PERSONAL INJURY CORNER
ADMISSION OF MEDICAL RECORD AS AN ADMISSION AGAINST INTEREST
TED BABBITT
The issue of whether a statement made to a medical provider as an admission against interest is often conflated with the admissibility of a statement made to a medical provider for the purpose of medical treatment . Actually , both such statements can be admissible . An admission against interest is admissible as an exception to the hearsay rule under § 90.803 ( 18 )( a ), Fla . Stat . On the other hand , a statement made to a medical provider for the purpose of medical diagnosis or treatment may also be admissible under § 90.803 ( 4 ).
In Ring Power Corp . vs . Condado-Perez , 219 So . 3d 1028 ( Fla . 2nd DCA 2017 ), these issues were thoroughly discussed . This was an automobile accident case where a judgment in favor of the plaintiffs was rendered and the defendants appealed the trial court ’ s refusal to allow into evidence an EMS report where the plaintiff driver stated that he swerved to avoid a mattress on the roadway and lost control of his vehicle . That statement was highly material to the issue of liability in the case because the plaintiff denied swerving at all and was rear-ended by the defendant truck whereas the defendant driver testified that the plaintiff suddenly swerved into his lane to avoid hitting the mattress thus resulting in the accident .
The appellate court , at 1032 , discussed the definition of an admission against interest : An admission is "[ a ] statement that is offered against a party and is ... [ t ] he party ' s own statement in either an individual or a representative capacity ." § 90.803 ( 18 )( a ). That is , the statement need only be ( 1 ) a party ' s and ( 2 ) offered against that party to qualify as an admission . Of course , the admission must also be relevant — " tending to prove or disprove a material fact ." § 90.401 . Statements of a party offered by an opponent regarding causation in negligence actions are generally considered admissions .
The admissibility of such a statement is not new law . In Wilkinson v . Grover , 181 So . 2d 591 , 593-94 , ( Fla . 3rd DCA 1965 ), the court concluded that the plaintiff ’ s statements to a physician as to how fast he was driving at the time of the accident were admissions . Such an admission against interest can be introduced into evidence as substantive evidence of the truth of the matter asserted even if the person making the admission later denies that it was made . Under such circumstances , it is not even necessary to lay a foundation by asking the individual who made the statement whether , in fact , the statement was made .
Admissions like this that are in medical records are admitted as admissions against interest provided that the medical records meet the requirements of a business record under § 90.803 ( 6 )( a ). A party who opposes the introduction of a medical record as a business record may rebut that presumption , but the burden is on that party to prove the untrustworthiness of the records .
A statement that is offered as an admission against interest is separate and distinct from the business record exception because the admission exception has no trustworthiness component . It can hardly be stated that a statement made by a party is inadmissible because of the inability to cross-examine the statement at the time the statement was made since the statement was made by that party and , thus , he or she can hardly complain about the lack of opportunity to crossexamine himself or herself .
In this case , the statement was clearly highly relevant to the disputed issue of whether the plaintiff had swerved to avoid the mattress and , thus , place his vehicle in a condition of danger by swerving in front of the defendant ’ s truck . It could hardly be contended that that error was harmless and , thus , the court reversed .
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PBCBA BAR BULLETIN 14