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43. Should the statement be admitted?
A plaintiff sued a ladder manufacturer for injuries he suffered to his neck and back when a rung of the ladder on which he was standing gave way. When the plaintiff's back and neck continued to be very sore more than two weeks after his fall, his treating physician had sent him to an orthopedist for an evaluation. Though the orthopedist did not treat the plaintiff, he diagnosed an acute cervical strain. At trial, the plaintiff has called the orthopedist to testify that, in response to the orthopedist's inquiry about how the plaintiff had injured his back, the plaintiff had told him, «I was standing near the top of a 15-foot ladder when I abruptly fell, landing hard on my back, after which the ladder toppled onto my neck.»
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A is incorrect. The statement is an admissible statement for purposes of medical diagnosis or treatment under Rule 803(4) of the FRE. While it is true that the plaintiff is present and presumably could be cross-examined about the statement, the rule does not require his presence. The statement would be admissible even if the plaintiff were not present for cross-examination.
C is incorrect. Rule 803(4) of the FRE does not require that the statement be made to a treating physician. It also admits statements made to a doctor for purposes of diagnosis. It is specifically designed to admit statements such as this, where an injured party is seeking a diagnosis and opinion from a medical specialist.
D is incorrect. The information the plaintiff related to the doctor, although it does relate to the cause of the injury, was pertinent to diagnosis or treatment and hence is admissible under Rule 803(4) of the FRE.