Admissibility of CW statements in medical records

In two conslidated cases, People v. Ortega (Ct. App. 11/23/2010) and People v. Benston (Ct. App. 11/23/2010), the Court of Appeals took up an interesting issue: whether medical records containing statements of a complainant were properly admitted at trial.  

In Benston, the defendant was charged with assaulting a friend with whom he was temporarily staying.  The complainant reported to hospital personnel that she was strangled by an ex-boyfriend with a black leather belt.  The complainant did not testify at trial.  Instead, the People admitted the complainant's medical record under the business record exception to the hearsay rule.  Defense counsel moved to redact the portion of the record that related to domestic violence, the defendant's status as a former boyfriend, and the existence of a "safety plan" for the complainant.  In Ortega, the defendant was accused of forcing the complainant to consume crack-cocaine against his will.  After escaping, he went to the hospital. Medical staff wrote that he "was force to smoke [a] white substance from [a] pipe."  This medical record was admitted.

The majority, in an opinion by Chief Judge Lippman, affirmed both convictions.  The Court of Appeals found that the records were properly admitted under the business records exception.  The court noted  the test to differentiate admissible from inadmissible medical records: whether the complainants' statements were "relevant to diagnosis and treatment."  The court agreed with several lower courts that how a patient was injured can be relevant, particularly in a domestic violence (Benston) or poisoning (Ortega) situation. 

In Benston, the court found the references to "domestic violence" and a "safety plan" were relevant to diagnosis and treatment:

With all that has been learned about the scourge of domestic violence in recent decades, we now recognize that it differs materially, both as an offense and a diagnosis, from other types of assault in its effect on the victim and in the resulting treatment. In this context, a doctor faced with a victim who has been assaulted by an intimate partner is not only concerned with bandaging wounds. In addition to physical injuries, a victim of domestic violence may have a whole host of other issues to confront, including psychological and trauma issues that are appropriately part of medical treatment. Developing a safety plan, including referral to a shelter where appropriate, and dispensing information about domestic violence and necessary social services can be an important part of the patient's treatment.

However, it was error to admit the description of the belt as "black."  This should have been redacted, because the color of the weapon was irrelevant to treatment.

In Ortega

the statement that complainant was "forced to" smoke a white, powdery substance was relevant to complainant's diagnosis and treatment. As the trial judge reasoned, under such a scenario, complainant would not have been in control over either the amount or the nature of the substance he ingested. In addition, treatment of a patient who is the victim of coercion may differ from a patient who has intentionally taken drugs.

Judges Smith and Pigott concurred in separate opinions.  Judge Smith's opinion, in my view, set forth a more direct and analytical approach to deciding the issue than the majority's.  He separated out the question into two issues.  First, is the medical record admissible as a business record (yes, because it is kept in the regular course of business).  Second, is what the complainant told the doctor and nurses admissible as hearsay-within-hearsay.  This is important because, as a lower court noted, "'Hearsay cannot be transformed into nonhearsay simply because a business routinely relies upon it and integrates it into its own records' (Second Med., P.C. v Auto One Ins. Co., 20 Misc 3d 291, 297 [Civ Ct, Kings County 2008])."  The second level hearsay is admissible under a different exception: statements made for the purposes of medical diagnosis or treatment.  I prefer this kind of analytical framework that separates out the levels of hearsay.  (LC)

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