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4. The document is
In a medical malpractice suit by a patient against his doctor, the patient seeks to introduce a properly authenticated photocopy of the patient's hospital chart. The chart contained a notation made by a medical resident that an aortic clamp had broken during the plaintiff's surgery. The resident made the notation in the regular course of practice, but had no personal knowledge of the operation, and cannot remember which of the operating physicians gave him the information.
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A statement that contains hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception. Fed. R. Evid. 805.
Although traditionally called a «business record,» an exception applies to records kept by any «business, organization, occupation, or calling, whether or not for profit.» Thus, the definition includes records made by churches, hospitals, schools, etc. Fed. R. Evid. 803(6). The record must have been made in the course of a regularly conducted business activity, and it must have been customary to make that type of entry (i.e., that the entrant had a duty to make the entry). The record itself must also have been maintained in conjunction with a business activity. Hospital records are generally admissible to the extent that they are related to the medical diagnosis or treatment of the patient (which is the primary business of the hospital).
Witnesses are permitted to refresh their memories by looking at almost anything — either before or while testifying. However, if a witness's memory cannot be revived, a party may wish to introduce a memorandum that the witness made or adopted at or near the time of the event. Use of the writing to prove the facts contained therein raises a hearsay problem; but if a proper foundation can be laid, the contents of the memorandum may be introduced into evidence under the past recollection recorded exception to the hearsay rule. Fed. R. Evid. 803(5).
The best evidence rule requires that, when proving the terms of a writing, where the terms are material, the original writing must be produced. However, duplicates are admissible to the same extent as originals in federal court unless a genuine question is raised about the original's authenticity, or under the circumstances, it would be unfair to admit the duplicate in the place of the original. Fed. R. Evid. 1003.
A is correct. The hospital chart is admissible as a record of regularly conducted activity. The chart is a record of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, that was kept in the course of a regularly conducted business activity. In addition, it was the regular practice of that business to make medical records in order to maintain a memorandum, report, record or data compilation. Although the resident may not be able to recall which physician gave him the information, the resident knew that the statement was made. Therefore, the document is admissible.
B is incorrect. The medical record is not a recorded recollection, it is a record of regularly conducted activity. A recorded recollection exception applies when a witness's memory cannot be revived and he requires examination of the document to testify further. Here, the facts do not indicate that the resident is testifying and needs the introduction of the chart to testify further. Rather, the patient simply wanted to «introduce the authenticated photocopy» into evidence. If the patient were using the copy to refresh the recollection of the witness, it would be seen by the witness only, not by the jury, and would not need authentication or introduction.
C is incorrect. The best evidence rule is not violated because the rule allows for the introduction of photocopies or duplicates unless some sort of genuine question as to the authenticity of the original is raised, which is not the case here.
D is incorrect. Although a hearsay statement within another hearsay statement requires grounds for each statement to be otherwise admissible, that rule is satisfied here. The business record exception applies to both the chart and the notation itself contained within it.