Love v. Garcia

• Decision Date: 09 December 1992
• Docket Number: No. 89-3259,89-3259
• Citation: 611 So.2d 1270
• Parties: 17 Fla. L. Week. D2768 Douglas J. LOVE, Appellant, v. Luz Maria GARCIA, Appellee.
• Court: Florida District Court of Appeals

Page 1270

611 So.2d 1270

17 Fla. L. Week. D2768

Douglas J. LOVE, Appellant, v. Luz Maria GARCIA, Appellee.

No. 89-3259.

District Court of Appeal of Florida Fourth District.

Dec. 9, 1992.

Rehearing and Certification Denied Feb. 11, 1993.

John R. Hargrove and Thomas A. Conrad, of Heinrich, Gordon, Batchelder, Hargrove, Weihe & Gent, Fort Lauderdale, for appellant.

Larry Klein and Jane Kreusler-Walsh of Klein & Walsh, P.A., West Palm Beach, and Scott P. Schlesinger of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellee.

ON REHEARING EN BANC

FARMER, Judge.

Upon rehearing by the entire court, we withdraw our opinion of May 29, 1991, and substitute the following in its place.

The defendant driver in an automobile accident case seeks a new trial on account of the trial court's refusal to admit some of plaintiff's hospital records into evidence. The excluded records contain the results of two blood alcohol tests, one conducted and evaluated by the hospital's own personnel, and a second test conducted and evaluated by an outside laboratory at the hospital's request. The question presented by this case deals with the application of FEC section 90.803(6)(b) to trial court decisions excluding hospital records.

This case arose when a car driven by defendant struck plaintiff as she attempted to walk across the road. In a pretrial catalogue, the driver announced his intention to introduce the results of the pedestrian's blood tests through the record custodians of both the hospital and the independent laboratory. ¹ The pedestrian moved successfully to exclude the evidence because the driver had failed to list any witnesses who could lay a proper predicate for admission of the test results. After the jury found each party fifty percent negligent, the driver moved for a new trial.

Under the general requirement of knowledge, see Florida Evidence Code [FEC] ² sections 90.604 and 90.802, testimony founded on the information of others, and not on the personal observation of the witness, is ordinarily inadmissible. Because a rigid application of the rule of knowledge may lead to unjust results, however, exceptions to the hearsay rule have emerged, first through the common law and now codified by statute. But, as Wigmore has observed, the essential purposes and reasons for the hearsay rule itself are indispensable to understanding the exceptions. 5 WIGMORE ON EVIDENCE (Chad. rev. 1974), Sec. 1420.

The theory of the hearsay rule is that many possible sources of inaccuracy and untrustworthiness which may underlie a bare, untested assertion of a witness can best be brought to light and exposed--if they exist at all--only by cross-examination. Two circumstances, however, suggest a need to relax the requirement for cross-examination. First, it may be superfluous, as where it is sufficiently clear that the assertion is so free from the risk of inaccuracy and untrustworthiness that cross-examination is entirely "a work of supererogation." Id. Second, cross-examination may be impossible, as when the declarant is dead. Id. Hence, these two elements--trustworthiness and necessity--have given rise to a number of recognized exceptions to the hearsay rule.

One of the early exceptions was for shop-books, or business records. Under the common law development of the rule, the entries adduced were purely factual in nature, e.g., goods shipped or payments received, so that issues as to opinion evidence in shop-books or business records were rare. Changes in the early statutory business records exceptions were ultimately made to incorporate the term "condition" as to the kinds of facts that could be proved by business records. But even with that authority, the exception was troublesome in the area of medical records.

As one treatise has noted, those who objected to the admission of medical records containing diagnoses argued that the difference between facts and opinions is fundamental to the law of evidence. 4 WEINSTEIN'S EVIDENCE, para. 803(6). The qualifications of the person rendering the opinion are everything, they argued, and cross-examination is absolutely indispensable to safeguard against the danger that the jury would be so swept away by the opinion itself that later rebuttal would be useless. Id.

The proponents of the exception allowing such diagnostic, opinion evidence argued, in turn, that health care providers make life and death decisions on the basis of the information contained in their institutional files, so the trustworthiness of such entries in medical records is unassailable. Moreover, the hospital employee, often a technician, who actually administered the specific test or procedure, was often unknown or unavailable, or could not be brought into court without extreme inconvenience to the hospital. In other words, they argued, the traditional elements of necessity and trustworthiness conduced toward admissibility.

In some cases, as might be expected, there was an accommodation between the broad extremes of either admitting or excluding all such evidence. Balancing the need for evidence which was relevant, material and probative, against the obvious prejudice of some untested opinions, some courts adopted a middle ground. As one leading case did, the judges looked for diagnoses which involved conjecture and opinion, and distinguished them from diagnoses which any competent physician would accept. See, e.g., New York Life Insurance Co. v. Taylor, 147 F.2d 297 (D.C.Cir.1945).

Florida first addressed the subject in Brevard County v. Jacks, 238 So.2d 156 (Fla. 4th DCA 1970). In that case, an eighteen year-old, mentally retarded girl with a history of epilepsy drowned in a man-made lake owned by the defendant. At trial, the defendant sought to introduce an entire hospital file containing the five-year old records of a neurological examination on a specific day, a two-week hospitalization five months later, and a one-day follow-up examination one month after that. The records contained extensive test and treatment results for epilepsy.

Our opinion says that the trial court sustained an objection based on the fact that these five-year old records were not material or relevant to the defense that she had drowned because of an epileptic seizure, rather than because of the failure to warn of a hidden drop-off not far from the shore. Yet we discussed the business records exception to the hearsay rule. Although we decided that "much of the information" in the file was material and relevant and thus that the entire file should not have been excluded, we added:

Not every hospital paper relating to the patient's case is admissible as a hospital record under the statute, and the trial court retains much discretion as to the admissibility of particular entries or papers in the hospital record.

238 So.2d at 158.

Our decision was thus hardly a wholesale endorsement for the admissibility of every hospital test report under the business records exception. Properly read, it amounts to a recognition of the broad discretion given to the trial judge under the statutory business records exception either to admit or exclude parts of such records as the circumstances suggest. Indeed the correct sentiment was expressed by Judge Owen in his opinion for our court in National Car Rental System Inc. v. Holland, 269 So.2d 407 (Fla. 4th DCA 1972), where he noted the "tendency to view anything labelled 'business records' as being thereby admissible under the statute without more." 269 So.2d at 413. With that background, it is now appropriate to consider Florida's codification of the rules of evidence.

The FEC followed the earlier adoption of the Federal Rules of Evidence, specifically including its rule 803(6). Both versions of the business records exception to the hearsay rule omit the necessity element. In other words, it does not matter that the person who made the record entry, or who conducted the test, is available for testimony, if the other conditions of the statute have been met. In light of the history of the exception, it is obvious that the displacement of the necessity requirement is predicated on the strong trustworthiness element found in medical data entries on which health care providers relied in rendering their course of treatment. One may fairly deduce, however, from the development of the exception that the absence of trustworthiness as to a given entry or record in a patient's hospital chart may resurrect the requirement of showing necessity for the use of the record in the place of testimony subject to cross-examination.

The federal rule allows for the universal admission of diagnostic, opinion evidence even though it is introduced solely through the hospital's own records and without the diagnoser or opinion-giver being present for cross-examination. That version is, however, entirely different from the comparable provision in FEC. Modeled only partially after the federal rule, FEC section 90.803(6) provides as follows:

90.803 Hearsay exceptions; availability of declarant immaterial.--The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence even though the declarant is available as a witness:

* * * * * *

(6) RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.--

(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness. The term "business" as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind,...