John Castellano On The Legal Significance, Practical Impact Of People v. Ortega

In People v. Ortega [enhanced version available to subscribersunenhanced version available from lexisONE Free Case Law], the New York Court of Appeals addressed for the first time in more than 50 years the admissibility of hearsay statements within medical records. In this Emerging Issues Analysis, John M. Castellano, a 27-year veteran of criminal practice, discusses the court's broad reading of this exception, the practical impact of the ruling, and the many questions left open by the court's decision.

He writes:

"In People v. Ortega, 15 N.Y.3d 610 (2010), the Court of Appeals, addressing the medical records exception to the hearsay rule for the first time in over 50 years, gave a broad interpretation to statements made for the purpose of diagnosis and treatment. The Court's view of the exception adopts a modern, expansive understanding of diagnosis and treatment, including, for example, 'domestic violence' as a diagnosis and a 'safety plan' to be implemented upon the patient's release as treatment. 

"The ruling stands in contrast to the Court's seminal decision in Williams v. Alexander, 309 N.Y. 283 (1955) [enhanced version], in which hearsay concerning the events leading to the injury were deemed inadmissible. Ortega, thus, may signal a much more inclusive approach in both civil and criminal cases to the scope of the exception. Nevertheless, the decision raises at least as many questions as it answers, including whether prior similar incidents reflected in medical records are admissible, whether the statements in the records must be made upon first-hand knowledge, and whether the Court's broad ruling has implications for the Confrontation Clause in a criminal case. . . . 

"The Court of Appeals last fully explored the admissibility of hearsay in medical records in 1955 in its seminal decision in Williams v. Alexander, 309 N.Y. at 286. In that case, the patient's statement that he was injured when a car standing still at an intersection was struck from behind and propelled into him was introduced in a civil case in defense of the stopped car's driver. The Court of Appeals analyzed the statutory business records exception to the hearsay rule, observing that the business of a hospital is to diagnose and treat its patients' ailments, and that, accordingly, the only portion of medical records that may be admitted under the exception are acts, occurrences, or events that relate to diagnosis, prognosis, or treatment or are otherwise helpful to an understanding of the 'medical or surgical' aspects of the patients' care. The Court further reasoned that notes pertaining to events leading to a patient's medical condition, such as a narration of the accident causing injury, are not admissible unless otherwise germane to diagnosis or treatment. The Court concluded that the notes concerning the patient's account of the accident, even though in contradiction to his trial testimony, were not admissible and that, therefore, a new trial was required.

"After Williams, many courts routinely excluded statements in medical records describing the events leading up to the injury." 

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