65 N.E.3d 17
Mass. App. Ct.2016Background
- Defendant Palacios ran a stop sign and collided with another vehicle; she was the only person in her car and approached the other driver at the scene.
- Police found her glassy-eyed and unsteady; she admitted to drinking "two to three drinks." She was transported by Cataldo EMTs to Whidden Hospital for evaluation.
- Cataldo ambulance records and Whidden hospital records contained entries referencing intoxication (e.g., "smelling of alcohol," "alcohol intoxication"). Both sets were produced in redacted form at trial.
- Commonwealth moved in limine to admit both Cataldo and Whidden records under G. L. c. 233, §§ 79 and 79G; defendant sought exclusion or further redaction of intoxication references.
- Trial judge ordered some redactions, admitted the remaining redacted ambulance and hospital records over objection, and the jury convicted Palacios of OUI; defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of ambulance records under § 79/§ 79G | Records of medical services (including ambulance call summaries) are admissible under § 79G | Cataldo ambulance records are not "hospital records" under § 79 and thus not admissible as such; references to intoxication should be excluded | Cataldo records admissible under § 79G as medical services records prepared by EMTs; § 79G's "other medical personnel" language covers EMTs; even if treated as § 79 error, not reversible here |
| Redaction of intoxication references in medical records | Intoxication entries are relevant to treatment and admissible; § 79's liability proviso not a bar when statements relate primarily to treatment | Intoxication references go to guilt and should have been redacted entirely | Judge properly exercised discretion to admit partially redacted records; medical entries relating to alcohol consumption are admissible in OUI cases |
| Sufficiency of evidence of "operation" of vehicle | Testimony and circumstantial evidence (damage, eyewitnesses, defendant alone in car, cooperation with police) support operation | Defendant argued evidence was insufficient to prove she operated vehicle | Evidence, viewed as whole, was sufficient for jury to find operation beyond a reasonable doubt |
| Authentication/attestation of records | Commonwealth complied with § 79G attestation and certification procedures | Defendant questioned authorship and certification of entries | Certification by Cataldo treasurer and contemporaneous EMT signatures satisfied § 79G; authorship (nurse vs. physician) not outcome-determinative |
Key Cases Cited
- Commonwealth v. Franks, 359 Mass. 577 (liberal construction of hospital-records statute)
- Commonwealth v. Irene, 462 Mass. 600 (§ 79G admission principles; records relieve providers from live testimony)
- Commonwealth v. Dube, 413 Mass. 570 (hospital records admissible when directly related to treatment even if incidentally bearing on liability)
- Commonwealth v. McCready, 50 Mass. App. Ct. 521 (observations like "odor of alcohol" admissible in medical records)
- McClean v. University Club, 327 Mass. 68 (statutory scope of admissible hospital records)
- Commonwealth v. O'Connor, 420 Mass. 630 (elements required for OUI conviction)
- Commonwealth v. Cromwell, 56 Mass. App. Ct. 436 (operation may be inferred from circumstances and cooperation with police)
- Commonwealth v. Petersen, 67 Mass. App. Ct. 49 (sufficiency of circumstantial evidence for operation)
- Bouchie v. Murray, 376 Mass. 524 (reliability presumption for records made by treating professionals)