Admitting Medical Records At Trial
I. MEDICAL RECORDS
A writing prepared as a part of a normal business activity is admissible under the “business records exception” if it records (and is offered to prove) an act, condition or event (or the absence thereof) in the ordinary course of business. Evidence Code §1561 states:
(a) The records shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following: (1) The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records; (2) The copy is a true copy of all the records described in the subpoena duces tecum … , or pursuant to subdivision (e) of Section 1560, the records were delivered to the attorney, the attorney’s representative, or deposition officer for copying at the custodian’s or witness’ place of business, as the case may be; (3) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event; (4) The identity of the records; (5) A description of the mode of preparation of the records;
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(c) Where the records described in the subpoena were delivered to the attorney or his or her representative or deposition officer for copying at the custodian’s or witness’ place of business, in addition to the affidavit required by subdivision (a), the records shall be accompanied by an affidavit by the attorney or his or her representative or deposition officer stating that the copy is a true copy of all the records delivered to the attorney or his or her representative or deposition officer for copying.
A second section of the Evidence Code, §1562, deals with the admissibility of the affidavit and copy of the attached records:
If the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified to the matters stated in the affidavit, and if the requirements of Section 1271 have been met, the copy of the records is admissible in evidence. The affidavit is admissible as evidence of the matters stated therein pursuant to Section 1561 and the matters so stated are presumed true. When more than one person has knowledge of the facts, more than one affidavit may be made. The presumption established by this section is a presumption affecting the burden of producing evidence
To summarize, first, as to records: The records have to be authenticated by offering evidence that they were prepared by agents of the medical facility in the ordinary course of business at or near the time of the relevant act, condition or event contained in the records, and that the mode of preparation indicate the records are trustworthy.
The records of a health care provider recording a patient’s symptoms and the medical diagnosis are admissible to prove their contents — nature and extent of patient’s injuries – if based upon the doctor’s firsthand observations of the patient. McDowd v. Pig ’n Whistle Corp. (1945) 26 Cal.2d 696, 700 [hospital record showing nature and extent of plaintiff’s injuries].
Furthermore, records and entries not satisfying the “regular course of business” requirement may nonetheless be admissible for an independent nonhearsay purpose. For example, though a patient’s medical history statement contained in a hospital report is not admissible as substantive proof of the history, it may be admissible for the limited purpose of showing what information the doctor relied upon in making his or her diagnosis. California Practice Guide: Civil Trials and Evidence (Rutter, 2011) § 8:1632.
It is possible that defense counsel will demand that the individual custodians for each and every set of records from each and every medical provider be subpoenaed and appear in court to testify to the exact same thing they have already verified in their affidavits. See Taggart v. Super Seer Corp. (1995) 33 Cal.App.4th 1697. While that is defendant’s prerogative, it will certainly consume a great deal of the court and jury’s time and be repetitive.
Business records are admissible under § 1271 regardless of whether the declarant can now testify fully and accurately to the recorded events. Franco Western Oil Co. v. Fariss (1968) 259 Cal.App.2d 325, 333. As stated in California Practice Guide: Civil Trials and Evidence (Rutter, 2011) § 8:1645: “Indeed, one of the primary objectives of § 1271 is to eliminate the necessity of calling as witnesses each employee who prepares business reports. People v. Williams (1973) 36 Cal.App.3d 262, 275; Levy-Zentner Co. v. Southern Pac. Transp. Co. (1977) 74 Cal.App.3d 762, 785.
Also, if a Plaintiff will be offering the testimony of some of his/her health care providers and those practitioners can testify to the contents of their own medical records and, thereafter, have them admitted into evidence.
II. MEDICAL BILLS
In general, the court should be guided by the Judicial Council California Jury Instruction number 3903A titled “Medical Expenses – Past and Future (Economic Damages)” which states:
To recover damages or past medical expenses, plaintiff must prove the reasonable cost of reasonably necessary medical care that he has received. To recover damages for future medical expenses, plaintiff must prove the reasonable cost of reasonably necessary medical care that he is reasonably certain to need in the future.
A. Plaintiff May Testify Regarding the Amount and Nature of the Medical Bills Incurred
It has been the longstanding rule in California that a plaintiff may testify regarding the amount and nature of the medical bills incurred by him as a result of the accident. For example, in Malinson v. Black (1948) 83 Cal.App.2d 375, 379, the court stated:
[Plaintiff] gave an estimate of the expenses he had incurred for medical care and appellant complains that the testimony does not clearly show that such expenses were paid, nor whether such amount is the reasonable value of the services. It is well settled that the amount paid is some evidence of reasonable value and in the absence of any showing to the contrary such evidence has been held to be sufficient.
See also Dewhirst v. Leopold (1924) 194 Cal. 424, 433; Laubscher v. Blake (1935) 7 Cal.App.2d 376, 383; Caulfield v. Market Street Ry. Co. (1937) 20 Cal.App.2d 220.
Pursuant to the financial responsibility agreement signed by the plaintiff/patient in advance of all treatment, the provider is entitled to pursue the total charges. The patient, after all, is contractually responsible for those total charges. Consequently, the patient should be competent to testify to having contractual financial responsibility for those medical charges and can testify as to receipt of the bills.
A number of personal injury cases rely on the rule of law established in Pacific Gas & Electricity v. G.W. Thomas Drayage (1968) 69 Cal.2d 42 which said that an invoice, by itself, is hearsay, and it is not admissible to prove that the specific work or service appearing on the invoice was actually performed absent a foundational showing of an exception to the hearsay rule. However, if “a party testifies that he incurred or discharged a liability for repairs, any of these documents may be admitted for the limited purpose of corroborating his testimony; and if the charges were paid, the testimony and documents are evidence that the charges were reasonable.” Id. at p. 43, see also Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267; McAllister v. George (1977) 73 Cal. App. 3d 258, 263. Thus, like the contractor in the PG&E case, plaintiff can testify concerning his/her receipt of the bills for medical services to establish that he was charged those amounts related to the auto accident.
B. Testimony Regarding the Amount of the Medical Bills Is Some Evidence of Their Reasonableness
A number of cases stand for the proposition that evidence of payment of medical bills is sufficient to establish a presumption as to the reasonableness of the charges. See, e.g., Pacific Gas & E. Co. v. G. W. Thomas Drayage (1967) 69 Cal.2d 33, 42-43; Rodgers v. Kemper Construction Co. (1975) 50 Cal.App.3d 608, 626; McAllister v. George (1977) 73 Cal.App.3d 258, 263. This evidence can be established through testimony of the plaintiff, the practitioner whose bill was paid, or the bills themselves, which are admissible to corroborate the plaintiff’s testimony. Ibid. The reason for this rule is a recognition that a person who receives a bill has “every interest to dispute its accuracy or reasonableness if there is reason to do so. Thus, if a bill or invoice is paid, the court is assured of the accuracy and reasonableness of the charges.” Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1268.
Along these same lines, there does not appear to be any California case that has held that a plaintiff must produce expert opinion as to the reasonable and customary charges in the industry for the medical care at issue in order to establish the reasonableness of the charges. For example, in Malinson v. Black (1948) 83 Cal.App.2d 375, the court held that the plaintiff had shown the reasonableness of his medical bills despite presenting no expert testimony whatsoever, even with respect to his medical condition. The court stated:
It is well settled that the amount paid is some evidence of reasonable value and in the absence of any showing to the contrary such evidence has been held to be sufficient. Likewise, it would seem that evidence of the expense incurred would be some evidence of reasonable value. [Citations.] Id. at p. 379.
Likewise, in McAllister v. George, supra, the court held that the plaintiff’s testimony that the bills for his dental treatment were paid, and the admission of the bills themselves, established a presumption that the charges were reasonable:
Plaintiff testified that the dental services were performed, that he received a bill for them, and that he paid the bill. It has been held that under such circumstances the bill, which ordinarily would constitute inadmissible hearsay, is nevertheless admissible for the limited purpose of corroborating plaintiff’s testimony and showing that the charges were reasonable. Id. at 269.
Also in accord is Rodgers v. Kemper Construction Co., supra, 50 Cal.App.3d 608, 626-627, in which the court held that the plaintiffs’ testimony identifying the medical bills relating to the plaintiffs’ treatment and indicating that the bills were paid, coupled with the admission of bills themselves, showed that the charges were reasonable.
Plaintiff should be allowed to introduce into evidence his medical records and medical billings on the basis that they are all excluded from the usual hearsay rule.