Bar News - August 23, 2013
Workers’ Compensation & Personal Injury: The Massachusetts Solution: Medical Expert Testimony Without the Doctor
By: Ralph Barbagallo Jr.
Litigation has become expensive, particularly in personal injury lawsuits. Driving the skyrocketing costs are expert witness fees, and one area of expertise that is always required is medical expert testimony.
An increase in the use of Alternative Dispute Resolution has eased the pain a bit, but a problem arises with cases in which damages are not catastrophic and an insurer refuses to arbitrate or mediate prior to filing the lawsuit.
In determining the wisdom of bringing a lawsuit, the lawyer must explain to the client that there is no guarantee of recovery and $5,000 or more could be required to secure a doctor’s expert opinion at trial. Furthermore, if the verdict is in favor of the defendant, the client remains liable for expenses. This is a difficult decision for a person of modest means and can deprive one of access to the judicial system.
I am not one who usually looks to Massachusetts for solutions (even though I also practice there), but the Massachusetts Legislature has created a procedure for introducing medical or dental expert testimony as an exception to the Hearsay Rule.
The rule created in Massachusetts General Laws Chapter 233 Section 79G makes a physician’s (which includes dentists, chiropodists, chiropractors, optometrists, osteopaths, physical therapists, podiatrists, psychologists, and other medical personnel licensed to practice under the laws of the jurisdiction within which such services were rendered) report admissible as evidence of the fair and reasonable charge for such services or the necessity of such services or treatments, the diagnosis of said physician, the prognosis of such physician, the opinion of such physician as to proximate cause of the condition so diagnosed, and the opinion of such physician as to disability or incapacity, proximately resulting from the condition.
The procedural requirement is that written notice of the intention to offer such bill or report as evidence, together with a copy thereof, must be given to the opposing party or parties, or to his or their attorneys, by certified mail, and return receipt requested, not less than 10 days before the introduction of the evidence, and that an affidavit of such notice and the return receipt is filed with the clerk of the court, agency, or commission forthwith after said receipt has been returned.
Before my defense bar colleagues ask for my banishment, the statute does not limit the right of any party to the action to summon, at his own expense, such physician, dentist, pharmacist, or agent of such hospital or health maintenance organization, or the records of such hospital or health maintenance organization, for the purpose of cross-examination with respect to the bill, record, and report, or to rebut the contents thereof, or for any other purpose. It also does not limit the right of any party to the action or proceeding to summon any other person to testify in respect to such bill, record, or report or for any other purpose.
All New Hampshire personal injury practitioners should take a look at Mass Gen Laws C 239 sec 79G. Is it right for New Hampshire? You decide.
Ralph Barbagallo Jr. is managing partner of Ralph Barbagallo Jr. & Associates. He practices personal injury law and is licensed in Massachusetts and New Hampshire, with offices in Salem and Hampton, NH, and North Andover, Mass.