In my last post, I expressed my growing concern that the recent proliferation of unpublished opinions issued by the Massachusetts Appeals Court pursuant to Rule 1:28 had the potential to mislead judges and lawyers because the necessarily abbreviated recitation of the facts might not clearly illustrate the applicability of the governing legal principles. James v. Amlani, another decision issued the same day as the Bodden v. Nicholson opinion that prompted my last post, did nothing to allay those concerns.
The plaintiff in James brought a claim against his dentist, alleging that a foreign object he had swallowed during a dental procedure had caused a perforation in his intestine. Unfortunately for the plaintiff, however, the size and description of the object eventually retrieved during surgery to repair his intestinal perforation did not match anything used during the dental treatment. In fact, the description of the object sounded suspiciously like a toothpick that the plaintiff admitted to using while at home.
Clearly, this is a case that could quite simply and properly have been decided on the basis that there was no credible evidence that the foreign object in question was either used by the dentist or was ingested during the dental procedure. Unfortunately, the court went much further, holding that the trial judge properly excluded an entry in the plaintiff’s later medical records that stated, “might have swallowed dental filling, and apparently, although not explicitly, reasoning that this statement had “bearing on the question of liability” and was not related to medical history or treatment.
The court clearly had ground to exclude the statement as speculative and unduly prejudicial under Section 403 of the Massachusetts Guide to Evidence. But its unfortunately choice of grounds may serve to confuse future judges and lawyers. A doctor treating a patient with an intestinal ailment would clearly be interested in whether the patient might have ingested a foreign object, and if so, what that object might be. Was the object toxic, sharp, large or small? Was the ingestion intentional? And in answering these questions the challenged statement would clearly be relevant to diagnosis and treatment–yet the court’s opinion suggests otherwise.
More concerning is the court’s off-hand suggestion that the disputed entry was inadmissible as having “reference to the question of liability,” as provided by General Laws, Chapter 233, Section 79. That exception, shared by both the hospital records statute, G.L. c.231 s.79, and the statute making a death certificate admissible as prima facie evidence of cause of death, G.L. c.46 s.19, has been the subject of much misguided advocacy by defense counsel, who seek to preclude the admission of anything even remotely helpful to the plaintiff by reference to that phrase. In fact, as a review of the case law demonstrates, the thrust of that provision is to exclude an opinion related to legal, rather than factual liability. Perhaps the best illustrative case is Wadsworth v. Boston Gas Co., 352 Nass. 86 (1967), in which the Supreme Judicial Court rejected the defendant’s argument that the words “illuminating gas” should be redacted from medical records and as the cause of death. The Court stated, “[w]here the words have reference to the injuries of the deceased, they are admissible, even though incidentally they may have some bearing on the question of liability…. The recital of injury or death from inhalation of illuminating gas, standing alone, does not impute fault or freedom from fault to anyone. It may designate the chemical agent which produced the physical result, but it does not narrate the event or chain of events which caused the illuminating gas to escape. ”
The James court’s abbreviated discussion fails to acknowledge the distinction recognized in Wadsworth, and once again raises the potential that a decision originally intended to be brief and applicable only to the parties before the court may be used as support for a departure from established law. The Appeals Court cannot be expected to write a full opinion in each case decided under Rule 1:28, and in truth, most of those cases do not warrant such attention. But the combination of the summary treatment of the facts and the law, combined with the permission to cite the result, creates a real danger that these opinions will be used in a manner never intended by their authors.