Medical Records: Potential Problems You May Encounter in Entering Them Into Evidence

Medical Records and Charts:  In most personal injury cases an attorney will be required to present medical records in order to prove their client’s claims.   Careful attention needs to be paid to satisfying the requirements  of the Rules of Evidence or key evidence could be excluded at the time of trial.  If a stipulation of admissibility cannot be obtained, you need to know precisely how you will establish each of the foundational requirements necessary to authenticate the records and satisfy the requirements for opinions and hearsay evidence.  Indiana Rule of Evidence 803(6) and (7) provides an exception to the hearsay rule for business records.  This provision states:

(6) Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term “business” as used in this Rule includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(7) Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

While these provisions can be used to get by an objection on the grounds of hearsay, this is only part of the problem.  Although Rule 803(6) accommodates the inclusion of “opinions” in business records Indiana courts have recognized in the context of medical or hospital records, that the expertise of the opinion giver must be established. See Fendley v. Ford, 458 N.E.2d 1167, 1171 n. 3 (Ind.Ct.App.1984) (“Expressions of opinion within medical or hospital records historically have not been admissible under the business records exception because their accuracy cannot be evaluated without the safeguard of cross-examination of the person offering the opinion.”); accord Brooks v. Friedman, 769 N.E.2d 696, 701 (Ind.Ct.App.2002), trans. denied; Schaefer v. State, 750 N.E.2d 787, 793 (Ind.Ct.App. 2001); Schloot v. Guinevere Real Estate Corp., 697 N.E.2d 1273, 1277 (Ind. Ct. App. 1998).  A physician’s opinion is not admissible until the requirements of Rule 702 have been met.  As a result, you need to address this problem with either an appropriate stipulation that allows for the exhibit to be admitted without limitation or you must redact the opinions from the document. Evidence Rule 702(a) provides in relevant part that:

[if] scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert… may testify thereto in the form of an opinion or otherwise.

While no case has specifically endorsed this method, Rule of Evidence 104 provides an attorney with backdoor means of satisfying preliminary questions of fact needed to introduce particular items of evidence. Under Rule 104(a) of the Rules of Evidence you can establish the witness’s qualifications without actually calling the witness to testify at the time of trial. This portion of the Rule provides:

IN GENERAL. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

This means the court is free to suspend the Rules of Evidence in making this determination and could theoretically rely on a copy of the doctor’s curriculum vita or an affidavit of the doctors qualifications in allowing a copy of a hospital business record into evidence as this deals with whether a witness is qualified to testify.  If this method is not accepted, then you will be required to call the person rendering the “medical opinion” as a witness either live or by deposition.  Otherwise the evidence could be excluded should a timely objection be made.  Schloot v. Guinevere Real Estate Corp., supra, 697 N.E.2d at 1277.  Plan ahead or your case could be seriously undermined.