Opinion
No. 11–P–46.
2012-05-23
COMMONWEALTH v. Raymond J. LEGER, Jr.
By the Court (GREEN, GRAINGER & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his conviction on a charge of operating a motor vehicle while under the influence of intoxicating liquor (fourth offense), the defendant claims error in the admission of medical records of a serum alcohol blood test administered upon his hospitalization for injuries he sustained in a motor vehicle accident at the time of the incident giving rise to the charge. We affirm.
The defendant contends that the medical records were inadmissible because there was no evidence to establish that the serum alcohol blood test was administered as part of a standard hospital procedure. See Commonwealth v. Riley, 22 Mass.App.Ct. 698, 700–701 (1986); Commonwealth v. Sargent, 24 Mass.App.Ct. 657, 660–661 (1987). The governing statute does not by its terms require proof that the test was performed as part of a routine or standard protocol; it requires simply that the test “relate to the treatment and medical history” of the patient. G.L. c. 233, § 79, as appearing in St.1959, c. 200. Moreover, contrary to the defendant's contention, such evidence need not be in the form of testimony by a treating physician. See Commonwealth v. Russo, 30 Mass.App.Ct. 923, 925–926 (1991). In the present case, the defendant was transported by emergency medical personnel from the scene of the accident to Tobey Hospital, and then airlifted to the Boston Medical Center. Upon arrival at Boston Medical Center he was unconscious and unable to communicate with treating medical personnel concerning his condition or medical history. According to the intake notes, he “smell[ed] of alcohol.” Among other injuries sustained in the accident, the defendant had a perforated bladder, requiring emergency surgery including anesthesia; due to his unconscious state, medical staff completed an emergency consent form on his behalf. Prior to his emergency surgery, the defendant was administered a full battery of preoperative tests, including a number of blood tests (the serum alcohol blood test among them).
Based on the information contained in the medical records themselves, as summarized, supra, there was adequate basis for the judge to infer that the serum alcohol blood test was performed as part of a full battery of tests incident to the treatment of the defendant necessitated by the injuries he sustained in the accident and his condition upon arrival at the hospital.
See Commonwealth v. Russo, supra. The judge accordingly did not err in denying the defendant's motion in limine.
In these circumstances, we consider it immaterial that the serum alcohol blood test was among those tests handwritten on the form that ordered the preoperative tests, rather than among those preprinted on the “critical care flow” form.
Judgment affirmed.