As of January 1, 2013, the medical narrative exception which was O.C.G.A. § 24-3-18 has been
renumbered to O.C.G.A. § 24-8-826.
THE
NEW EXCEPTION TO THE HEARSAY RULE:
MEDICAL
NARRATIVES
As Published in
the VERDICT, Winter, 1997
http://www.woodandmeredith.com/glm/medical_narratives.html
Dwight A. Meredith
Wood & Meredith
Atlanta, Georgia
Must Give Other Side 60 Days Notice You Intend To Use Docs And
Applies To Civil Actions Involving Injury Or Disease
Record Must Be Signed And Dated
List Of Heath Care Professionals Qualified To Sign The Document
Medical Narrative Report Form (Wood & Meredith, LLP)
The exception to the hearsay
rule provided by OCGA § 24-3-18 is not blanket
authority for the admission
into evidence of any and all medical records
in any or all cases. There
are several major limitations to the
effectiveness of the new
provision for the admission of medical records.
Each of the limitations will
be addressed in turn
The first limitation concerns
the type of cases to which the statute
applies.
By its own terms, OCGA § 24-3-18
applies only to the
trial
of any civil action involving injury or disease.
The exception does not apply
in criminal cases and will not apply in
civil
cases that do not involve
injury or disease.
Thus, the hearsay exception will apply in actions arising out of motor vehicle
accidents, medical
malpractice, premises liability and other personal
injury actions.
One can easily imagine that
certain domestic relations cases would
involve injury or disease.
Similarly, will contests and
other probate matters may
involve mental disease. Finally, contract
cases in which capacity is an
issue may involve injury or disease.
The legislature chose the
phrase involving “injury or disease” rather than “arising out of injury or
disease” in which “compensation for injury of disease is sought.”
Thus, it
appears that the intent of
the General Assembly was not to limit the
application of the statute
to personal injury actions but rather to
provide an easy and
inexpensive method of proving medical facts in all civil cases in which injury
or disease is relevant.
Record Must Be Signed And Dated
The second limitation on the applicability of the statute is that the
medical
record must be signed and dated by a health care professional.
The
statute requires that the medical professional signing and dating
the record
have diagnosed or treated the patient.
Thus, expert witnesses
who simply review medical
records are not covered. Similarly,
medical
reports from professionals
who review medical records for HMO's or
insurance companies, but
who have not treated or diagnosed the patient
are not admissible over a
hearsay objection.
The requirement that the
record be signed by a health care professional begs
the question of what type of
professional is covered. The General
Assembly has answered that
question by including in the statute a list
of professionals who, by
signing and dating the medical narrative, bring
the report within the ambit
of the statute. That list is limited to
the
following: Medical doctor;
Dentist; Orthodontist; Podiatrist; Physical and
Occupational Therapist;
Doctor of Chiropractic; Psychologist; Advanced
Practical
nurse; Social Worker; Professional
Counselor; and Marriage and
Family Therapist.
Presumably, medical
narratives signed and dated by medical professionals not on that list are not
admissible over a hearsay objection. It is unclear why the
following professions were
left out of the statute. Conspicuous by
their
absence from that list are
the following: Optometrists; Osteopathic
physicians; Physician's
assistants; Radiological technicians; and,
Respiratory therapists. Since neuropsychology is
defined by statute be a sub-specialty
of psychology, neuropsychologists are
covered under OCGA § 24-3-18 as psychologists.
The next limitation on the
admissibility concerns the contents and form of
the medical record itself. The statute, by its own terms, refers to
medical reports in
narrative form. The statute does not
define “narrative form”
but, presumably, raw test results,
x-rays, and medication
charts that contain no explanatory material would
not be covered.
The statute allows the
admission into evidence of such reports only
insofar
as it purports to represent the history,
examination,
diagnosis, treatment,
prognosis, or interpretation of tests or
examinations, including
the basis therefore, by the person
signing the
OCGA § 24-3-18(a).
(Examples
Of Statements In Med Records That Are Hearsay/Not Covered)
While matters not included on
that list would be subject to a hearsay
objection, that list is
sufficiently broad not to unduly limit the
practitioner. To the extent
that material in the medical narrative is
extraneous, it should not be
read to the jury. For instance, a note
in
the medical records that
the defendant was insured would certainly be
excluded.
Similarly, the patient's
statement recorded in the medical
records that, “I was hurt
in a car wreck when a drunk driver ran a
red light at high speed”
should be excluded. The reading of the
medical narrative is admitted
into evidence “the same as if that
person (the author of the
medical record) were present at trial and
testifying.”
If the doctor who wrote the
note attempted to testify
that his or patient told him
the defendant was drunk, such testimony
would be excluded as hearsay.
The fact that an exception
is made that allows the medical narrative into evidence as a substitute for the
live testimony of the physician does not authorize evidence to be read from a
medical record that would be excluded if offered by the witness in live testimony.
Thus, in the example posed above, the court should allow theportion of the statement that
would be admissible via live testimony andexclude the remainder. The
portion of the statement,
“I was hurt in
a car
wreck,” if introduced in live testimony could be admissible
over a
hearsay objection as a statement made for medical diagnosis or treatment.
Under the provisions of OCGA
§ 24-3-18, the extraneous
material concerning
insurance, red lights and drunk driving is not
within
the history, examination,
diagnosis, treatment, prognosis, or
interpretation of tests or examinations
for which the statute creates an exception to the
hearsay rule.
Potential Uses For This New Tool
Of particular interest is the
portion of the statute that notes that
the opinion of the person
signing the report with regard to the
etiology of the injury or
disease may be included as part of the
diagnosis Etiology of the
injury ”cause” of the injury.
Thus, a narrative
medical report
giving a doctor's opinion that the injury was caused by the
car wreck is
admissible over a hearsay objection.
OCGA § 24-3-18 is a very powerful new tool in a personal injury case.
the
practitioner may use medical narratives to demonstrate the nature and extent of
injury (diagnosis), the cause of the injury (etiology), whether or not the
injury is
permanent
(prognosis), and the treatments undergone.
In addition,
creative use of the exception
to put before the jury such reports as
nursing notes or office
visits may help to prove the duration and degree
of pain and suffering
resulting from the injury.
Another
potential use of the medical reports is to read nurses notes in order to
prove pain
and suffering. The nurses narratives may well contain notations
of
the times pain medication was administered as well as notations
of the patients'
complaints of pain.
The reading of such reports may bolster and
support other
non-medical testimony concerning the pain and suffering.
In order to take advantage of the provisions of OCGA § 24-3-18, the procedures outlined in the statute must be followed. First, both the medical reports intended to be introduced as well notice of such intention must be provided to the opposing party at least 60 days prior to trial.
If both a copy of the medical reports to be introduced as well as notice of intention to introduce those records are not provided to the opposing party at least sixty (60) days prior to trial, a hearsay objection to the introduction of those records is well founded.
Once the notice of intent is
sent along with copies of the records to be
introduced,
the party receiving the notice has 15 days to object
to the
introduction of such report,
or any part thereof, on
grounds other than
hearsay.
In the absence of such
objection, the document as a whole is admissible.
To supplement the report, the
party seeking admission of the report may
also present testimony of the
signer of the report. Thus, it is possible
to read a physician's
qualifications into the record, read the narrative
reports he or she authored
and then call the physician to supplement the report.
Once the requirements of the
statute are met, the medical reports are presented to the court in the
same manner as deposition testimony. The statute
states that the medical narrative is admissible into evidence as if the person
signing the report was testifying as a witness. Thus, the medical narrative
stands, in effect, in the place of live testimony of the report's author.
It is read to the jury like a deposition and it is admitted, not as documentary
evidence but, rather, as a substitute for
live testimony.
In order to insure that the
requirements are met, certain steps are
recommended. First, in the
letter written to health care providers
requesting medical records,
one should explain the statute to the health
care provider. That letter
should place emphasis on the fact that
properly prepared narratives
by the professional (for example,
signed and dated may avoid
the need to take a deposition or provide trial testimony.
When one receives medical records, each record should be checked to see if the requirements of 1) narrative, 2) signature, and 3) date are included.
If medical records are
received that are not completed in the required format and which
contain important
information, one should immediately contact the office
of the doctor and explain
that the oversight may result in the need for
his or her deposition. It may
be that, from the doctor's point of view,
it is far less trouble to
create an appropriate narrative than to sit
for a deposition.
One should
not tell the physician that a proper
narrative will avoid a
deposition as the opposing party has the right to
cross examine the signer of
the report and the person offering the
report into evidence may
decide to take a deposition as well. One can
hope that as the medical
profession becomes more familiar with the
provisions of OCGA ' 24-3-18,
medical reports will be routinely composed
to fit the requirements.