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Thursday, April 10, 2008

Taxicab Confession: New York Appellate Court Finds Trial Court Erred in Admitting Hospital Record Without Redaction

My old court, the New York Supreme Court, Appellate Division, Second Judicial Department has rendered an interesting opinion in a case implicating the medical treatment/diagnosis exception to the rule against hearsay.  In Zito v. City of New York, 2008 WL 798033 (N.Y.A.D. 2 Dept. 2008), the plaintiff, Michael Zito, sustained injuries when he was shot by the defendant Hubert Desmangles, an off-duty New York City Corrections Officer. Zito then sued Desmangles and the City of New York alleging, inter alia, negligence and civil rights violations.

At trial, Zito testified that on the night in question, he asked to purchase a cigarette from a cab driver but was rebuffed. Zito claimed, however, that later that night, the cab returned and a passenger -- Desmangles -- exited the vehicle and shot him in the back. Two friends of the plaintiff who were present for the shooting corroborated Zito's testimony that he was shot in the back.

Desmangles provided a quite different account of the shooting.  He testified that Zito approached a cab in which he was a passenger and stated, "Give me your money or me and my boys will shoot you," whereupon the cab fled. Desmangles claimed that he thereafter ordered the driver to return to the scene, which he did, and Desmangles exited the cab to use a nearby pay phone when he saw four or five males, including the Zito, walk toward him.  Desmangles testified that one of the men said, "Let's get him," whereupon the group accelerated its pace toward him.  Desmangles claimed that at this point, he drew his gun and fired at the Zito, with the bullet hitting him in the stomach when he was about eight feet away.

At the close of the evidence, the jury found both Desmangles and Zito to be negligent and found Desmangles 15% at fault and Zito 85% at fault in the happening of the incident. The jury awarded the plaintiff the sum of $450,000 for past pain and suffering, and $74,000 for past medical expenses, but no damages for future pain and suffering.

Zito appealed, claiming, inter alia, that the trial court erred in failing to redact a statement, contained in the history portion of Zito's hospital records, that the bullet entered through the front of his body.  The Appellate Division agreed and remitted the matter for a new trial, finding that "[i]nasmuch as the record does not establish whether the statement was germane to either diagnosis or treatment, it constituted hearsay and should have been redacted from the record."  As support for this proposition, the court cited to a previous opinion, People v. Townsley, 240 A.D.2d 955, 957 (N.Y.A.D. 1997), in which another New York appellate court had received testimony from a treating physician that the manner in which a person sustained his gunshot wounds was not relevant to his treatment or diagnosis.

This portion of the ruling makes sense because Federal Rule of Evidence 803(4) (which New York has adopted in its case law) provides an exception to the rule against hearsay for "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof [only] insofar as reasonably pertinent to diagnosis or treatment."  If the doctor is Townsley is right that the manner in which a person sustains a gunshot wound is not relevant to treatment/diagnosis, statements about how a gunshot wound occurred are inadmissible under Rule 803(4).

But, there seems to me to be a larger problem with the opinion, and maybe it's just a matter of the opinion not providing enough details (the Second Department has long received criticism for its bare bones opinions).  Presumably, the statement in the hospital record about where the bullet entered came from Zito.  And Zito was the civil plaintiff, with the prosecution [EDIT: defense] offering the hospital record against him.  Thus, the statement should have constituted the admission of a party opponent and been admissible against Zito at trial. See, e.g., People v. Mitchell, 626 N.E.2d 630, 633 (N.Y. 1993).  Now, maybe the statements didn't come for Zito, explaining the court's ruling, but if the statement did come from Zito, I don't see why the statement should have been redacted.

-CM      

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I disagree with the final conclusion. Under the business records' exception to the hearsay rule in New York, the history entry in a medical record in the first instance must be "germane to either diagnosis or treatment." (similar to, but as not as broad as "reasonably pertinent to diagnosis or treatment." found in FRE 803(4), which I am not aware has been adopted in New York and which makes such statements admissible without regard to who made the statement; not the case in New York. I note that I have not looked at the case cited by CW in a prior note.) If it is germane, then, if the statement was made by the plaintiff, it can be introduced by the defendant (CM miswrote when he wrote the "prosecution") However if made by some third party it cannot be. In a case, citation unknown, a trial court was found to have committed error (or not if he didn't admitted it - I don't recall which) by admitting a statement in the history portion of the medical record, made by the plaintiff's girlfriend, that the plaintiff had been using drugs at the time of the incident. While clearly germane it was still hearsay as it did not constitute a further exception to the hearsay rule. In other words, in New York the contents of the business records which meets the business records' exception (thus being a kosher conduit) is not admissible unless the entry is otherwise admissible (i.e. is kosher.)

Here the Court found no evidence to support the first condition and so found that the admission of the statement was not proper, regardless of who made it.

Posted by: Louis Schepp | Apr 11, 2008 9:40:41 AM

I'm confused by your point. If, indeed, the statement was not made by Zito, then clearly it is inadmissible. If, however, it could be proven that Zito made the statement, it would constitute an admission of a party-opponent and be admissible against Zito by the defense. See, e.g., Feinstein v. Goebel, 544 N.Y.S.2d 968, 971 (N.Y.Sup. 1989) ("Statements concerning the cause of an accident or injury or medical condition (contained in a hospital record) are admissible as admissions against interest or as germane to treatment if made by the party to the action."). As this quotation indicates, statements concerning the cause of an injury can be admissible as part admissions even if they are not germane to treatment. Are you saying that even if the statement regarding the entry of the bullet was made by Zito, the defense could not admit it against him?

Posted by: Colin Miller | Apr 11, 2008 10:16:09 AM

I am heading off to Wisconsin in a little bit and so will supplement this at a later date. But as to the quoted paragraph, the Judge who referred to an "admission against interest," clearly is not an evidence expert. There are "admissions" and there are "declarations against interest," but there really is no such thing as an "admission against interest" if one is to be precise.
It is my understanding and I will check this, is that in New York, if the statement in the medical record is not germane to treatment it does not come into to evidence regardless of who said it. That he was shot is germane as would (I believe) that he was in a car accident, where that the case, but not that the car he was in ran a red light. But query, is the direction of a bullet that has gone through the body germane? This Court said no in that no evidence was was submitted to support that conclusion.
But remember we are dealing here with a business record and so for the contents to be admissible in the first instance (before seeing if any other rule keeps it out) it must meet the standard set by CPLR 4518. “The three foundation requirements of CPLR 4518(a) are outlined in Kennedy (68 NY2d 579): first, the record must be made in the regular course of business--reflecting a routine, regularly conducted business activity, NEEDED AND RELIED ON IN THE PERFORMANCE OF THE FUNCTIONS OF THE BUSINESS. ....” People, v . Cratsley 86 N.Y.2d 81, 653 N.E.2d 1162, 629 N.Y.S.2d 992. (emphasis added)

Since the statement by Zito was not “needed and relied on in the performance of the function of the business,” the court having found that there was no evidence to find that the direction of the bullet was germane to treatment, the record of the statement does not meet the requirements of CPLR 4518(a) and so cannot come into evidence. Of course nothing stops the defendant from calling the person who made the entry and having them testify as to what the plaintiff said. But as the recorded statement does not meet the business records' exception it can not come into evidence.

Posted by: Louis Schepp | Apr 11, 2008 2:25:13 PM

Maybe there are cases from New York holding otherwise, but cases decided under the Federal Rules of Evidence and most states' codes of evidence would simply treat this as an issue of "hearsay within hearsay." Thus, the hospital record would be one level of hearsay and would meet the business records exception. Then, the statement by Zito would be a second level of hearsay, but it would be admissible as the admission of a party-opponent. Because both levels of hearsay would meet an applicable exception, the unredacted hospital record would be admissible. That seemed to me to be what the Goebel case was saying as well.

Maybe, however, you can point me to a case where a New York court came to the opposite conclusion. I'll do some further research myself as well.

Posted by: Colin Miller | Apr 13, 2008 8:30:44 AM

In Williams v. Alexander 309 N.Y. 283, 129 N.E.2d 417 (1955) “plaintiff introduced so much of [a] Hospital record as bore upon his injuries and their treatment. Counsel for defendant thereupon offered the balance of the record and it was received in evidence over plaintiff's objection. Specifically challenged by plaintiff as inadmissible hearsay was an entry to the effect that he had stated to a physician at the hospital that ‘he was crossing the street and an automobile ran into another automobile that was at a standstill, causing this car (standstill) to run into him’. Plaintiff denied making any such statement, and the doctor who recorded it was not called as a witness.

… We are called upon to decide whether the statement attributed to plaintiff, relating the manner in which the accident occurred, was properly admitted in evidence as a memorandum or record made ‘in the regular course of * * * business'. …[FN1]

FN1. Although the doctor who made the entry would have been competent to testify to plaintiff's alleged admission against interest, the entry itself was, nevertheless, excludable as hearsay, unless within the compass of section 374-a of the Civil Practice Act, [[The predecessor of CPLR 4518(a) - LJS]]”

The Court went on to say that “entries in a hospital record may not qualify for admission in evidence unless made in the regular course of the ‘business' of the hospital, and for the purpose of assisting it in carrying on that ‘business.’ The business of a hospital, it is self-evident, is to diagnose and treat its patients' ailments. Consequently, the only memoranda that may be regarded as within the section's compass are those reflecting acts, occurrences or events that relate to diagnosis, prognosis or treatment or are otherwise ‘helpful to an understanding of the medical or surgical aspects of * * * (the particular patient's) hospitalization.

… It follows from this that a memorandum made in a hospital record of acts or occurrences leading to the patient's hospitalization such as a narration of the accident causing the injury not germane to diagnosis or treatment, is not admissible under section 374-a, and so it has been almost universally held under the identical or similar statutes of other jurisdictions.”

The Court then held that the “portion of the hospital record containing the statement assertedly made by plaintiff as to the manner in which the accident happened was erroneously admitted.”

In dissent Judge Desmond argued “There is no reason why the ‘history’ part of a hospital record, obtained not from unidentified persons but from the patient himself, should not be used in evidence against the patient.” This is the very argument CW makes. But I submit that both miss the point that we don’t consider whether the statement is an admission until we find that the statement meets the business records exception in the first instance.

In researching this issue I did note that some courts had commented that in keeping such a statement out of evidence for failing to meet the business records exception, that the statement could have come into evidence as an admission had it been proven that the statement was “in fact” made by the alleged declarent.” However in each one of those cases, they found that this burden had not been meet and so the statement did not come into evidence.

I believe that Williams contradict the dicta in these cases. In Williams there was no question in the mind of the whole Court that the plaintiff made the statement to the doctor who made the notation in the hospital record. As noted in Footnote 1 the Court felt that the doctor who made the entry could have testified to the statement made by plaintiff if he had been called as a witness. To make this statement they must have believed that the there was enough proof that the statement was made by the plaintiff directly to the doctore.

Thus it is clear that the Court kept out the plaintiff’s statement for a failure to meet the business records exception in the first instance regardless, of the fact that it was an admission. It did not come in because it was not kosher, it did not come in because no kosher conduit was available.

Posted by: Louis Schepp | Apr 25, 2008 11:40:54 AM

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