2017 Mass. App. Div. 96

December 16, 2016 - May 16, 2017

Appellate Division Northern District

Court Below: District Court, Chelsea Division

Present: Coven, P.J., Singh & Crane, JJ.

Matthew T. LaMothe for the plaintiff.

Glenda H. Ganem for the defendant.

SINGH, J. Plaintiff Robert S. Almeida, D.C. ("Almeida") appeals from the dismissal of his case, brought to collect personal injury protection ("PIP") insurance benefits owed to his chiropractic patients, after the court directed a verdict in favor of defendant Encompass Insurance Company of Massachusetts ("Encompass"). [Note 1] Almeida contends that the court erroneously allowed Encompass's motion for directed verdict based on his failure to introduce into evidence the relevant insurance policy. Additionally, he claims that the judge erred in allowing Encompass's motion to exclude the patients' medical records from evidence at trial. We agree and therefore return the case for trial.

Just prior to the trial of this matter, Encompass moved in limine for exclusion of medical records proffered by Almeida, pursuant to G.L. c. 233, § 79G, on the basis that the certification required by the statute did not accompany the notice of intent to offer such records that Almeida had timely provided to Encompass. Although counsel for Almeida indicated that Almeida would certify the records that day, as he would be present to testify, the court allowed Encompass's motion and excluded the records. Counsel for Almeida therefore proceeded to trial with the testimony of Almeida, Almeida's patients, and the Encompass employee who handled Almeida's claim.

The evidence established that a husband and wife were injured as a result of a motor vehicle accident in which the husband was driving on December 29, 2006. Following the accident, for a three to four month period of time from late 2006 into early 2007, the couple received treatment for their injuries at Metropolitan Chiropractic, an establishment owned by Almeida. The treatment, which included massages, stretchings, and hot towels, helped to alleviate their pain. The bills for the treatment were approximately $5,000.00 for the husband and approximately $5,000.00 for the wife. Almeida submitted the bills contemporaneously for payment to Encompass, which had a motor vehicle insurance policy with the husband on the date of the accident. PIP benefits are part of a motor vehicle insurance policy, and they cover necessary and reasonable medical bills for injuries arising out of a motor vehicle accident. A claim for PIP benefits was made to Encompass on behalf of the husband involved in the accident. Encompass investigated,

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found indication of an accident, and declared the automobile to be a total loss. It paid the couple's bills from Massachusetts General Hospital, but it did not pay Almeida's bills. At the close of Almeida's case, the court directed a verdict in favor of Encompass.

1. Exclusion of medical records. As Almeida correctly argues, G.L. c. 233, § 79G does not require any certification of records to be sent to the opposing party prior to trial. Rather, the statute requires that, in order to be admissible at trial, the records must be "subscribed and sworn to under the penalties of perjury" by the physician rendering the services referenced in the records. G.L. c. 233, § 79G. Thus, "attestation by the physician . . . does not have to be included with the notice so long as it is present when the evidence is offered at trial." Mass. G. Evid. § 803(6)(C) note (2017), citing Knight v. Maersk Container Serv. Co., 49 Mass. App. Ct. 254, 256 (2000). Here, Almeida's notice of intent to offer medical records pursuant to G.L. c. 233, § 79G indicated that the records were that of "Robert S. Almeida D.C.," pertaining to the care of the patients involved in the litigation. Thus, Almeida, who was a witness at trial, was in a position to certify the records, making them admissible at trial. Accordingly, the records should not have been excluded on the basis that the physician's attestation had not been sent to opposing counsel in advance. Given the nature of the case, the erroneous exclusion of medical records was prejudicial. Albright v. Boston Scientific Corp., 90 Mass. App. Ct. 213, 224 (2016), citing DeJesus v. Yogel, 404 Mass. 44, 48-49 (1989) (substantial rights of party adversely affected when relevant evidence is erroneously excluded that could have made material difference).

2. Allowance of motion for directed verdict. On appeal from the allowance of a motion for directed verdict, the court must evaluate whether "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made" in favor of the plaintiff. O'Brien v. Pearson, 449 Mass. 377, 383 (2007), quoting Dobos v. Driscoll, 404 Mass. 634, 656 (1989). To establish his claim for PIP benefits, Almeida was required to establish four elements: (1) an accident occurred, (2) the patients' injuries and their related treatment by Almeida's establishment were causally related to the accident, (3) a Massachusetts automobile liability policy issued by Encompass and covering the vehicle involved in the accident was in effect on the accident date, and (4) there are unpaid amounts due to Almeida for the treatment provided. Advanced Spine Ctrs., Inc. v. Arbella Mut. Ins. Co., 2016 Mass. App. Div. 1, 3, citing Provenzano v. Arbella Mut. Inc. Co., 2007 Mass. App. Div. 46, 47.

Both patients gave testimony that a motor vehicle accident occurred, that they were injured as a result of the accident, and that treatment received from Almeida's establishment helped to alleviate the pain from those injuries. Thus, the first two elements were established. Almeida testified that he had yet to be paid for the treatment provided to the two patients. Therefore, the fourth element was established. The third element required Almeida to establish that a Massachusetts automobile liability policy issued by Encompass and covering the vehicle involved in the accident was in effect on the accident date. No insurance policy was admitted into evidence. [Note 2] Because PIP benefits are statutorily required to be part of every Massachusetts motor vehicle

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liability policy, and the terms are also statutorily prescribed, the actual insurance policy between the parties need not be introduced at trial. See Sonogram of New England, Inc. v. Metropolitan Prop. & Cas. Ins. Co., 2002 Mass. App. Div. 68, 70. As long as there is evidence of the existence of such a policy, there are other ways of establishing the specific terms. Id. See Lapuck v. Commerce Ins. Co., 2015 Mass. App. Div. 41, 42 n.2 (because existence of insurance policy was conceded, introduction of standard form Massachusetts insurance policy was superfluous as terms were provided by statute); Brown v. Norfolk & Dedham Mut. Fire Ins. Co., 2011 Mass. App. Div. 35, 40 (no error in denial of directed verdict motion in PIP case where insurance policy not admitted into evidence, because insurer had admitted to existence of policy). Here, both the Encompass employee and one of the patients testified that there was a motor vehicle insurance policy between Encompass and the patient on the date of the accident. So, there was no dispute as to the existence of the policy. The actual policy therefore was not required to be submitted. In the light most favorable to Almeida as the nonmoving party, the evidence was sufficient to make out a claim for PIP benefits. The motion for directed verdict should have been denied. [Note 3]

Accordingly, the judgment for the defendant is vacated, the allowance of the defendant's motion for a directed verdict is reversed, and this case is returned to Chelsea District Court for a new trial.


[Note 1] The PIP statute, G.L. c. 90, § 34M, allows medical providers to bring suit directly against insurance carriers in order to collect insurance benefits due to patients for the purpose of paying medical bills.

[Note 2] During argument on Encompass's motion for directed verdict, Almeida's counsel stated that he had intended to offer a copy of the "Standard Massachusetts Automobile Policy, 8th Edition." The record is unclear as to whether it was actually offered and excluded or never offered at all. In any event, Almeida did not assign as error any exclusion of the policy.

[Note 3] If a motion for directed verdict presents a close question, the "recommended procedure" is to defer ruling and let the case go to the jury; if necessary, the issue may be addressed in the context of a motion notwithstanding the verdict. Cambridgeport Sav. Bank v. Boersner, 413 Mass. 432, 438 n.9 (1992).