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Friday, November 30, 2012

Doctor, Doctor, Give Me The News, I've Got A Bad Case: Supreme Court Of Tennessee Opinion Addresses Intricacies Of Rule 803(4)

Yesterday, I was talking to Derek Black and Claire Raj when we came upon the topic of Federal Rule of Evidence 803(4), which provides an exception to the rule against hearsay for

A statement that:  

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Part of our discussion involved the proper recipients of such statements. Obviously Rule 803(4) covers statements to a doctor, and the score is the same for statements made to a nurse. But what about statements made to an orderly or administrative personnel? Let's take a lot at the opinion of the Supreme Court of Tennessee in State v. McLeod, 937 S.W.2d 867 (Tenn. 1996), which answers this question, explains a key distinction between Tennessee Rule of Evidence 803(4) and its federal counterpart, and really digs into the nitty gritty of this hearsay exception.

In McLeod, the court addressed a consolidated appeal, which centered its

attention on the broad, growing problem in child abuse cases of the admissibility of statements made by children during the course of a medical examination. The precise difficulty arises in attempting to apply evidentiary rules drafted with adults in mind to cases involving children. Problems notwithstanding, we must achieve a balance that fosters the important governmental interest in protecting children while maintaining fundamental fairness.

The rationale for Rule 803(4) is two fold: (1) "Courts have reasoned that patients seeking medical assistance are strongly motivated to be truthful because accurate diagnosis and effective treatment often depend, in part, upon what patients tell health care providers;" and (2) "if physicians or other medical personnel rely upon the statement in diagnosing and treating the patient, then the statement should be sufficiently trustworthy to be admissible in a court of law."

As the McLeod court noted, the problem with applying Rule 803(4) to statements by children is that these rationales become "questionable when the patient is a child because children may not be able to understand the need to be truthful in the medical setting." Courts thus have adopted three different approaches:

(1) "Some jurisdictions require the child-declarant to show knowledge of the motive for the treatment."

(2) "Other jurisdictions require that the declarant have a motive for making the statement surrounding the treatment but allow such motive to be inferred or presumed."

(3) "A third group of jurisdictions does not require a specific showing of motive; rather, they inquire whether the subject-matter of the declarant's statement was reasonably pertinent to diagnosis or treatment."

The Tennessee Supremes then seemingly created a fourth approach, concluding that

Courts should not presume that statements by a child to a medical services provider are untrustworthy merely because there is disputable evidence of the child's motivation to be truthful. Rather, the admissibility decision should be based upon a thorough examination of all of the circumstances surrounding the statement.

In dicta, the court also addressed two other issues. First, the court noted that 

Commentators have also suggested that the Rule extends to other medical professionals and employees such as ambulance attendants, orderlies, hospital attendants, clerks, and administrative personnel. Neil P. Cohen et al., Tennessee Law on Evidence § 803(4).6 (3d ed.1995). However, in State v. Barone, 852 S.W.2d 216 (Tenn.1993), we declined to apply Rule 803(4) to statements made to psychologists.

It seems that many other courts have agreed with this first conclusion, but I am aware of several courts that have disagreed with the conclusion that Rule 803(4) doesn't apply to statements made to psychologists.

Second, the court noted that Tennessee Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis and treatment describing medical history; 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 and treatment. (emphasis added)

So, how does Tennessee's rule, covering statements made for purposes of "diagnosis and treatment" differ from the federal rule, which covers statements made for purposes of "diagnosis or treatment." According to the Advisory Committee Note to the Tennessee rule,

The proposal continues the Tennessee position of limiting declarations of past physical condition to those made to treating doctors. See Gulf Refining Co. v. Frazier, 15 Tenn. App. 662, 688-95 (1932). The declaration must be for both diagnosis and treatment. 

When we look at the opinion in Frazier, we can see the logic of the Tennessee Rule. According to the Frazier court, "where a physician examines an injured person for the express purpose of testifying as to his physical condition, even declarations of present pain made by the patient to the physician have been held inadmissible." In other words, under the Tennessee rule, a statement by a patient to a doctor for purposes of diagnosis and treatment is admissible, but a statement by a litigant to a doctor for purposes of diagnosis and testimony is inadmissible.

-CM

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Comments

To my mind the whole set of issues surrounding child testimony is a mud bog from which there is no rational or principled escape. My own preference is that testimony of children become per se inadmissible because it is inherently unreliable. I recognize all the bad things that flow from such a position but it seems to me in the end to have the virtue of simplicity and efficiency. The bad consequences can be dealt with in other non-legal ways. Baring that, however, I think a totality of the circumstances test is the best one can do.

Posted by: Daniel | Nov 30, 2012 4:47:13 PM

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