Medical opinion is hearsay in medmal case

Where defendants seek to admit a doctor’s note in plaintiff’s medical records without having him testify at a deposition or at trial, the portion of the note containing plaintiff’s medical history and his condition when he arrived at the hospital is admissible as a statement made for the purposes of medical treatment.

However, the doctor’s statement that plaintiff was not a suitable candidate for a particular form of treatment was inadmissible hearsay because it was an opinion, thus requiring the doctor’s testimony.

Overview

Plaintiff went to sleep around 11 p.m. on Sept. 13, 2016. He awoke on Sept. 14 feeling tired. After a nap, he was not feeling well and felt tingling in his arms and legs. He called 911 and arrived at Winchester Medical Center around 3:11 p.m. About 11 minutes later, Dr. Leskovec examined him and later referred him to Dr. Lyons, a neurologist. Lyons examined plaintiff around 10:30 p.m.

Lyons dictated a note into plaintiff’s medical record (EMR) about 6 hours later. The note contained a section called “History of Present Illness” and another section, “Impression.”

Under the HPI section, Lyons noted, “‘Mr. Prohaska is a 67-year-old man with history of chronic tobacco use, hypertension, with variable medication noncompliance, who on day of ER presentation, went to bed at 11:00 p.m. and it was a time when he was last known normal. [He] woke up on day of ER presentation at 6:00 a.m. and noted left arm numbness.

“‘He then returned to sleep and subsequently woke up at 9:11 and also 2 p.m. Each time he woke, the patient reported that there was progression of left arm weakness. At 2:00 p.m., he noted left arm weakness and activated EMS. On route to the ER at that time, he had slurring of speech and facial droop. …

“‘The patient does report variably taking his prescribed medications, which include antihypertensives, low-dose aspirin, and Plavix, though he knows that he has increased medication noncompliant when his wife was not at home to remind him to take medications and in fact, she is now on a trip to Missouri.’

“Dr. Lyons also notes, in the record, that the ‘[h]istory of present illness was obtained from the patient and his daughter, who were present.’ …

“The portion of the Impression section at issue is as follows: ‘The patient [was] last known to be normal upon going to bed at 11 p.m. as symptoms were present upon awakening at 6 a.m. Due to delay in presentation, the patient was not a candidate for intravenous tPA.’”

Intravenous tPA is a medication that is used to prevent a stroke or lessen stroke damage.

Defendants have moved to admit Lyons’ statements without having to testify at trial or in a deposition.

Relevant law

The parties agree that Lyons’ note in the EMR is a business record, which is excluded from the hearsay rule. Plaintiff argues the note is not admissible under the business records exception “because the HPI section contains hearsay within hearsay and the Impressions section contains hearsay opinions by Dr. Lyons.

“Va. R. Sup. Ct. 2:805 excludes statements that are hearsay within hearsay unless the secondary hearsay also meets an exception. …

“Another exception applicable to medical records that contain secondary hearsay is Va. Sup. Ct. R. 2:803(4), pertaining to ‘[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.’ …

“Another issue that arises when admitting medical records under the business records exception is when portions of those records contain opinions and/or diagnoses. … Va. Sup. Ct. R. 2:803(6) basically adopts the long recognized Shopbook Rule. However, case law is clear that the Shopbook Rule does not extend to ‘include opinions and conclusions of physicians or others recorded in hospital records.’”

HPI section

“The statements contained in the HPI meet the hearsay exception in Va. Sup. Ct. R. 2:803(4) addressing statements made for medical diagnosis or treatment. The statements clearly relate to Plaintiff’s medical history, past or present sensations and the inception or general cause of his condition. …

“The patient does not need to be the declarant for the statements made for medical diagnosis or treatment to apply. Therefore, it is not necessary to determine which statements in the HPI were made by the Plaintiff or his daughter. …

“[T]he combined statements by Plaintiff and his daughter are reliable. There is no incentive for either one of them to provide false information. Plaintiff was in the hospital to receive treatment. It is to the Plaintiff and his daughter’s benefit to provide accurate information so that the doctors could properly decide a treatment plan. Additionally, at that time, there was no prospect of litigation. …

“[S]ince the information in the HPI meets a hearsay exception, it is not inadmissible secondary hearsay contained in a business record.”

Impression section

Plaintiff argues that the portion of the “Impression” section that defendants seek to admit is an inadmissible hearsay opinion. …

“Dr. Lyons’ statement in his note ‘[t]he patient [was] last known normal upon going to bed at 11 p.m. as symptoms were present upon awakening at 6 a.m.’ is a fact and not an opinion. … Dr. Lyons used this information to make the factual determination of when the last time occurred that the Plaintiff was not experiencing any symptoms of a stroke.

“A patient’s ‘last known normal’ or time in which they were not experiencing symptoms is important for the purposes of whether the patient is a candidate for tPA. Based on the Plaintiff’s ‘last known normal,’ Dr. Lyons further noted that ‘[d]ue to the delay in presentation, the patient was not a candidate for intravenous tPA.’

“This determination is more than just a fact or factual determination. Dr. Lyons used the Plaintiff’s ‘last known normal’ to form the opinion that the Plaintiff was not a candidate for tPA. This was an opinion based on Dr. Lyons’ knowledge of the facts and evaluation of the Plaintiff.”

Prohaska v. Winchester Emergency Physicians, et al., Case No. CL18-508, Feb. 22, 2021, Winchester City Cir. Ct. (Eldridge). Cory R. Ford for plaintiff, Samuel T. Bernier for defendants. VLW 021-8-058, 17 pp.