Adler Giersch PS
“Hearsay” is a well-known term to most persons thanks, in part, to
courtroom dramas on television. However, a clear and accurate
understanding of legal definition and its application to the
admissibility of evidence at time of trial or hearing has for the most
part, limited judges and attorneys litigating cases in a courtroom.
This article is intended to explain the term “hearsay” as it relates to
medical records and medical reports.
“Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” 1
[Italics added.] In other words, hearsay is testimony which contains an
out-of-court statement by Witness-A and is offered up by Witness-B as
the truth of the matters spoken of in the out-of-court statement.
Hearsay statements are not readily admissible in court and are known as inherently unreliable.
However, a hearsay statement can be admissible as evidence in court if
it qualifies for one or more of the following “exceptions”.
One of the exceptions to the Hearsay Rule (ER 801) are medical records:
(4) Statements for Purposes of Medical Diagnosis or Treatment.
Statements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain or
sensations, or the inception or the general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or
treatment. 2
The presumption that hearsay is unreliable is transformed into reliable
when the focus on is medical records. This is because statements
offered by the patient to the healthcare provider are presumed truthful
since the provider is relying upon such statements to diagnose and
treat the patient’s condition. Also, medical records are obtained and
stored in a matter to ensure their continued use and reliance by other
health care providers. In short, medical records are presumed
adequately reliable and admissible into evidence, unless the judge is
convinced otherwise.
The fact that medical records are presumed admissible into evidence,
does not mean they are presumed to be “the truth.” The jury or judge
ultimately decides how much weight to give those statements in the
context of all other evidence that is admitted. Moreover, though
medical records are admissible into evidence, they are not
automatically admitted by the judge without first a “proper foundation
being laid” for their admissibility being established in preliminary
testimony.
Proper foundation is the facts of the “authenticity” of the records
themselves; that they are in fact medical records, regularly kept in
the course of the functioning of the treatment provider’s business,
that the records are those of the specified patient ( typically the
Plaintiff in a personal injury claim). Once authenticity is established
(or stipulated to by the parties), there may be other grounds, which
may convince the trial judge to disallow the treatment file in part or
in whole into evidence.
A “narrative report” by one treatment provider to another which has
been generated and maintained in the medical file for purposes of
diagnosis and treatment, also qualifies as an exception to the Hearsay
Rule. However, a report by a physician to an insurance company or to an attorney is ‘pure hearsay”, and is not admissible into evidence. 3
This is the reason why the reports generated by so-called “independent
or insurance” medical examiners (IME) and the narrative reports of
physician are not admissible into evidence. As a result, “live testimony” of the patient’s physician or the IME doctors is an absolute necessity
for the trier of facts to better understand the opinions on diagnosis,
causation, permanency, impairment rating, and/or future care.
Adler Giersch PS work diligently to collect the full content of the
treatment records of their clients. All evidence gathered is organized
as if it will be ultimately “offered into evidence” at time of hearing
or trial. Particular care is taken to obtain and update the full contents
of the treatment provider’s file on the client/patient, and to be
prepared to meet and achieve all pre-requisites for the admission of
evidence at time of trial, and to overcome all foreseeable objections.
We also make sure to understand the importance of the medical evidence
contained in the records when meeting with our clients’ providers or
obtaining narrative reports.
1. Evidence Rule 801©) [ER 801©)]
2. ER 803 (a)(4)
3. Although it is common for opposing trial counsel to “stipulate” to
the authenticity and admissibility of treatment records (thereby
obviating the need for the record custodian to testify live as to
authenticity), rarely, if ever, will opposing trial counsel stipulate
to the admissibility of a medical report drafted for forensic reasons
or stipulate to the authenticity or admissibility of an IME report.
Nonetheless, narrative medical reports by healthcare providers are
necessary during the out-of-court claim resolution process with the
insurer.