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  • rebecca greenberg


The issues of authenticity and hearsay as pertains to the admissibility of domestic hospital records are dealt with by CPLR Sections 4518 and 2306. Those provisions specifically authorize receipt into evidence of domestic hospital records which have been properly "certified" and subpoenaed to a New York Supreme Court. In short, the provision dispenses with the requirement of a foundation otherwise required for business records-the testimony of a custodian of the record that it was made, kept and maintained in the ordinary course of business of the hospital facility. See 4518 (c); 2306. Even if the medical facts within the domestic hospital records constitute medical opinions, courts readily admit them as evidence, provided they are "certified " and transmitted pursuant to CPLR 4518(c) by the medical institution directly to the courthouse as subpoenaed records.

However, not all pertinent medical evidence in litigation is contained in domestic hospital records. In the era of medical specialization and a transient population, the client is likely to have important medical information included within office records of multiple physicians in a plethora of specialties located both in and out of New York State, as well as within the records of foreign hospital institutions. Thus to establish a cause of action at issue, the practitioner frequently finds it necessary to prove myriad medical facts and medical opinions set forth in physician's office records and out-of-state hospital records-hopefully in an efficient and cost conscious manner. The only strategy which guarantees the admission of such medical facts and opinions is to call the doctor or his records custodian as a trial witness in order to lay the business record foundation-often times not a very practical or easily accomplished strategy.

Of course, the CPLR at Rule 3122-a does outline steps to follow so that such records can be admitted into evidence without live testimony from a custodian: (1) subpoena the records to the courthouse; (2) ensure that the certification accompanying the records is in the form of an affidavit subscribed and notarized which attests (a) that the affiant is the authorized custodian of the records, (b) that the records are accurate copies of the originals and are a complete set and (c) and that the records were made in the regular course of business by the entity which made and kept the records also in the business' regular course; (3) give notice of intention to offer the records at trial at least 30 days before trial to the practitioner's adversary ("notice of intention")-and ensure that the adversary is also given an opportunity to inspect the records. If adversary counsel fails to object in a timely fashion, it is presumed that the records satisfy CPLR 4518 and the records will be admitted as evidence unless some explanation-not a likely occurrence-is made by adversary counsel to justify the failure to have made timely objection. See e.g. Zweng v. Debillis & Semmens, 22 A.D.3d 845, 803 N.Y.S.2d 681 (2 Dept. 2005).

A practical method to satisfying the disclosure obligations of CPLR 3122-a -particularly in this age of email and the internet-is to email as attachments copies of the records at issue to adversary counsel along with the requisite notice of intention, at least 30 days prior to trial. Of course, the proponent must also ensure that the records are in fact subpoenaed to the Supreme Court, along with the appropriate certifying affidavit by the duly authorized records custodian.

In the case of records subpoenaed from out-of-state providers, production of the necessary records via certification requires the out-of-state facility's cooperation, as out-of-state providers are not actually subject to the subpoena power of a New York court. This may require direct contact with the physician or institution involved to ensure that the appropriate certification accompanies those records that are in fact transmitted to the Supreme Court . Absent cooperation from the out-of-state provider, the only other option available would be to seek an open commission in accordance with CPLR 3108.

For the personal injury practitioner, Section 3122-a (c) is particularly significant. The office records of all treating doctors, even those containing medical opinions of the treating physician are admissible provided such records were in fact made for purposes of diagnosis and treatment-the "business" of the medical practitioner. See e.g. Wilbur v. Lacerda, 34 A.D.3d 794, 826 N.Y.S.2d 135 (2 Dept. 2006).

But what of the records contained within the office records of the treating physician arising from other sources, such as for example, MRI reports, lab results, CAT scan reports and medical reports of other physicians? Can such records likewise be admissible through the use of the CPLR 3122-a? Independent records that have not been made by the physician's office require independent certification from each facility. As such, a provider's certification extends only to those records created and maintained within that specific provider's office and any records from other facilities that are collected by the provider throughout the course of treatment will fail the test for business records set forth at CPLR 4518, and are therefore not admissible-even though the required CPLR 3122-a foundation were to have been faithfully laid. Thus, the practitioner should endeavor to serve subpoenas on all record makers and give adverse counsel notice of the intention to offer them---following up with the records custodians to ensure that the appropriate certifying affidavit have been prepared and forwarded to the Supreme Court along with certified copies. Then, the entire medical history at issue may be assessed by the jury.

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