Practice Alert! Massachusetts Appeals Court Affirms Broad Evidentiary Rules Under G.L. 233, Sec. 79G for Medical Reports
Trial Judge Properly Admitted Certified Medical Report
The Massachusetts Appeals Court has affirmed the broad admissibility of certified medical reports under M.G.L. c. 233, § 79G. The case is an important reminder of the legislature's intent when the statute was amended in 1988, and a reminder as well that in any proceeding commenced in any court, commission or agency, the judge should admit properly certified medical reports.
The case on appeal arose from a 2002 car accident on Storrow Drive in Boston. Plaintiff was rear-ended. She suffered personal injuries, including neck and back injuries, and alleged she required surgery to treat her injuries. The cause, nature and extent of the injuries were all contested.
Defendant hired Dr. Gordon Lupien, a retired orthopedic surgeon who is well known for his association with defendants. Dr. Lupien concluded in his report that there was no indication that the plaintiff suffered "anatomic derangement or structural lesion" as a result of the accident. Dr. Lupien's report was properly certified under G.L. c. 233, § 79G, and was received in evidence, over plaintiff's objection, at trial. Dr. Lupien was not called to testify.
(Dr. Lupien has often been at the crossroad of legal arguments. Plaintiffs have objected to his use as a defense expert or examining physician for many years, arguing his extreme bias for the defense makes him unreliable, though usually to no avail. The most vigorous objection that is in a reported decision can be found in Looney v. National Railroad Passenger Corp. d/b/a AMTRAK, 142 F.R.D. 264 (D. Mass. 1992). The court allowed the doctor to examine, saying the points raised by the objecting plaintiff were best left for cross examination at trial.)
While the jury found the defendant negligent, it also found the accident was not the proximate cause of the plaintiff's injuries.
Plaintiff appealed, arguing the report was inadmissible hearsay. Plaintiff argued that § 79G applied only to reports that carry a presumption of reliability, such as reports prepared in the course of treatment, as opposed to reports prepared for litigation purposes.
The Appeals Court analyzed the hearsay argument and essentially agreed that, but for the statute, a report of an examining physician prepared for the purposes of litigation would be considered lacking the "circumstantial guarantees of trustworthiness required for admissibility."
Regardless, the admissibility of such a medical report was clearly contemplated when M.G.L. c. 233, § 79G was amended. The legislature clearly has the power, within constitutional limits, to determine the rules of evidence. "The statute explicitly states that '[i]n any proceeding commenced in any court, ... any report of any examination of said injured person .. shall be admissible as evidence of ... the opinion of such physician ... as to the proximate cause of the condition ... diagnosed.' The statute does not expressly disqualify a report because it was prepared for litigation."
In short, the court found that the report was properly admitted, and the judgment was affirmed.
The case was O'Malley v. Soske, 76 Mass. App. Ct. 495 (2010). The full text of the decision is available. Click here.
Practice Point: Reliance on certified medical reports of examining experts is now a routine practice. The benefit is obvious: in some cases it is not essential to have the expert testify, and in some cases it may be impossible. M.G.L. c. 233, § 79G solves those problems. If a party suspects strong bias or serious inaccuracy in a report, there is still the opportunity to cross-examine the examining expert. The statute explicitly preserves the right to call a medical expert for the purposes of cross examination for the purposes of revealing mistakes or bias. See Bailey v. Cataldo Ambulance Service, Inc., 64 Mass. App. Ct. 228 (2005), which discussed the rights and responsibilities of a party wishing to dispute findings in a certified medical report.