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John L.A. Lyddane John L.A. Lyddane

An effort to modify the New York State approach to the “speaking agent” exception to the exclusion of hearsay at trial is currently before the Legislature in the form of Senate Bill S6335. The change would affect the adjudication of medical malpractice claims and is of particular concern to any health care organization whose employees render medical care in the course of their employment.

History

The traditional approach to the exclusion of hearsay is based upon the inability of the trier of fact to evaluate the truthfulness of the evidence offered. The exception made for “admissions” is based upon the presumption that no person would falsely admit liability. Where a party is an entity represented by a number of employees, the statement of an employee is admissible against the entity under New York law only if the declarant was authorized to speak on behalf of the entity. Kelly v. Diesel Construction Division, 35 N.Y.2d 1, 8 (1974).

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