Brekka: Diagnosis - Guilty

399

Diagnosis—Guilty: Commonwealth v. McLaughlin and the Conversion of

Hospital Records into Criminal Convictions

WILLIAM BREKKA

ABSTRACT

ince the beginning of the twentieth century, Massachusetts has had a hospital records exception to the common-law hearsay rule. The statute provides that hospital records are admissible to the extent that they

relate to treatment and medical history, but further states that “nothing therein contained shall be admissible as evidence which has reference to the question of liability.” In Commonwealth v. McLaughlin, a hospital record containing the results of a blood-alcohol test was admitted in a prosecution under the per se drunk driving law. The court reasoned that the statute’s “reference to liability” clause does not bar the results of blood tests conducted for medical purposes. This Comment argues that the McLaughlin court erred. While courts interpret the statute liberally, this interpretation cannot be stretched so far as to admit a record stating the jury’s ultimate conclusion—a blood-alcohol concentration of .08 or higher—for no other purpose than to prove guilt. This Comment also argues that the McLaughlin court erred in failing to subject the blood test recorded in the defendant’s hospital record to a reliability inquiry under Daubert and Lanigan. Because of the potential problems with hospital blood tests, failing to conduct a reliability inquiry creates a significant risk that defendants are convicted on unreliable evidence.

Candidate for Juris Doctor, New England Law | Boston 2014. B.A., History, cum laude,

College of the Holy Cross 2011. I would like to thank my father, a long-time criminal defense

attorney, for helping me come up with the idea for this Comment. I would also like to thank

my girlfriend Laura for her support and patience during the writing process.

S

400 New England Law Review v. 48 | 399

INTRODUCTION

For over a century, the laws of Massachusetts have included an exception to the common-law hearsay rule for entries contained in a patient’s hospital record.1 The statute provides that hospital records shall be admissible in evidence “so far as such records relate to the treatment and medical history . . . but nothing therein contained shall be admissible as evidence which has reference to the question of liability.”2 Since the first interpretation of the statute in 1920, courts struggled to reconcile its two limiting clauses: it is often the case that a record relating to a patient’s treatment and medical history also relates, incidentally, to the question of liability.3 As a result, courts construe the statute “liberally,” whereby entries that relate incidentally to liability are admitted as long as they relate mainly to the patient’s treatment and medical history.4

In Commonwealth v. McLaughlin, a hospital record containing the results of a blood-alcohol test was admitted in a prosecution under the per se drunk-driving law, which makes operating a motor vehicle with a blood-alcohol percentage of .08 or higher an automatic violation.5 The Appeals Court of Massachusetts held that the “reference to the question of liability” clause of the hospital-records exception did not bar the test’s admission because such tests are admissible so long as they are conducted for medical purposes.6

This Comment argues that the McLaughlin court erred in holding the blood test admissible under the hospital-records exception.7 The statute’s plain language, history, and court interpretations suggest that it bars portions of records that relate directly to liability, even if made for medical-treatment purposes.8 While courts give the statute a liberal interpretation, this interpretation cannot be stretched so far as to allow the admission of a blood test in a prosecution under the per se law.9 Such a record states the ultimate conclusion of the crime charged and relates directly to the question of liability.10

This Comment also argues that the McLaughlin court erred in failing to conduct an inquiry into the reliability of the blood test recorded in the

1 See MASS. GEN. LAWS ch. 233, § 79 (2012). 2 Id. 3 Leonard v. Bos. Elevated Ry. Co., 125 N.E. 593, 593 (Mass. 1920). 4 Commonwealth v. Dargon, 930 N.E.2d 707, 716 (Mass. 2010). 5 948 N.E.2d 1258, 1262–64 (Mass. App. Ct. 2011). 6 Id. 7 See infra Part III. 8 See infra Part III.B. 9 See infra Part III.B. 10 See infra Part III.A‒B.

2014 Diagnosis—Guil ty 401

defendant’s hospital record.11 The Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.—and the Massachusetts Supreme Judicial Court’s adoption of this approach in Commonwealth v. Lanigan—requires that all scientific evidence be subjected to a reliability inquiry.12 Because of the potential problems with hospital blood tests, this failure created a significant risk that the defendant was convicted on unreliable evidence.13 Especially in a prosecution for a crime as technical as the per se drunk-driving law, justice requires that the evidence submitted against a defendant is reliable and that convictions do not result solely from entries appearing in a hospital record.14

Part I of this Comment discusses the legislative history of the hospital-records exception and how the Massachusetts courts interpreted the exception and the per se drunk-driving law over the years. Part II discusses the facts, holding, and reasoning of Commonwealth v. McLaughlin. Part III argues that the McLaughlin court erred in admitting the defendant’s hospital record, focusing on the statute’s text and history, commentary, and case law. Finally, Part IV discusses some of the reliability concerns surrounding hospital blood tests and argues that the hospital-records exception should not be manipulated to allow the admission of blood tests without any further inquiry into their reliability.

I. Background

A. The Hospital-Records Exception: G.L. c. 233, § 79

In 1905, the Massachusetts legislature enacted the first version of the hospital-records exception to the common-law hearsay rule.15 The Act provided that hospital records shall be admissible “as to all matters therein contained.”16 In 1912, however, the legislature amended the law, replacing the “as to all matters therein contained” language with the limiting clause that hospital records shall be admissible “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.”17 The current version of the statute contains the same language.18

11 See infra Part IV. 12 See infra Part IV.B. 13 See infra Part IV.C. 14 See infra Parts III.A, IV.B. 15 See An Act to Require the Keeping of Records by Certain Hospitals, ch. 330, § 2, 1905

Mass. Acts 1391 (codified as amended at MASS. GEN. LAWS ch. 233, § 79 (2012)). 16 Id. 17 An Act Relative to the Keeping of Records by Certain Hospitals and to the Use of Such

Records as Evidence, ch. 442, § 2, 1912 Mass. Acts 371 (codified as amended at MASS. GEN. LAWS

ch. 233, § 79 (2012)). 18 See MASS. GEN. LAWS ch. 233, § 79 (2012).


The hospital-records exception was mainly enacted to relieve physicians, nurses, and other medical personnel from the burden of attending court as witnesses to facts recorded in hospital records.19

Since the early days of the statute’s existence, Massachusetts’s courts interpreted the statute liberally.20 This liberal interpretation is traceable to Leonard v. Boston Elevated Railway Co., which concerned a personal-injury lawsuit arising out of a train accident.21 In that case, the plaintiff alleged that he was thrown to the ground when a train car suddenly started.22 In its defense, the train company submitted into evidence a copy of the plaintiff’s hospital record, which stated in relevant part, “Odor of Alcohol on Breath.”23 On appeal, the plaintiff argued that the record was admitted in error because it had “reference to the question of liability,” and was therefore barred by the language of the hospital-records statute.24 Massachusetts’s Supreme Judicial Court (“SJC”) rejected this contention, explaining: “In our opinion a reasonable and practical construction of the statute requires that a record which relates directly and mainly to the treatment and medical history of the patient, should be admitted, even though incidentally the facts recorded may have some bearing on the question of liability.”25 Although the court found the record admissible, it implicitly recognized that the statute did not permit the evidence to be considered on the question of liability.26 The Court noted that “[t]he improper application of the facts recorded can be prevented by means of a suitable instruction to the jury.”27 Thus, the Court made clear that hospital records, if offered solely to prove liability, are inadmissible.28

In a case decided less than a year after Leonard, the SJC was again called upon to interpret the statute.29 In the Inangelo case, a young girl and her parents sued a man who ran her over in a car.30 At trial, the defendant sought to introduce a portion of the plaintiff’s hospital record, which stated: “While patient was running along the road four days ago, she was run over by an automobile producing injuries as per local (left leg).”31 However, the trial

19 Bouchie v. Murray, 381 N.E.2d 1295, 1298 (Mass. 1978). 20 Commonwealth v. Dargon, 930 N.E.2d 707, 716 (Mass. 2010). 21 125 N.E. 593, 593 (Mass. 1920). 22 Id. 23 Id. 24 Id. 25 Id. at 593–94.

26 Id. at 594. 27 See Leonard, 125 N.E. at 594. 28 Id. 29 See Inangelo v. Petterson, 128 N.E. 713, 713–14 (Mass. 1920). 30 Id. at 714. 31 Id.


court excluded this portion of the record.32 On appeal, the SJC held that the evidence was properly excluded, noting: “Clearly the purpose of the statute was to exclude any part of a record that referred to the question of liability.”33 Since the portion of the record stating that the plaintiff’s injuries occurred while she “was running along the road” related directly to her own negligence, admitting it “would have been in direct violation of the statute.”34

Around this time, Professor Henry Wigmore commented on the Massachusetts statute in his treatise on the law of evidence.35 Wigmore was a strong proponent of admitting hospital records and encouraged all states to make them admissible by statute.36 Yet, he was harshly critical of Massachusetts’s hospital-record statute.37 With respect to the 1912 amendment, which added the “reference to liability” clause, he noted that “this childish way of trying to keep out things that do not suit the interests of one party—like leaving out the joker in a pack of cards, or abolishing foul balls because the pitcher’s skill needs a counterpoise—is unworthy of our profession in this age.”38 Presumably, Wigmore believed that hospital records should be completely admissible and took issue with the Massachusetts statute for excluding those portions that relate to liability.39

It appears the SJC took Wigmore’s harsh comment about the statute to heart: In cases interpreting the statute in the years shortly after Wigmore’s comment, no mention was made of the “reference to liability” clause.40 Then, in Clark v. Beacon Oil Co., the SJC effectively rendered the “reference to liability” clause superfluous.41 In an action for the recovery of damages to

32 Id. 33 Id. 34 Id.

35 3 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN

TRIALS AT COMMON LAW: INCLUDING THE STATUTES AND JUDICIAL DECISIONS OF ALL

JURISDICTIONS OF THE UNITED STATES AND CANADA § 1707, at 662–63 & n.1 (2d ed. 1923). 36 Id. at 662–63. 37 See id. 38 Id. at 663 n.1. 39 See id. at 662–63 & n.1. 40 See, e.g., Souza v. Metro. Life Ins. Co., 170 N.E. 62, 62–63 (Mass. 1930) (stating merely

that hospital records are made admissible by MASS. GEN. LAWS ch. 233, § 79 without mentioning

the “reference to liability” clause); Unterberg v. Bos. Elevated Ry. Co., 164 N.E. 478, 478 (Mass.

1929) (“Under G.L. c. 233, § 79, the records kept by the Peter Bent Brigham Hospital were

admissible in so far as they related to the treatment and medical history of the plaintiff.”); Glass

v. Metro. Life Ins. Co., 154 N.E. 563, 564 (Mass. 1927) (“The statements contained in a hospital

record are by statute evidence only ‘so far as such records relate to the treatment and medical

history of such cases.’”). 41 See 170 N.E. 836, 837–38 (Mass. 1930).


the plaintiff’s car arising out of a collision with the defendant, the SJC held that the notation “marked odor alcohol on breath” was properly admitted.42 With respect to the statute, the Court stated:

The words of the statute “nothing therein contained” refer to such entries

in the records, if there are any, as do not relate to treatment and medical

history. They do not refer to the entries regarding treatment and medical

history made admissible by the earlier portions of the enactment. To hold

otherwise would deprive the statute of its beneficial effect. Our

interpretation gives force to the statute in all its parts.43

The Court’s circular reasoning was not lost on Professor Wigmore, who noted in a parenthetical explaining Clark: “[T]he law of this State since that statute has become a mere exercise in verbal logic-chopping, and is a reproach to any system of rational investigation of facts.”44

Since these early decisions, the Massachusetts courts largely followed the liberal interpretation put forth in Leonard, routinely admitting evidence that relates incidentally to liability so long as it also relates directly and mainly to the patient’s treatment and medical history.45 However, courts have not completely ignored the “reference to liability” clause.46 For one, “ultimate conclusions concerning the charged crimes” are not admissible and must be redacted.47 Further, some cases suggested that if the record is

42 Id. at 837. 43 Id. at 838. 44 JOHN HENRY WIGMORE, SUPPLEMENT 1923-1933 TO THE SECOND EDITION (1923) OF A

TREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 1707, at 734 (1934)

[hereinafter WIGMORE, SUPPLEMENT]. 45 Compare Commonwealth v. Dube, 601 N.E.2d 467, 469 (Mass. 1992) (holding that a

record of a blood test performed at the hospital was admissible in a prosecution for operating

under the influence), and Commonwealth v. Gogan, 449 N.E.2d 365, 370 (Mass. 1983) (finding

the notation “Pt. intoxicated; tied to stretcher-fight-very belligerent-violent” was properly

admitted in a prosecution for assault and battery on a police officer and disturbing the peace),

and Commonwealth v. Concepcion, 290 N.E.2d 514, 514–16 (Mass. 1972) (holding that doctor’s

notations, such as “[h]istory of recent rape” and “[d]iagnosis . . . ? [r]ape” were properly

admitted), and Commonwealth v. Franks, 270 N.E.2d 837, 838–39 (Mass. 1971) (holding that the

hospital record of an alleged rape victim showing laboratory test results indicating the presence

of sperm was properly admitted), and Clark v. Beacon Oil Co., 170 N.E. 836, 837 (Mass. 1930)

(holding that notation “marked odor alcohol on breath” was properly admitted because it was

related to the patient’s treatment and medical history), with Commonwealth v. Sheldon, 667

N.E.2d 1153, 1155–56 (Mass. 1996) (holding that a record of a blood-alcohol test was not

admissible because it was not conducted for medical purposes). 46 See, e.g., Commonwealth v. Dargon, 930 N.E.2d 707, 716 (Mass. 2010). 47 Id. at 716–17 (quoting Commonwealth v. Dwyer, 859 N.E.2d 400, 413 (Mass. 2006)

(holding that the conclusory terms “assault” and “assailant” should have been redacted in a

rape and assault prosecution)); Commonwealth v. DiMonte, 692 N.E.2d 45, 51 (Mass. 1998)

(holding that the portion of the record reporting an assault and battery should have been


admitted, the judge should give a limiting instruction that the record not be considered on the question of liability.48

B. The Per Se Drunk-Driving Law: MASS. GEN. LAWS ch. 90, § 24(1)(a)(1)

Under Massachusetts law, there are two ways that a defendant may be convicted of operating under the influence of alcohol (“OUI”): (1) operating a motor vehicle with a blood-alcohol percentage of .08 or greater, or (2) operating while “under the influence of intoxicating liquor.”49 The legislature only created the first theory in 2003, when it replaced the “permissible inference” that a person with a blood-alcohol level of .08 or higher was under the influence of intoxicating liquor, with language making driving with a blood-alcohol level of .08 or higher a violation itself.50 Under this “per se” theory, the prosecution may request the judge to instruct the jury that if they find the measurement of the defendant’s blood-alcohol percentage accurate, that measurement conclusively establishes the defendant’s guilt.51 Under the alternative “impaired operation” theory, however, a blood-alcohol measurement does not conclusively establish the defendant’s guilt.52 Instead, it is merely evidence that the jury may consider, along with evidence of the defendant’s appearance and conduct, in determining whether the defendant operated a motor vehicle while under the influence of alcohol.53 In addition, under the impaired-operation theory, the government must offer expert testimony regarding the significance of the blood-alcohol measurement as it relates to impairment.54

II. Commonwealth v. McLaughlin

A. Facts

On October 25, 2005, a state trooper found the defendant, Richard

redacted); Commonwealth v. Baldwin, 509 N.E.2d 4, 5–6 (Mass. App. Ct. 1987) (holding that

“Diagnosis: Sexual Molestation,” should have been redacted). 48 See, e.g., Bouchie v. Murray, 381 N.E.2d 1295, 1300 (Mass. 1978) (“If the statement is

found admissible in these circumstances, the trial judge should give appropriate limiting

instructions to the jury that this evidence has no bearing on the question of liability.”); Leonard

v. Bos. Elevated Ry. Co., 125 N.E. 593, 594 (Mass. 1920) (“The improper application of the facts

recorded can be prevented by means of suitable instructions to the jury.”). 49 MASS. GEN. LAWS ch. 90, § 24(1)(a)(1) (2012). 50 Commonwealth v. Colturi, 864 N.E.2d 498, 500–01 (Mass. 2007). 51 12 MASSACHUSETTS PRACTICE: MOTOR VEHICLE LAW AND PRACTICE § 28:36 (4th ed. 2008)

[hereinafter MASS. PRACTICE]. 52 Id. 53 Id. 54 Colturi, 864 N.E.2d at 499–500.


McLaughlin, unconscious in his car on the side of the highway.55 Shortly thereafter, emergency personnel arrived and transported the defendant to South Shore Hospital.56 Upon speaking with the medical personnel who were treating the defendant, the trooper initiated charges against the defendant.57

The defendant was charged with operating under the influence and prosecuted under both the per se and impaired-operation theories.58 At trial, the government introduced a copy of the defendant’s medical record.59 The record contained the results of a blood-alcohol test, which was administered to the defendant as part of a series of routine tests.60 The test measured the amount of alcohol in the defendant’s blood serum,61 which was used to calculate his blood-alcohol content by weight.62 An expert for the government testified that the test indicated that the defendant’s blood-alcohol percentage on the night of the accident was between .256 and .270.63 The defendant did not object to the admission of this evidence.64

B. Procedural History

At the conclusion of trial in the district court, the jury found the defendant guilty of operating under the influence pursuant to both the per se and impaired-operation theories.65 The defendant appealed, arguing, among other things, that the trial court erroneously admitted his hospital record because the blood-alcohol test result clearly referred to liability and therefore was barred by the language of the hospital-records exception.66

C. Court’s Holding and Reasoning

The Appeals Court of Massachusetts held that the trial court did not err

55 Commonwealth v. McLaughlin, 948 N.E.2d 1258, 1261 (Mass. App. Ct. 2011). 56 Id. at 1262. 57 Id. 58 Id. at 1262–63. 59 Id. at 1262. 60 Id. at 1264. 61 McLaughlin, 948 N.E.2d at 1262. Blood serum, as opposed to whole blood, is the portion

of the blood that remains when the cells and other matter are removed. Carol A. Roehrenbeck

& Raymond W. Russell, Blood is Thicker Than Water, 8 CRIM. JUST., Spring 1993, at 14, 15. Serum

has a higher concentration of water than whole blood and, consequently, a higher percentage

of alcohol. Id. 62 McLaughlin, 948 N.E.2d at 1262. 63 Id. 64 Id. 65 Id. at 1262–63. 66 Id. at 1262.


in admitting the defendant’s hospital record.67 The court rejected the defendant’s argument that, in a prosecution for OUI under the per se theory, a hospital record containing a test result showing the defendant’s blood-alcohol content relates directly to liability and is therefore barred by the statute.68 Citing a long line of cases allowing admission of a record that relates mainly to treatment and medical history despite bearing incidentally on liability, the court held that because the blood-alcohol test was performed as part of a series of routine tests conducted for medical purposes, it was properly admitted.69 The court recognized that cases distinguish between “a conclusory fact central to the jury’s inquiry” and “physical observations from which inculpatory references flow,” but concluded that the blood test “belongs to the latter category of ‘physical observations.’”70 With respect to data obtained for medical purposes, the “reference to liability” clause is irrelevant: “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.”71

ANALYSIS

III. The Hospital-Record Exception Does Not Permit the Admission of the Result of a Blood-Alcohol Test in a Prosecution Under the Per Se Drunk-Driving Law

Since its origination, Massachusetts’s courts have struggled to interpret the hospital-records statute, particularly with respect to whether a statement relates to a patient’s treatment and medical history or refers to the question of liability.72 Because of this difficulty, courts interpret the statute liberally to allow the admission of records that relate to treatment and medical history even if they also relate incidentally to liability.73 Yet this interpretation of the statute does not dictate, as the court in McLaughlin assumed, that a record may be used to prove liability—or criminal culpability—so long as it relates to the patient’s treatment and medical history.74

67 Id. at 1264. 68 McLaughlin, 948 N.E.2d at 1263–64. 69 See id. 70 Id. at 1263. 71 Id. at 1264. 72 See John M. Greaney, Comment, Evidence—Hospital Records Exception to the Hearsay

Rule—Medical History and Treatment—Second Level Hearsay, 64 MASS. L. REV. 33, 34 (1979). 73 Commonwealth v. Dargon, 930 N.E.2d 707, 716 (Mass. 2010). 74 See Bouchie v. Murray, 381 N.E.2d 1295, 1300 (Mass. 1978) (noting that if the hospital

record is found admissible, the judge should instruct the jury that it has no bearing on the

question of liability).


A. Ultimate Conclusion of the Crime Charged

While Massachusetts’s courts interpret the hospital-records exception liberally, they recognize that it is limited in scope.75 As noted above, “ultimate conclusions concerning the charged crimes” are not admissible.76 In this respect, courts distinguish between “a ‘conclusory fact central to the jury’s inquiry’ and ‘physical observations from which inculpatory inferences flow.’”77 In McLaughlin, the Appeals Court concluded that a hospital record of a blood-alcohol test admitted in an OUI prosecution under the per se theory does not constitute an “ultimate conclusion,” but a “physical observation.”78 Yet under the per se theory, the defendant’s blood-alcohol percentage is the sole question for the jury.79 Just like admitting a hospital record showing a diagnosis of “assault” in an assault prosecution, a hospital record showing a blood-alcohol percentage in a case where the sole question for the jury is whether the defendant’s blood-alcohol percentage was .08 or greater reports the ultimate conclusion of the crime charged and should be redacted.80

The court in McLaughlin avoided this conclusion by holding that the “reference to liability” clause only bars subjective statements relating to liability, not objective data obtained for medical purposes.81 Admittedly, in prior cases the portions of records excluded as relating to liability took the

75 Commonwealth v. Irene, 970 N.E.2d 291, 301–02 (Mass. 2012). 76 Dargon, 930 N.E.2d at 716 (quoting Commonwealth v. Dwyer, 859 N.E.2d 400, 413 (Mass.

2006)). 77 Id. (quoting Commonwealth v. Dimonte, 692 N.E.2d 45, 52 (Mass. 1998)). 78 Commonwealth v. McLaughlin, 948 N.E.2d 1258, 1263 (Mass. App. Ct. 2011). 79 MASS. PRACTICE, supra note 51. It could be argued that a blood-alcohol reading still

requires the jury to draw the inference that at the time the defendant was driving, his blood-

alcohol percentage was .08 or higher. See id. However, when such evidence is offered in a per

se prosecution, the prosecutor may ask the judge to instruct the jury that if they find the test

reliable, it conclusively establishes the defendant’s guilt. Id. Further, the SJC held that testimony

on retrograde extrapolation—a method of calculating a person’s blood-alcohol percentage at a

particular point in time by working back from the time of the test—is not required in a

prosecution under the per se theory as long as the test is conducted within a reasonable time

after the defendant last operated a vehicle. Commonwealth v. Colturi, 864 N.E.2d 498, 500

(Mass. 2007). As a result, it appears that the jury is not required to draw any inferences from

the record of the blood-alcohol test. See MASS. PRACTICE, supra note 51. 80 See Dargon, 930 N.E.2d at 715–16 (holding that the conclusory terms “assault” and

“assailant” in a hospital record should have been redacted); Commonwealth v. DiMonte, 692

N.E.2d 45, 51 (Mass. 1998) (holding that the portion of a hospital record reporting an assault

and battery should have been redacted); Commonwealth v. Baldwin, 509 N.E.2d 4, 5–6 (Mass.

App. Ct. 1987) (holding that “Diagnosis: Sexual Molestation” should have been redacted). 81 McLaughlin, 948 N.E.2d at 1263–64.


form of subjective statements.82 Yet this may be because, in the vast majority of crimes and causes of action, the jury’s ultimate conclusion cannot be stated directly in medical test results.83 Under the per se drunk-driving law, however, this is precisely the case. The jury’s ultimate conclusion—whether the defendant’s blood-alcohol percentage was .08 or higher—can be stated directly in the result of a blood test conducted for medical purposes.84 Further, the hospital-record exception’s language and history suggest that the “reference to liability” clause may bar evidence that related to treatment and medical history.85

B. The Hospital-Records Exception Bars Entries Relating to Medical Treatment that Relate Directly to Liability

As noted above, the first version of the hospital-records statute made hospital records admissible “as to all matters therein contained.”86 However, apparently dissatisfied with this broad version of the law, the legislature amended the statute in 1912 by adding the “reference to liability” clause.87 This history and language clearly implies that the legislature sought to limit the admissibility of hospital records not only to those portions that relate to the patient’s treatment and medical history, but also to those portions that do not refer to liability.88 To hold, as the court in McLaughlin did, that a blood test is admissible so long as its purpose was medical diagnosis or treatment ignores the statute’s plain language—that “nothing therein contained” which references liability is admissible.89 The statute contains no proviso that the “reference to liability” clause is inapplicable to portions of medical records that relate to medical treatment.90 Such an interpretation renders the “reference to liability” clause superfluous and duplicative of the clause limiting the admissibility of hospital records to portions which relate to treatment and medical history.91 “It is a fundamental canon of statutory construction that ‘statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so

82 See id. 83 Id. at 1263. For example, there is no objective medical test that returns a result of

“murder” or “negligence.” Id. 84 See MASS. PRACTICE, supra note 51. 85 See infra Part III.B. 86 See supra Part I.A. 87 See supra Part I.A. 88 See supra Part I.A. 89 See MASS. GEN. LAWS ch. 233, § 79 (2012) (emphasis added). 90 See id. 91 See id.


would achieve an illogical result.’”92 The McLaughlin court violated this principle when it upheld the admission of a hospital record containing the results of a blood-alcohol test in a prosecution under the per se law for the sole purpose of proving the defendant’s guilt.93

In addition to the statute’s plain language, Professor Henry Wigmore’s comments on both the statute and cases interpreting it support the notion that it bars entries relating to liability, even if obtained for medical-treatment purposes.94 Wigmore was a strong proponent of admitting hospital records because he believed that reliance on the records by physicians and nurses in matters of life and death provided a “Circumstantial Guarantee of Trustworthiness.”95 Given this, it is unlikely that he would have branded the law’s 1912 amendment, which introduced the “reference to liability” clause, a “childish way of trying to keep out things that do not suit the interests of one party” and “unworthy of our profession in this age” if he had believed that the “reference to liability” clause only barred subjective conclusions unrelated to treatment and medical history.96 Rather, it seems Wigmore was critical of the statute because he believed that it meant precisely what its plain language suggests: any portion of a record which relates to liability is inadmissible, even if it relates to treatment and medical history.97 Further, Wigmore’s comment on Clark v. Beacon Oil Co., which bluntly held that the “reference to liability” clause only bars entries unrelated to treatment and medical history, also supports this view.98 If he believed that the statute only barred entries unrelated to treatment and medical history, he probably would not have called the Clark decision “a mere exercise in verbal logic-chopping.”99 Wigmore’s comments confirm what the Court’s reasoning in Clark suggests: that the Massachusetts courts bent over backwards to interpret the statute in accordance with what they thought it should mean—that hospital records are admissible so long as they relate to treatment and medical history—rather than what it actually provides.100

The view that the “reference to liability” clause does not simply require that the record relate to treatment and medical history is also supported by decisions which suggest that where a record is admitted, judges should give limiting instructions to prevent the record from being considered on the

92 Commonwealth v. Irene, 970 N.E.2d 291, 300 (Mass. 2012). 93 See Commonwealth v. McLaughlin, 948 N.E.2d 1258, 1263–64 (Mass. App. Ct. 2011). 94 See supra Part I.A. 95 WIGMORE, supra note 35, at 662–63. 96 See id. at 663. 97 See id. 98 See WIGMORE, SUPPLEMENT, supra note 44. 99 See id. 100 See id.; Clark v. Beacon Oil Co., 170 N.E. 836, 837–38 (Mass. 1930).


question of liability.101 In fact, in the first case to interpret the statute, the SJC noted that the improper use of the record on the issue of liability could be prevented by giving limiting instructions to the jury.102 These decisions implicitly recognize the independent force of the “reference to liability” clause—if it simply meant that hospital records need only relate to a patient’s treatment and medical history, then naturally they could be considered on any issue to which they are relevant, and a limiting instruction would be unnecessary.103

It is important to recognize that in cases where the Court suggested giving a limiting instruction, the hospital record was relevant to an issue other than liability.104 In a drunk-driving prosecution, however, a hospital record can only be relevant to liability.105 As the Court noted in Commonwealth v. Dube, a case involving the admissibility of a hospital blood test in a drunk-driving prosecution prior to enactment of the per se law:

In none of the Appeals Court cases just cited did the defendant argue that,

if the evidence was admissible, it was not admissible to prove his

culpability. Nor did any defendant argue that the judge should give a

limiting instruction. Indeed, it is difficult to imagine any issue other than

guilt to which such evidence would be relevant.106

The Court went on to say that, although the issue was not before it, it would not require a limiting instruction where the record contains an “objective measure of a criminal defendant’s physical condition obtained on direction of a physician and pursuant to routine hospital procedure’s [sic],” but noted that a trial judge retained the discretion to do so.107 Nonetheless, the Dube Court recognized that it is not altogether clear that the statute permits using

101 See, e.g., Bouchie v. Murray, 381 N.E.2d 1295, 1300 (Mass. 1978) (“If the statement is

found to be admissible in these circumstances, the trial judge should give appropriate limiting

instructions to the jury that this evidence has no bearing on the question of liability.”).

102 Leonard v. Bos. Elevated Ry. Co., 125 N.E. 593, 593–94 (Mass. 1920). 103 See Greaney, supra note 72. 104 See Bouchie, 381 N.E.2d at 1297. For example, in Bouchie, a negligence action arising out

of a car accident, the hospital record documenting the plaintiff’s brain injuries before and after

the accident is relevant to determine the extent of the plaintiff’s injuries and whether they were

caused by the accident. Id. At the same time, the evidence could relate to liability in that it

suggests that the plaintiff may be responsible for the accident. See id. 105 See Commonwealth v. Dube, 601 N.E.2d 467, 469 n.5 (Mass. 1992). 106 Id. 107 Id. The Court’s logic here appears somewhat inconsistent. Id. On the one hand, it

suggests that the statute may not permit medical records to be considered on the issue of

liability. Id. Yet on the other, it suggests that in a case where a record could only be relevant to

the issue of liability, not only is it admissible, there is no need for even a limiting instruction.

See id.


a hospital record for the sole purpose of proving liability.108 Further, under the per se law (which was not passed until 2003 and hence was not in effect when the Dube decision was rendered) a record of a blood test relates far more directly to liability: rather than serving as evidence from which the jury could infer that the defendant operated a vehicle while impaired by alcohol, it serves as conclusive evidence of guilt.109

It may well be, as the Court in Leonard reasoned, that “a reasonable and practical construction of the statute requires that a record which relates directly and mainly to the treatment and medical history of the patient, should be admitted, even though incidentally the facts recorded may have some bearing on the question of liability.”110 Yet it is quite different to admit a hospital record showing the defendant’s blood-alcohol level in a case where the defendant’s blood-alcohol level is the sole question for the jury.111 Such a record is not just incidental to liability; it is liability itself.112

C. Barring Records of Hospital Blood Tests in Prosecutions Under the Per Se Law Does Not Deprive the Commonwealth of the Ability to Prosecute Drunk Drivers

The hospital-records exception does not permit the admission of hospital records concerning blood tests in prosecutions under the per se theory; however, this would not prevent the Commonwealth from prosecuting individuals for drunk driving.113 If the Commonwealth wishes to use a hospital blood test, it may proceed under the alternative impaired-operation theory, where a blood test is evidence—but not conclusive evidence—that the defendant operated while under the influence.114 At least two other jurisdictions appear to take an analogous approach, admitting a hospital record containing the results of a blood test in a drunk driving prosecution, but not allowing the prosecution to use the hospital test under the jurisdiction’s per se theory.115 This approach best serves the interests of

108 See id. 109 See MASS. PRACTICE, supra note 51. 110 125 N.E. 593, 593–94 (Mass. 1920). 111 Contra id. 112 See MASS. PRACTICE, supra note 51. 113 Id. 114 Id. 115 See Grant v. Brown, 429 So. 2d 1229, 1231–32 (Fla. Dist. Ct. App. 1983) (agreeing with

trial court’s refusal to give instructions based on statutory presumptions of impairment with

respect to a hospital blood test conducted in the course of medical treatment); Langway v. State,

617 A.2d 1117, 1118–20 (Md. Ct. Spec. App. 1993) (holding that while a hospital record

containing the result of a blood test was admissible as a business record, the statutory

presumptions relating to intoxication did not apply).


justice: the Commonwealth retains the ability to prosecute individuals who drive drunk and endanger the lives of others, while criminal defendants are protected from the possibility of conviction solely because of a trip to the hospital.116

IV. The McLaughlin Court Erred in Failing to Conduct an Inquiry into the Reliability of the Hospital Blood Test

A. The Presumption of Reliability Normally Afforded to Hospital Records Is Not Necessarily Justified with Respect to Blood-Alcohol Tests

In McLaughlin, the court upheld the admission of the hospital blood test because it was conducted as part of a series of routine tests ordered for medical purposes.117 The court did not require any further inquiry into the test’s reliability.118 In fact, where a blood test is performed at a hospital and recorded in the defendant’s hospital record, Massachusetts’s courts hold that no further reliability inquiry is required.119 Hospital records are presumed reliable because medical professionals depend on them in administering treatment.120 As Wigmore wrote: “There is a Circumstantial Guarantee of Trustworthiness; for the records are made and relied upon in affairs of life and death.”121 While this presumption of reliability may be justified with respect to statements made by the patient or physician in connection with providing or receiving care,122 it does not necessarily follow that this presumption is justified with respect to scientific evidence like blood tests.123

Blood tests performed at the hospital are undoubtedly relied upon by medical professionals, but for medical—not forensic—purposes.124 This is a critical distinction because there are inherent and important differences between the two.125 When a physician performs a blood test on a patient for treatment purposes, their primary concern is quickly determining whether the patient’s symptoms are the result of intoxication or another cause.126

116 See Grant, 429 So. 2d at 1231–32; Langway, 617 A.2d at 1118–20. 117 Commonwealth v. McLaughlin, 948 N.E.2d 1258, 1264 (Mass. App. Ct. 2011). 118 See id. at 1262–64. 119 Commonwealth v. St. Hilaire, 686 N.E.2d 1045, 1050 (Mass. App. Ct. 1997). 120 Bouchie v. Murray, 381 N.E.2d 1295, 1298 (Mass. 1978). 121 WIGMORE, supra note 35, at 662. 122 Bouchie, 381 N.E.2d at 1298. 123 See 1 EDWARD F. FITZGERALD, INTOXICATION TEST EVIDENCE § 18-7 (2d ed. 2013). 124 Roehrenbeck & Russell, supra note 61, at 14–16. 125 See FITZGERALD, supra note 123, at §§ 18-5, 18-7. 126 Id. at § 18-5; see, e.g., Commonwealth v. St. Hilaire, 686 N.E.2d 1045, 1048 (Mass. 1997)

(noting that the doctor ordered the defendant’s blood tested because he needed to know if

alcohol or drugs were present to determine whether the defendant’s behavior resulted from a


Physicians are not so much concerned with obtaining a precise reading—the focus of a test performed for forensic purposes—as with quickly approximating the patient’s blood-alcohol percentage to enable them to make effective treatment decisions.127 While medical personnel’s reliance on these tests to render medical treatment in life or death situations seemingly makes their evidentiary value almost bullet-proof, this is not necessarily true; the difference between a .07 and a .09 blood-alcohol reading is likely of little consequence to a patient’s medical treatment, but if that patient is later prosecuted under the per se drunk-driving law, it is likely the difference between guilt or innocence.128 As a result, there is a potentially serious problem with admitting a test conducted for medical purposes in a prosecution for a crime as precise and technical as the per se law.129

Massachusetts’s courts recognize that the mere fact that an entry appears in a hospital record does not make it automatically reliable.130 For example, in Commonwealth v. Johnson, the Appeals Court held that a hospital record containing the result of a rapid-urine screen indicating the presence of cocaine was inadmissible because it was “facially unreliable.”131 In that case, the hospital record itself stated that “a second test must be used to obtain a confirmed analytical result,” indicating that the test alone was not relied upon by medical personnel in providing treatment.132 While recognizing that “facially unreliable” medical records should not be admitted is a step in the right direction, the Massachusetts courts should go further and subject all blood-test results contained in hospital records to a reliability inquiry.133 After all, blood tests, whether conducted at a hospital or forensic lab, are only as reliable as the test itself and the procedures used to administer it.134

B. Hospital Blood Tests Should Be Subjected to a Reliability Inquiry

head injury or those substances). 127 See FITZGERALD, supra note 123, at §§ 18-7, 19-5 (“What I need to know from this test is

did this guy have any alcohol to drink, and did he have a little, a moderate amount, or a lot.”)

(internal quotation marks omitted). 128 Id. at §§ 18-6 to -7. 129 See id. at §§ 18-5 to -7. 130 See Bouchie v. Murray, 381 N.E.2d 1295, 1298 (Mass. 1978) (noting that the hospital

records exception only allows the admission of hospital records “which possess the

characteristics justifying the presumption of reliability”).

131 794 N.E.2d 1214, 1217–18 (Mass. App. Ct. 2003). 132 Id. at 1217 (internal quotation marks omitted). 133 See FITZGERALD, supra note 123, at §§ 18-5 to -6. 134 See id. at §§ 18-5 to -7.


Under Daubert and Lanigan

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held that, prior to admitting “any and all” scientific evidence, the trial judge must ensure the reliability of that evidence.135 In determining the reliability of the evidence, the Court suggested a few factors to consider, including: whether the particular scientific method was tested; whether it was subjected to peer review; the rate of error and whether operation standards exist and are maintained; and whether there is “general acceptance” within the relevant scientific community.136 In Commonwealth v. Lanigan, the SJC adopted the Daubert approach.137

The McLaughlin court’s failure to require any further inquiry into the blood test’s reliability beyond whether it was conducted for medical purposes ignores the fact that a blood test is scientific evidence which should be subjected to a reliability inquiry under Daubert and Lanigan.138 It must be kept in mind that the hospital records exception was intended to relieve doctors and other medical personnel from the burden of coming into court to testify about matters contained in the hospital records, and to admit reliable evidence.139 It was not intended to be a back door for otherwise unreliable and inadmissible evidence.140 As a result, the fact that evidence appears in a hospital record should not excuse the court from conducting a reliability inquiry.141

The Connecticut Supreme Court has recognized this concept, at least in the abstract.142 In State v. Kirsch, the Court held that even if evidence is admissible as a business record, a reliability inquiry is still required under Daubert.143 However, the Court concluded, somewhat contradictorily, that for the specific record at issue—a hospital record containing the result of a blood test—the trial court was not required to conduct a Daubert inquiry because there was nothing novel or unique about hospital blood tests.144 Yet,

135 509 U.S. 579, 589 (1993) (emphasis added) (applying the Federal Rules of Evidence). 136 Id. at 592–95. 137 641 N.E.2d 1342, 1349 (Mass. 1994). 138 See Daubert, 509 U.S. at 589; Lanigan, 641 N.E.2d at 1349; see also LAWRENCE TAYLOR &

STEVEN OBERMAN, DRUNK DRIVING DEFENSE § 12.08 (2012) (noting that blood tests conducted

at medical facilities may be subject to an admissibility challenge on Daubert grounds). 139 Bouchie v. Murray, 381 N.E.2d 1295, 1298 (Mass. 1978). 140 See Diaz v. Eli Lilly and Co., 440 N.E.2d 518, 521 (Mass. App. Ct. 1982) (noting that the

plaintiff should not be permitted to present otherwise inadmissible evidence “simply because

it fortuitously appears in a hospital record”). 141 See State v. Kirsch, 820 A.2d 236, 245 (Conn. 2003). 142 See id. 143 Id. at 243–44. 144 Id. at 245–46.


the fact that a scientific method is not novel or that it has a long history of judicial acceptance does not excuse it from Daubert scrutiny.145 A courtroom, after all, is not a laboratory; just because hospital blood tests have been routinely admitted for years does not necessarily mean that they are sufficiently reliable to withstand the scrutiny which Daubert demands of all scientific evidence.146

C. Reliability Concerns Surrounding Hospital Blood Tests

It is unfortunate that the court in McLaughlin did not require any further inquiry into the hospital blood test’s reliability because such tests may be the most in need of scrutiny.147 It may be that after conducting a reliability inquiry, the court will consider hospital blood tests reliable enough to be considered by the trier of fact.148 However, by automatically admitting such tests, the Massachusetts courts are ignoring some potentially serious problems.149

Hospitals generally use enzymatic tests150 to test for alcohol concentration.151 On the other hand, forensic labs generally use the Gas Chromatography method.152 While the enzymatic test is not necessarily unreliable, there are certain drawbacks to it.153 For one, enzymatic tests are usually run on blood serum, rather than whole blood.154 This results in a higher reading than would occur in a test on whole blood, and the result

145 Commonwealth v. Shanley, 919 N.E.2d 1254, 1264 n.15 (Mass. 2010) (“[W]e have not

‘grandfathered’ any particular theories or methods for all time, especially in areas where

knowledge is evolving, and new understandings may be expected as more studies and tests are

conducted.”); see DAVID H. KAYE ET AL., THE NEW WIGMORE: A TREATISE ON EVIDENCE: EXPERT

EVIDENCE § 9.3, at 431, 433 (2d ed. 2011). 146 See Shanley, 919 N.E.2d at 1264 n.15; KAYE ET AL., supra note 145, at 433. 147 See infra Part IV.B.

148 See, e.g., Commonwealth v. Lanigan, 641 N.E.2d 1342, 1349-50 (Mass. 1994) (concluding,

after conducting a Daubert reliability inquiry, that the process underlying DNA evidence is

sufficiently reliable to be admitted).

149 See Roehrenbeck & Russell, supra note 61, at 16–18. 150 Enzymatic tests determine the amount of alcohol in a person’s blood by measuring the

amount of light transmitted through the tested substance after a biochemical reaction between

alcohol and an enzyme. Id. at 16. These tests are generally run on blood serum, rather than

whole blood. Id. 151 Id. 152 Id. Gas Chromatography is considered the most accurate method of testing blood-

alcohol percentage. Id. The test is “highly selective for ethanol, directly measures ethanol

content, and requires minimal sample manipulation and preparation.” Id. 153 Id. at 16–17. 154 Id. at 16.


must be converted into a whole-blood value.155 While experts usually testify on this conversion,156 some hospitals are not aware of the difference between serum and whole-blood readings and often fail to identify in their records that serum, rather than whole blood, was tested.157 As a result, there is a risk that what is actually a serum reading will be mistaken for a whole-blood reading and admitted without any conversion.158 Further, even when these readings are converted, many witnesses oversimplify the conversion-ratio process and fail to point out that the ratio being used is an average ratio, not an absolute ratio equally applicable to all cases.159 In reality, there may be significant differences from person to person and prosecutors should report a range of values, rather than a single value.160

Enzymatic tests are also potentially problematic because most of them are not specific for ethanol.161 This opens up the possibility that other substances, including methanol and isopropyl alcohol, could produce false readings.162 This is especially problematic in a hospital setting, where using an alcohol-based antiseptic to clean the skin or hooking the patient up to an intravenous (“IV”) solution prior to drawing blood could contaminate the sample.163

Most problematic, however, are the differences between the procedures employed in the hospital setting as opposed to the forensic setting.164 In the forensic setting, strict standards and procedures are in place to ensure the test’s reliability.165 For example: blood samples must be collected in a certain manner; tested twice, with a control sample tested in between in order to ensure that the results comply with a certain degree of variation; and preserved for six months to allow for retesting; the testing device must be re-calibrated before the running of every test; and maintenance and repair records for the testing device must be kept.166

155 Roehrenbeck & Russell, supra note 61, at 16; see also Commonwealth v. Dube, 601 N.E.2d

467, 468 n.2 (Mass. 1992). 156 See, e.g., Commonwealth v. McLaughlin, 948 N.E.2d 1258, 1262 (Mass. App. Ct. 2011). 157 FITZGERALD, supra note 123, at § 18-14. 158 See id. 159 Id. at §§ 19-4 to -5. 160 Id. 161 Roehrenbeck & Russell, supra note 61, at 16. 162 Id. at 16–17. 163 See id. at 15. 164 See id. at 16. 165 See Department of State Police Office of Alcohol Testing Regulations for Blood Analysts,

MASSACHUSETTS TRIAL COURT LAW LIBRARIES, available at http://www.lawlib.state.ma.us/docs/

BloodAnalysts.pdf (last visited Jan. 21, 2013). 166 Id.


In the medical setting, the procedures employed vary from hospital to hospital.167 Generally, however, the tests are run only once and are rarely compared with a “known” sample,168 the samples are discarded after testing and not retained for re-analysis,169 and the sample’s chain of custody is not recorded.170 As a result, while a hospital test may very well be accurate, once the test is performed, the result recorded, and the sample thrown out, there is no way to determine whether the sample was contaminated, whether the machine was functioning properly or correctly calibrated, or even whether the sample tested was the defendant’s.171

These potential problems may or may not be significant enough to warrant exclusion under Daubert and Lanigan.172 Nonetheless, the admission of hospital blood tests under the hospital records exception—without further inquiry into the test’s reliability—creates a significant risk that defendants are convicted on unreliable evidence.173 A recent case highlights just how great this risk can be: in Commonwealth v. Patel, the defendant was convicted of drunk driving based upon a hospital record showing his blood-alcohol concentration to be .09, a mere .01 over the legal limit.174 Where the difference between guilt and innocence can be as technical as one hundredth of a percentage point, it is essential that courts ensure the reliability of the evidence.175

CONCLUSION

For nearly a century, Massachusetts courts have interpreted the hospital records exception to allow the admission of records that relate incidentally to liability so long as they relate mainly to treatment and medical history. While this interpretation may be necessary in most cases to avoid rendering the statute useless, the McLaughlin court’s holding—that a record showing the defendant’s blood-alcohol percentage may be admitted in a prosecution under the per se drunk-driving law—contradicts the statute’s language and

167 Roehrenbeck & Russell, supra note 61, at 15. 168 FITZGERALD, supra note 123, at § 18-14. 169 Alfred E. Staubus & Robert J. Belloto Jr., Forensic Toxicology of Urine- and Blood-Alcohol

Levels, ASPATORE, May 2010, at 6. 170 Id. 171 See supra notes 168–170 and accompanying text. 172 See Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 589–95 (1993). 173 See Randy S. Chapman, Successfully Defending an OUI Case, in MASSACHUSETTS

CONTINUING LEGAL EDUCATION, MASSACHUSETTS BASIC PRACTICE MANUAL § 13.5.3(d) (2012)

(noting that juries tend to give great weight to alcohol test results).

174 Commonwealth v. Patel, No. 11-P-1229, 2012 WL 6027759, at *1 (Mass. App. Ct. Dec. 5,

2012).

175 See Daubert, 509 U.S. at 589.


history. Such a record relates directly to liability and is offered for no other purpose.

Beyond this, the McLaughlin court’s failure to conduct any further inquiry into the reliability of the hospital blood test represents a troubling practice. The importance of ensuring the reliability of scientific evidence admitted against a defendant in a criminal case is crucial, as the recent drug lab scandal in Massachusetts illustrates. State drug lab chemist Annie Dookhan’s failure to follow lab protocols—sometimes to cut corners and sometimes to deliberately falsify evidence—in testing drug samples has called into question thousands of convictions obtained from evidence she tested. While medical personnel may not have an incentive to falsify records, the overall point still translates: when admitting scientific evidence in any case, but especially a criminal case, ensuring its accuracy is critical. Mistakes do happen—especially in emergency situations—and when a blood test is recorded in a hospital record and automatically admitted in a prosecution under the per se law, there is little way of knowing whether the test is an accurate measurement of the defendant’s blood-alcohol percentage. Unless and until Massachusetts courts recognize that the hospital-records exception does not allow the admission of a blood test in a prosecution under the per se law, and further that such tests must be subjected to a reliability inquiry, there remains a significant risk that a trip to the hospital may result in a criminal conviction.

Brekka: Diagnosis - Guilty

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