Experienced Atlanta Personal Injury Attorney Robert J. Fleming shares trial notes on the admissibility of documents at trial. Examples covered are medical records, records which are "missing", exhibits and other common issues that arise often in personal injury trials.
- Qualify as business records under OCGA 24-3-14
- The greatest limitation on the admission of medical records under the business records exception is that no un-cross examined opinions, diagnoses or prognoses are allowed in the record. Unless the person who made the opinion in the record is available for cross-examination at trial, the opinion or diagnosis is inadmissible. Spivey v. State, 361 S.E. 2d 9 (Ga. App. 1987).
- If a hospital record contains diagnostic opinions and conclusions, it cannot, upon proper objection, be admitted into evidence unless the proper foundation is laid, i.e., the person who entered such diagnostic opinions and conclusions upon the record must qualify as an expert and relate the facts upon which the entry is based. Buford v. Benton, 232 Ga. App. 102, 103(2); 501 S.E.2d 272 (1998)(emphasis added). Note: This would not include blood results because they are not opinions or conclusions.
- Hospital records often contain information provided by numerous sources. As long as the sources were observing and reporting the information in the regular course of their duties, or at about the time the events occurred, the records are admissible under the business records exception.
- 24-3-14 Certified Records are admissible at trial, but still requires foundation that the records were made in the regular course of business, at or near the time of the events described. The foundation can be provided by any witness familiar with the hospital's procedures for preparing the kinds of records involved. Mcall v. Parker 341 S.E. 2d 303 (Ga. App. 1986), (pathologist at hospital testifies regarding hospital blood alcohol reports).
- Doctor is permitted to testify to blood test result, in part, relying on hospital lab report. Wilson v. Childers, 329 S.E.2d 503 (Ga. App. 1985) (doctor permitted to testify regarding blood alcohol level relying in part on hospital lab report).
- A duly certified medical record purged of all inadmissible entries should be admitted by the court. The inadmissibility of a portion of the record does not render the whole record inadmissible if the inadmissible portion can be purged and deleted. Bowen v. Sentry Ins. Co., 213 S.E.2d 185 (Ga.App. 1975).
Absence of Records
- A party can prove certain information does not exist in certain records, if, a witness familiar with the record-keeping system testifies that he made a diligent search and the records does not exist. Martin v. State, 363 S.E. 2d 765 (Ga. App. 1987).
- Laying the Foundation- for the admission of documentary evidence, consider: (1) the particular document to be offered; (2) the particular evidence rule; and (3) evidence that is needed to prove that the document is admissible under the rules.
- Pre-trial Preparation-All potential documentary evidence must be identified, located, obtained and preserved
- Exhibit List- Should be prepared, all documents pre-marked, identified and properly organized.
- Force a hostile witness to read damaging portions of a crucial document.
- Enlarge the crucial document
- The Rules of Evidence: (1) Relevance is the most important rule. If a document cannot satisfy the threshold issue of relevancy, no further analysis is needed. Note: When the other side objects to a document on relevancy grounds, consider whether the document can be used for other purposes such as to show motive, for impeachment, to show habit, explain conduct, etc.
- If document is objected to on relevancy grounds, offer it into evidence subject to it being "connected up" later. OCGA 24-1-1 and OCGA 24-2-1.
- Authentication- (1) do you recognize the document? (2) What is it?; (3) Is it a true and accurate copy of the letter?
- Always assert that the document speaks for itself.
- The Best Evidence Rule- "The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for." Exceptions to the Rule are: (1) Does not apply when neither the existence or contents of the document are in issue; (2) a party offering less than the original must generally show that through the exercise of diligence the original cannot be produced. OCGA 24-5-2. When the original is not available The Next Best Rule applies and the next best substitute should be admitted. OCGA 24-5-5; (3) The Necessity Rule states "resting on principles of reason and justice," the trial court may make exceptions to the Best Evidence Rule. OCGA 24-5-3; (4) When the original is lost or has been destroyed, unless the proponent lost or destroyed them in bad faith.
- Hearsay Exception: "When in legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay, but as original evidence. OCGA 24-3-3.
- Business Records Exception: (1) Was the writing or record made in the regular course of business; (2) was it made at or near the time of the event; (3) Was in the regular course of the business to record such information.
- Summaries- "Summarized statements of what books of account and records show are admissible, provided the books and records are accessible to the court and the parties. Vaughn & co. v. Saul, 143 Ga. App. 74, 79 (1977). The fact that summaries themselves do not qualify as business records, does not affect their admissibility.
- Medical Bills: The Plaintiff can authenticate medical expenses without the testimony of the provider or any expert witness testimony as to the reasonableness of the charge. OCGA 24-7-9.
- Medical Records: A copy of the original may used in lieu of the original. Certification excuses the appearance of the custodian. OCGA 24-10-70, et. seq. The medical records can then be used in any manner which records identified at trial by the custodian could be used. OCGA 24-7-8(b). Note: Expect an objection as to the opinions, impressions and conclusions within the records. Be prepared to redact the opinions contained in the records.