By John R. Gorman, Esq.

When it comes to the use of medical records at trial, plaintiff’s attorneys need to  know the Rules of Evidence and fully understand when records may and may not be admitted.

The Rules of Evidence govern the use of medical records at trial. Assuming that certain medical records are relevant at all (for example records concerning a prior knee injury would not likely be relevant if the case involved alleged neck and/or back injuries and should be the subject of a motion in limine).

Evidence Rule 612 and several exceptions to Evidence Rule 801 (Hearsay) exist in Evidence Rule 803 to make contents of medical records, or the records themselves, admissible in evidence, either substantively or for impeachment.

Evidence Rule 801 defines hearsay as “a statement. other than the one mode by the declarant while testifying at trial or hearing. offered in evidence to prove the truth of the matter asserted.” Commonly, defense attorneys seek to use medical records to introduce prior complaints to the same body part, or to elicit from the plaintiff complaints made, or the lack thereof  in a medi cal provider's records after the alleged injury occurred.

The first principle is that the content of  medical records' contents, unless the entire record is admitted into evidence with a proper foundation under 803(c) /6), is hearsay. The contents are not the plaintiff's statements, they are the medical provider's statements. That the medical records contain statements allegedly made by the plaintiff does not make such statements admissible through the plaintiff. For example, if the plaintiff had received treatment for the same body part prior to the date of the subject accident/incident, the defense often attempts to confront the plaintiff with those prior treatment records.

It is improper for the defense attorney to simply ask the plaintiff, “Didn't you complain of neck pain to your family doctor (or chiropractor  or orthopedist) Dr. Jones on August 10, 2014?” when the defense has no intention of calling Dr. Jones as a  witness in the  trial. Once that question is asked, there is no way for the plaintiff to unring that bell – no plaintiff could recall his or her exact conversation that took place with any medical provider on a particular date years earlier.

If the plaintiff denies making that complaint on August 10, 2014, the defense gets an extra bonus – the jury knows  that the plaintiff in fact made that pre-accident   complaint to Dr. Jones, or why would the defense attorney have asked that question?
So, in addition to having had prior similar neck complaints, the plaintiff is portrayed as a liar, as well. A trial judge has the obligation to prevent a witness or party “from putting into the record the contents of an otherwise inadmissible writing under the  guise of refreshing recollection,” under State v. Carabello.

The correct way to attempt to introduce prior statements or complaints allegedly made by the plaintiff is governed by Evidence Rule 612. That rule allows the  use of a writing, such as Dr. Jones' records, to be used to refresh a witness's (plaintiff's) recollection. The August 10, 2014 record is marked as an exhibit and then shown to the plaintiff, without  identifying it  as Dr. Jones' August 10, 2014 record. Either the jury is excused, or the witness is asked to read the record silently to himself or herself. The defense attorney may then ask, “Did you say what's recorded in that document?”

If the plaintiff  admits making the statement or complaint in Dr. Jones' record, then the defense attorney may elicit the complaint or statement recorded in Dr. Jones' record. If, however, the plaintiff testifies that he or she does not recall making that  statement or denies making it, then the jury never hears the content of Dr. Jones' August 10, 2014 record, if Dr, Jones is not called as a witness.

Another common problem regarding the use of medical records is the plaintiff's alleged statement to medical personnel as to how the  accident or incident occurred.

The defense attorney cannot ask the plaintiff, “Did you tell  the ER nurse that the light was red for you, and not green?”

The same Evidence Rule 612 procedure must be followed. If it is not, then the proponent of evidence concerning how the accident or incident occurred must call the medical personnel to whom the plaintiff allegedly made the statement as a trial witness.

If the medical personnel testifies that, “What I wrote is what the plaintiff told me,”  then the plaintiff's statement regarding how the accident or incident occurred may be admissible under Evidence Rules 803(b) (l)  as a statement by a party-opponent (admission).

Evidence Rule 803 (c) (4)  allows plaintiff's statements for the purposes of medical diagnosis or treatment, such as “my neck hurts.” Whether the traffic light was red or green is irrelevant to that issue. Often, emergency room personnel obtain a version of how the accident or incident occurred from EMS personnel, without knowing if that version is accurate or knowing the source of the information. Be aware of this issue.

If the accident version in a medical record is inconsistent with the plaintiff's discovery responses, move to redact from the record information that is not relevant under Rule 803(c) (4) before it is admitted into evidence. This is spelled out in Konop v. Rosen.

Evidence Rule 803(c) (6) governs the admissibility of medical records into evidence. The proponent must satisfy three requirements:

1. The record must be made in the regular course of business;
2. It must be made within a short time of the act, condition, or event being described; and
3. The source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.

These conditions require either a certification from the records custodian satisfying all three requirements, or the proponent of the medical record must pro duce at trial a witness whose testimony would satisfy all three requirements.