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Univ. of South Carolina School of Law

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Sunday, April 25, 2010

Ask The Doctor: Does Rule 803(4) Require Inquiries Into the Declarant's Motive?

Like its federal counterpartIowa Rule of Evidence 5.803(4) provides an exception to the rule against hearsay for

Statements 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 insofar as reasonably pertinent to diagnosis or treatment. 

In its recent opinion in State v. Bentley, 2010 WL 1576832 (Iowa App. 2010), the Court of Appeals of Iowa claimed that the Tenth Circuit has found that the second prong of a test commonly used in connection with the federal counterpart "is unnecessary because it essentially duplicates the language of the rule of evidence." I disagree with this conclusion and also disagree with the Tenth Circuit opinion at issue.

The facts in Bentley are unimportant to this post. All that is important is that the facts prompted the court to consider Iowa Rule of Evidence 5.803(4). And, according to the Court of Appeals of Iowa, Iowa courts have adopted the two prong test from United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985), to determine the applicability of the hearsay exception for statements made for purposes of medical diagnosis or treatment:

[F]irst the declarant's motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.

In the accompanying footnote, the court noted that "[o]ne federal circuit court has noted that the second prong of the Renville test is unnecessary because it essentially duplicates the language of the rule of evidence. United States v. Joe, 8 F.3d 1488, 1494 n.5 (10th Cir. 1993)." 

But is that what the Tenth Circuit really held? Let's look at the pertinent part of footnote 5:

The first prong of this two-part test inquires into the declarant's motive. Such inquiries, however, were not contemplated by the rule; the rule itself has built-in guarantees that assure the trustworthiness of a statement made for purposes of medical diagnosis or treatment....The second prong, which assures that the content of the statement (in these cases the identity of the abuser) is reasonably relied on by the physician in treatment or diagnosis, merely rephrases the 803(4) requirement that the statement be "reasonably pertinent to diagnosis or treatment." In short, the plain language of Rule 803(4) should guide us in determining the admissibility of statements made for purposes of medical diagnosis or treatment.

I don't think that the Tenth Circuit was saying that the second prong is unnecessary; rather, it found that the second prong correctly rephrases the the plain language of Rule 803(4) and is thus the prong that courts should apply. Instead, the crux of the Tenth Circuit's opinion seems to be that the first prong is unnecessary and should not be applied by courts because it was "not contemplated by the rule."

Really? The way I read Rule 803(4), it covers statements which were (1) made for purposes of medical diagnosis and (2) reasonably pertinent to diagnosis or treatment. The way I see it, the first prong corresponds with this first clause. I also think that the first prong makes sense given one of the main rationales behind this hearsay exception.

Hearsay is generally inadmissible because it is unreliable. Statements made for purposes of medical diagnosis or treatment, however, are admissible based in large part on the "selfish-motive doctrine.  In other words, a person seeking medical treatment is unlikely to lie to a medical professional and risk a misdiagnosis or mistreatment."  

So, let's say that Patient goes to Doctor, and Doctor asks what he has been up to. Patient responds that he has been playing a lot of tennis recently. Doctor then asks what is wrong. Patient responds that he has a lot of pain in his elbow. Doctor eventually diagnoses Patient with Tennis Elbow. Now, let's assume that Patient is aware of Tennis Elbow and told Doctor about his tennis playing so that he could be diagnosed/treated. We would expect Patient's statement about playing a lot of tennis lately to be reliable because a lie could results in misdiagnosis/mistreatment. But let's say that Patient is unaware of Tennis Elbow and is simply telling Doctor about his tennis playing to make small talk. In this case, we wouldn't expect the statement to be more reliable than Patient's statement to Friend that he has been playing a lot of tennis recently. And just like Patient's statement to Friend, Patient's statement to Doctor under these circumstances should be deemed inadmissible hearsay.

-CM 

http://lawprofessors.typepad.com/evidenceprof/2010/04/8034state-v-bentleyslip-copy-2010-wl-1576832-tableiowa-app2010.html

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