Neustadt v. Gennelly

1983 Mass. App. Div. 52, 1983 Mass. App. Div. LEXIS 12
CourtMassachusetts District Court, Appellate Division
DecidedFebruary 19, 1983
StatusPublished
Cited by1 cases

This text of 1983 Mass. App. Div. 52 (Neustadt v. Gennelly) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Neustadt v. Gennelly, 1983 Mass. App. Div. 52, 1983 Mass. App. Div. LEXIS 12 (Mass. Ct. App. 1983).

Opinion

Cowdrey, P. J.

This is an action in tort in two counts to recover for property damage and personal injuries sustained by the plaintiff when his motorcycle was struck by the defendant’s vehicle on July 7, 1977.

The defendant was defaulted for failing to file answers to interrogatories propounded by the plaintiff.

Prior to the July 22, 1981 hearing for an assessment of damages, plaintiffs counsel mailed a written notice to defendant’s counsel pursuant to G.L.c. 233, §79G that he intended to introduce into evidence two medical bills, copies of which were enclosed. These bills may be described as follows:

[53]*53No. I: Hunt Memorial Hospital, dated July 7, 1981, in the sum of $2,486.00 for “Admission: 7/7/77 to 7/19/77.” Charges subscribed and sworn to as “necessary, fair and reasonable” by the Patients Accounts Manager.
No. 2: Associates in Anesthesiology and Respiratory Therapy, Inc., dated July 9, 1981, in the sum of $256.00 for “7/8/77 Anesthesiology Fee.” Bill notarized.

These bills were admitted into evidence over the defendant’s objection at the July 22, 1981 assessment hearing. The trial justice ruled that bills numbers 1 and 2 “basically complied with the concept and intent of G.L.c. 233, §79G and were therefore admissible.”

The plaintiff was the only witness to testify at the July 22, 1981 assessment hearing. The plaintiff stated that he had incurred bills number 3 through 10 described below; that he had received the goods and/or services represented by each bill; that he had received these bills; that he recognized each bill and that he had personally paid each bill to the provider of the services and/or goods listed. Bills numbers 3 through 10 were not admitted into evidence, but were utilized as memoranda to refresh the plaintiffs recollection. Over the defendant’s objection, the trial court ruled that the plaintiff s oral testimony as to the amounts paid was admissible. Bills 3 through 10 may be described as follows:

No. 3: Lyons Ambulance Service, dated July 2,1981, in the sum of $120.00 for “7/19/77 Ambulance Service from Hunt Memorial Hospital, Danvers to 5 Longmeadow Road, Beverly; 8/04/77 Chair Car Service from 5 Longmeadow Road, Beverly to Hunt Memorial Hospital, Danvers and return.” Bill notarized.
No. 4: Danvers Pathology Service in the sum of $8.10 for “7/7/77 CBC; 7/7/77 RPR; 7/8/77 Urine Routine.” Sworn to by Office Manager.
No. 5: Joel W. Saks, M.D. in the sum of $1,455.00. Eight separate dates and sums from 7/7/77 to 3/7/78. No treament description. Charges signed and sworn to as “necessary, fair and reasonable” by provider, Joel W. Saks, M.D.
No. 6: Medi-Shack of Danvers, Inc. in the sum of$91.75 for “Rental 8/16/77 through 9/16/77 of Electric Bed, Mattress and Rails.”
No. 7: Medi-Shack of Danvers, Inc. in the sum of $70.00 for “Rental 9/19/77 through 10/19/77.”
No. 8: Medi-Shack of Danvers, Inc. in the sum of $56.40 for “Wheelchair Rental; Adjustable Toilet Frame.”
No. 9: Union Hospital, dated 7/21/77 in the sum of $120.50 for Emergency Service, Physicians fee; X-Rays: and M & S Supplies on various dates in July, 1977.
No. 10: Gould Enterprises, Inc. in the sum of$623.33 for parts and labor on the defendant’s motorcycle. No date.

Damages were assessed under Count 1 of the plaintiff s complaint for personal injuries in the total sum of $28,000.00, which included an award of $4,800.00 for medicals. Damages were assessed under Count 2 for property damage in the sum of $603.33. Judgment was entered against the defendant on Decemeber 28, 1981 in the total sum of $29,423.33.

The defendant thereafter directed an appeal to this Division on a charge of error in the trial court’s admission into evidence of bills number 1 and 2 and of the plaintiff s oral testimony as to the contents of bills number 3 through 10 inclusive.

1. Bills numbers 1 and 2 were not properly admitted into evidence pursuant to G.L.c. 233, §79G. Said statute mandates, in relevant part, that:

“In an action of tort or contract, or for consequential damages arising [54]*54therefrom, an itemized bill for medical, dental or hospital services to a person injured, subscribed and sworn to under the penalties of perjury by the physician, dentist, optometrist, chiropractor or podiatrist, or authorized agent of the hospital rendering such services shall be admissible as evidence of the necessary, fair and reasonable charge for such services ... (emphasis supplied)”

Bill number 1 is not itemized; bill number 2 lacks attestation by an “authorized agent of the hospital.”

If nothing to the contrary appears from the record, the actual admission of certain hospital and business records and bills pursuant to G.L.c. 233 generally implies a finding that the facts prerequisite to their statutory admission were found by the trial court. Sawyer & Co. v. Southern Pac. Co., 354 Mass. 481, 483 (1968); Sellew v. Tuttle’s Millinery Inc., 319 Mass. 368, 371 (1946); G. E. Credit Corp. v. Stone, 59 Mass. App. Dec. 13, 17 (1976). As it is clear in this case, however, that the preliminary findings of itemization and attestation could not have been made pursuant to G.L.c. 233, § 79G, the admission of bills number 1 and 2 must be deemed error on this appeal. See generally, Riccuitti v. Sylvania Elec. Products, 343 Mass. 347, 351-352 (1961).

Sections 78 and 79 of General Laws c. 233 are statutory exceptions to the hearsay rule which permit certain business and hospital records and bills to be admitted into evidence, under expressly prescribed procedures, to prove the truth of the facts contained therein. Bouchie v. Murray, 376 Mass. 524, 527 (1978); Commonwealth v. Franks, 359 Mass. 577, 579 (1971); Bates Block Assoc., Inc. v. Milady’s Shop, Inc., 3 Mass. App. Ct. 776, 777 (1975). The preliminary, statutory criteria for admission serve as the sole indicia of the truthfulness, reliability and probative value of these records and their contents. A record or bill which does not comply with prescribed requirements and which cannot thus be brought within the terms of the statute must be excluded. See generally, Victim v. Martin, 367 Mass. 404, 408 (1975); Karpowicz v. Manasas, 275 Mass. 413, 419 (1931); Household Fuel Corp. v. Hamacher, 331 Mass. 653, 655 (1954); Kelly v. Jordan Marsh Co., 278 Mass. 101, 111 (1932); Rockwell v. Hertz Truck Rental Corp., 3 Mass. App. Ct. 727 (1975).

2. Similarly, the plaintiff should not have been permitted to testify as to those expenses and charges incurred by him in consequence of bills number 3 through 9. A witness may properly utilize a memorandum which contains hearsay or is otherwise inadmissible to refresh his recollection, Guiffre v. Carapezzi, 298 Mass. 458, 459 (1937; Horowitz v. Bokron, 337 Mass. 739, 743 (1958), because it is his testimony rather than the memorandum which is introduced into evidence. Fisher v. Swartz, 333 Mass. 265, 267 (1955); Commonwealth v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dougherty v. Fossarelli
1984 Mass. App. Div. 28 (Mass. Dist. Ct., App. Div., 1984)

Cite This Page — Counsel Stack

Bluebook (online)
1983 Mass. App. Div. 52, 1983 Mass. App. Div. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neustadt-v-gennelly-massdistctapp-1983.