Merrow v. Bofferding
| Decision Date | 31 July 1998 |
| Docket Number | No. 8,106332,Docket Nos. 106331,8 |
| Citation | 581 N.W.2d 696,458 Mich. 617 |
| Parties | Greg MERROW and Julie Merrow, individually, and Julie Merrow, as next friend of Anthony Merrow and Brittney Merrow, minors, Plaintiffs-Appellees, v. Diane BOFFERDING and Richard Bofferding, Defendants-Appellants, Calendar |
| Court | Michigan Supreme Court |
Cady, Mastromarco & Jahn, P.C. (By Victor J. Mastromarco, Jr.), Saginaw, for plaintiffs-appellees.
Chasnis, Dogger & Grierson, P.C. (by David G. Dogger), Saginaw, for defendants-appellants.
Charters, Heck, O'Donnell, Petrulis & Zorza, P.C. (by Eric S. Goldstein), Troy, amicus curiae for Michigan Trial Lawyers Association.
This premises liability personal injury case involves whether a statement contained in a medical record that was relevant to causation, but that the plaintiff alleges was not reasonably necessary for diagnosis and treatment, is admissible. The defendants contend that it was properly admitted under MRE 803(6), the business record exception to exclusion of hearsay statements, and that the Court of Appeals clearly erred in reversing and remanding the case for a new trial. Alternatively, defendants believe that it was admissible for impeachment purposes under MRE 613(b) or as an admission of a party opponent under MRE 801(d)(2).
Because we conclude that the contested portion of the medical record was not admissible and that its admission was not harmless error, we affirm the Court of Appeals decision.
Plaintiff Greg Merrow initiated this negligence action after he sustained a serious permanent injury to his dominant arm when it broke through a pane of glass in the upper portion of the aluminum storm door at the rear of the residence he leased from defendants. The plaintiff testified that the injury occurred when he stuck out his right arm to stop the door in order to prevent it from striking his two-year-old daughter who had stepped onto the top step as he was preparing to take his wife to work. The glass broke, cutting him severely. 1 Immediately after the injury, Julie Merrow, who was married to the plaintiff at the time, used a belt as a make-shift tourniquet to control the profuse bleeding and rushed plaintiff to the emergency room at St. Luke's Hospital in Saginaw, Michigan.
This action ensued two weeks after the incident. Julie Merrow also sued individually and as next friend of the couple's two children. The trial court dismissed her individual claim before trial because the couple had divorced. It also dismissed the children's claims. 2
Plaintiff's negligence theory during the jury trial was that the defendants breached their duty to maintain the door in a safe condition and that this breach led to the injuries. He alleged several problems with the door that caused the injuries. The hydraulic plunger did not work properly, causing the door to slam shut. Residents of the dwelling had dented the aluminum plate at the base by using their feet to keep the door from slamming. The door also had a tendency to stick on the top step of a makeshift wooden porch and then close suddenly when someone stepped on the top step. Further, the upper portion of the door was plate glass rather than safety glass or plastic as plaintiff alleges should have been used, and was affixed with sheet-metal screws and duct tape. Plaintiff alleges that defendants had been notified several times about the problems with the door before the injury occurred.
The defendants' theory was that they are not liable because Mr. Merrow's own actions caused the cut when he purposefully punched his arm through the glass. Defense counsel argued that this theory was supported by an excerpt from a document titled "History and Physical" found in plaintiff's hospital record, photographs, and testimonial inconsistencies. The trial court's admission of the excerpt from the hospital record is the focus of this appeal. It states as follows:
This is a 23-year-old caucasian male who was involved in a fight with his girlfriend and subsequently put his right arm through a plate glass window, suffering a large laceration across the right antecubital fossa. [Emphasis added.]
The second page of this document was signed by Gregory M. Yasuda, M.D., and Gerardo Reyes, M.D. Apparently, Dr. Yasuda, then a resident physician, actually took the history. Dr. Reyes was the supervising physician.
Plaintiff first challenged the disputed statement in the record on the first day of trial, before jury selection, on the ground that the remark was inadmissible hearsay. Counsel emphasized that Dr. Yasuda, who had since moved from Michigan, had not been deposed or subpoenaed to testify in person. Further, counsel argued that the remark was not reliable because there was no indication of a girlfriend. The plaintiff was living with his wife at the time of the accident and she was the one who had driven him to the hospital. Counsel argued that the "fight with his girlfriend" remark was not admissible under MRE 803(4), the medical record exception to the general inadmissibility of hearsay, because it was not made for the purpose of medical treatment or diagnosis. Further, plaintiffs' counsel argued that it was not admissible under MRE 803(6) as a record kept in the course of a regularly conducted business activity, because the remark lacked the requisite level of trustworthiness required to qualify for admission under that particular hearsay exception.
After a brief recess, the trial court agreed with the plaintiff that the disputed words were not admissible under MRE 803(4). However, the court indicated that the statement might be admissible for impeachment purposes under MRE 613(b), which allows impeachment by a previous inconsistent statement of a witness, if a sufficient foundation could be established that Greg Merrow in fact had made the statement. It did not rule on this issue at that time.
During trial, plaintiff Greg Merrow denied telling hospital personnel that he was involved in a fight with his girlfriend and subsequently put his right arm through a plate glass window. Upon further questioning during crossexamination, he acknowledged that he and Julie Merrow had separated five and a half weeks after this incident, and that he had moved in with a girlfriend.
Out of the jury's presence, the parties again debated the admissibility of the disputed portion of the medical record. The court then ruled that defense counsel could inquire whether Greg Merrow was living with Julie Merrow at the time of the accident, or with a girlfriend, but not whether the girlfriend he joined after separating with his wife was his girlfriend while he was living in the marital home.
Julie Merrow's testimony confirmed that she had been living with the plaintiff at the time of the accident. She also confirmed Greg Merrow's testimony about the problems with the storm door. 3
Later in the trial, defense counsel called Kimberly K. Leptich, who worked in the medical records department of St. Luke's Hospital. She explained that according to hospital protocol, a physician generally obtains the patient's history from the patient within twenty-four hours of admission. The physician dictates the history and then reviews and signs it after it is transcribed. When a resident physician obtains the history, the supervising physician would also review and sign it. Ms. Leptich also testified that the "History and Physical" is a record that is compiled and kept by St. Luke's in the regular course of business.
Ms. Leptich explained that Mr. Merrow's history was obtained sometime between 9:31 a.m., when he was admitted to the emergency room, and 10:50 a.m., when hospital personnel administered anesthesia in preparation for surgery. She acknowledged, however, that she had no personal knowledge of who provided the history at issue in this case. Neither could Dr. Reyes shed light on exactly who made the statement regarding the fight with a girlfriend.
Once again, the parties debated the admissibility of the contested portion of the medical record. The plaintiff's attorney again argued that the remark was not admissible because the document was not trustworthy. This time the trial court ruled the record, including the disputed statement, admissible under MRE 803(6). It reasoned that the plaintiff's objections concerned credibility and the weight to be given the statements by the jury, rather than a threshold issue of admissibility. 4 Ms. Leptich then read the record into evidence before the jury.
Using a special verdict form, the jury found that the defendants were negligent, but that their negligence was not the proximate cause of the plaintiff's injury. 5 The trial court entered judgment for the defendants and denied the plaintiff's motion for judgment notwithstanding the verdict or a new trial.
The Court of Appeals reversed, in an unpublished opinion per curiam, by a vote of two to one and remanded the case to the circuit court for a new trial. 6 The majority concluded that the trial court had abused its discretion in allowing into evidence the disputed statement in the medical record. The majority also reinstated the claims of the Merrow children. This Court granted leave to appeal, 7 and we now affirm.
Admission of the disputed portion of the medical record implicates the concept of hearsay within hearsay. MRE 801(c) defines hearsay as "a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay evidence is inadmissible unless it comes within an established exception. MRE 802; People v. Eady, 409 Mich. 356, 294 N.W.2d 202 (1980).
Hearsay within hearsay, in the context of a history recorded in a medical record, is explained in 2 McCormick, Evidence (4th ed.), § 293, p. 279:
Under standard practice, a trained attendant at hospitals enters upon the record a ...
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