Medical Records: The Exception to the Rule

In a Family Law trial, medical records can be crucial when making custodial or alimony determinations. A common issue that litigators face is admitting the medical records into evidence. Pursuant to the Federal Rules of Evidence Rule 803(6), to admit a medical record through the business record exception to the Hearsay Rule a live witness is needed to lay the proper foundation. This requirement can be time consuming to the attorneys and disruptive to the medical provider. However, there is another way to admit medical records in State Court.

General Statutes § 52-174 allows signed medical records and bills of treating medical providers to be admitted into evidence without a live witness in all family relation matters and the Family magistrate court proceedings pending or commenced after October 1, 1998. The statute includes the following medical providers: physicians, dentist, chiropractor, naturopath, physical therapist, podiatrist, psychologist, EMT or optometrist. The statute allows the report to be admitted into evidence as a business entry and the signature on the report to be presumed as the medical provider. Further, the Statute states it shall be presumed that the report and bill were made in the ordinary course of business. Portions of the medical record not related to medical treatment, or that are otherwise inadmissible hearsay, should be excluded.

Using the business record in lieu of the medical provider’s testimony should not give rise to any adverse inference concerning the lack of testimony. However, an opposing party may still challenge the record as genuine by calling the treating medical provider as a witness. This burden is on the opposing party to do so.