Bootstrapping Expert Testimony – Restrictions on Using Records from a Treating Physician to Challenge Plaintiff’s Expert at Trial

By Michael S. Levenson, Esq.*

The opinions of a treating physician can be persuasive evidence on causation and damages, often carrying great weight with a jury. However, even treating doctors are considered “experts,” and limits are placed on using their “reports” at trial in the absence of live testimony.

As a general proposition, in New Jersey, medical records are considered hearsay documents and are, therefore, inadmissible. However, the law provides exceptions for certain parts of medical records which are deemed reliable and, consequently, admissible. Yet, other information within medical records is still excluded in New Jersey.

A hearsay statement is an out-of-court statement offered to prove the truth of what it asserts. N.J.R.E. 801(c). Hearsay is not admissible, except as provided by the rules of evidence. This general prohibition, subject to various exceptions, reflects that hearsay is presumptively deemed to be untrustworthy and unreliable, as statements made out-of-court and not under oath or not subject to cross-examination may suffer infirmities of perception, memory and narration. James v. Ruiz, 111 A.3d 123, 131-132 (App. Div. 2015).

Medical records are hearsay documents that contain statements made outside of the courtroom by declarants, often doctors, who are not under oath. For example, if a plaintiff tells his doctor, “[m]y arm has hurt ever since my neighbor hit me with his car,” the doctor’s note in the chart would be a hearsay statement.

However, many medical records fall under an exception to the hearsay rule. Most often used is the Business Records Exception, which allows the admission of:

A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

N.J.R.E. 803(c)(6).

It is readily apparent that medical records are created in the normal course of a physician’s business. However, the analysis does not end there because physicians, even treaters, are considered experts. Therefore, N.J.R.E. 808 also applies. This rule decrees that expert opinions that are part of an admissible hearsay statement are inadmissible if the declarant has not been produced as a witness, unless the trial judge finds that the circumstances involved in rendering the opinion, such as the motive, duty and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.

This principle was clarified in the recent case of James v. Ruiz, in which the plaintiff was involved in a car accident. He underwent a CT scan and was diagnosed with a bulging disc by a treating doctor. The defense expert reviewed the same CT scan and opined that the plaintiff did not have a bulging or herniated disc. The treating doctor did not testify at trial. However, the plaintiff retained his own expert to comment on the CT scan.

At trial, plaintiff’s counsel asked the defense expert about the report by the treating doctor, which found a herniation. The court ruled that such questions were impermissible because a complex opinion, such as a diagnosis, contained in a medical record is inadmissible hearsay, even if the remainder of the medical record is admissible. The Appellate Division affirmed and elaborated that, while a testifying expert can refer to the records of a treating doctor, reference cannot be made to a complex medical diagnosis unless that treating doctor actually testifies in court.

Moreover, while it would seem that the opinions of a treating doctor could be used to impeach the credibility of an expert and, therefore, avoid the hearsay ban, the Appellate Division ruled that an expert may not be asked “consistency/inconsistency” questions. For example, an expert may not be asked questions regarding whether the expert’s opinions are consistent with those of the treating doctor. This proscription was put in place to prevent slipping complex opinions of a non-testifying doctor through the proverbial “back door.”

This ruling reinforced the holding in Nowacki v. Comm. Med. Ctr., 652 A.2d 758 (App. Div. 1995). In that medical malpractice case, the plaintiff fell off of an operating table, breaking several bones. The hospital records indicated that the factures were non-traumatic and not caused by the fall. While the hospital records were admitted into evidence, the part regarding the cause of the fracture was redacted, and no testimony was allowed about the “complex medical diagnosis” pertaining to the cause of the fractures.

As clarified by the court in James, “facts or data” in medical records are generally admissible and can be commented upon by testifying experts. However, complex medical diagnoses, such as the cause of an injury, are to be excluded from trial unless the treating physician actually testifies. For example, a medical record reflecting that a patient has arm pain is likely admissible. However, the doctor’s opinion that the arm pain is from a comminuted elbow fracture is non-admissible hearsay, unless the treating doctor actually testifies.

What qualifies as “facts or data” rather than a complex medical diagnosis is often unclear and dependent upon the injury at issue. This recent ruling underscores the importance of retaining appropriately qualified experts to put forth opinions on causation and damages.

*Michael, an associate in our Roseland, New Jersey office, can be reached at 973.618.4177 or mslevenson@mdwcg.com.

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_{Defense Digest, Vol 22, No. 1, March 2016}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}