Evidence Codification Intrigue in Virginia: A New(?) Hearsay Exception for Statements Made for Medical Treatment

This is the fourth post in a series reporting selected findings from my recently published book comparing Virginia and federal evidence law.

One of the most highly regarded hearsay exceptions in American jurisprudence is the exception for “Statements Made for Medical Diagnosis or Treatment,” Fed. R. Ev. 803(4).  The basic idea of the exception is that we expect people to honestly tell their doctor they got shot in the leg, because when you tell the doctor your gunshot wound is a bug bite, you get useless ointment instead of life-saving surgery.

It is no surprise, then, that we find this exception – copied verbatim from the unrestyled federal rule – in the recently codified Virginia Rules of Evidence, Rule 2:803(4):

"Statements for Purposes of Medical Treatment. 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."

Interestingly, however, the "codified" rule does not track Virginia case law.  From my book:

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 . . . Virginia case law seems significantly narrower than the codified rule.  In the most recent case, the Court explained:

“We have acknowledged that “a physician [may] testify to a patient’s statements concerning his ‘past pain, suffering and subjective symptoms’ to show ‘the basis of the physician’s opinion as to the nature of the injuries or illness.’” Cartera v. Com., 219 Va. 516, 518, 248 S.E.2d 784, 785–86 (1978); accord Jenkins v. Com., 254 Va. 333, 339, 492 S.E.2d 131, 134 (1997).”  Lawlor v. Com., 285 Va. 187, 243 (2013). 

Lawlor and the two cases cited by Lawlor in the above excerpt are the three cases cited in the Virginia codification commentary to support Rule 2:803(4).  But note that the Lawlor Court’s description of the “exception” does not suggest that qualifying statements are admissible as substantive evidence, the normal effect of a hearsay exception.   Instead, the Virginia Supreme Court explains that such statements to a physician are admissible to “show the basis of the physician’s opinion” – a nonhearsay use that would not necessitate a hearsay exception.  Further, one of the cited cases, Jenkins, contains the following passage, which is far from an endorsement of the exception:

“The Commonwealth contends that we should apply the hearsay exception extended in some jurisdictions to statements made by a patient to a treating physician.  As the Commonwealth recognized on brief, ‘many of these out-of-state cases are partially based on their state’s adoption of rules equivalent to Federal Rule of Evidence 803(4).’  Neither this Court nor the General Assembly has adopted any such rule.”  Jenkins v. Com., 254 Va. 333, 339, 492 S.E.2d 131, 134 (1997). 

        . . .

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Virginia has not adopted Rule 803(4), eh?  Tell that to the codifiers!

Rule 2:803(4) is one of a handful of places in the codified rules where the codifiers stretched the Virginia evidence rules beyond their pre-codification bounds. 

That is significant because, as Rule 2:102 emphasizes, the codified rules “are adopted to implement established principles under the common law and not to change any established case law rendered prior to the adoption of the Rules.” 

 

The next Virginia litigant whose adversary introduces a hearsay statement under Rule 2:803(4) should point to the pre-codification case law emphasizing that Virginia has not "adopted any such rule.”  (Etiquette requires a citation to my book and the provision of copies to the judge and opposing counsel....)  After the Perry Mason-esque excitement dies down, the Virginia courts will have to decide whether to follow the pre-codification case law, the codified rule, or adopt some compromise position – a dilemma they have not yet taken on, but cannot avoid in this context, in light of the inconsistency between the codification and the case law.

 (There is more to talk about involving the “diagnosis OR” part of the rule, but there is only room for so much excitement in a blog post!)