Obviously, hospital charts and physicians' office records may be compelling items of evidence in a personal injury action. Such records may be used by the plaintiff to document his or her injuries, or support claims of inadequate attention to the plaintiff's complaints by a treating physician or hospital staff members. For the defendant, medical records can often demonstrate that the injuries are less serious than claimed by the plaintiff, are attributable to a pre-existing cause, or could not have occurred in the manner alleged by the plaintiff.

Hospital records and doctors' office records¹ are generally admissible under CPLR 4518(a), the so-called "business records" exception to the hearsay rule, provided a proper foundation is established.² Yet, not every statement contained in medical records qualifies for admission under this provision, and the admission of medical records into evidence, without the redaction of certain hearsay statements that do not have the usual guarantees of trustworthiness associated with business records, may constitute reversible error.

As is often the case, the distinctions between inadmissible hearsay and those portions of medical records which are admissible under CPLR 4518(a) are not always easy to draw. Nevertheless, certain general principles emerge from the relevant case law as to what types of entries are inadmissible and should be redacted.

Courts interpreting CPLR 4518(a) and its predecessor, §374-a of the Civil Practice Act, have allowed certain diagnoses and medical opinions contained in hospital records into evidence, but have excluded historical entries concerning the cause of an injury, if such information is not "germane to diagnosis and treatment."

Also subject to exclusion, even if they would otherwise be germane to diagnosis and treatment, are hearsay entries concerning the manner in which the plaintiff's injury supposedly occurred, where the source of the information is unknown. Of course, a specific statement that could be attributed to the plaintiff would be admissible as a statement against interest or a prior inconsistent statement, but if the source of a historical statement is unknown, it is likely to be inadmissible.

Statements reflecting an apparent diagnosis of the plaintiff's condition may also be inadmissible, if the identity of the person who made the diagnosis cannot be ascertained. In such cases the requirements of CPLR 4518(a) cannot be satisfied, and it cannot be shown that the information was imparted by a person who was under a business duty to do so. If the informant was not under a business duty, there is no guarantee of trustworthiness attaching to such statements, for the unknown informant may or may not have felt obliged to tell the truth.

The admission of a hearsay statement that the plaintiff was "intoxicated," that the accident did not occur in the manner claimed by the plaintiff, or that plaintiff's injuries were attributed to a particular medical condition, may rise to the level of reversible error if the hearsay implicates one of the central issues in the case. The Court of Appeals has expressly noted that the admission of hearsay "raises a substantial probability of irreparable prejudice to a party's case for there is simply no way of gauging the subtle impact of inadmissible hearsay on even the most objective trier of fact."³

Relevant Entries

The distinction between entries relevant to diagnosis and treatment on the one hand, and inadmissible hearsay on the other, was recognized by the Court of Appeals in People v. Kohlmeyer,⁴ where the Court commented that "[i]t is always competent for physicians to state their scientific opinions as to the nature of illnesses, their causes and probable results, founded upon the facts disclosed in the evidence," and that there was no reason to exclude "recorded conclusions of the hospital physicians on scientific matters," where the same opinions would be admissible if the physicians were called to testify.⁵

The Court in Kohlmeyer concluded that a diagnosis of "manic depressive insanity" in certain hospital records offered by the defendant was admissible, and that it was reversible error to exclude the records, since they were "'records of an act, transaction, occurrence or event made in the course of the doctor's profession' or the scientific deductions therefrom."⁶ However, the Court was careful to note that when the records had been offered, the hearsay portions had been excluded, "particularly in respect to the history of the patient."⁷

In a subsequent case, Williams v. Alexander,⁸ the Court of Appeals held that entries in hospital records concerning the plaintiff's medical history, or the manner in which an accident occurred, are admissible only if "germane to diagnosis or treatment." The Court stated that

[i]n some instances, perhaps, the patient's explanation as to how he was hurt may be helpful to an understanding of the medical aspects of his case; it might, for instance, assist the doctors if they were to know that the injured man had been struck by an automobile. However, whether the patient was hit by car A or car B, by car A under its own power or propelled forward by car B, or whether the injuries were caused by the negligence of the defendant or of another, cannot possibly bear on diagnosis or aid in determining treatment. That being so, entries of this sort, purporting to give particulars of the accident, which serve no medical purpose, may not be regarded as having been made in the regular course of the hospital's business.⁹

Under this holding, while the plaintiff's hospital records would be admissible, hearsay statements that the plaintiff had been struck by a particular car, or that she had slipped and fallen while walking down the street, would be subject to redaction.

Admissions

The distinction between admissions or statements against interest attributable to the plaintiff, which are admissible, and inadmissible hearsay from unknown sources, is demonstrated by the case of Mikel v. Flatbush General Hospital.¹⁰ In Mikel, the plaintiff's decedent was scalded in a shower while he was a patient at the defendant hospital. The Appellate Division held that the trial court erred in excluding the decedent's purported admission, to his treating physician, that the accident occurred when he slipped and fell, accidentally turning off the cold water.

On the other hand, a statement to the same effect contained in the hospital records was inadmissible because the informant was unknown:

The hospital records do not indicate that the doctor was told this by the decedent; but if the doctor testifies that he was personally told this by the decedent, he should be able to so testify, his credibility then becoming a question for the jury. The hospital records reflect that someone gave such an account to another physician. That purported admission is not admissible. It does not qualify as part of a business record as it does not pertain to diagnosis or treatment. It does not qualify as an admission unless the physician who recorded it were to testify that it was the decedent's statement.¹¹

In Gunn v. City of New York,¹² the Appellate Division similarly held that it was prejudicial error to admit a historical statement that could not be attributed to the plaintiff. The plaintiff in Gunn alleged that while she was descending from a transit authority bus, she slipped on a patch of ice which had formed in a hole in the roadway. Following a defendants' verdict, plaintiff argued on appeal that the trial court had committed reversible error by allowing into evidence a medical history form which contained the statement, "Today while working [sic] down street patient slipped upon ice, twisting ankle."¹³

The Appellate Division agreed that the admission of the history portion of the medical record containing this statement was reversible error, since it was offered to prove the truth of the facts asserted. Since the entry was not germane to diagnosis and treatment, it did not qualify as a "business record" under CPLR 4518; and it could not be received as a statement against interest, since its source was unknown. The court specifically notes that the physician's assistant who prepared the medical history form "did not remember whether anyone other than plaintiff had given him the information."¹⁴

To the same effect is Castro v. Alden-Leeds Inc.,¹⁵ where the plaintiff was injured when a canister of swim-ming pool chemicals exploded. One of the crucial issues in that case was whether the chemicals had been exposed to moisture.

The Appellate Division commented that it was error for the trial court to admit hospital records in which the plaintiff, Mrs. Castro, was reported to have said that the explosion occurred after she pulled the canister out of the pool (which suggested that she had been contributorily negligent), where the source of the entry was unknown:

Ordinarily such a statement can be introduced as an admission, but the nurse who recorded it could not say with certainty whether it came from Mrs. Castro or one of several other individuals who were present in the emergency room during her treatment. Since the origin of the statement is unclear, the proponent of the admission of the hospital records into evidence failed to establish that they contained an admission by Mrs. Castro, and they should not have been received in evidence.¹⁶

Even statements that would otherwise appear to be germane to diagnosis and treatment, and therefore admissible, are subject to exclusion if their source is unknown. In Mercedes v. Amusements of America Inc.,¹⁷ the Appellate Division held that it was reversible error to admit, without redaction, the history portion of a hospital record stating that the patient was intoxicated when the injury occurred, reasoning as follows:

although evidence that [the plaintiff] had been intoxicated may be relevant to diagnosis and treatment of his injuries, the statement was not admissible under the business record exception to the hearsay rule because there was no indication as to the source of the information. There is not even a hint in the entry itself that [plaintiff] made the statement. Nor was any physician or nurse called to testify that he did. In such circumstances, the history portion of the hospital record should not have been admitted.¹⁸

Indeed, the court went so far as to state that the admission of the language "while intoxicated" was "fundamental error," since this was the entire thrust of the defense,¹⁹ and the action was closely contested. This result was reached even though there was testimony that the plaintiff had drunk wine earlier in the evening, and there was an ambulance report to the effect that he had alcohol on his breath.

In other cases, references to drug and alcohol use have been found admissible on the grounds that such information was necessary for the treatment of the plaintiff, as in the recent case of Tirado v. 2188 Realty Ltd.²⁰ In Tirado, the Appellate Division noted that references to drug and alcohol use were necessary for the treatment of the plaintiff, since he required anesthesia for an operation. The opinion also notes that the records which contained these statements were admitted on plaintiff's direct case, so the statements may have been attributable to the plaintiff himself.

Diagnosis

Entries in medical records which appear to reflect a diagnosis or medical opinion may be inadmissible if their source or meaning is unknown. While the Appellate Division, in the well known case of Wilson v. Bodian,²¹ held that entries in physicians' office records are admissible if the foundation requirements of CPLR 4518(a) are satisfied, and the entries are germane to diagnosis and treatment, it also ruled that the notation "Bx nose lesion-keratosis" in the records of a prior treating physician, who did not testify at trial, was inadmissible.

Wilson was an action against an ophthalmologist alleging the performance of unnecessary surgery on plaintiff's eyelid, which had left her with constant tearing in her left eye and the inability to close her eye completely. One of her principal claims was that the defendant was negligent in failing to perform a biopsy or determine whether a biopsy had previously been performed. This, plaintiff claimed, would have led to a diagnosis of "actinic keratosis," a nonmalignant condition which would not have required such extensive surgery.

The plaintiff attempted to use the entry "Bx nose lesion-keratosis" to establish that a prior biopsy had been performed, and that a diagnosis of actinic keratosis had been made. The Appellate Division held that the admission of this entry, together with other errors at the trial, required reversal. The court reasoned that the abbreviation "Bx" was not comprehensible to the jury on its face, and was "subject to 'speculation' as to its precise meaning".

In addition, the court commented that the source of the notation was undisclosed and that if in fact it meant "biopsy," as plaintiff claimed, there was no evidence as to when a biopsy had been performed (plaintiff herself did not testify as to whether she had undergone a biopsy, who performed a biopsy, or what the results were. For these reasons, the court concluded that the probative value of the notation was outweighed by the defendant's lack of opportunity for cross-examination, and that "[t]herefore, even under the increasing enlargement of the scope of the 'business records' rule, the notation as to the 'Bx nose lesion-keratosis' was inadmissible hearsay."²²

Recently, the same result was reached by the Appellate Division in a case involving Rh incompatibility in an infant, where the plaintiff alleged that following the infant's birth, the defendants had failed to perform exchange blood transfusions in a timely manner, thereby permitting dangerous levels of toxic bilirubin to build up in the infant's blood. This was claimed to have caused brain damage and a condition known as "kemicterus."

Citing Mercedes, Wilson, and Gunn, the Appellate Division held, in Ginsberg v. North Shore Hospital,²³ that the trial court had properly redacted references to "kernicterus" and "bilirubin-encephalopathy" from the records of subsequent treating physicians and institutions, since the source of these entries was unknown:

The plaintiff contends, among other things, that the trial court improperly redacted certain portion of records from institutions in which she had been a patient, by removing mention of the diagnosis from those documents. We disagree. While it is true that, ordinarily, physicians' office records or hospital records are admissible to the extent that they are germane to diagnosis and treatment, including medical opinions (see, Williams v. Alexander, 309 NY 283, 287; Wilson v. Bodian, 130 AD2d 221, 231; CPLR 4518[a]), where the source of the information on the hospital or doctor's record is unknown, the record is inadmissible (see, Mercedes v. Amusements of Am., 160 AD2d 630, 631; Wilson v. Bodian, supra; Gunn v. City of New York, 104 AD2d 848, 849; see generally, Matter of Leon RR, 48 NY2d 117, 122-123). Here, the references to the diagnoses appear to have come from other unknown charts or records, and may have been part of the history relayed by the plaintiff herself or her counsel. As such, the trial court properly redacted these references.

The redacted entries in Ginsberg would not have been admissible statements against interest, since they supported the plaintiff's theory of the case, and as the court noted, they might have reflected statements made by the plaintiff, her parents or her attorney to support her theory of the case, since the treatment spanned a period of several years and continued after the commencement of the action.

Likewise, even though these statements referred to an apparent diagnosis of "kernicterus" or "bilirubin-encephalopathy," since their source was unknown they were analogous to hearsay statements concerning the causation of an injury, as in Gunn or Mercedes, rather than medical diagnoses or conclusions reached by a treating physician and entered in that physician's records, as in Kohlmeyer.

Conclusion

In sum, hearsay entries in medical records which can be attributed to the plaintiff may be admissible as statements or admissions against interest. Other entries, including medical opinions and conclusions, are admissible if the declarant was under a business duty to impart the information recorded.

Where the source of an entry is unknown, however, the entry will be inadmissible even if it would otherwise be germane to diagnosis and treatment. In such cases the proponent cannot establish either that the statement was an admission, or that it was made by someone who had actual knowledge and was under a "business duty" to report the information, so as to satisfy the requirements of CPLR 4518(a).

The distinctions between inadmissible hearsay and the admissible portions of medical records are ignored by both plaintiffs and defendants at their peril. As the foregoing cases demonstrate, the admission of hearsay from unknown sources is likely to result in reversal by the Appellate Division, if "it bears on a central issue in the case, and is prejudicial to the losing party at trial.