Monday, July 4, 2011
None Of Your Business: Supreme Court Of Tennessee Finds Doctor's Report Not A Business Record In 4th Of July Case
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 and a business duty to record or transmit 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 of the custodian or other qualified witness or by certification that complies with Rule 902(11) or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, profession, occupation, and calling of every kind, whether or not conducted for profit.
So, what criteria do Tennessee court use in determining whether a document qualifies as a business record under Tennessee Rule of Evidence 803(6)? Well, let's take a look at Arias v. Duro Standard Products Co., 303 S.W.3d 256 (Tenn. 2010), for the answer.In Arias,
Alisia Arias began working for defendant Duro Standard Products (Duro Standard), a paper bag manufacturer, in April 2006. On June 7, 2006, a fan near Ms. Arias's work station malfunctioned and blew dust onto her body and face. Ms. Arias filed an action against Duro Standard and its workers' compensation insurer on November 26, 2007, seeking workers' compensation benefits for a pulmonary injury sustained as a result of the June 7 incident.
At a trial held on October 23, 2008, Ms. Arias testified that her throat became clogged on June 8, 2006, and that she sought medical treatment three times during the following week. She returned to work for two weeks during which time she participated in the cleaning of Duro Standard's facility by using compressed air to blow paper dust from manufacturing equipment. Ms. Arias wore a mask and used an inhaler while cleaning the equipment. Over the Fourth of July holiday, Ms. Arias "blacked out" during a memorial service and did not return to work.
Arias was later examined by several doctors, including Dr. Grafton Thurman, a rheumatologist and pulmonary specialist, who performed a medical evaluation of Arias at the request of Arias' attorney. Arias thereafter "sought workers' compensation benefits, contending that she had developed occupational asthma as a result of exposure to dust in the workplace." Thereafter,
At trial, Ms. Arias sought to introduce Dr. Thurman's report into evidence pursuant to Tennessee Rule of Evidence 803(6), the hearsay exception for records of regularly conducted activity, often referred to as the business records exception. To establish that the report satisfied the requirements of this hearsay exception, Ms. Arias offered the deposition testimony of Jennifer Aycock, who had worked as Dr. Thurman's medical assistant. Ms. Aycock testified that Dr. Thurman was a licensed physician who specialized in pulmonary medicine, that he conducted independent medical examinations during the course of his business, that records of his reports were generated at or near the time of these examinations, and that the report of his evaluation of Ms. Arias was such a record....Duro Standard...argued that the medical report d[id] not qualify as a business record that would be admissible under Rule 803(6). The trial court overruled Duro Standard's objection and admitted the report pursuant to Tennessee Rule of Evidence 803(6) without explaining the basis for its ruling.
After the trial court found for Arias, Duro standard appealed, claiming, inter alia, that Dr. Thurman's report was inadmissible under Tennessee Rule of Evidence 803(6). In addressing this issue, the Supreme Court of Tennessee noted that five criteria must be satisfied for a document to qualify as a business record:
1. The document must be made at or near the time of the event recorded;
5. The manner in which the information was provided or the document was prepared must not indicate that the document lacks trustworthiness.
The court then found that Dr. Thurman's report failed this test. According to the court,
Dr. Thurman generated this report for the purpose of litigation in the course of his "business" as an evaluating expert. He was not a treating physician, and his opinion was sought solely for the purpose of establishing causation and impairment in this workers' compensation litigation. "An extraordinary report prepared for an irregular purpose, particularly when prepared with litigation in mind, may not be made in the regular course of business and may be inadmissible as a business record under Rule 803(6)."