Appeals Court (June 13, 2011)

During a trial for operating under the influence, the Commonwealth's admission of a toxicology report as part of a hospital record pursuant to G.L. c. 233, § 79, does not constitute a violation of that statute because the toxicology report relates directly to the treatment and medical history of the patient.

The Commonwealth's introduction of the certification form by the hospital keeper of records does not violate the defendant's confrontation rights under the Sixth Amendment or Article 12 of the Massachusetts Declaration of Rights.
The defendant was convicted of operating under the influence of alcohol (OUI), third offense. During the trial, the Commonwealth introduced in evidence a copy of the defendant's hospital records pursuant to G.L. c. 233, §79 and a signed form from the keeper of records certifying "that the attached medical record is a true and accurate copy of the original documents." The records contained a toxicology report. The Commonwealth then called a toxicologist from the State Crime Lab to perform a serum alcohol conversion for the jury. The toxicologist testified that the defendant's blood alcohol content on the night of the crash was well above the 0.08 legal limit. The defendant appealed his conviction arguing that:
(1) The admission of the hospital records pursuant to G.L. c. 233, §79, violated the terms of the statute because they referenced the defendant's blood alcohol content, which was the ultimate issue before the jury; and

(2) The introduction of the certification form from the keeper of the medical records, without a live witness, violated the defendant's right to confrontation under the Sixth Amendment.

G.L. c. 233, §79:
The defendant contends that because he was charged with the per se section of the OUI statute, that the result of his blood alcohol content contained within his medical records went to the ultimate issue of criminal liability which is forbidden by G.L. c. 233, §79.

G.L. c. 233, §79 reads as follows:
"Records kept by hospitals … may be admitted by the court, in its discretion, as evidence … so far as such records relate to the treatment and medical history of such cases … but nothing therein contained shall be admissible as evidence which has reference to the question of liability."

The Court disagreed with the defendant. "Objectively determinable facts resulting from medical tests and procedures conducted for diagnostic and treatment purposes and appearing in hospital records submitted under the statute may obviously bear on the ultimate question of civil or criminal liability but do not constitute improper allegations, opinions, or conclusions about liability. Subjective impressions or expressions about fault or guilt may not come in through such records. Trial judges will typically filter them out of the records. That material constitutes the forbidden reference to the question of liability." Commonwealth v. Dargon, 457 Mass. 387 (2010). "By contrast, objective data constitute reliable information helpful to the fact finder upon issues of a technical medical nature. The test is the distinction between a conclusory fact central to the jury's inquiry and physical observations from which inculpatory inferences flow." Id. at 395, quoting from Commonwealth v. Baldwin, 24 Mass. App. Ct. 200, 202 (1987). The blood alcohol content contained in the toxicology report belongs to the latter category of "physical observations." The implementation of the per se statute does not alter the pre-existing court decisions. "The statute 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 (1992). The results of a blood alcohol test are admissible as part of a medical record pursuant to G.L. c. 233, § 79, as long as the purpose of the test was medical diagnosis or treatment.

In the present case, the medical record indicated that the blood alcohol test was part of a series of routine tests, all of which hospital staff conducted for medical purposes. Therefore, the Court found that the admission of the toxicology report as part of the hospital records did not constitute a violation of G.L. c. 233, § 79.

Sixth Amendment Violation:
Medical records created for treatment purposes are not testimonial and therefore do not invoke the confrontation clause under the Sixth Amendment. However, the defendant does not challenge the substance of the records but rather the certification by the hospital keeper of records. The defendant argues that the certification is testimonial in nature because the keeper of the records signed the form under the pains and penalties of perjury, and created the form in response to a subpoena.

In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the United States Supreme Court carved out an exception for "a clerk's certificate authenticating an official record--or a copy thereof--for use as evidence." The Court acknowledged that this type of affidavit is "prepared for use at trial," but held that the confrontation clause does not apply because such an affidavit merely "certif[ies] to the correctness of a copy of a record" and does not "furnish, as evidence for the trial of a lawsuit, [an] interpretation of what the record contains or shows, or ... certify to its substance or effect." Id. at 2539, quoting from State v. Wilson, 141 La. 404, 409 (1917). See Commonwealth v. McMullin, 76 Mass. App. Ct. 904 (2010).

The Court found in this case, the certification form belongs within this exception. "The form certifies that the hospital furnished accurate copies of the defendant's medical records. The form does not vouch for the substance of those records as an accurate representation of the defendant's condition on the night of the accident." The Commonwealth's introduction of the certification form by the hospital keeper of records did not violate the defendant's confrontation rights under the Sixth Amendment or Article 12 of the Massachusetts Declaration of Rights.

Note: There is a good discussion in this opinion about the extent of an officer's hearsay testimony regarding information contained in a 911 call.