As reported by Massachusetts Lawyers Weekly (Trial Court Announces Layoffs and Court Closings) last week, the Massachusetts Trial Court announced that it will cut between 250 and 300 court jobs and closed almost 14 courthouses.
These cuts are in addition to several hundred court employees who agreed to take early retirement. In addition to the layoffs, early retirement and court closings, court personnel and judges will have to take a five day unpaid furlough.
The budget cuts, undoubtedly, will impact litigants waiting for their day in court. Trials will be delayed.
Many more litigants may opt for private Alternative Dispute Resolution (ADR) such as arbitration or mediation as a way to obtain an expedited resolution of their legal dispute.
Source: Massachusetts Lawyers Weekly
Copyright © 2010 John J. Sheehan
In O’Malley v. Soske (App. Docket No. 09-P-315), the Massachusetts Appeals Court held that medical expert reports are admissible into evidence at trial under MGL Ch. 233 § 79G.
The case involved a personal injury claim arising out of a motor vehicle accident in Boston, Massachusetts.
Defendant’s attorney hired a medical expert who reviewed plaintiff’s medical records, conducted a physical examination of the plaintiff and issued a written report. The Defendant’s medical expert concluded that “[t]here is no indication that [the plaintiff] sustained any anatomical derangement or structural lesion of her muskuloskeletal system as a consequence of the subject accident.”
Defendant’s attorney offered the medical expert’s report into evidence. Over the objection of plaintiff’s attorney, the trial judge admitted the report. Defendant’s medical expert did not testify at trial.
The jury found the defendant negligent but did not find that the plaintiff’s injuries were causally related to the motor vehicle accident. Plaintiff appealed.
Upholding the admission of the expert report, the Appeals Court confirmed that MGL Ch. 233 § 79G provides that “…any report of any examination of said injured person, … shall be admissible as evidence of … the diagnosis of said physician …, the prognosis of such physician…, the opinion of such physician…as to proximate cause of the condition so diagnosed, the opinion of such physician…as to disability or incapacity, if any, proximately resulting from the condition so diagnosed…”
MGL Ch. 233 §79G is a statute that outlines a procedure for offering medical records, physician/therapist notes, medical treatment bills and physician reports into evidence at trial without the need of having the physician testify in court. Such medical evidence is admissible under the statute as an exception to the hearsay rule.
There has been an effort by some practitioners to limit the statute’s application to reports of treating physicians created in the course of medical treatment and to exclude reports generated at the request of a lawyer for use at trial.
The Massachusetts Appeals Court confirmed and clarified the application of the statute in O’Malley v. Soske to include the admissibility of reports generated or created specifically in connection with the litigation. As long as the physician report otherwise complies with the statute (i.e. the opinions offered are to a reasonable degree of medical certainty by a duly license physician based on an examination of the claimant and sworn to or affirmed by the physician under the penalties of perjury) and the statutory notice is given to opposing counsel, then the report should be admitted into evidence even if the report was authored by a hired medical expert.
Copyright © 2010 John J. Sheehan
