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

I’m getting tired with all the misinformation floating around Cable TV talk shows and the blogosphere about tort reform. Why does the conversation (or usually screaming) always start with the premise that we must limit people’s access to the justice system or protect wrong doers? Naturally this approach is favored by the insurance industry and their hired guns.

Instead, any tort reform should focus on patient safety and patient rights.

Proponents of limiting medical malpractice claims premise their arguments with the proposition that run-away juries are awarding millions of dollars for frivolous lawsuits which, in turn, is driving up health costs resulting in out of control insurance premiums. While you may be entitled to your own opinion, you’re not entitled to your own facts. I haven’t seen any credible evidence to support this dubious assertion that jury awards for frivolous medical malpractice lawsuits are driving up health care costs.

First, in Massachusetts at least, plaintiff verdicts in medical malpractice lawsuits are the exception, not the norm.

Second, before a medical malpractice case can even proceed through the Massachusetts court system, the plaintiff bringing the lawsuit must get a favorable ruling from a Medical Tribunal which is a three person panel comprised of a judge, lawyer and medical doctor of the same specialty as the defendant doctor. With few exceptions, the plaintiff’s case must be supported by a medical expert who will testify that the defendant doctor committed medical malpractice. If the Medical Tribunal rules in favor of the defendant doctor, the plaintiff must post a bond to cover the defendant’s court costs in the event that the plaintiff loses at trial.

Finally, the trial judge has the power, under certain circumstances, to reduce a jury award or throw it out entirely if the jury award is not supported by the evidence and the law.

Contrary to the proponents of “tort reform”, I do not see any evidence of run away jury awards in my law practice in Massachusetts. My experience is that the opposite is true. I see ample of evidence of jury bias which I attribute to a relentless media campaign of lies and half truths waged by the powerful insurance companies and their right wing flacks.

I’ll end with this. What if you or your child were seriously harmed by a doctor’s wrongdoing, should the courthouse doors be shut to you in order to save the multimillion dollar profits of insurance company executives? Isn’t everyone entitled to their day in court in America?

Copyright © 2009 John J. Sheehan

In Massachusetts, if you are injured while acting in the course of your employment, you are entitled to workers’ compensation benefits paid by your employer’s workers compensation insurance company.  If you require medical treatment, the workers’ compensation insurer will pay for any and all reasonable and necessary medical treatment that is causally related to your work injury.  If you are temporarily totally disabled from work because of your injury, you are entitled to weekly workers’ compensation  benefits at the rate of 60% of your average weekly wage (“AWW”).

During the first 180 days or 6 months from your injury, payments made by the workers’ compensation insurer are without prejudice.  This is commonly called the 180 Day Pay Without Prejudice Period.  That’s a fancy way of saying that the workers’ compensation insurer has not accepted liability or legal responsibility for your industrial injury.  As a practical matter, the workers’ compensation insurer can modify (usually reducing benefits) or discontinue benefits without permission from a judge provided that the insurer gives the employee written notice 7 days before it takes any action against the injured employee’s benefits.

If the workers’ compensation insurer pays benefits beyond 180 days, the insurer accepts liability or legal responsibility for the injured employee’s industrial injury provided that the employee did not sign an agreement to extend the 180 Pay Without Prejudice Period.  That doesn’t mean that the insurer cannot try to modify or discontinue workers’ compensation benefits.  However, the important difference is that the insurer must continue paying benefits until it receives permission from a judge to reduce or discontinue benefits.

Many injured workers make the mistake of not contacting an attorney to represent their legal interests immediately after a disabling work injury.  It is a mistake to hide your head in the sand hoping that the workers’ compensation insurer will do the right thing.  Insurance companies have lawyers representing their legal interests, and every worker who is disabled from work due to a work accident should be represented by a workers’ comp lawyer as early as possible to protect their legal rights and ensure that they are paid all the benefits to which they are legally entitled.

Copyright © 2009 John J. Sheehan