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Commonwealth v. Jerome12/17/2002
rding the November 2, 1993, accident.
The Commonwealth introduced evidence that on September 28, 1993, in support of Dessin's bodily injury claim arising from the June 24, 1993, accident, Mr. Lang submitted to Liberty Mutual a "case summary" indicating that Dessin had been discharged from active care on August 14, 1993, but that he "continued to suffer thereafter from his injuries, and had continued his prescribed physical therapy exercises at home until the present time."
On May 8, 1995, Mr. Lang, pursuant to the defendant's agreement to provide Arbella information pertaining to the June 24, 1993, accident, submitted to Arbella copies of reports by Dr. Jacques, Dr. Khalsa, and the Somerville Hospital emergency room. With this information, he wrote, "You will note Mr. Dessin completed all treatment on August 11, 1993 and had no residuals, three months prior to this loss [referring to the accident of November 2, 1993]." The Commonwealth points to the discrepancy in the 1993 and 1995 statements regarding Dessin's condition in August, 1993, as evidence of a knowing attempt to deceive the insurer with respect to the November 2, 1993, claim.
However, the inference that deception was Mr. Lang's purpose becomes considerably weakened in light of the fact that Mr. Lang simultaneously submitted to the insurer the specific medical reports underlying his judgment. One such report, that of Dr. Jacques, referred to Dessin's injuries as resolving, and stated that Dessin denied having further shoulder or knee pain from the accident, although he continued to complain of cervical spine pain and stiffness. At the same time, Mr. Lang submitted a report by Dr. Khalsa to the effect that "the patient's symptoms were essentially resolved and manageable with home care." The report continues that the patient did have "residual subjective complaints"; that his condition "had become permanent and stationary"; and that "there is a high probability that there will be future flare-ups of symptoms, without further trauma, for an indeterminate period of time." Thus, Mr. Lang himself provided Arbella with the documentation on which the Commonwealth relies to establish fraud. We view it as highly unlikely that, were there an intent to defraud, the deceiver would have placed this information in the hands of the victim. Apart from that, an arguably inaccurate statement that there were "no residuals" from a prior accident for which the client was no longer receiving treatment strikes us as an unacceptably thin reed on which to support a conviction.
This conviction required that the trier of fact conclude beyond a reasonable doubt that, given the defendant's representation of Dessin in connection with four accidents occurring between June 5, 1990, and November 2, 1993, the defendant must have known by the time of the last accident that the client was cheating, and that accordingly the defendant's pursuit of the claims in the manner described was fraudulent. For the reasons set forth above, we are not convinced that the evidence supports that proposition. The Commonwealth has not proved, beyond a reasonable doubt, that the defendant submitted existing medical records in bad faith. The reports of Dr. Jacques and Dr. Khalsa were consistent with Dessin's contention that his injuries were totally attributable to the November 2, 1993, accident. The defendant neither created the records himself nor influenced the doctors to create them. If the reports contained discrepancies, or even false statements, the fact that they did is not by itself evidence sufficient to establish that the lawyer was complicit in a misrepresentation. See Commonwealth v. Jean-Charles, 398 Mass. 752, 758 (1986). The evidence here at best susta
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