Recently the Appeals court decided COMMONWEALTH vs. RICHARD MCLAUGHLIN 79 Mass. App. Ct. 670 (2011) which centered around the admission of hospital records in an Operating Under the Influence Conviction.
At trial, prosecution presented evidence pursuant to G. L. c.233, § 79, (hospital records), which included a toxicology report showing the defendant’s blood alcohol content to be more than three times the legal limit. The court upheld the practice of allowing the records to be entered while turning down all 3 proposed arguments by the defense.
The court stated in analyzing the admission of the defendant’s hospital records stated “Trial defense counsel did not object to the admission of the hospital records. We therefore review the unpreserved alleged error for a substantial risk of a miscarriage of justice. See e.g., Commonwealth v. Freeman, 352 Mass. 556 , 563-564 (1967); Commonwealth v. Randolph, 438 Mass. 290 , 297-298 (2002). See also Commonwealth v. Redmond, 53 Mass. App. Ct. 1 , 7-8 (2001) (unpreserved constitutional error typically reviewed under substantial risk of a miscarriage of justice standard).
The defendant assigns three errors to the uncontested admission of his hospital records under authority of G. L. c. 233, § 79.
First, he contends that their admission violated the very terms of the statute because their measurement of his blood alcohol content effectively referred to the ultimate question of his criminal liability.
Second, he argues that the unavailability of the hospital record keeper at trial for cross-examination upon the accuracy of the certification of the records deprived him of his right of confrontation under the Sixth Amendment to the United States Constitution.
Finally, he characterizes trial defense counsel’s failure to object to the admission of the medical records as constitutionally ineffective assistance of counsel.
The relevant portion of statute at issue, states: “question of liability.” In pertinent part, G. L. c. 233, § 79, as appearing in St. 1959, c. 200, provides 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”
General Laws c. 90, § 24(1)(a)(1), as amended through St. 2003, c. 28, §§ 1 and 4, provides in relevant part that “[w]hoever [upon any public way] operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater . . . shall be punished . . . .” The defendant proposes that proof of OUI guilt by a credible reading of .08 percent or greater effectively converts a hospital record containing such information to a reference to ultimate criminal liability forbidden by § 79.
We disagree. 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.” See Commonwealth v. Dargon, 457 Mass. 387 , 394-395 (2010), and cases cited. See Mass. G. Evid. § 803(6)(B) & note at 260-262 (2011). 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 test reading belongs to the latter category of “physical observations.” The decisional law preceding the creation of per se guilt by the 2003 amendments remains in full force. Under it, “[t]he 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 , 573 (1992), quoting from Leonard v. Boston Elev. Ry., 234 Mass. 480 , 482-483 (1920). See Mass. G. Evid. § 803(6)(B), supra. Blood alcohol tests are admissible so long as their purpose was medical diagnosis or treatment. See Commonwealth v. Dube, supra at 574 (results of “physician-ordered [blood] tests” are admissible); Commonwealth v. Riley, 22 Mass. App. Ct. 698 , 700-701 (1986) (physician-ordered blood test admissible); Commonwealth v. Sargent, 24 Mass. App. Ct. 657 , 660-661 (1987) (results admissible because blood test taken pursuant to hospital’s routine procedures); Commonwealth v. Dyer, 77 Mass. App. Ct. 850 , 856 (2010) (same). Contrast Commonwealth v. Sheldon, 423 Mass. 373 , 376-377 (1996) (blood test inadmissible because the test was not intended “to assist in the achievement of any medical goal”). The limiting language of § 79 excludes gratuitous or incompetent references to criminal and civil liability; it does not exclude data resulting from medically purposeful treatment. Defendants may seek redaction of improper material, and they may call their own witnesses to challenge the accuracy of properly admitted medical information such as the blood alcohol reading.
In the present instance, the record itself indicates that the blood alcohol test constituted a part of a series of routine tests, all of which hospital staff conducted for medical purposes. See Commonwealth v. Russo, 30 Mass. App. Ct. 923 , 925-926 (1991) (defendant’s hospital record established that hospital personnel performed blood test for purposes of treatment). The defendant offered no evidence challenging the apparent medical purposes of the blood test. The admission of the toxicology report as part of the hospital records did not constitute any violation of the statute.
b. Constitutional confrontation rights. It is settled that the Sixth Amendment right to confrontation articulated in Crawford v. Washington, 541 U.S. at 51, and Melendez-Diaz v. Massachusetts, 129 S. Ct. at 2531, does not include an entitlement to cross-examine the authors of routine medical records because “medical reports created for treatment purposes . . . would not be testimonial.” Melendez-Diaz v. Massachusetts, supra at 2533 n.2. For the same result and reasoning, see Commonwealth v. Lampron, 65 Mass. App. Ct. 340 , 344- 346 (2005); and Commonwealth v. Dyer, 77 Mass. App. Ct. at 854-855. This court has reached the same result in the application of the Commonwealth’s constitutional assurance of the right of confrontation set forth in art. 12 of the Massachusetts Declaration of Rights. Commonwealth v. Riley, 22 Mass. App. Ct. at 701-702.
In this instance, however, the defendant challenges not the introduction of the substance of the hospital records, but rather their certification by the hospital record keeper. He imputes a testimonial character to the certification of the accuracy of the record.
The certification form has some testimonial characteristics. The keeper of the records signed the form under the pains and penalties of perjury, and created the form in response to a subpoena. However, in Melendez-Diaz v. Massachusetts, supra at 2538-2539, the United States Supreme Court made an explicit exception for “a clerk’s certificate authenticating an official record — or a copy thereof — for use as evidence.” Id. at 2538. 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).
It is clear that the certification form in the present case belongs within this categorical 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.
In effect, the certification is doubly removed from a right of confrontation. It constitutes a nontestimonial authentication of records of nontestimonial information. See United States v. Ellis, 460 F.3d 920, 927 (7th Cir. 2006) (“[g]iven [that hospital] records themselves do not fall within the constitutional guarantee provided by the Confrontation Clause, it would be odd to hold that the foundational evidence authenticating the [hospital] records do [es]”). See also Commonwealth v. Zeininger, 459 Mass. 775 , 784 (2011) (record certifying the working condition of police breathalyzer machinery “rather than reflecting ‘judgment and discretion’ or ‘expressions of opinion’ of . . . [a] technician, merely signifies that the . . . procedures prescribed by regulation were satisfactorily performed”). The defendant has suffered no deprivation under either the confrontation clause of the Sixth Amendment or art. 12 of the Massachusetts Declaration of Rights.
Attorney Ronald A. Sellon