The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)
A medical report does not meet the requirements of the business records exception. The report was not made in the regular course of business. There is no evidence that a report is made for each patient. In fact, it is clear that some reports were prepared not for the doctor but, in this case, “to whom it may concern.”
The reports cannot qualify as a business record because there is no indication whatsoever that the reports were made at or near the time of the act, condition or event. In fact, the medical reports are prepared long after any treatment or care was rendered to the plaintiff. It is clear that the reports were prepared at or near the conclusion of treatment.
Furthermore, unless the custodian of records of the physician testifies as to the identity and mode of preparation of the medical reports, the reports are also inadmissible as hearsay.
Additionally, the business record exception pertains to a record of an act, condition or event. Any diagnostic opinion or opinion as to prognosis is not a statement of an act, condition or event.
Finally, in respect to any expert opinion that is contained in the medical reports, defendants object to its admissibility because no foundation has been laid for expert testimony.
Evidence Code section 720 provides:
(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training or education must be shown before the witness may testify as an expert.
(b) A witness’ special knowledge, skill, experience, training.or education may be shown by any otherwise admissible evidence, including his own testimony.
Since the medical reports do not contain the information necessary to qualify the physician as an expert, there is no foundation for his opinion testimony. The court should exclude the medical reports and the accompanying bills as hearsay and without foundation.
For more information you are welcome to contact personal injury lawyer, Moseley Collins.