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Georgia Law Monitor THE
NEW EXCEPTION TO THE HEARSAY RULE: Dwight
A. Meredith © GTLA. Atlanta, Georgia, 1997. All Rights Reserved. I. INTRODUCTION Your client was injured in a rear end collision. She incurred $6,000 of medical bills. She was diagnosed or treated by an emergency room doctor, her family doctor, an orthopedist, a radiologist, various nurses and a physical therapist. The trial of this case is about four months off. As you prepare for the trial, your mind returns to the issue of how the medical evidence should be presented to a jury. One option is to simply take the deposition of each of the health care professionals who diagnosed or treated your client and present the deposition testimony either by means of videotape or by reading the transcript to the jury. The problem with that is cost. By the time the court reporter and videographer have been paid and the physicians' witness fees paid, even a favorable jury verdict will be largely consumed by litigation expenses. Your client does not have the means to pay those expenses and, given the likely outcome, you are not inclined to advance the funds. You also consider calling the physicians live at trial. A telephone call to the orthopedist dispels that notion. He is emphatic that he will not willingly take a day away from his practice to hang around the courthouse waiting to testify. You briefly consider simply having the physicians served with subpoena's compelling their attendance. You reject that notion when you consider whether the testimony they would give under subpoena would be sympathetic to your client. You have just about decided to forego medical evidence and not put compelling proof of your client's injuries and her pain and suffering before the jury when you notice that all of the information that you want the jury to consider is in the medical records. You have already collected the medical records. If those records could be admitted into evidence or otherwise presented to the jury, the medical aspect of your case could be presented with a minimum of trouble and expense. After a half hour in the law library, however, you have discovered that medical records are hearsay and are not covered by any exception to the hearsay rule. The cases excluding medical records on a hearsay objection are legion. Footnote. You have just about given up when while casually thumbing through the pocket part of the evidence code, your eyes fall on the heading "admissibility of medical reports." You quickly scan the new statute and you realize that the General Assembly may have solved your problem. The General Assembly, in its 1997 session, enacted OCGA § 24-3-18 which effectively eliminates the dilemma posed above. OCGA § 24-3-18 creates a powerful new exception to the hearsay rule that allows medical records to be presented to the jury in certain circumstances. II. SCOPE OF THE HEARSAY EXCEPTION The exception to the hearsay rule provided by OCGA § 24-3-18 is not blanket authority for the admission into evidence of any and all medical records in any or all cases. There are several major limitations to the effectiveness of the new provision for the admission of medical records. Each of the limitations will be addressed in turn. The first limitation concerns the type of cases to which the statute applies. By its own terms, OCGA § 24-3-18 applies only to "the trial of any civil action involving injury or disease." The exception does not apply in criminal cases and will not apply in civil cases that do not "involve injury or disease." Thus, the hearsay exception will apply in actions arising out of motor vehicle accidents, medical malpractice, premises liability and other personal injury actions. One can easily imagine that certain domestic relations cases would "involve injury or disease." Similarly, will contests and other probate matters may involve mental disease. Finally, contract cases in which capacity is an issue may involve injury or disease. The legislature chose the phrase "involving injury or disease" rather than "arising out of injury or disease" or "in which compensation for injury of disease is sought." Thus, it appears that the intent of the General Assembly was not to limit the application of the statute to personal injury actions but rather to provide an easy and inexpensive method of proving medical facts in all civil cases in which injury or disease is relevant. The second limitation on the applicability of the statute is that the medical record must be signed and dated by a health care professional. The statute requires that the medical professional signing and dating the record have diagnosed or treated the patient. Thus, expert witnesses who simply review medical records are not covered. Similarly, medical reports from professionals who review medical records for HMO's or insurance companies, but who have not treated or diagnosed the patient are not admissible over a hearsay objection. The requirement that the record be signed by a health care professional begs the question of what type of professional is covered. The General Assembly has answered that question by including in the statute a list of professionals who, by signing and dating the medical narrative, bring the report within the ambit of the statute. That list is limited to the following:Medical doctor; Dentist;Orthodontist;Podiatrist;Physical and Occupational Therapist;Doctor of Chiropractic; Psychologist; Advanced Practical nurse; Social Worker; Professional Counselor; and Marriage and Family Therapist. Presumably, medical narratives signed and dated by medical professionals not on that list are not admissible over a hearsay objection. It is unclear why the following professions were left out of the statute. Conspicuous by their absence from that list are the following: Optometrists; Osteopathic physicians; Physician's assistants; Radiological technicians; and, Respiratory therapists. Since neuropsychology is defined by statute be a sub-specialty of psychology, neuropsychologists are covered under OCGA § 24-3-18 as psychologists. The next limitation on the admissibility concerns the contents and form of the medical record itself. The statute, by its own terms, refers to "medical reports in narrative form." The statute does not define "narrative form" but, presumably, raw test results, x-rays, and medication charts that contain no explanatory material would not be covered. The statute allows the admission into evidence of such reports only "insofar as it purports to represent the history, examination, diagnosis, treatment, prognosis, or interpretation of tests or examinations, including the basis therefore, by the person signing the report." OCGA § 24-3-18(a). While matters not included on that list would be subject to a hearsay objection, that list is sufficiently broad not to unduly limit the practitioner. To the extent that material in the medical narrative is extraneous, it should not be read to the jury. For instance, a note in the medical records that the defendant was insured would certainly be excluded. Similarly, the patient's statement recorded in the medical records that, "I was hurt in a car wreck when a drunk driver ran a red light at high speed" should be excluded. The reading of the medical narrative is admitted into evidence "the same as if that person (the author of the medical record) were present at trial and testifying." If the doctor who wrote the note attempted to testify that his or patient told him the defendant was drunk, such testimony would be excluded as hearsay. The fact that an exception is made that allows the medical narrative into evidence as a substitute for the live testimony of the physician does not authorize evidence to be read from a medical record that would be excluded if offered by the witness in live testimony. Thus, in the example posed above, the court should allow the portion of the statement that would be admissible via live testimony and exclude the remainder. The portion of the statement, "I was hurt in a car wreck," if introduced in live testimony could be admissible over a hearsay objection as a statement made for medical diagnosis or treatment. Under the provisions of OCGA § 24-3-18, the extraneous material concerning insurance, red lights and drunk driving is not within the "history, examination, diagnosis, treatment, prognosis, or interpretation of tests or examinations," for which the statute creates an exception to the hearsay rule. Of particular interest is the portion of the statute that notes that "the opinion of the person signing the report with regard to the etiology of the injury or disease may be included as part of the diagnosis." Etiology of the injury is the "cause" of the injury. Thus, a narrative medical report giving a doctor's opinion that the injury was caused by the car wreck is admissible over a hearsay objection. The statute also allows a "statement of the qualifications of the person signing the report ... (to) be included as part of the basis for providing the information contained therein." The curricula vitae of the physician can therefore be read to the jury prior to the reading of the medical reports. The reading of the qualifications of the author may lend credibility to the information contained in the narrative. OCGA § 24-3-18 is a very powerful new tool in a personal injury case. Without the trouble and expense of securing medical testimony by way of deposition or live testimony, the practitioner may use medical narratives to demonstrate the nature and extent of injury (diagnosis), the cause of the injury (etiology), whether or not the injury is permanent (prognosis), and the treatments undergone. In addition, creative use of the exception to put before the jury such reports as nursing notes or office visits may help to prove the duration and degree of pain and suffering resulting from the injury. The use of a statement of the qualifications of the signer of the report may lend credence to the information contained in the report. III. PROCEDURE FOR USE OF MEDICAL NARRATIVES In order to take advantage of the provisions of OCGA § 24-3-18, the procedures outlined in the statute must be followed. First, both the medical reports intended to be introduced as well notice of such intention must be provided to the opposing party at least 60 days prior to trial. If both a copy of the medical reports to be introduced as well as notice of intention to introduce those records are not provided to the opposing party at least sixty (60) days prior to trial, a hearsay objection to the introduction of those records is well founded. Once the notice of intent is sent along with copies of the records to be introduced, the party receiving the notice has 15 days to object to the introduction of such report, or any part thereof, on grounds other than hearsay. In the absence of such objection, the document as a whole is admissible. The adverse party has the right to cross examine the person signing the report, and to present rebuttal testimony. Thus, it appears that if you introduce medical reports by reading the narrative to the jury, opposing counsel has the right to call the author of the report for the purpose of cross examination. In that event, it appears that you would have the right to recall the author for direct examination in the rebuttal portion of the case. To supplement the report, the party seeking admission of the report may also present testimony of the signer of the report. Thus, it is possible to read a physician's qualifications into the record, read the narrative reports he or she authored and then call the physician to supplement the report. Once the requirements of the statute are met, the medical reports are presented to the court in the same manner as deposition testimony. The statute states that the medical narrative is admissible into evidence as if the person signing the report was testifying as a witness. Thus, the medical narrative stands, in effect, in the place of live testimony of the report's author. It is read to the jury like a deposition and it is admitted, not as documentary evidence but, rather, as a substitute for live testimony. Accordingly, the medical narrative may not be sent out with the jury for deliberations. IV. PRACTICE POINTERS OCGA § 24-3-18 is a very powerful tool in the hands of a skilled advocate. In order to fully realize its potential, one must both insure that the requirements of the statute are met and consider carefully how and when to use the exception. In order to insure that the requirements are met, certain steps are recommended. First, in the letter written to health care providers requesting medical records, one should explain the statute to the health care provider. That letter should place emphasis on the fact that properly prepared narratives by the professional (for example, "doctor"), signed and dated may avoid the need to take a deposition or provide trial testimony. When one receives medical records, each record should be checked to see if the requirements of 1) narrative, 2) signature, and 3) date are included. If medical records are received that are not completed in the required format and which contain important information, one should immediately contact the office of the doctor and explain that the oversight may result in the need for his or her deposition. It may be that, from the doctor's point of view, it is far less trouble to create an appropriate narrative than to sit for a deposition. One should not tell the physician that a proper narrative will avoid a deposition as the opposing party has the right to cross examine the signer of the report and the person offering the report into evidence may decide to take a deposition as well. One can hope that as the medical profession becomes more familiar with the provisions of OCGA ' 24-3-18, medical reports will be routinely composed to fit the requirements. Once the medical reports are in proper form, one should send all appropriate reports to the opposing counsel. The immediate transmission of those reports will prevent plaintiff's attorney from falling prey to the 60 day trial limitation. By forcing the opposing counsel to make all objections to the introduction of the report during the discovery period, one may cure any problems by taking depositions or through motion practice. Once all of the medical records are in proper form, the decision must be made as to their use. The decision to read medical reports to a jury as opposed to live or videotaped testimony will depend on a number of factors. The size of potential recovery may limit the amount of litigation expenses that can be justified. In addition, the mixture of some live testimony, some deposition testimony and some reading of medical reports may be effective. In small personal injury cases it may be appropriate to use medical reports as the sole medical testimony in the case. One should also consider other uses of the medical record exception. If one plans to use an expert witness to testify concerning the medical condition or prospects of the client, one should consider laying a foundation for such testimony by introductory medical reports shown the underlying factual basis from which the expert draws his or her conclusions. Similarly, if one of several doctors is going to testify live or on videotape, the reading of medical reports by other doctors immediately preceding such testimony may bolster the live testimony and allow the jury to understand that multiple doctors have arrived at the same conclusion. Another potential use of the medical reports is to read nurses notes in order to prove pain and suffering. The nurses narratives may well contain notations of the times pain medication was administered as well as notations of the patients' complaints of pain. The reading of such reports may bolster and support other non-medical testimony concerning the pain and suffering. Since nurses work in shifts, it may require live testimony or depositions of several nurses to prove the information in the nurses reports. The reading of the narratives may contain the proof and therefore have greater jury impact. As noted above, OCGA § 24-3-18 is a very powerful tool. It should not be overlooked that the power of the statute may be wielded by plaintiff or defendant. When one receives a notice of intention to introduce a medical report under the statute, immediate action is required. First, one should carefully review the medical records accompanying the notice. Any matter in those records that is objectionable should be noted and any such objections should be filed "within 15 days of being provided with the report." The statute does not specify whether the 15 day period runs from the date of receipt of the report, the date of service of the report or 15 days of service plus three days for mail. The best policy is simply to file objections within 15 days of the service of the report and notice. In addition to filing any objections, the medical records should be carefully reviewed to determine if the deposition or trial testimony of the signer of the report should be offered. Medical reports may contain information that, if unexplained, would seem to undercut ones client's position but which upon explanation are benign. For example, assume one represents plaintiff in a case in which it is contended that a car wreck caused injury to a disc in the back. In particular, it is contended that the wreck caused injury to the spine at T7-T8. The opposing counsel, pursuant to OCGA § 24-3-18, sends you notice of intention to put on evidence in your upcoming trial by narrative and sends you a group of your client's prior medical records. The prior medical records reveal that your client has had previous problems with a disc located L5-S1. If opposing counsel is allowed to read the prior medical records with no explanatory material, the jury may get the impression that your client had pre-existing disc trouble without ever being aware that the injury alleged is in a different part of the spine from the prior injury. It is therefore crucial to secure evidence explaining the differences with regard preexisting injury and the injury caused by the wreck. One way to present such evidence would be to use testimony of the signer of the report to demonstrate not only the differences in the two injuries, but also that the injury caused by the wreck was not in existence at the time of the prior report. That testimony could be obtained by deposition or in plaintiff's case in chief. In addition, one could wait until after defense counsel has read the report to the jury and then call the author of the report as a rebuttal witness. If the author of the report is cooperative, the latter course may leave the jury with the impression that defense counsel was caught with his hand in the evidence cookie jar. V. CONCLUSION The admission into evidence of medical narratives as a substitute for the depositions or live testimony of health care professionals has given the trial lawyer a new and powerful tool in personal injury cases. The use of the new hearsay exception will depend on the size of the potential recovery, the complexity of the medical issues and the creativity of the practitioner. The new statute is a tool that should not be overlooked. Notice: Disclaimer of Attorney Client Relationship by mere use of this website. The mere reading or accessing this website does not create an attorney client relationship. Emailing the firm or using the legal forms posted does not constitute and create an attorney client relationship. If you would like to inquire about possible legal representation, please be aware that we cannot represent you until we know that doing so will not create a conflict of interest for you or our present clients. 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