indeed, if the defendant had timely objected, the
Commonwealth may well have been able to show that Whidden did in
fact produce the Cataldo records. The Commonwealth commendably
filed a motion in limine to air such issues before the trial
commenced.
10
and hospital records based on the proviso in G. L. c. 233, § 79,
that "nothing therein contained shall be admissible as evidence
which has reference to the question of liability." However,
§ 79 "has long been construed to permit the admission of a
record that relates directly and primarily to the treatment and
medical history of the patient, 'even though incidentally the
facts recorded may have some bearing on the question of
liability.'" Commonwealth v. Dube, 413 Mass. 570, 573 (1992),
quoting from Leonard v. Boston Elev. Ry., 234 Mass. 480, 482-483
(1920). "In application this liberal construction has permitted
the admission in evidence of statements in hospital records
bearing on criminal culpability that seem to relate at most only
incidentally to medical treatment." Dube, supra.
In OUI cases, we have consistently approved the admission
of medical records to show that a criminal defendant has
consumed intoxicating liquor shortly before events that led to
the defendant's arrest. See id. at 574, and cases cited.
Records admissible in this context include hospital blood tests
as well as "more personal, less scientific, judgments about
alcoholic odor." Commonwealth v. McCready, 50 Mass. App. Ct.
521, 524 (2000). See Cowan v. McDonnell, 330 Mass. 148, 149
(1953) ("We are unable to say as matter of law that the [words]
'Odor of alcohol on breath' could not relate to . . . medical
history" [citation omitted]); Commonwealth v. Gogan, 389 Mass.
11
255, 264 (1983) ("[A]n observation about alcohol on the
patient's breath is admissible as part of a hospital record
. . . even though the matters did not directly relate to the
exact illness for which the patient entered the hospital"
[citation omitted]); McCready, supra at 524 n.3 ("Regarding the
relation of the drinking to medical treatment, . . . a patient
who had recently consumed alcohol would not be a candidate to
undergo anesthesia"). Such records are presumed reliable
because they are made by medical professionals "charged with the
responsibility of making accurate entries . . . relied on in the
course of treating patients." Bouchie v. Murray, 376 Mass. 524,
528 (1978).
Thus, the judge did not abuse his discretion in admitting
the partially redacted medical records over the defendant's
objection.7
Evidence of operation. To support an OUI conviction under
G. L. c. 90, § 24(1)(a)(1), the Commonwealth must prove three
elements: (1) operation of a vehicle, (2) on a public way, (3)
while under the influence of alcohol. Commonwealth v. O'Connor,
420 Mass. 630, 631 (1995). The defendant maintains that the
7
The defendant also argues that "it is unclear whether
Registered Nurse Florence Silva or a person by the name of Bryan
Canterbury" made the entry that the defendant was "intoxicated."
Although the document in question is authored by both Silva and
Canterbury ("Author Type: Physician"), it makes no difference
whether a nurse or a physician made the entry. McCready, supra
at 524.
12
Commonwealth's evidence of the first element, operation of a
vehicle, was insufficient to support a guilty verdict. We
disagree.
The Commonwealth presented ample evidence, both direct and
circumstantial, sufficient for the jury to conclude beyond a
reasonable doubt that the defendant operated a motor vehicle.
The other driver testified that "Palacios hit my car." An
eyewitness at the scene of the accident testified that someone
helped the defendant out of her car, and both this witness and
the other driver testified that no one but the defendant was in
her car after the accident. The defendant gave the officer her
identification and responded to his questions about whether she
had been drinking. See Commonwealth v. Cromwell, 56 Mass. App.
Ct. 436, 439 (2002), citing Commonwealth v. O'Connor, 420 Mass.
630, 632 (1995) (operation could be inferred from cooperation
with police investigation). The evidence, viewed as a whole,
was sufficient to prove operation beyond a reasonable doubt.
See id. at 438-439; Commonwealth v. Petersen, 67 Mass. App. Ct.
49, 52-53 (2006).
Judgment affirmed.