Wednesday, January 13, 2021
Federal Rule of Evidence 803(4) 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.
This exception of of course applies to statements made to doctors and nurses. Moreover, as the recent opinion of the Eighth Circuit in United States v. Earth, 2021 WL 79180 (8th Cir. 2021), makes clear, it also applies to statements to EMTs.
In Earth, Crystal Earth stabbed her cousin, Wade Sharpe Butte, after an argument in her home on the Rosebud Indian Reservation, near White River, South Dakota. At Earth's ensuing trial,
EMT [Katherine] O'Brien testified that, after she moved Sharpe Butte to the ambulance, she asked him if he had been drinking and he said, “Yes. Lots. All day.” EMT O'Brien also testified that she asked Sharpe Butte what happened and he said that he had been sleeping and, when he woke, “the bitch was stabbing me.” EMT O'Brien testified that Sharpe Butte did not identify who stabbed him. Dr. Lozano testified that Sharpe Butte went directly to the trauma room upon arriving at the hospital. The doctor testified that Sharpe Butte explained the source of his injuries by stating “he was caught by surprise” and “got cut with a knife.” Later, when asked by the government about Sharpe Butte's “attitude or demeanor about what happened,” Dr. Lozano testified that Sharpe Butte “was surprised at the attack” and kept saying something like “[y]ou've got to be kidding me.”
Our review makes clear that some of Sharpe Butte's statements are easily admissible under Rule 803(4). For example, Sharpe Butte's statement about drinking alcohol all day was reasonably pertinent to his treatment. Similarly, Sharpe Butte's statements explaining he had been stabbed with a knife were about the “cause” of his symptoms and were reasonably pertinent to both diagnosis and treatment. However, some of Sharpe Butte's statements are more problematic because they go beyond merely stating the direct cause of his injuries. That is, when explaining he was stabbed, Sharpe Butte also indicated the stabbing surprised him. Earth argues his statements expressing surprise were not reasonably pertinent to his diagnosis or treatment.
As a general rule, statements made by a patient seeking medical treatment are excluded from the rule against hearsay because “a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility.”...In light of this, for statements to be admissible under Rule 803(4), “the declarant's motive in making the statement must be consistent with the purposes of promoting treatment; and ... the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.”...We have previously explained that “[s]tatements to a medical professional concerning the cause of an injury—‘I was assaulted’—are usually admissible under Rule 803(4).”...However, statements identifying the assailant, or otherwise assigning fault, are “seldom, if ever,” sufficiently related to diagnosis or treatment to be admissible....
Earth argues Sharpe Butte's statements were not “reasonably pertinent” to diagnosis or treatment because, by describing the stabbing as surprising, Sharpe Butte's statements assigned fault. We disagree. When asked about the cause of his injuries, Sharpe Butte made brief statements to the medical professionals who were treating him for traumatic injuries—first in the ambulance and then in the trauma room at the hospital. Given that these statements were made directly to medical professionals attempting to treat Sharpe Butte's injuries, there is no question these statements were made for any other reason than “medical diagnosis or treatment.” Fed.R.Evid. 803(4)(A). Further, “a patient's statement describing how an injury occurred is pertinent to a physician's diagnosis and treatment.”...Sharpe Butte's statements concerned the cause of his multiple injuries. Testimony made clear that the medical team was treating deep, potentially complicated puncture wounds, as consistent with Sharpe Butte's statements about the cause of his injuries. Even if Sharpe Butte's descriptive statements may have not been fully necessary for treatment and diagnosis, they were reasonably pertinent and admissible under Rule 803(4).