I am unsure of the exact process for diagnosing a concussion, but I assume it typically involves an examination to confirm the diagnosis. My doctor diagnosed me with a mild concussion based on my symptoms. However, they did not order a confirmatory test due to contraindications. Would this be considered hearsay, and would it be admissible evidence in California?
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What do you mean by "contraindications"? Do you mean that the test itself would have negative effects? As I read it now, it sounds like the Doctor's advice could be paraphrased as "take two aspirin and don't bother me about whatever this is" which might not go down well in court.– MikeBCommented Jun 12 at 7:57
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The typical case of "hearsay" would be the doctor telling his nears "Elias has a serious concussion" and the nurse appearing as a witness in court. She doesn't know whether you had a concussion. She only knows that the doctor said you have a concussion, and the doctor could have lied to his nurse, outside a courtroom, for any number of reasons.– gnasher729Commented Jun 12 at 8:40
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Yes, @MikeB, the doctor mentioned that ordering a CT scan to confirm the mild concussion was a contraindication since I was still in the early stages of recovering from major surgery, which occurred just 2 days after the assault.– Elias e.Commented Jun 12 at 9:25
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Interesting, you assumed the doctor was male, @gnasher729. When the nurse saw me, I told him that I had been assaulted. He relayed this information to her. I don't know whether the nurse or doctor discussed these things in my absence, so I see your point. The only information the nurse would know of for sure is the back injuries since they gave me the referral paperwork.– Elias e.Commented Jun 12 at 9:42
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Who is suing whom and for what? Hearsay is an out-of-court statement by a person not a party to the lawsuit that's offered to prove the truth of the matter asserted.– PJBCommented Jun 12 at 18:24
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1 Answer
My doctor diagnosed me with a mild concussion based on my symptoms. However, they did not order a confirmatory test due to contraindications. Would this be considered hearsay, and would it be admissible evidence in California?
Hearsay is only one of at least six evidentiary issues which must be addressed for this evidence to be admitted at trial, and not the most serious one.
This evidence could probably come in, but all six distinct rules of evidence must be addressed to do so.
Hearsay
A doctor's regularly kept medical records are normally within one of several exceptions to the hearsay, including the exceptions for business records and the exceptions for present sense impressions and for statements made for purposes of a medical diagnosis.
Overcoming a hearsay objection would often require testimony regarding the circumstances under which the medical facility in question maintained its medical records, in general, to show that these particular records are business records.
Often this is done with a declaration or affidavit from the medical facility's custodian of records in response to a subpoena.
Privilege
These medical records would normally be subject to a doctor-patient privilege which makes statements of a doctor to a patient and really most medical records, inadmissible unless the doctor-patient privilege is waived. The patient can waive this privilege, however, and in a civil action for money damages by the victim for assault, the filing of the lawsuit itself would waive this privilege.
In a criminal case, however, the privilege would normally require the victim-witness to cooperate in presenting this evidence, often in the form of a records release form signed by the victim at the request of the prosecutor's office.
Authentication
The records would have to be authenticated, with testimony confirming that they are true and correct copies of what they claim to be, but this is normally a very low bar and is easily met, and is often stipulated to by the parties.
Basically this testimony would either have to show the circumstances by which those medical records made their way from the doctor to the court, or some other means (such as an official seal certifying the records) by which the fact that they are what they are purported to be can be established.
Relevance and foundation
The evidence has to be relevant and not more prejudicial than probative. But evidence of the nature of the injury in an assault case would almost always be relevant.
There must also be evidence laying a foundation for this exhibit. The testimony would have to establish that the assault happened at a certain time and place and that it involved a blow of some kind to the head. The testimony would also have to show the circumstances under which medical treatment was sought, including the time it was secured, in order to show that the injury being diagnosed is related to the claimed assault.
Strictly speaking, foundation issues are a subset of relevance issues. You need foundation testimony to show why the evidence you want to admit at trial is relevant.
Admissibility of expert testimony
The biggest evidentiary barrier is that a diagnosis of a medical condition by a doctor is an expert opinion.
Because it is an expert opinion, the court would have to find that the doctor was an expert in a field where diagnosis of a condition as a concussion is within the doctor's expertise and is done in a manner supported by a credible scientific basis based upon testimony admitted at trial.
This is necessary even if the doctor doesn't testify in person and only the medical records are presented at trial.
This would normally require some testimony concerning the doctor's credentials and, if questioned, testimony regarding the legitimacy of the means used by doctors to diagnose concussions against the argument that doctors use junk science to do so by someone qualified to testify as an expert on that subject.
The key issue in this case would be whether a failure to order a confirmatory test is something that actually makes the doctor's diagnosis so unscientific that it can't be admitted as expert testimony, or if instead (and more likely) it merely goes to the weight of the doctor's testimony compared to other testimony suggesting that you didn't suffer a concussion and that this was a misdiagnosis. This would be evaluated in light of the standard clarified by the leading precedents from published appellate court cases on that issue in California.
Often, even if the medical records are admissible, it would be preferable to also secure the testimony of the treating doctor, possibly through remote testimony. Of course, this isn't cheap. Doctors have to be paid for their court testimony as a fair rate, which usually equals or exceeds what they would charge for the same time spent treating patients, if the doctor insists on being paid for his or her testimony. The doctor's attendance and testimony could be compelled by subpoena, however, since the doctor would be treating physician who is also offering lay testimony about what the doctor observed, and not just a paid expert witness.
Live testimony would be particularly desirable if the defense was presenting a counter-expert or was contesting the admissibility of the testimony on the grounds that the science was insufficient or that this particular doctor was not suitably qualified to render the opinion made in the medical record.
The requirement of advanced disclosure of expert testimony
Also, often, if you intend to use expert testimony at trial, this intention must be disclosed prior to trial, by a deadline in the relevant court rules, in order to allow the other party to retain their own expert witness to rebut the conclusion reached by the doctor in these medical records.
As a practical matter, lining up pre-trial disclosures of expert testimony by the relevant deadline is frequently the most challenging part of pre-trial preparation for the lawyer seeking to present this evidence.
Footnote on sources
Trial lawyers need to have the relevant evidence rules memorized, and this answer is prepared from memory on that basis.
Each of these is support by an express statute or court rule in California to support it.
California's evidence rules do not track the numbering and organization of the Federal rules of evidence which is shared by most U.S. states (with which I am more familiar), even though they are substantively very similar between states and between the federal system and state law, although there are some subtle differences which are mostly inapplicable here.
I could look up the chapter and verse citations to the relevant very specific California evidentiary rules given the time, but I have elected to omit those citations from this answer at this time for lack of time today to do so.
