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.