GREGORY CHANDLER - REASONS FOR MEDICAL TESTIMONY HEARSAY EXCEPTION

THE RATIONALE FOR FEDERAL RULE
OF EVIDENCE 803(4)

Typically, statements made to a medical provider for medical treatment or medical diagnosis are viewed as hearsay exceptions.  In the Federal Rules of Evidence, this hearsay exception is stated in Rule 803(4).  Most state rules of evidence have a similar hearsay exception. 

Federal Rule 803(4) and the similar state rule, are based on two independent rationales that are thought to guarantee trustworthiness. 

First, an individual has a motive in providing truthful information in order to be correctly treated or diagnosed.  If the individual gives false information to medical personnel, the individual will be acting at his or her own peril.

Second, a statement is reliable if reasonable medical providers would rely upon it as a basis for medical diagnosis or medical treatment.  Thus, if the statement is "pertinent" to medical diagnosis or medical treatment, as Rule 803(4) requires, it is the type of statement upon which medical personnel would rely; if it is reliable enough for medical purposes, it is reliable enough for litigation matters.  

Most courts subject statements proffered under Rule 803(4) to a two-part reliability test.  First, the declarant must have a motive consistent with obtaining medical care or a medical diagnosis, or at least have the awareness that truthfulness is required to further such care.  Second, the content of the statement must be such as is reasonably relied upon by medical personnel for medical treatment or diagnosis.  This two-pronged test reflects the policy justification that support Rule 803(4), and it is consistent with the language of Rule 803(4).        


My view is that modifications should be made to Rule 803(4).  The rule is a product of the pre-1970s thinking.  Today, individuals are more skilled at tactics such as what is sometimes known as "doctor shopping."  Such individuals know how to tailor their statements to medical personnel in order to acquire unnecessary drug prescriptions and unneeded medical care.  Sometimes, an individual is coached to make statements to advance a litigation position.    

In essence, rule-makers should update and modify Rule 803(4) and similar state rules to make the rules more relevant in the 21st century. 


GREGORY CHANDLER, Attorney at Law