The Law Behind Medical Records
Medical records are important documents that can provide relevant information in legal cases. On a basic level, whether or not a medical record can be admitted as evidence in a court of law depends on two factors: relevance and reliability. When determining if a medical record is relevant, the court is tasked with looking at whether the submitted record has any bearing on the current case being addressed. In other words, the medical record must have some degree of relationship to the case at hand. To address the reliability of a submitted medical record, the court determines whether or not the document addressed can be trusted. For instance, if a medical record contains information that is disputed by a witness, then the court may address whether or not that record is admissible. In any legal situation, the party attempting to use a medical record as evidence bears the burden of proving both relevance and reliability.
When evaluating admissibility , the judge must balance the probative value of the document against the potential for risk of unfair prejudice to the party against whom the evidence is offered. So if the facts shown in a medical record could mislead the jury and cause prejudice against a certain party, the judge will likely not permit its use as evidence.
In addition to this basic evaluative process for determining admissibility, there are certain rules of evidence that apply to the admissibility of medical records in a legal context. For example, Rule 803(6) of the Federal Rules of Evidence states that a record may be admissible if it meets certain criteria. To be admissible, the record must be kept in the regular course of business, regularly recorded in the course of business, based on personal knowledge or the knowledge of someone with a business duty to know that information, and the source of the record must be a person with knowledge of the event or transaction.
Admissibility Criteria
Under both federal and state (California included) court rules, generally, in order for evidence to be admissible in a court of law, it must be relevant, reliable, authentic, and meet the exceptions to the hearsay rule. Under California and Federal Evidence Codes, relevant evidence is defined generally as "evidence that has any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Cal. Evid. Code § 210; Fed. R. Evid. 401.) Medical records are presumptively relevant in personal injury and wrongful death cases to establish the element of damages. But their relevance should be evaluated carefully and raised as an issue if necessary. Evidence is ruled reliable if it meets established standards of trustworthiness. Medical records created "in the regular course of business" as part of the process of receiving evaluation/treatment are typically deemed reliable. Evidence must be authenticated, meaning the document must be shown to be in the same condition when offered into evidence as it was when made, free from alterations and false additions. The author of a record typically has to appear at trial to authenticate it. Authentication may also be accomplished by a witness with knowledge. (Cal. Evid. Code § 1401; Fed. R. Evid. 901.) The hearsay rule, codified in California Evidence Code sections 1200-1202, prohibits the admission of "hearsay evidence", i.e., an out of court statement offered to prove the truth of the matter asserted unless the statement fits a hearsay exception as set forth in California Evidence Code sections 1200-1370. Hearsay is defined under California Evidence Code section 1200 as: "(a) [A]n out of court statement which is offered to prove the truth of the matter asserted. (b) A hearsay statement. (c) A hearsay statement of an out-of-court declarant; i.e., a … non-witness." Although hearsay is generally inadmissible, California and Federal Rules of Evidence contain numerous exceptions to the hearsay rule, making boilerplate objections less effective. The most common exceptions to the hearsay rule and the admissibility of medical records are: When there is insufficient evidence that the declarant of a hearsay statement was qualified to make the statement, the statement should not be admitted. A common objection to the admissibility of medical records is that the person who created the record lacked the qualifications to do so and therefore the document was inadmissible. In a personal injury trial or a wrongful death case the treating physicians and nurses typically have first-hand knowledge of the patient’s care, condition, and treatment. They also typically provide periodic reports regarding the patient’s condition. These reports are permissible under the hearsay rule as I witness testimony or as an exception to the hearsay rule as a business record. For business records, the grounds for admissibility must be established before the records can be admitted. This is often done through the testimony of the custodian of the records or another qualified witness. In court, unless the expert is properly qualified, their opinion or conclusion is inadmissible.
Authentication of Medical Records
The authentication of medical records through the laying of a proper and sufficient foundation is a necessary prerequisite to their admission into evidence. All medical records should be authenticated sufficiently to provide a proper and sufficient basis for the trial court to find that the claimed source is the actual source of the records, that the records are accurate, and that the records are authentic or what they purport to be. Unless the jury is satisfied through documents or testimony that the documents or records are what they purport to be, they should not be admitted into evidence (see, e.g., Salas v. Physicians Medical Center, 221 Ga. App.294 (1996)).
"Authentication" refers to the process used to determine that a piece of evidence is what it is claimed to be. In the case of medical records, this means proving that the records actually came from the claimed medical provider or entity. It also means "laying the proper foundation." Laying the proper foundation means making sure that the records were created at the proper time and at or near the time of the accident. It also means that the records accurately reflect the medical treatment received, and the condition and treatment of the plaintiff. Medical records themselves contain statements and information that are "self authenticating" (i.e., they don’t need someone else to prove them up for them to be admitted into evidence and for the jury to consider them), but other types of records are different. For example, a complete certification form is required before business records will be admitted into evidence.
Authentication is not difficult, and if done roughly like this, the records should be admitted and the jury allowed to consider them. The medical records can then be reviewed by the plaintiff’s own physicians and made exhibit to their depositions and reports as they are in this law firm’s usual practice.
As stated above, and as a general proposition, the opponent of the admissibility of the records has the burden to show that the records are not authentic, inaccurate, untrustworthy, or not what they purport to be. However, if an objection is made, the proponent of the records has the burden of showing that the foundation has been properly laid and that the requirements for admissibility have been met. This can sometimes be difficult to meet, but as the Court of Appeals did in Salas, most trial courts have enough discretion to allow evidence to come in as being sufficient, and the ultimate issue is before the jury, supported by competent evidence, who should be free to decide for themselves.
Hearsay Exceptions
The medical records obtained by your lawyer, whether they are from the hospital or your doctor, are considered hearsay and generally are not admissible into evidence during litigation. The reason for their preclusion is that they are a written record of a statement by someone not testifying in court. There are some exceptions to the general rule.
One exception is the business records exception. This means that if the person who does the record keeping comes to court and testifies under oath that the records were kept in the regular course of business at or near the time of the event, then the record is admissible. The reason for allowing the record into evidence in these circumstances is that the person who actually saw the events at issue testify as to what happened and this allows the jury to assess the person’s credibility. This works pretty well for medical records. It isn’t the name of the person, but there is at least one person who knows whether or not this is standard business practice in making records. On the other hand, many times the witness is not the custodian of the records and the custodian has no idea whether this was standard business practice or not. What is more, many times the custodian of the records doesn’t know because she or he has never been trained by the hospital and or medical office about these business practices. They are not provided a list of procedures to follow as to what constitutes routine practice and what does not.
Another exception to the hearsay rule is the medical records are independently admissible under other sections of the law. For instance, if you have a claim for future pain and suffering, the jury likely will look at the severity of your injury and therefore your medical records are admissible on that issue alone. In this case, however, the records are being admitted for a limited purpose and the jury is told not to consider the records or the contents of those records for any other purpose. This eliminates the hearsay problem.
Another exception to the hearsay rule are statements made by doctors to their clients which pertain to their care and treatment. These statements are not admissible; however, your lawyer may provide them to an insurance adjuster to help get more money for you. The comments are considered hearsay, and are not admissible, having been stated by the doctor or his/her agent.
Legal Protections and Privacy
One of the most important concerns to consider when it comes to medical records being disclosed in court is the patient’s right to privacy. Private medical information may be disclosed in many ways and under a variety of circumstances, but constantly, patients are ensuring that none of their sensitive information is shared without their consent. It is the responsibility of health care providers to protect the patient’s information, even through the court system. Certain laws protect the patient as well, such as the Health Insurance Portability and Accountability Act (HIPAA). The U.S. Department of Health and Human Services (HHS) provides guidance on when HIPAA permits disclosure and how organizations can comply with the applicable requirements.
The HHS states, in regards to the HIPAA Privacy Rule, that "when an individual is compelled by a court or administrative tribunal to submit to a test, exam or other procedure to create a confidential record for that entity, we do not consider the record to be ‘from’ or ‘on behalf of’ the provider and therefore do not view this as problematic under the Privacy Rule . The provider, however, could disclose the results of the test, exam, or other procedure under section 164.512(a) (1) (relating to disclosure required by law) on behalf of the healthcare provider performing and billing for the test, exam or other procedure."
The HHS Guidance further clarifies: "Thus, for disclosing a record created from a test, exam or other procedure pursuant to a court order, the covered entity subject to that court order would be the healthcare provider that created the record (not the court that ordered the plaintiff to submit to the test, exam or other procedure). To be clear, if the plaintiff had to go to the core for the test, exam or other procedure, the provider processing the results of such test, exam or other procedure who would have the appropriate authorization to disclose the test results."
Challenges to Medical Records
Challenges and Objections to Admissibility of Medical Records
The admissibility of medical records can also be challenged or objected to by opposing counsel. There are evidentiary rules which set forth the circumstances in which medical records can be considered reliable and admissible evidence. Opposing counsel may argue that your records do not meet the necessary requirements and as such they should not be admitted.
One of the most common arguments made to object to medical records is that they were not prepared in the regular course of business. For example, if the medical records are highly edited, include strictly legal terminology, contain opinions rather than factual statements, were not prepared by a qualified practitioner, and were prepared for the purpose of this litigation, opposing counsel might argue they were not made in the regular course of business. In this situation, the judge will review the records to determine their reliability and weighing such evidence means reviewing them carefully. The judge may ultimately decide that the medical records speak for themselves and that they should be excluded. In order for medical records to be admissible, the individual who prepared them must be of the same medical discipline as the professional who is overseeing the plaintiff’s condition or treatment. For example, a chiropractor cannot testify about an injury allegedly suffered by someone who was never treated by them.
Other arguments used to exclude the admissibility of medical records is that such documents are hearsay. A representation or statement made outside of the trial or hearing is hearsay. There are a number of exceptions to the hearsay rule and just because a statement is hearsay does not necessarily mean it cannot be accepted. If medical records also offer opinions or conclusions regarding the medical condition of the plaintiff or his or her injuries, they may be stripped of credibility by the judge and are therefore inadmissible.
Recent Case Illustrations
In Allison v. Oh, 2019 ONSC 2378, the court dealt with multiple issues surrounding the admissibility of medical records pursuant to the Evidence Act. The plaintiff was seeking damages for pain and suffering and loss of income resulting from two accidents. The defendant brought an application to exclude evidence from the plaintiff’s family doctor, including exhibits that were not in either party’s book of documents. The defendant argued that the documents were inadmissible on the grounds that they were not relevant.
The court was tasked with disentangling the ongoing dispute as to whether there was a valid request for documents and a corresponding obligation to produce them. The court found that the defendant’s lawyer, in the fall of 2016, asked the plaintiff’s lawyer to disclose all medical documents. The plaintiff’s solicitor asked for medical authorizations for release of records for the plaintiff to provide to her doctor on March 7, 2017.
Further to that, the court found that on July 13, 2017, the plaintiff’s doctor finally received a request for the records. However, the doctor stated that he did not have permission to disclose the records in relation to those two other requests.
The court determined that the defendant’s request for documents was vague. A valid request must be specific. There was no reason supported by Ontario’s Evidence Act for excluding parts of the plaintiff’s doctor’s deposition. The portions of the deposition deemed admissible was to be considered on the basis that there was a rationale for excluding them as additional copies had been sent to the defendant in the meantime. Moreover, it appeared that copies had been improperly excluded in a book of documents.
In Desrosiers v. Hall, 2018 ONSC 4952 involved an accident that occurred in June 2014. The plaintiff was bringing action against a defendant alleging personal injury, loss of income and other damages as a result of this accident. The defendant’s motion to compel was denied, and the records were ordered to be produced to the plaintiff’s counsel as and when they had been requested.
With respect to the medical records, the defendant argued that pursuant to Rule 33.10(3) and 33.09(3) of the CPR. They posited that the plaintiff had failed to inform the medical practitioners that such documents would be requested in the future.
The court found that the plaintiff’s medical expert was the one who had written to the doctor. The plaintiff could not have been expected to inform the treating physician of the types and number of documents they would be asked to produce in the future. The defendant had not established adequate justification for denying the plaintiff his ability to obtain relevant documents in the possession of the doctors.
In Khan v. Ambrosio, 2107 ONSC 7071, the defendant appealed the decision of a motion inferior court regarding the admissibility of a psychologist report. At trial, only the written submissions were presented to the judicial review officer who ruled that the report was not admissible.
The defendant argued that the tribunal erred in failing to apply the case law for admissibility. The judge stated that the tribunal had more latitude in its determination than the inferior court did. However, the matter of admissibility was not simply a question of integrating relevancy criteria and weighing it against privilege. The psychologist had not been called for cross-examination as she had not completed the pre-suit process.
The Court of Appeal therefore ruled against the appellant on the tribunal’s findings regarding the admissibility of the psychologist report.
In Shafique v. Kumor, 2016 ONSC 5873, a motor vehicle accident lawsuit had been brought forward by the plaintiff who had sustained injuries to various parts of her body. She claimed that as a result of these injuries, she was unable to return to work, and sought damages for loss of income and pain and suffering.
In a motion for production of the plaintiff’s medical records, the defendant, Acting for the insurer, argued that the Court should limit release of treatment records prior to trial or, at a minimum, only those records that pertained to injuries claimed in the action. The motion judge ruled that no limits would be given to the production order and the appeal was rejected by the appellate court.
In Mohammed v. Hossain, 2016 ONSC 5873, the parties were involved in an accident and plaintiff was injured as a result of being struck by a motor vehicle driven by the defendant. The plaintiff claimed loss of income and asked the court for damages for pain and suffering.
Both sides agreed to a timetable for discovery of documents.
However, the defendant argued that the psycho-educational assessment for autism disorder was relevant and they were not produced in the course of the proceedings. The lower court ruled in favour of the defendant and the defendant appealed.
The appeal court stated that the expert report was admissible, on the ground that the report had been produced for the purpose of cross-examination of the plaintiff.
The court admitted the expert report as evidence based on the age of the document, integrity of the expert evidence, deliberation on the part of the author and if the particularized test for admissibility was met in the lower court.
Useful Information for Attorneys
As with any evidentiary issue, there is no one size fits all answer to the question of how to make sure medical records are admitted. Sometimes a simple objection will suffice, but here are a few pointers that I have found useful in most cases. First, be sure to properly object when necessary and in the right way. Failure to make the objection can and often does result in a waiver of your right to assert the objection later. Along those lines, speak up on the record. Municipal Bd. v. Troup, 155 N.H. 113, 118 (2007) (failure to comply with municipal codification requirements did "not[] constitute[] an indivisible whole which waives any possibility of legal attack."). Second, in preparation for trial review the rules for admissibility. As noted earlier, it is critical that you become aware of the rules of evidence as they pertain to medical records. However, make sure you review the rules of evidence most applicable to your state and the facts of your case. For example , the Pennsylvania Medical Records Rule 1303 governs the admissibility of medical records. That statute allows authenticated records to be admissible without the testimony of the custodian of the records or other qualified witness. Conversely a party seeking to introduce medical records in Illinois must email a written notice to medical provider found in possession of medical records alleged to be privileged. If the holder of the records does not file an objection within 14 days the records are deemed admissible. Third, anticipate evidentiary objections of opposing counsel and make sure you can provide satisfying answers during pre-trial depositions. Seeking answers from a medical provider during a deposition is likely to bring forth the satisfactory answer your client is looking for. In some cases, it may be worthwhile to depose multiple witnesses whose testimony may be necessary to authenticate medical records.