Case Law Opens Door To Admissibility Of Plaintiff’s Rendition Of Accident Found In Medical Records
January 7, 2011 Posted By Lance E. Benowitz Trial Practice
During a plaintiff's medical treatment, there are many times that a hospital or medical care professional's records include a history of the accident and how it occurred. The history of the accident is at times in direct conflict with the accident description given by plaintiffs in their pleadings, Bill of Particulars and deposition testimony, or even at trial. These inconsistencies could prove a very valuable tool for defense counsel at trial to impeach plaintiffs and attack their credibility.
Unfortunately, the New York Court of Appeals has historically not allowed the accident histories found in medical records to be introduced at trial, holding that only admissions regarding plaintiff's diagnosis or treatment are admissible under the business records exception to the hearsay rule. See Williams v. Alexander, 309 N.Y.283 (1955). Recently, however, New York's Appellate Divisions have taken a different view of the admissibility of these statements and for the time being, have opened the door to their admissibility at trial.
In Preldakaj v. Alps Realty of New York Corp., 69 A.D.3d 455 (1st Dept. 2010) the plaintiffs were injured when burned while allegedly observing floor refinishing being performed by their cousin. The fumes from the polyurethane being applied by their cousin allegedly ignited, causing the plaintiffs' injuries. However, the hospital and fire department records indicated that plaintiffs admitted to both the hospital staff, fire department official and the ambulance attendants that they were themselves applying the polyurethane when the fire arose. While the lower court denied defendant's motion to have the hospital and fire department records admitted without redaction of the damaging admissions of plaintiffs, finding that the records admissions dealt with neither treatment of the plaintiffs or diagnoses of their condition, the Appellate Division, First Department reversed the lower court's decision.
The First Department ruled that "the statements that plaintiffs were applying the polyurethane may only be admitted if there is clear evidence connecting the party to the entry (i.e., testimony that the party made the statement)" and if the statements are in conflict with the position taken by the plaintiffs at trial. Preldakaj, 69 A.D.3d at 456-457. Thus, the defense would be allowed to have the statements concerning how the accident occurred admitted, so long as plaintiffs' trial testimony was inconsistent with the statements and there was additional evidence that the statements were attributable to the plaintiffs.
This reasoning has been followed in both the Second and Fourth Appellate Divisions where the courts have found that hearsay entries in hospital records concerning how an accident occurred are admissible at trial if they are inconsistent with the position taken by a party at trial and evidence exists connecting the statement to that party. The statements are admissible even if not germane to treatment or diagnosis. See Smolinski v. Smolinski, 2010 NY Slip Op. 08468 (Nov. 19, 2010); Coker v. Bakkal Foods, 52 A.D.3d 765 (2nd Dept. 2008).
While it appears that the First, Second and Fourth Appellate Division rulings have created a pathway to having accident histories contained in medical records admitted at trial, this may be short lived since the Court of Appeals has not yet adopted the reasoning set forth in these cases. So although you may have the records admitted at trial in cases venued in the First, Second or Fourth Appellate Divisions, the admissions can still be overturned if the issue is brought up to the Court of Appeals.