Maine Bar Journal
September 1996
EVIDENTIARY ISSUES PERTAINING TO THE
ADMISSIBILITY OF MEDICAL TESTIMONY
AND RECORDS AT TRIAL
By Brett D. Baber, Esquire
Medical testimony and records are essential ingredients in a
personal injury trial. Yet, the qualification and admission of medical
evidence raises nagging problems for the trial lawyer. This article
seeks to facilitate the trial preparation process by summarizing the
requirements for admissibility of medical evidence.
A. Typical Questions of Qualification and Admissibility
The typical questions which keep an attorney up late preparing for
trial are: (1) Do I need a doctor to establish: causation? pain and
suffering? permanency? permanent impairment? The reasonableness
of medical bills? (2) What foundation must be laid to introduce
medical bills? Should the bills be edited? Is it appropriate to
introduce a summary? (3) Are there any limitations on the
admissibility of certified hospital records? (4) Are doctor's reports
admissible without testimony from the doctor? (5) May the reports
of one doctor be introduced through the expert testimony of another
doctor?
B. The Applicable Authority
All of these issues have been addressed, either directly or indirectly,
in various Law Court decisions. When supplemented by other
persuasive authority, these cases provide useful guidance to the
practitioner.
1. The need for expert medical opinions
It is black-letter law that a plaintiff in a negligence action must prove
an injury was causally related to the alleged negligence of the
defendant.(1) Whether expert medical testimony is required to
establish the causal connection between the injury and the tortious
conduct depends upon the nature of the injury. Without expressly
saying so, the Law Court's decisions on this issue appear to track
the general rule that:
When the cause of disease, injury or death of a person is not within
common knowledge or experience there must be scientific or
medical evidence, that is the testimony of medical experts, to
establish the cause and effect relationship between the complained
of condition and the asserted cause.(2)
In other words, expert testimony is required in all cases involving
personal injury, except where the injury is simple, easily understood,
and within the common knowledge or experience of a lay person.
In Hood v. Mercier,(3) the Law Court affirmed the assessment of
damages for pain and suffering where the plaintiff suffered broken
thumbs in an automobile accident.(4) The Court concluded that the
plaintiff's "own testimony was sufficient to demonstrate that the
treatment was related to and necessitated by the injuries he received
in the accident."(5) In Blais v. Davis,(6) the Law Court ruled that the
plaintiff's testimony was sufficient to demonstrate that the medical
bills and treatment for her back and leg injuries were caused by the
accident, when coupled with the testimony of her physician
describing the injuries and the course of her treatment.(7) Similarly,
in Latremore v. Latremore,(8) the Law Court held that a
physician's testimony was not necessary to corroborate the lay
testimony of mental distress.(9)
There are several cases, decided in the context of medical
malpractice actions, which help define the line of demarcation
between situations in which expert testimony is required and those in
which it is dispensable. For example, in Hamor v. Maine Coast
Memorial Hospital,(10) the Law court affirmed the entry of a
directed verdict against a plaintiff who offered no expert testimony
to establish that the medical care plaintiff received during an abortion
caused various complications.(11) The Court reasoned that, where
the alleged complications had "no obvious causal relation to the
action of the hospital and its staff,"(12) expert testimony was
necessary rather than "the collective wisdom of a lay jury."(13)
Likewise, the Court concluded in Downer v. Veilleux(14) that
expert testimony was required to prove negligence where a general
surgeon failed to consult with a specialist about the plaintiff's hip and
fractures which were left untreated.
In practice, it is almost always preferable for plaintiff's counsel to
offer expert testimony to establish causation, as well as the extent of
the injuries suffered, even if the injury is within the understanding of a
jury. While jurors may view the plaintiff's own testimony with
suspicion, the testimony of a physician provides an aura of authority
that cannot be achieved through lay testimony. Due to the vagaries
of scheduling the trial testimony of medical witnesses, however,
plaintiff's counsel should depose physicians who are to render the
essential expert opinions to preserve their testimony in the event they
are unavailable for trial.(15)
Two other comments about the need for expert testimony are
warranted. First, expert testimony is essential if one is attempting to
recover for permanent impairment.(16) Second, after the plaintiff has
established causal injury, Justice Lipez's concurrence in Lovely v.
Allstate(17) suggests that defendant may have the burden of
establishing the causal relationship between any earlier or
subsequent injury and the plaintiff's medical condition.(18) Although
the Law Court has not yet ruled that a defendant must introduce an
expert opinion to support an apportionment argument, the issue of
apportionment appears to be one of those issues where expert
testimony may be required in explaining the concept to the jury.
While there is some language in the Lovely decision to suggest that
a defendant may argue the need for apportionment based solely on
the plaintiff's medical history, preferred practice again dictates the
introduction of expert medical testimony.
2. The foundation for introduction of medical bills
The basic foundation for the introduction of medical bills is relatively
straightforward. To be admissible, plaintiff must establish that the
medical expenses are reasonable and necessary, they are related to
the accident and the injuries complained of, and they are reasonably
probable.(19) As a threshold matter, the witness called to introduce
the medical bills must also be competent.(20)
There are distinct advantages to evaluating the foundational
requirements for medical bills well before the pretrial conference.
Plaintiff's counsel may seek to establish all of the foundational
requirements during discovery by serving a brief request for
admissions. On the other side, defense counsel should determine
whether there are any legitimate issues with respect to
reasonableness or causation. An expert witness is essential to raise
persuasive arguments on these issues at trial. While jurors might
view six months of chiropractic treatment with suspicion, they are
not likely to discount the associated expenses when there is some
specific showing that the services were necessary.(21) Since expert
witnesses must be designated well in advance of trial, it ordinarily
will not suffice to evaluate questions of reasonableness or causation
at the trial management conference or thereafter.
Finally, both parties should consider using a summary of medical
expenses, pursuant to M.R. Evid. 1006, instead of introducing the
actual records. All too often, the original records are cumbersome,
contain confusing billing histories, and include extraneous references
to collateral payment sources or to liability insurance. To avoid the
need for redaction of such records during trial proceedings,
plaintiff's counsel may desire to prepare a detailed summary derived
from the actual records that were provided to defense counsel
during discovery. Once defense counsel has had an opportunity to
compare the summary to the actual records, agreements can be
worked out to preserve specific issues while still allowing the use of
the summary at trial.
3. Hearsay implications
A need may arise to introduce medical records from particular
hospitals or physicians without having a hospital representative or
each treating and consulting physician testify at trial. It simply may
not be cost effective, or even necessary, to call every potential
medical witness. Moreover, physicians may have died, retired or
moved from the area, yet their records may still be available. Thus, it
may be possible to utilize records in lieu of live testimony if the
hearsay rule can be overcome.
Medical records are a classic example of hearsay: the records are
out of court statements offered to prove the truth of the matter
asserted - i.e., the plaintiff's medical condition.(22) Medical records
are frequently replete with hearsay within hearsay. For example, the
patient's complaints, test results and the opinions of consulting
physicians are often found in a physician's chart. Rule 805 of the
Maine Rules of Evidence requires that each level of hearsay must fall
within a hearsay exception if the document contains multiple levels of
hearsay.
(a) The Hospital Records Statute
The Hospital Records State, 16 M.R.S.A. § 357 (Supp. 1995),
provides the best means to avoid the hearsay rule entirely, with
certain exceptions. Section 357 provides:
Records kept by hospital and other medical facilities licensed under
the laws of this State and records which the court finds are required
to be kept by the laws of any other state or territory, or the District
of Columbia, or the laws and regulations of the United States of
America pertaining to the Department of National Defense and the
Veterans Administration, by hospitals and other medical facilities
similarly conducted or operated or which, being incorporate, offer
treatment free of charge, shall be admissible, as evidence in the
courts of this state so far as such records relate to the
treatment and medical history of such cases and the court
shall admit copies of such records, if certified by the persons
in custody thereof to be true and complete but nothing therein
contained shall be admissible as evidence which has
reference to the question of liability. Copies of photographic or
microphotographic records so kept by hospitals and medical
facilities, when duly certified by the person in charge of the hospital
and other medical facility, shall be admitted in evidence equally with
the original photographs or microphotographs.(23)
The statute was originally adopted to avoid the need to call a
records custodian from a hospital to establish a foundation for
admissibility under the business records exception.(24) As the
express language of the statute requires, the records must be
"complete" as well as "true"; incomplete records are subject to
exclusion.(25) Unfortunately, there is no definition of what constitutes
a complete or true record. Must the certified copy contain every
record that ever existed in that hospital for a particular patient or is a
record "complete" if it contains all documents related to a particular
injury or illness? To avoid uncertainty, plaintiff's counsel will want to
either obtain all available records, reach an agreement with opposing
counsel or obtain an admission that more limited records are
"complete."
Hospital records may contain very helpful information regarding
liability. For example, a plaintiff may have informed her physician
that she was speeding at the time of the collision or that the
would-be defendant ran a stop sign. Unless the references to
"liability facts" are shown to be related to medical treatment or
diagnosis, the express language of Section 357 prohibits their
admissibility.(26) Such facts should be redacted from the record
before it is offered into evidence.
Despite the exclusion of liability references, the attorney seeking to
introduce such evidence should not abandon the evidence without
further efforts. For example, the "liability facts" may also relate to
diagnosis or treatment. In Cyr v. Hurd,(27) the Law Court affirmed
the trial court's ruling to admit a certified hospital record which
reported that the plaintiff was intoxicated at the time of admission.
The Court reasoned that the references also pertained to the
diagnosis and treatment of the plaintiff and were not subject to
exclusion.(28) The proponent may also serve a request for
admissions to determine whether opposing counsel will concede that
the statements were made.(29) Alternatively, a deposition of the
hospital staff member who recorded the statement could be taken to
avoid the hearsay problem entirely if the statements constitute
admissions within the meaning of Rule 801(d)(2).
(b) Statements for medical diagnosis and treatment
With respect to a patient's statements pertaining to diagnosis and
treatment, Rule 803(4) offers an exception to the hearsay rule for
the first level of hearsay. Rule 803(4) provides that:
Statements made for purposes of medical diagnosis or treatment
and describing medical history, or past or present symptoms, pain
or sensation, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis
or treatment.(30)
Like the Hospital Records Statute, statements pertaining to liability
issues which have no bearing on diagnosis or treatment are not
admissible pursuant to rule 803(4).(31) In deciding this question, the
court should focus on whether the statement was "pertinent to
diagnosis or treatment." Pertinence can be determined by evaluation
"[t]he reason why the doctor asks a question" and whether it
encompasses "an objective consideration beyond the declarant's
state of mind."(32) "Pertinence may be tested by asking whether the
information is of a type on which a physician could reasonably rely
to form a diagnosis or provide treatment."(33) Based on this test, the
Law Court has upheld the introduction of a victim's statements that
she had been forced to have sex(34) while statements by another
victim asking the perpetrator to stop should have been excluded.(35)
(c) The business records exception
Although Section 803(4) may permit the introduction of a patient's
statements through the testimony of a medical provider, it does not
overcome the second level of hearsay necessary for the admission
of the medical report. The most likely exception to the second level
is the business records exception set forth in Rule 803(6). Many
Maine practitioners assume that the business records exception has
no application to the admissibility of a physician's office records. As
a result, no attempt is made to offer the records into evidence and,
unless the physician actually testifies, that physician's knowledge
about the patient may be lost as a source of relevant information at
trial. While Maine law is not entirely clear on the use of the business
records exception as a basis for the introduction of a physician's
office records, there is at least sufficient authority to challenge the
widespread assumption.
In State v. Burnham,(36) the Law Court held that the trial court
improperly excluded a physician's report offered pursuant to the
business records exception. The defendant had offered a CAT scan
report of one physician during the testimony of another physician.
The testifying physician had provided the foundation required under
Rule 803(6). The trial court excluded the report, reasoning that the
testifying physician had not relied on the report.(37) The Law Court
determined that the trial court had erroneously failed to consider
admissibility under 803(6) but found that the error was harmless.(38)
The Law Court's analysis of the constitutional implications of the
Hospital Records Statute also recognizes the availability of the
business records exception as a basis for the introduction of another
provider's medical records. In State v. Francis,(39) the Law Court
rejected the defendant's argument that the admissibility of medical
records pursuant to the statute deprived him of the constitutional
right to confront witnesses. The Law Court reasoned that the
Hospital Records Statute was a "firmly rooted hearsay exception,"
since records were admissible under the business records exception
even before passage of the statute.(40) Further, the Law Court's
citation to the factors enhancing the reliability of medical reports is
equally applicable to a physician's office records:
Treating physicians have every reason to be truthful, accurate, and
complete when preparing hospital records, and they have no motive
to lie. Given the fact that doctors deal with so many cases each day,
there seems to be little to be gained by calling them to the stand.(41)
There are two potential limitations to the use of the business records
exception as a basis for introduction of a physician's office records.
First, the records may be excluded if there is a legitimate basis to
question the trustworthiness of the records.(42) For example, the
physician may not have personal knowledge of certain information in
the records, especially where the records were prepared by staff
members who cannot be identified. Second, opinions contained in
the records are subject to exclusion for several reasons: the basis for
the opinions may not be disclosed; the opinions arguably are not
part of the doctor's regular business; the doctor may not be
qualified; or the judge may not find the written opinion will be helpful
to the jury without the live testimony of the expert physician.(43)
Thus, before a physician's records are offered pursuant to Rule
803(6), the proponent should ensure that all relevant aspects of the
records are admissible.
(d) The expert witness "exception"
Although not specifically denominated as a hearsay exception, Rule
703 is often cited in court as a basis to introduce the findings of one
physician through the testimony of an expert medical witness. The
rule provides:
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known
to him at or before the hearing. If of a type reasonably relied upon
by experts in the particular field in forming opinions or inferences
upon the subject, the facts or data need not be admissible in
evidence.(44)
The argument is then made that Rule 703 allows the introduction of
all of the records relied upon by the expert. However, the Law
Court has expressly rejected that argument.
In Henricksen v. Cameron,(45) the Law Court held that a testifying
expert physician may state that the expert relied upon another
physician's report but the substance of the report is not admissible
on direct examination.(46) At trial, plaintiff's expert psychiatrist
testified, over objection, that another psychiatrist had evaluated the
plaintiff and the other psychiatrist "agreed with his opinion 'on
virtually all aspects of the case.'"(47) On appeal, the Law Court
agreed that the testimony about the substance of the other
psychiatrist's opinion should have been excluded. The Court
explained that:
Pursuant to Rule 703, Dr. Collins could testify that he relied on Dr.
Voss's report in order to establish the factual foundation necessary
for the admissibility of his opinion. Testimony regarding the
substance of Dr. Voss's report, however, is not necessary to
establish factual foundation under Rule 703 and remains hearsay not
within any exception. See M.R. Evid. 801-804. Rule 703 does not
make the substance of Dr. Voss's report admissible and, therefore,
admitting Dr. Collins' testimony about the substance of the report
was error.(48)
In contrast to the rule on direct examination, Maine law appears to
permit cross-examination of an expert with the substance of reports
from other physicians. In Warren v. Waterville Urban Renewal
Auth.,(49) the Law Court explained that while hearsay relied upon
by experts is not admissible on direct examination, "such evidence
may be admitted on cross-examination for the purpose of testing the
expert's credibility and good faith, the accuracy and extent of his
knowledge, in other words, to try the soundness and weight of his
opinion. . . ."(50) Once the expert has been cross-examined with the
substance of the reports for others, redirect examination is then
permitted with favorable reports.(51) Thus, the attorney who would
like to cross-examine a physician with other treatment records
should consider the adverse consequences of opening the door to
admissibility of other records on redirect examination.
C. Conclusion
The handling of medical evidence at trial should be made to appear
routine and precise to the jury. A proper understanding of the types
of medical evidence to be offered into evidence will assist counsel in
minimizing evidentiary emergencies at trial and in resorting to other
grounds of admissibility in the event that a particular witness is
unavailable to testify. Use of the various hearsay exceptions which
apply to medical records may also obviate the need for live medical
testimony, where a witness is unavailable, to avoid repetition or
minimize costs. As with any other aspect of trial practice, advance
preparation is the key to the successful presentation of medical
evidence at trial.
1. 1 Lovely v. Allstate, 658 A.2d 1091, 1094 (Me. 1994) (Lipez, J. concurring);
Spickler v. York, 566 A.2d 1385, 1390 (Me. 1989).
2. 2 31 Am. Jur. 2d Expert and opinion evidence § 243 (1989). See also Annot.,
Necessity of Expert Testimony on Issue of Permanence of Injury and Future
Pain and Suffering, 20 A.L.R. 5th 1.
3. 3 499 A.2d 147 (Me. 1985).
4. 4 Id. at 148.
5. 5 Id.
6. 6 358 A.2d 552 (Me. 1976).
7. 7 Id. at 555.
8. 8 584 A.2d 626 (Me. 1990)
9. 9 Id. at 632-33.
10. 10 483 A.2d 718 (Me. 1984).
11. 11 Id. at 722-23.
12. 12 Id. at 723.
13. 13 Id. at 722-23.
14. 14 322 A.2d 82, 85 (Me. 1974).
15. 15 Maine Rule of Evidence 804(a)(5) specifically authorizes the admission
of a "statement" if the declarant is absent from the hearing and the
proponent has been unable to secure the witness's attendance. See also
M.R. Civ. P. 32(a)(3)(C).
16. 16 See footnote 2, supra.
17. 17 658 A.2d 1091, 1093-94 (Me. 1994) (Lipez, J. concurring).
18. 18 Id. at 1094.
19. 19 Blais v. Davis, 358 A.2d 552, 555 (Me. 1976).
20. 20 M.R. Evid. 701. See also McKee, Establishing an Adequate
Foundation for Proof of Medical Expenses, 23 Am. Jur. P.O.F. 3d 243 § 5
(1993).
21. 21 Occasionally, defense counsel may elicit such testimony during
cross-examination of plaintiff's neurologist or orthopedist especially where
the chiropractic treatment occurred over a prolonged time frame.
22. 22 See Henricksen v. Cameron, 622 A.2d 1135, 1144 (Me. 1993).
23. 23 16 M.R.S.A. § 357 (Supp. 1995) (emphasis added).
24. 24 See State v. Francis, 610 A.2d 743, 745 (Me. 1992).
25. 25 See In re Elijah R., 620 A.2d 282, 285 (Me. 1993).
26. 26 16 M.R.S.A. § 357 (Supp. 1995).
27. 27 554 A.2d 345 (Me. 1989).
28. 28 Id. at 346-47.
29. 29 Opposing counsel should not admit the request if there are questions
as to source of the statement in the medical report. Quite frequently,
notations are made in medical charts by nurses or other staff. Unless the
employee who made the entry can be identified, it is reasonable to seek the
exclusion of the liability reference due to the lack of foundation.
30. 30 M.R. Evid. 803(4).
31. 31 State v. Sickles, 655 A.2d 1254, 1257 (Me. 1995).
32. 32 Id.
33. 33 Id.
34. 34 Id.
35. 35 Id.
36. 36 State v. Burnham, 427 A.2d 969 (Me. 1981).
37. 37 The trial court apparently assumed that the report was being offered
pursuant to Rule 703 which requires an expert to rely on the information at
issue.
38. 38 427 A.2d at 972.
39. 39 610 A.2d 743 (Me. 1992).
40. 40 Id. at 745.
41. 41 Id.
42. 42 Admissible business records do not include records where "the source
of information or the method or circumstances of preparation indicate lack of
trustworthiness." M.R. Evid. 803(6)
43. 43 See generally Lawlor, Admissibility Under Uniform Business Records
as Evidence Act or Similar Statute of Medical Report Made by Consulting
Physician to Treating Physician, Annot., 69 ALR3d 104 (1976).
44. 44 M.R. Evid. 703.
45. 45 622 A.2d 1135 (Me. 1993).
46. 46 Id. at 1144.
47. 47 Id. at 1143.
48. 48 Id. at 1144.
49. 49 235 A.2d 295 (Me. 1967).
50. 50 Id. at 302. Although the expert in Warren was a real estate appraiser,
there is no suggestion in the opinion that this rule did not apply to all types
of experts.
51. 51 See Warren, 235 A.2d at 303. 
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