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Com. v. Flaherty9/7/2004
e at trial under G.L. c. 233, § 79, as an exception to the hearsay rule. [FN9] Citing Commonwealth v. Moran, 439 Mass. 482, 789 N.E.2d 121 (2003), [FN10] the defendant asserts that because the records did not contain any reference or notation to his having been intoxicated, the records were exculpatory.
FN9. "Records kept by hospitals ... may be admitted by the court, in its discretion, as evidence in the courts of the commonwealth so far as such records relate to the treatment and medical history of such cases and the court may, in its discretion, admit copies of such records..." (emphasis added). G.L. c. 233, § 79.
FN10. In Moran, the sexual assault complainant testified that she had undergone a laparoscopy and been instructed to refrain from intercourse. The Supreme Judicial Court held that her medical records should have been admitted to impeach her testimony because they showed that she underwent a completely different procedure which did not involve instructions to refrain from intercourse. Id. at 488-489, 789 N.E.2d 121.
*782 The trial judge ruled that the defendant's hospital records could not be admitted in evidence without a predicate basis. The judge was concerned that as observations of intoxication were not the focus of the hospital visit, the records could be misleading. More importantly, counsel was given the opportunity to call hospital personnel as witnesses to testify whether there was such an evidentiary basis, and whether the defendant showed signs of having used alcohol earlier that night, [FN11] to which counsel declined. Lastly, the defendant was arrested at approximately 1:30 A.M., and began complaining of chest pains at around 4:00 A.M., at which point the paramedics were called and the defendant was transported to the hospital, where he remained for "at least an hour, hour and a half." Given the passage of time, and the reasons noted above, as cited by the judge, it was within her discretion to refuse to allow the introduction of the medical records.
FN11. The judge indicated that "If a doctor was here, as a witness, he could testify as to his observations." The judge also would have allowed testimony concerning the practice and circumstances under which notations of intoxication would have been made in the records, thus establishing the predicate basis for their admission.
Judgment affirmed.
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