John L.A. Lyddane and Barbara D. Goldberg ()
It is familiar law that, ordinarily, physicians’ office records or hospital records are admissible pursuant to the “business records” exception to the hearsay rule codified at CPLR 4518(a) to the extent they are germane to diagnosis and treatment. This includes medical opinions.1 Where, however, details of how a particular injury allegedly occurred are not relevant to diagnosis and treatment, they are not considered to have been recorded in the regular course of a hospital’s or physician’s business and are therefore inadmissible and subject to redaction. As explained by the Court of Appeals in the leading case of Williams v. Alexander.2
[i]n some instances, perhaps, the patient’s explanation as to how he was hurt may be helpful to an understanding of the medical aspects of his case; it might, for instance, assist the doctors if they were to know that the injured man had been struck by an automobile. However, whether the patient was hit by car A or car B, by car A under its own power or propelled forward by car B, or whether the injuries were caused by the negligence of the defendant or another, cannot possibly bear on diagnosis or aid in determining treatment. That being so, entries of this sort, purporting to give particulars of the accident, which serve no medical purpose, may not be regarded as having been made in the regular course of the hospital’s business (emphasis in original) (citations omitted).
Thus, in Williams the portion of a hospital record containing the plaintiff’s statement to a physician that he was hit after a car that had been stopped at an intersection was propelled into him by another vehicle was inadmissible.
Admission of such statements can also constitute reversible error where they do not support the patient’s account of how the accident occurred and they bear on the ultimate issue to be decided by the jury. This is demonstrated by Cuevas v. Alexander’s,3 where the Appellate Division, Second Department, held that portions of a hospital record which the trial court permitted the defendants’ counsel to read to the jury constituted inadmissible hearsay, as they related to the manner of an accident and were not germane to diagnosis and treatment. “The statements in the hospital record directly contradicted the plaintiff’s account as to how the accident occurred. Under the circumstances, the erroneous admission of these statements contained in the hospital record cannot be deemed harmless, as the entries related to the very issue to be determined by the jury, i.e., how the accident happened.”4 Accordingly, a new trial was ordered.
To the same effect is Carcamo v. Stein.5 There, the Second Department held that statements in hospital and ambulance records which the trial court read to the jury constituted inadmissible hearsay, as they related to the manner of an accident and were not germane to diagnosis and treatment. As in Cuevas, the error could not be deemed harmless, since the statements directly contradicted the defendant’s account as to how the accident occurred and as such bore on the ultimate issue to be decided by the jury. Under these circumstances “the admission of the statements may have prejudiced the defendant by lending undue credence to the plaintiff’s testimony.”6
In Stewart v. Manhattan and Bronx Surface Transit Operating Authority,7 the Appellate Division, First Department, held that it was reversible error to admit into evidence a “disclaimer” contained in a toxicology report. The plaintiff in Stewart was hit by defendants’ bus and was taken to the hospital, where blood was drawn for laboratory analysis, generating, among other things, a toxicology report showing a high level of alcohol content consistent with intoxication. At the end of the toxicology report, beneath the data, appeared the following language: “comment: specimen analysis was performed without chain-of-custody. These results are to be used for clinical evaluation only (and not for any legal or employment evaluative purposes). Confirmation testing was not performed.”
The Appellate Division stated that “the limiting language contained in the ‘disclaimer’ had absolutely no bearing on plaintiff’s treatment and diagnosis and, consequently, should not have been admitted.”8 Once again, the inadmissible statement bore on the ultimate issue to be decided by the jury and the error could not be considered harmless. The defendants’ primary defense was that the plaintiff’s high level of intoxication resulted in a loss of visual acuity, balance and judgment, and that accordingly the plaintiff’s intoxication was the sole proximate cause of her accident. “Allowing the disclaimer into evidence permitted the jury to speculate on the validity of the blood alcohol contents, thereby unduly prejudicing defendants’ defense.”9
A party seeking to establish the applicability of a hearsay exception must establish that the evidence in question is reliable.10 Entries in records regarding the manner of causation of an injury that might otherwise be germane to diagnosis and treatment are nevertheless inadmissible where the source of the information is unknown, or might have been part of the history provided by an interested party such as the patient.11 For example, in Ginsberg v. North Shore Hospital the Second Department approved the trial court’s redaction of certain portions of the infant plaintiff’s medical records stating that her condition was attributable to kernicterus, where the authoring physician was not present at birth and there was no reference to kernicterus in the labor and delivery records.
The Second Department noted that “…the references to the diagnoses appear to have come from other unknown charts or records, and may have been part of the history relayed by the plaintiff herself or her counsel. As such, the trial court properly redacted these references.”12
With an underlying fact pattern that is complex, and a close nexus between the author of the hearsay and the parties to the lawsuit, the issues surrounding hearsay in medical records can become complicated for the court and counsel. The point is illustrated by a recent non-reported trial in which the patient’s primary care physician referred him to a treating urologist for a large kidney stone. The treating urologist discussed the treatment options with the patient, and although the stone was large, they agreed on a course of lithotripsy to break up the stone into fragments which would presumably pass, rather than more invasive treatment.
The treating urologist performed three shock wave lithotripsy procedures which were moderately successful in breaking up the kidney stone, but the patient ultimately had a large fragment of the stone lodge in his ureter, and became septic. At the same time he had multiple comorbidities which precipitated him into renal failure and required hospitalization. The patient was unhappy about the situation, and the primary care physician transferred his care to the consulting urologist at another facility. The consulting urologist performed a five-hour procedure to remove the stone fragment from the patient’s ureter with arguably serious sequelae.
The hearsay problem arose as a result of notes in the records of both the subsequent treating hospital and the consulting urologist which included statements to the following effect.
1. The patient was transferred with a history of kidney failure and urosepsis secondary to an improperly handled kidney stone by an outside urologist.
2. The patient was “completely improperly cared for” with multiple lithotripsies. He was septic, in renal failure, and obstructed.
3. The transfer was effected at the request of the primary care physician who had interceded in the treating urologist’s care to avoid a contemplated fourth lithotripsy.
4. The patient had hydronephrosis and urosepsis secondary to the lodged fragment, and the treating urologist had failed to recognize that there was a retained fragment and that the patient was in renal failure.
For obvious reasons, the attorney for the plaintiff argued that the records should be admitted in their entirety, whereas defense counsel objected to the cited entries as inadmissible hearsay. A number of arguments were advanced, and additional information was developed before the issue was resolved.
The information did not seem to come from an “unidentified source.” The primary care physician and the patient had spoken to the consulting urologist, and somewhat after the fact, he had received at least some of the records of the prior treatment. The patient’s argument was that the information was collected by the consulting urologist and recorded to assist him in the diagnosis and management of a complex situation with iatrogenic origins.
The defense argument approached the hearsay material under Williams, supra, as information that was unnecessary to diagnosis or treatment of the patient. How the patient had been managed previously had no bearing on the diagnosis at the time of transfer. Either the patient had a fragment of a stone in his ureter, urosepsis, and renal failure, or he did not. Those conditions were each diagnosed by either imaging studies or laboratory testing, and not by prior history.
However, the defense argument was strengthened by the accusatory nature of the entries in the consulting urologist’s notes. The record before the court reflected that there was some discussion prior to and during the treating urologist’s course of management as to treatment alternatives, but the patient stated a preference for the less invasive lithotripsy as opposed to the more invasive alternatives. Whether the consulting urologist had a fair basis for reaching a conclusion on the propriety of the prior treatment was a genuine issue, as was his conclusion that the treating urologist failed to recognize that there was a retained fragment, and planned a fourth lithotripsy procedure.
Given these genuine issues, and their proximity to the ultimate question before the jury (whether the patient’s alleged injuries were the result of complications or substandard care) it was argued that these opinions should not be placed before the jury without the opportunity to have them tested by cross-examination. Only then would it be known what they were based upon or whether they were held with a “reasonable degree of medical certainty,” the foundation necessary for the admission of medical opinions.
The court ultimately excluded all of the contested material, and the case was resolved in favor of the treating urologist on the basis of the testimony of experts, including the testimony of the consulting urologist which was far less incendiary than his notes would have predicted.
While not every case will involve such clear examples of inadmissible hearsay in medical records, this example highlights the strategic importance of carefully scrutinizing medical records for sometimes occult entries that are not germane to diagnosis and treatment but, as in this example and the Ginsberg case, may have been a one-sided version of the events provided by the patient or someone on his behalf. Moreover, as the reported cases demonstrate, the distinctions between inadmissible hearsay and the admissible portions of medical records are ignored by both plaintiffs and defendants at their peril. If the hearsay portion of a medical record bears on a central issue in the case, and is prejudicial to the losing party at trial, its admission will likely constitute reversible error, but only if timely objection is interposed.
John L.A. Lyddane is a senior partner and trial attorney at Martin Clearwater & Bell. Barbara D. Goldberg is a partner at the firm and head of its appellate department.
1. See, e.g., People v. Ortega, 15 N.Y.3d 610 (2010); Williams v. Alexander, 309 N.Y. 283, 287 (1955); Wilson v. Bodian, 130 A.D.2d 221, 231 (2d Dept. 1987).
2. 309 N.Y.2d at 288.
3. 23 A.D.3d 428 (2d Dept. 2005).
4. Id. at 429.
5. 53 A.D.3d 520 (2d Dept. 2008).
6. Id. at 521 (citation omitted).
7. 30 A.D.3d 283 (1st Dept. 2006).
8. Id. at 283-284 (citation omitted).
9. Id. at 284.
10. See Nucci v. Proper, 95 N.Y.2d 597, 602 (2001).
11. See, e.g., Lessoff v. 26 Court Street Associates, 58 A.D.3d 610 (2d Dept. 2009); Dickson v. Queens Long Island Medical Group, 289 A.D.2d 193 (2d Dept. 2001); Jajoute v. New York City Health & Hospitals Corporation, 242 A.D.2d 674 (2nd Dept. 1997); Ginsberg v. North Shore Hospital, 213 A.D.2d 592 (2d Dept. 1995).
12. Id. at 592 (emphasis added).