Practice point: The Appellate Division determined that it was harmful error for the trial court to admit into evidence the
hearsay hospital notes of the orthopedic surgeon who examined plaintiff
after her accident. According to the doctor's notes, plaintiff stated
that she slipped and fell on wet ground and complained of severe right
ankle pain. However, at trial the doctor testified that he only assumed that the statement came from plaintiff. Moreover, the doctor
admitted that he did not recognize plaintiff and had no independent
recollection of the case. In addition, his original history notes were discarded, and
he was unsure from whence he received the information.
Student note: Generally, admissions
not germane to the treatment or diagnosis of a plaintiff's injuries are
not admissible under the business records exception to the hearsay rule. A hearsay entry in a hospital record as to the
cause of an injury may be admissible, even if not germane to
diagnosis, if the entry is inconsistent with a position taken at trial.
However, there must be evidence that connects the party to the entry.
Case: Grant v. New York City Transit Authority, NY Slip Op 02318 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: Slip and fall, and precluding a theory of liablity.
