The Problem: The Business Record Exception

It is a universal truth plaintiff’s counsel will seek to exclude medical records which make their clients look bad and seek admission of those which make them look good.  To obtain admission of their clients’ hearsay statements, counsel claim they fall within the excited utterance exception,[i] are relevant to the plaintiff’s state of mind,[ii] or are statements for the purpose of medical treatment.[iii]  The most frequently cited grounds for exclusion arises from the pre-rule case of Young v. Liddington.[iv]  Where the medical records contain adverse statements regarding proximate causation or damages, plaintiffs may be quick to claim the statements are hearsay and do not come within the parameters of the business record statute, RCW 5.45.020.

This simplistic analysis frequently gets traction with trial courts, despite the age of the case and the intervening adoption of the Washington Rules of Evidence.  The Washington Supreme Court recently clarified the interaction between the Rules of Evidence and business records in the case of In the Matter of the Welfare of M.R.[v]  Although the case involves a business record which is not a medical record, the majority opinion contains an extensive discussion of the relationship between interpretation of the statute and medical records that can be useful in defeating attempts to limit the proper use of medical records, particularly in medical malpractice actions.

The Limits of Young v. Liddington

Before assessing the impact of the M.R. opinion, it is helpful to revisit the limited holding of Young v. Liddington.  Contrary to the broad sweeping prohibitions on opinion evidence in medical records plaintiffs claim Young requires, the case has a quite narrow holding.  Properly understood, the case stands for the limited proposition that opinion evidence that does not include the factual foundation should be excluded under the business record exception to hearsay.  The case does not change the analysis of whether any other hearsay exception applies.

Young is a medical malpractice action wherein the plaintiff alleged the doctor negligently diagnosed and treated a child.  After the lawsuit was filed, the mother took the child to another hospital and doctor for treatment of epilepsy.  The new physician rendered a diagnosis of “Convulsive disorder secondary to residuals of encephalitis following diphtheria.”[vi]  There is no indication the doctor relied on any information other than the mother’s recitation of events for his conclusion as to what had originally caused the epilepsy.  Rather than throwing out the whole hospital record, the court segregated the portion of the hospital record which qualified under the hearsay exception as a business record and that which did not:

The uniform business records act, as applied to this case, admits the record as evidence of the following: (1) The event (the fact that the child was brought to the doctor because of illness), (2) the condition (the doctor’s present determination that the child was suffering from epilepsy), and (3) the act (the doctor’s treatment of the illness). A diagnosis of epilepsy is a relevant part of the business record. However, a determination that the epilepsy was the result of diphtheria is a conclusion based upon speculation and conjecture, and does not constitute an ‘act, condition or event,’ within the purview of this statute.[vii]

The court commented the business record exception was never intended to permit admission of an opinion as to causation that the witness “would not be permitted to express in open court, if he based his opinion solely upon the information which is shown in the report.”[viii]  The court’s recognition that certain parts of the hospital record in question were admissible illustrates the focus is on the quality the of information contained in the records and the basis for the author’s opinions, not whether it consists of opinion evidence.  If exclusion of opinion evidence was the standard, the court would not have permitted the physician’s diagnosis of the child’s illness when he presented to the hospital.

Another pre-rule medical malpractice case, Benjamin v. Havens, Inc.[ix] confirms the Young rule applies to evidence within a medical record that lacks sufficient foundation.  In Benjamin, the issue was the admissibility of an office memoranda of the defendant psychiatrist, made in the regular course of his office and hospital interviews and treatment of the plaintiff wife.  In finding the records admissible, the court noted:

It would thus appear that a practicing physician or psychiatrist qualifies as a ‘business’ within the contemplation of the Uniform Business Records As Evidence Act, and that his office charts and records, made in the regular course of business, properly identified, and otherwise relevant, would constitute competent evidence of an act, condition, or event therein recorded.[x]

The court affirmed the admission of the doctor’s clinic notes but rejected plaintiff’s attempt to use portions of the hospital records that consisted of the plaintiff husband’s statements concerning his wife’s prior conduct.  Citing, Young, supra, the court concluded those portions of the hospital records were inadmissible because they were being improperly offered to prove prior consistent out-of-court statements.  The court observed:

While hospital records, such as exhibit No. 9, qualify under the Uniform Business Records As Evidence Act, we have heretofore held, in Young v. Liddington, 50 Wash.2d 78, 309 P.2d 761, that this statute does not render admissible material, contained in such records, which would otherwise be inadmissible.

Our courts thus do not apply Young to broadly exclude all opinion evidence.

In Re the Matter of the Welfare of M.R.

Attempts to limit the application of the business record exception were rejected in by the Washington Supreme Court’s opinion in In the Matter of the Welfare of M.R.[xi]  While this case does not involve medical records, the Court’s discussion of the business records exception draws heavily on cases involving the exception’s application to medical records.

Facts of the Case

In re the Matter of the Welfare of M.R. is a parental rights termination case.  The issue was whether the father was complying with drug testing requirements that were in place to assess the likelihood of reunification.  The trial court admitted an incident report from a drug rehabilitation and testing center that stated that the parent had been seen attempting to open a UA “device” during the test.[xii]  “The incident report was admitted as a business record to show D.R. was caught attempting to use a UA device.”[xiii]

D.R. appealed after his parental rights were terminated.  He argued that the judge committed prejudicial error by admitting the incident report.  He claimed the tester’s factual observations involved “skill of observation” akin to expert testimony and was therefore exceeded the business record exception.[xiv]

In affirming the trial court’s decision to admit the incident report, the Supreme Court started its discussion with a detailed dissection of the business record exception.  To qualify under the exception, a record must satisfy five elements, “each designed to insure the reliability of the evidence.”[xv]

The five elements are:

1. The document must be in the form of a record;
2. It must be of “an act condition or event” as opposed to a recorded opinion or statement of cause.”
3. It must be made in the regular course of business;
4. It must be made at or near the time of the act, condition of event;
5. “The court must be satisfied that the ‘sources of information, method and time of preparation were such as to justify admission.’”[xvi]

Business records are presumed reliable if made in the regular course of business and there is no apparent motive to falsify.[xvii]  Citing Tegland’s Courtroom Handbook on Washington Evidence, the court noted “fundamentally, this presumption ‘is based on belief that a business has a strong incentive to keep accurate business records of its own transactions and activities.’”[xviii]  The M.R. court ultimately concluded that the incident report satisfied the above requirements.

Medical Records Admitted Under the Business Record Exception

Of interest to those struggling with Young v. Liddington objections is the opinion’s discussion of the business records exception as it applies to medical records.  In the context of medical treatment, the fact that the business relies on the business record in question weighs in favor of admissibility.  Quoting Tennant v. Roys, the court observed, in the context of medical diagnosis and treatment, medical tests are “particularly trustworthy because the hospital relies on its staff members to competently perform their duties when making often crucial life and death decisions.”[xix]

In a footnote, the court approved other examples of admissible medical records.  It cited State v. Ziegler[xx] with approval for the proposition blood tests are admissible.  Radiology reports were deemed admissible in State v. Doerflinger.[xxi]  A physician could testify regarding the records of the emergency medicine physician who examined the young assault victim in State v. Garrett.[xxii]  These and other cases make it clear that the business records exception applies broadly to most medical records.

Other Hearsay Exceptions Also Apply

Plaintiff’s counsel often ignore the remaining exceptions to the hearsay rule in arguing that Young requires exclusion of certain records.  Doerflinger is an excellent example of the appellate courts clarifying that the business records exception is not the only grounds for admissibility of medical records.  In Doerflinger, a criminal case, the defendant sought to exclude radiology reports, arguing the radiologist’s findings constituted a conclusion which involved a complex determination made by a professional exercising his or her discretionary judgment.[xxiii]  The court rejected this argument, holding the findings do not amount to an opinion on causation or fault and were therefore distinguishable from the cited cases.  More importantly, the case also went on to discuss the admissibility of the findings pursuant to the exception for statements in medical records made for the purpose of medical diagnosis or treatment under ER 803(a)(4).  The court concluded that the statements by one doctor to another were clearly made for the purposes of medical treatment and thus admissible under ER 803(a)(4).[xxiv]  Referrals for additional treatment, test results, physical examination findings and the providers’ plan and assessment should all satisfy the requirements of this exception.  The plaintiff’s self-serving comments about what other doctors may or may not have said would not.

Takeaways

Plaintiffs’ counsel aggressively seek to exclude highly relevant information in medical records by relying on Young v. Liddington.  Young is a limited decision relating to testimony that would not be permitted if the doctor had testified in court.  Other exceptions to the hearsay rule frequently apply to medical records, most commonly ER 803(a)(4) (statements made for the purpose of medical treatment).  Care needs to be taken to parse out admissible versus inadmissible portions of the records.  A plaintiff’s hearsay statements may be excludable if they refer to prior events or hearsay statements attributable to other providers.

About the Authors:  Bertha B. Fitzer, J.D., LL.M., and Jennifer M. Veal, Esq. are partners in Tyson & Mendes’ Seattle office.  They have successfully tried multiple complex medical malpractice cases in King, Pierce, Thurston and Kitsap counties and successfully argued important medical malpractice cases before the Court of Appeals and the Washington Supreme Court.  With 15 defense verdicts to their credit in the last 8 years, they have never lost a defense verdict on appeal.

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Sources

[i]  ER 803(a)(2).

[ii]  ER 803(a)(3).

[iii]  ER 803(a)(4).

[iv]  50 Wn.2d 78, 309 P.2d 761 (1957).

[v]  In re: M.R., 518 P.3d 214 (October 13, 2022).

[vi] Young, 50 Wn.2d at 82.

[vii]  Young, 50 Wn.2d at 84.

[viii] Id.

[ix]  Benjamin v. Havens, Inc., 60 Wn.2d 196, 373 P.2d 109 (1962).

[x]  Benjamin, 60 Wn.2d at 200.

[xi]  In re: M.R., 518 P.3d 214 (October 13, 2022).

[xii]  In re: M.R., 518 P.3d at 216.

[xiii]  Id.

[xiv]  Id.

[xv]  In re: M.R., 518 P.3d at 224 (citing State v. Kreck, 86 Wn.2d 112, 118, 542 P.2d 782 (1975)).

[xvi]  Id.

[xvii]  In re: M.R., 518 P.3d 221 (citing State v. Ziegler, 114 Wn.2d 533, 538, 789 P.2d 79 (1990)).

[xviii]  In re: M.R., 518 P.3d 221 (quoting 5D Karl Tegland, Washington Practice: Courtroom Handbook on Washington Evidence §803:20, at 450 (2020)).

[xix]  In re: M.R., 518 P.3d 221-22 (quoting Tennant v. Roys, 44 Wn. App. 305, 312, 722 P.2d 848 (1986)).

[xx]  State v. Ziegler, 114 Wn.2d 533, 538, 789 P.2d 79 (1990).

[xxi]  State v. Doerflinger, 170 Wn. App. 650 (2012).

[xxii]  State v. Garrett, 76 Wn. App. 719, 887 P.2d 488 (1995).

[xxiii]  Doerflinger, 170 Wn. App. at 223.

[xxiv]  Doerflinger, 170 Wn. App. at 224.