Prospective vs. Retrospective: Supreme Court of Colorado Finds Statements About Past Cocaine Use Admissible Under Rule 803(4)

Similar to its federal counterpart, Colorado Rule of Evidence 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.

So, let's say that a patient falls into a vegetative state. And then, after the patient is in that vegetative state, the patient's roommate/ex-girlfriend asks the treating physician whether the patient's past cocaine use could have contributed to the patient's resistance to normal resuscitation efforts. Should this question and related statement be deemed admissible under Rule 803(4)? Let's take a look at the recent opinion of the Supreme Court of Colorado in Kelly v. Haralampopoulos, 2014 WL 2709431 (Colo. 2014).

In Haralampopoulos, 

Plaintiff went to an emergency room with abdominal pain of unknown origin on November 23, 2004. Tests disclosed a cyst on his liver. The surgeon on call ordered a needle biopsy of the cyst for the following day. Waintrub, the internist on call, took plaintiff's medical history and admitted him for this procedure, but did not ascertain the cause of the cyst.  

The following day, on November 24, 2004, Kelly performed the needle biopsy. Shortly after the cyst was pierced, plaintiff suffered a severe allergic reaction, became hypoxic, and stopped breathing. Before plaintiff could be revived, he suffered permanent brain injury.  

According to guardian, had the cause of the cyst been determined, a risk would have been recognized that spillage of the cyst's contents during a needle biopsy would lead to anaphylactic shock. Guardian alleged that Waintrub was negligent in not ordering tests to determine the cause of the cyst or consulting a specialist before admitting plaintiff for the needle biopsy. Guardian alleged that Kelly was negligent in failing to consider the cause of the cyst and performing the biopsy without taking appropriate precautions against an allergic reaction.

At trial, the court allowed defense counsel to introduce the roommate's question about the patient's prior cocaine use as well as further statements by the roommate and the doctor's responses. The Court of Appeals of Colorado later reversed, finding that the statements

were not admissible under Rule 803(4) because of the Rule's "prospective" focus....The court reasoned that because the statements were made after Respondent was in a vegetative state and treatment was no longer possible, they were not made for the purpose of diagnosis or treatment....The court of appeals further held that, even if the statements were admissible under Rule 803(4), the trial court abused its discretion in finding that their probative value was not substantially outweighed by the danger of unfair prejudice under Rule 403. Because [the] statements were inadmissible, the court of appeals reasoned, so was any lay or expert testimony on cocaine use....

The Supreme Court of Colorado in turn reversed, finding that

The court of appeals erred in limiting the scope of Rule 803(4) to statements made for the purpose of prospective treatment. The Rule's plain language applies to "diagnosis or treatment," and while the term "treatment" has a prospective focus, the term "diagnosis" does not. Instead, diagnosis focuses on the cause of a patient's medical condition, and may or may not involve subsequent treatment. Here, [the] statements were made for the purpose of discovering the cause of Respondent's resistance to normal resuscitation efforts, and were thus admissible under Rule 803(4). We also conclude that the trial court did not abuse its discretion in finding that the statements' probative value was not substantially outweighed by the danger of unfair prejudice under Rule 403. Finally, we conclude that, given the admissibility of [the] statements, the trial court did not err in admitting additional lay and expert testimony regarding Respondent's prior cocaine use.

-CM