Medical Records and the Law

Admissibility of Medical Records 385the summary was not made at or near the time of the injury, the informationwas not used to diagnose or treat the patient, and therecord did not indicate who gave the physician the information orwhen it was given 37• A statement that an injured bicyclist was not wearing a helmet andaccidentally ran into a stationary car was not admissible because theevidence did not indicate who made the statement, and someoneother than the bicyclist could have given the information to the hospitalstaff 38• A statement by a truck driver that she slipped on diesel fuel and fellwas not admissible because the information was not necessary to thedriver’s diagnosis or treatment 39Other Exceptions to the Bar on HearsayEven if a medical record does not qualify as a business record, it may beadmissible if it qualifies under another exception to the hearsay rule.Because statements in certain categories are considered to be free of theuntrustworthiness and inaccuracy that underlie most out-of-court assertions,they may be admitted into evidence even when the personmaking the statements is unavailable to testify. (For example, statementsmade in a moment of surprise are considered trustworthy becausethe person would have had no time to fabricate a falsestatement.) Such exceptions include:• Declarations against interest• Spontaneous exclamations• Statements made for medical diagnosis and treatment• Dying declarations• Admissions of a party 40State statutes also may make medical records admissible underhearsay exceptions for public or official records. This is especially truewhen state statutes require public hospitals to keep records.The rationaleis that the record-keeping requirement ensures that the information37Benson v. Shuler Drilling Company, 871 S.W. 2d 552 (Ark. 1994).38Barrera v. Wilson, 668 A. 2d 871 (D.C. 1995).39Carton v. Missouri Pacific Railroad Company, 798 S.W. 2d 674 (Ark. 1990).40See, generally, Fed. R. Evid. 803; Okla. Stat. § 12-2803.