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.