A recent case from Florida’s 5th DCA, make it clear that information contained within medical records regarding how an accident happened is admissible. To the end, Cynthia Underwood was injured on July 11, 2010 when the motorcycle she was driving collided with a sport utility vehicle driven by Katherine Strong.
Mrs. Underwood sued Ms. Strong, alleging that Ms. Strong had negligently operated her vehicle, thereby causing the collision and severely injuring Mrs. Underwood. The case proceeded to trial solely on the issue of liability. The jury found Ms. Strong fifty percent at fault.
Ms. Strong appealed and argued that the trial court erred in refusing to admit a medical record containing a statement made by Mrs. Underwood to her treating physician concerning how the accident occurred. The 5th DCA agreed with Ms. Strong and remanded for a new trial on liability. Strong v. Underwood, 44 Fla. L. Weekly D1598c(Fla. 5th DCA 2019).
The issue at trial was liability for the accident, with each party alleging the other crossed the center line and caused the accident. It is obvious the jury did not know who to believe and thus split liability 50/50. At trial, Ms. Strong sought to admit a medical record from one of Mrs. Underwood’s treating physicians, Dr. Michael Cheatham. During a deposition, Dr. Cheatham testified that according to his medical record, he examined Mrs. Underwood the day after the accident. At that time, he recorded the following entry in the medical record:
Ms. Underwood is a 44-year-old white female who was the helmeted rider of a motorcycle that was involved in a crash yesterday. She states that one of the tires on her motorcycle blew, and she collided head-on with the SUV at an unknown rate of speed.
Dr. Cheatham testified that he would not normally write “ ‘she states’ unless a patient . . . verbalize[d] [the statement] to” him.
The trial court excluded the statement as inadmissible hearsay, finding the source of the statement was unknown. As a result, Dr. Cheatham did not testify at trial and neither the statement nor the medical record was introduced at trial.
Ms. Strong argued, and the 5th DCA agreed, that Mrs. Underwood’s statement should have been admissible as the admission of a party-opponent contained in a business record. She further argues the source of the statement was known because the medical record indicates the statement came from Mrs. Underwood.
Florida statute 90.803 sets forth exceptions to the Hearsay rule
Simply stated, medical records are admissible at trial. Likewise, a patient’s statements contained within medical records are admissible, provided the statements themselves fall under a separate hearsay exception. See, e.g., Otis Elevator Co. v. Youngerman, 636 So. 2d 166, 167 (Fla. 4th DCA 1994) (holding plaintiff’s statements in medical record admissible as statements made for purposes of medical diagnosis and treatment); Wilkinson v. Grover, 181 So. 2d 591, 593-94 (Fla. 3d DCA 1965) (holding statement in medical record admissible as admission by party-opponent).
As the 5th DCA stated; “The statement at issue here indicated the accident occurred after one of the tires on Mrs. Underwood’s motorcycle blew, causing her to collide with Ms. Strong’s vehicle. Ms. Strong sought to use this statement against Mrs. Underwood at trial. Accordingly, as it was Mrs. Underwood’s statement and offered against her, it falls within the hearsay exception set forth at section 90.803(18)(a), Florida Statutes.”
90.803 Hearsay exceptions; availability of declarant immaterial.—The provision of s. 90.802to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
18) ADMISSIONS.—A statement that is offered against a party and is:
(a) The party’s own statement in either an individual or a representative capacity;
The key portion from the ruling is the fact that the medical record itself states the source of the statement was Mrs. Underwood.
She states that one of the tires on her motorcycle blew . . . .”
Always speak with a lawyer as early on in the case as possible. In this case, a gratuitous statement that had no bearing on the injuries, treatment, or medical diagnosis had significant repercussions. Another important tool is to get the medical records as quickly as possible. We request and review medical records immediately. If we believe there is an error in the medical records, we can ask to doctor to review his records and draft an addendum. This is much easier to accomplish while the doctor may still have an independent recollection of the patient and the subject conversation.