Summary
stating that certified medical records are generally admissible
Summary of this case from State v. LeeOpinion
No. 94.
Argued February 27, 1973. —
Decided March 27, 1973.
APPEAL from a judgment of the county court of Dane county: RUSSELL J. MITTELSTADT, Judge. Reversed and remanded.
For the appellant there was a brief by Schlotthauer, Johnson Mohs of Madison, and oral argument by Conrad H. Johnson.
For the respondent there was a brief and oral argument by Jack Aulik of Sun Prairie.
This action was commenced on January 20, 1971, by Ben D. Noland against Mutual of Omaha Insurance Company, to recover benefits allegedly due on two policies insurance which purported, subject to policy provisions, to pay medical and hospitalization expenses incurred by the plaintiff or his dependents during the term of the policies. The claim arose out of the hospitalization of Rosemarie Noland, the wife of the plaintiff, in 1970, for a vaginal hysterectomy. Medical expenses were incurred in the amount of $1,872.45. When a claim was presented to the insurance company, payment was refused, and this action was brought by Ben D. Noland to recover under the policies.
At trial, defendant took the position that Rosemarie Noland's hysterectomy was the result of a pre-existing condition and was not compensable under the terms of the policies, which provided coverage only for illnesses that arose during the policy period.
Mutual of Omaha also claimed that Noland and his wife had misrepresented Rosemarie Noland's physical condition in their application for insurance and that this misrepresentation increased the defendant's risks and would void the policies.
In defending against the plaintiff's claim, the defendant attempted to introduce into evidence hospital records which purportedly tended to show that Rosemarie Noland's condition was a pre-existing one. The trial judge excluded the hospital records as inadmissible hearsay not within the business records exception set forth in sec. 889.25, Stats.
The defendant made an offer of proof by the submission of one paragraph from a document which purported to be a medical history of Rosemarie Noland taken at a gynecological examination performed by Dr. W. J. Siverhus. The document read:
"Mrs. Noland is a 32-year-old Gravida III, Para III, whose last menstrual period was 2/4/70. She states that since the early adolescent period she has felt that she had some difficulty in controlling her urine function. This was more prominent in the form of urinary urgency and frequency. However, as the years have gone by she has noticed a distinct new component, that of urinary stress incontinence. Since the birth of her first child she has been aware of increasing amounts of bump dyspareunia and of pelvic pressure. At no time does she have to resort to rectal splinting or perianal pressure, however, she has always had a problem with constipation. She delivered her last infant approximately 6 months ago. During the course of her prenatal period, she had considerable pain in the right lower back. She has had pyelonephritis in the past and repeated bouts of cystitis, all of which have responded to oral antibiotic therapy. She feels that intercourse increases, on occasion her temperature, and actually postcoital temperature has risen to 101 on several occasions. Her story is complicated by the fact that she will lose urine when standing doing the dishes or when she hears water running, or at least this stimulates her desire to void. There is an urgency component to her problem in that she often feels that she just can't make it to the bathroom and will lose urine. The stress incontinence problem has gotten to the degree that it is inhibiting her somewhat socially."
The medical history itself was offered, together with a deposition of the medical records librarian at St. Mary's Hospital, who testified that she was the custodian of the record in question, that it was a part of Rosemarie Noland's chart maintained by the hospital on a regular basis. In addition, the defendant produced a deposition of the records custodian at the clinic where Dr. Siverhus practiced. This deponent testified that, when a patient is treated at the clinic or at a hospital by a clinic physician, the records are retained containing notations made by the clinic's staff of physicians. He produced the clinic's retained records on Rosemarie Noland, which contained a carbon copy of the same report by Dr. Siverhus that was offered in evidence. Nevertheless, the proffered exhibit was rejected upon objection by the plaintiff, and the trial judge ruled that it was inadmissible hearsay and that, in any event, the defendant had failed to establish a proper foundation for its introduction.
On motions after verdict, and in response to defendant's motion for judgment notwithstanding the jury's verdict permitting the recovery, the trial judge further explained his ruling on the inadmissibility of the document. In addition to lack of foundation, he stated that the exhibit was clearly hearsay and that the business records exception to the hearsay rule did not extend to permitting statements by a physician when those statements contained medical opinions or medical diagnoses.
The defendant has appealed from the judgment.
But one question is raised on this appeal: Whether the trial judge committed prejudicial error when he refused to admit into evidence the exhibit containing Dr. Siverhus' report concerning Rosemarie Noland.
On this appeal, plaintiff, in supporting the trial judge's exclusion of the evidence, relies upon a single proposition that, whether or not an out-of-court hospital record prepared by a physician would be otherwise admissible, it is, under the rules of this court, to be excluded when assertions therein constitute a diagnosis or medical opinion.
On the appeal, the plaintiff apparently has abandoned some of the objections that were posed in the trial court. He continues to assert, however, that an inadequate foundation was laid for its admission.
The evidence offered is indubitably hearsay, in fact "double" hearsay, in that it purports to be not only an out-of-court declaration made by Dr. Siverhus, but is, in addition, his recitation of statements that Rosemarie Noland made to him.
The general rationale in respect to the purposes for which hearsay hospital records may be received is stated in McCormick, Evidence (hornbook series, 2d ed.), p. 731, sec. 313:
"Assuming that the hospital record is admissible to prove that the statement contained in the history was made, is this statement admissible to prove the truth of assertions made in it? In accordance with the general rule, it seems clear that the business record exception cannot support use of the history because the declarant's [patient's] action in relating the history was not part of a business routine of which he was a regular participant. Here as elsewhere, however, if the history comes within one of the other exceptions to the hearsay rule it is admissible."
Thus, it appears that the memorandum of the physician is admissible as the result of the business records exception contained in sec. 889.25, Stats., to the extent of showing that he made the entry, but the assertions made by the patient and recorded therein are not admissible for the purpose intended in this action unless they are made so by additional exceptions to the hearsay rule. Such an exception has long been recognized by the rules of evidence followed by this court. In this state, a physician who has been consulted for treatment may testify in regard to the patient's description of his present symptoms and his past medical history. The physician's testimony is admitted as evidence of the facts asserted by the patient. Erdmann v. Frazin (1968), 39 Wis.2d 1, 7, 8, 158 N.W.2d 281; Felkl v. Classified Risk Ins. Corp. (1964), 24 Wis.2d 595, 129 N.W.2d 222; Ritter v. Coca-Cola Co. (1964), 24 Wis.2d 157, 165, 128 N.W.2d 439. We have held that a doctor may testify to such statements even though it is apparent that they were based not on the patient's personal knowledge but on medical information the patient had received from other physicians. Huss v. Vande Hey (1965), 29 Wis.2d 34, 138 N.W.2d 192.
This exception to the hearsay rule is based upon the assumption that a statement by a patient who gives a description of his past and present symptoms for the purpose of treatment will be especially trustworthy, since the patient knows that the effectiveness of the treatment received will depend on his accuracy in relating his medical history and symptoms.
The business records exception, combined with the additional exception to the hearsay rule occasioned by the special trustworthiness to be afforded to statements made by a patient while seeking treatment, permits a medical history secured from hospital records to be admitted into evidence.
This court, however, has held in abeyance the decision of whether a medical history, admissible for the purpose of proving the truth of symptoms asserted by a patient, will be admissible if that same document contains a medical opinion or the diagnosis of the physician. Gibson v. State (1972), 55 Wis.2d 110, 117, 197 N.W.2d 813. We are satisfied that the rules of evidence should permit the admission of such a statement even though it contains a medical opinion or a physician's diagnosis. McCormick, Evidence, supra, page 732, points out:
" Diagnostic statements. Professional standards for hospital records contemplate that entries will be made of diagnostic findings at various stages. These entries are clearly in the regular course of the operations of the hospital. The problem which they pose is one of the admissibility of `opinions.' In the hospital records area, the opinion is usually one of an expert who would unquestionably be permitted to give it if personally testifying. While the requirement of qualification does not disappear, if it is shown that the record is from a reputable institution, in the absence of any indication to the contrary it may be inferred that regular entries were made by qualified personnel."
Such approach, which permits the admissibility of ordinary diagnostic findings, is in accordance with the trends of the modern law of evidence. States having statutes similar to Wisconsin have accepted medical records which contain diagnoses and medical opinions. People v. Terrell (1955), 138 Cal.App.2d 35, 291 P.2d 155; Allen v. St. Louis Public Service Co. (1956), 365 Mo. 677, 285 S.W.2d 663; Loper v. Andrews (Tex. 1966), 404 S.W.2d 300.
The Proposed Wisconsin Rules of Evidence prepared by the Wisconsin Judicial Council and presently being considered by this court provides for the admission of records containing diagnosis and opinion without a showing that the declarant is unavailable as a witness. Sec. 908.03(6) excepts from the hearsay rule:
"A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances indicate lack of trustworthiness."
The comments of the Judicial Council indicate that the provision is intended to bring this portion of the business records exception into conformity with modern views the opinion rule. We deem sub. (6) to properly state the modern rule as approved by McCormick, supra, and we accept it for the purpose of determining the admissibility of hospital records which contain diagnoses or opinions.
As is required in applying any rule that permits evidence to be admitted, the trial judge is to use sound judicial discretion in determining whether under the circumstances the particular record should be admitted. A proper statement of the discretionary factors which a trial judge should follow in determining whether or not to admit a hearsay medical opinion or diagnosis appears in a comprehensive article by Judge Marvin C. Holz, A Survey of Rules Governing Medical Proof in Wisconsin — 1970, 1970 Wisconsin Law Review, p. 989, 1024, 1025. Therein it is stated:
"It would seem that the determination of whether an opinion or diagnosis should be admitted should depend upon the character of the entry. If it is a routine diagnosis, readily observable, and one which in the judgment the trial court competent physicians would not differ, the time and inconvenience of requiring the author to testify outweighs the need for producing him. If the entry requires explanation and is a matter of discriminating judgment, then the author should be present for cross-examination. Many trial courts in Wisconsin consider the character of the opinion and use these tests."
A medical record containing a diagnosis or opinion is not henceforth to be ipso facto excluded from evidence, but such evidence may be excluded in the trial judge's discretion if the entry requires explanation or a detailed statement of the judgmental factors upon which the diagnosis or opinion is based.
It should also be noted that the record is barren of any reason why Dr. Siverhus, a local physician, could not have been called in person to the stand if the plaintiff sought to controvert any of his hearsay statements.
The facts recited indicate that a proper foundation was laid for the admission of the exhibit. The circumstances under which such a record may be qualified for admission are set forth in sec. 889.25, Stats. The custodian of the record testified to its identity and mode of preparation and that it was made in the regular course of the hospital business. The record qualified for admission on the basis of the foundation presented in court.
We conclude that the exclusion of the exhibit was prejudicial. While the mere recitation of her medical history does not in itself prove that Rosemarie Noland's hysterectomy was occasioned by her pre-existing condition, there was evidence presented by an underwriter for the insurance company that the failure of the Nolands to disclose pre-existing conditions in the insurance application increased the risk. We have stated in Delaney v. Prudential Ins. Co. (1966), 29 Wis.2d 345, 139 N.W.2d 48, and Joplin v. John Hancock Mut. Life Ins. Co. (1972), 55 Wis.2d 650, 200 N.W.2d 607, and the cases cited therein, that the misrepresentation of pre-existing conditions could result in such increase of the risk as to void the policy.
In the instant case, there was unrefuted testimony to show that the pre-existing conditions would have reduced the benefits payable under the policies, and riders were issued to that effect after the surgery when the prior medical history came to the attention of the insurance company. One of the underwriters for the insurance company testified that the misrepresentation increased the company's risk under the policy.
The exclusion of the contested exhibit prevented the defendant from completing its chain of proof with respect to the defense that the misrepresentation had materially increased the risk. The inclusion of the exhibit would have enabled the defendant to prove that Rosemarie Noland had certain physical conditions in the past and that the information given on the insurance application was false. The exclusion of the hospital record was prejudicial and, accordingly, the judgment must be reversed and a new trial ordered.
By the Court. — Judgment reversed and cause remanded a new trial.