Excluding Inadmissible Hearsay From Medical Records
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.