The statute at issue, G.L. c. 233, ยง 79G, as amended through St. 1988, c. 130, provides, in relevant part: The plaintiff makes no claim that the statute's provisions regarding notice, see Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 274 (1990) (party seeking to offer report at trial must satisfy statute's notice requirements), and attestation, see Knight v. Maersk Container Serv. Co., 49 Mass. App. Ct. 254, 256 (2000) (statute requires that physician's attestation accompany report when offered at trial), were not satisfied. In addition, although the plaintiff characterizes Lupien's examination as "superficial," she does not dispute that Lupien examined her.
After the 1988 amendment, ยง 79G allows, among other things, a written "report" of an examining physician as to the disability or incapacity proximately resulting from a condition that he or she observed to be placed in evidence as an exception to the hearsay rule. Knight v.Maersk Container Serv. Co., 49 Mass. App. Ct. 254, 256 (2000). "However, in order for such a medical report to be admissible in evidence at trial, ยง 79G mandates that certain requirements be met, namely that (1) written notice of the intention to offer the report in evidence, along with a copy of the report, must be served on the opposing party or his attorney by certified mail, return receipt requested, not less than ten days before the introduction of the report; (2) an affidavit of such notice and the return receipt must be filed with the clerk forthwith after the return receipt is received; and (3) the report must be subscribed and sworn to under the penalties of perjury by the physician."
forthwith after the return receipt is received; and (3) the report must be subscribed and sworn to under the penalties of perjury by the physician.' Commonwealth v. Schutte, 52 Mass. App. Ct. 796, 799 n.2 (2001), quoting from Knight v. Maersk Container Serv. Co., 49 Mass. App. Ct. 254, 255 (2000). In short, failure to comply with any of the statutory procedural requirements will bar introduction of the report.
July 21, 2000. Further appellate review denied, Reported below: 49 Mass. App. Ct. 254 (2000).
See Knightv.Maersk Container Serv. Co., 49 Mass.App.Ct. 254, 255-256 (2000) .
Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 274 (1990). Contrast Knight v. Maersk Container Serv. Co., 49 Mass.App.Ct. 254, 256 (2000) ("Here, there was ample pretrial notice to plaintiffs' counsel that the defense planned to offer the . . . report in evidence"); Mass. G. Evid. ยง 803(6) (C) (2022) . First, when "a defendant is defaulted, well-pleaded facts are deemed to be admitted, but a plaintiff may recover only to the extent the complaint states a claim for relief ....
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, 728 N.E.2d 968 (2000). Medical records created in the ordinary course of business "are not usually created or written with attestations of the author; the attestation is later obtained and at trial either accompanies or is affixed to the report."