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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.
