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399

DiagnosisGuilty: 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 statutes
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 jurys ultimate
conclusiona blood-alcohol concentration of .08 or higherfor 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 defendants
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 Ne w Engl and Law Revi e w 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
patients 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 patients
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 patients 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 tests 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 statutes
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, 126264 (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.AB.

2014 Di agnosi s Gui l t y 401
defendants hospital record.
11
The Supreme Courts decision in Daubert v.
Merrell Dow Pharmaceuticals, Inc.and the Massachusetts Supreme Judicial
Courts adoption of this approach in Commonwealth v. Laniganrequires 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 defendants hospital
record, focusing on the statutes 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).

402 Ne w Engl and Law Revi e w v. 48 | 399
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 statutes existence, Massachusettss 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 plaintiffs
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
Massachusettss 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 plaintiffs 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 59394.

26
Id. at 594.
27
See Leonard, 125 N.E. at 594.
28
Id.
29
See Inangelo v. Petterson, 128 N.E. 713, 71314 (Mass. 1920).
30
Id. at 714.
31
Id.

2014 Di agnosi s Gui l t y 403
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 plaintiffs 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
Massachusettss 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 partylike leaving out the joker in a pack of cards, or abolishing foul
balls because the pitchers skill needs a counterpoiseis 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 Wigmores harsh comment about the statute to
heart: In cases interpreting the statute in the years shortly after Wigmores
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 66263 & n.1 (2d ed. 1923).
36
Id. at 66263.
37
See id.
38
Id. at 663 n.1.
39
See id. at 66263 & n.1.
40
See, e.g., Souza v. Metro. Life Ins. Co., 170 N.E. 62, 6263 (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, 83738 (Mass. 1930).

404 Ne w Engl and Law Revi e w v. 48 | 399
the plaintiffs 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 Courts 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 patients 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, 51416 (Mass. 1972) (holding that doctors
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, 83839 (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 patients treatment and medical history), with Commonwealth v. Sheldon, 667
N.E.2d 1153, 115556 (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 71617 (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

2014 Di agnosi s Gui l t y 405
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 defendants blood-alcohol
percentage accurate, that measurement conclusively establishes the
defendants guilt.
51
Under the alternative impaired operation theory,
however, a blood-alcohol measurement does not conclusively establish the
defendants guilt.
52
Instead, it is merely evidence that the jury may consider,
along with evidence of the defendants 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, 56 (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, 50001 (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 499500.

406 Ne w Engl and Law Revi e w v. 48 | 399
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 defendants 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 defendants 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 defendants 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. Courts 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 126263.
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 126263.
66
Id. at 1262.

2014 Di agnosi s Gui l t y 407
in admitting the defendants hospital record.
67
The court rejected the
defendants argument that, in a prosecution for OUI under the per se theory,
a hospital record containing a test result showing the defendants 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 jurys 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, Massachusettss courts have struggled to interpret
the hospital-records statute, particularly with respect to whether a statement
relates to a patients 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 liabilityor criminal culpabilityso long as it relates
to the patients treatment and medical history.
74


67
Id. at 1264.
68
McLaughlin, 948 N.E.2d at 126364.
69
See id.
70
Id. at 1263.
71
Id. at 1264.
72
See John M. Greaney, Comment, EvidenceHospital Records Exception to the Hearsay
RuleMedical History and TreatmentSecond 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).

408 Ne w Engl and Law Revi e w v. 48 | 399
A. Ultimate Conclusion of the Crime Charged
While Massachusettss 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
jurys 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 defendants 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 defendants 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, 30102 (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 defendants guilt. Id. Further, the SJC held that testimony
on retrograde extrapolationa method of calculating a persons blood-alcohol percentage at a
particular point in time by working back from the time of the testis 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 71516 (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, 56 (Mass.
App. Ct. 1987) (holding that Diagnosis: Sexual Molestation should have been redacted).
81
McLaughlin, 948 N.E.2d at 126364.

2014 Di agnosi s Gui l t y 409
form of subjective statements.
82
Yet this may be because, in the vast majority
of crimes and causes of action, the jurys 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 jurys ultimate conclusionwhether
the defendants blood-alcohol percentage was .08 or highercan be stated
directly in the result of a blood test conducted for medical purposes.
84

Further, the hospital-record exceptions 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 patients 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 statutes plain languagethat 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.

410 Ne w Engl and Law Revi e w v. 48 | 399
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 defendants guilt.
93

In addition to the statutes plain language, Professor Henry Wigmores
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
laws 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,
Wigmores 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
Wigmores comments confirm what the Courts 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 historyrather 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, 126364 (Mass. App. Ct. 2011).
94
See supra Part I.A.
95
WIGMORE, supra note 35, at 66263.
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, 83738 (Mass. 1930).

2014 Di agnosi s Gui l t y 411
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
clauseif it simply meant that hospital records need only relate to a
patients 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 defendants physical condition obtained on direction
of a physician and pursuant to routine hospital procedures [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, 59394 (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 plaintiffs brain injuries before and after
the accident is relevant to determine the extent of the plaintiffs 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 Courts 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.

412 Ne w Engl and Law Revi e w v. 48 | 399
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 defendants blood-alcohol level in a case
where the defendants 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 evidencebut not conclusive
evidencethat 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 jurisdictions 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, 59394 (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, 123132 (Fla. Dist. Ct. App. 1983) (agreeing with
trial courts 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, 111820 (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).

2014 Di agnosi s Gui l t y 413
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
tests reliability.
118
In fact, where a blood test is performed at a hospital and
recorded in the defendants hospital record, Massachusettss 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 medicalnot forensicpurposes.
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 patients symptoms are the result of intoxication or another cause.
126


116
See Grant, 429 So. 2d at 123132; Langway, 617 A.2d at 111820.
117
Commonwealth v. McLaughlin, 948 N.E.2d 1258, 1264 (Mass. App. Ct. 2011).
118
See id. at 126264.
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 1416.
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 defendants blood tested because he needed to know if
alcohol or drugs were present to determine whether the defendants behavior resulted from a

414 Ne w Engl and Law Revi e w v. 48 | 399
Physicians are not so much concerned with obtaining a precise readingthe
focus of a test performed for forensic purposesas with quickly
approximating the patients blood-alcohol percentage to enable them to
make effective treatment decisions.
127
While medical personnels 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 patients 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

Massachusettss 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, 121718 (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.

2014 Di agnosi s Gui l t y 415
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 courts failure to require any further inquiry into the
blood tests 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 issuea hospital record containing the result of a
blood testthe 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 59295.
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 24344.
144
Id. at 24546.

416 Ne w Engl and Law Revi e w v. 48 | 399
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 tests 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 tests
150
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 1618.
150
Enzymatic tests determine the amount of alcohol in a persons 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 1617.
154
Id. at 16.

2014 Di agnosi s Gui l t y 417
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
tests 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 1617.
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.

418 Ne w Engl and Law Revi e w v. 48 | 399
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 samples 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 defendants.
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 exceptionwithout
further inquiry into the tests reliabilitycreates 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 courts holdingthat a record showing
the defendants blood-alcohol percentage may be admitted in a prosecution
under the per se drunk-driving lawcontradicts the statutes 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 168170 and accompanying text.
172
See Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 58995 (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.

2014 Di agnosi s Gui l t y 419
history. Such a record relates directly to liability and is offered for no other
purpose.
Beyond this, the McLaughlin courts 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
Dookhans failure to follow lab protocolssometimes to cut corners and
sometimes to deliberately falsify evidencein 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 happenespecially in emergency situationsand 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 defendants 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.

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