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52. Is the hospital record admissible?
A patient sued a hospital for medical negligence, claiming that a nurse employed by the hospital failed to administer critical medication prescribed by the patient's treating physician during the plaintiff's hospitalization. At trial, to prove the nurse's failure to administer the prescribed medication, the patient has called the medical records librarian, who has authenticated the hospital's record of the patient's treatment, which contains no entry showing that the medication in question was administered.
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A is incorrect. Although the record is hearsay, it is an exception under FRE 803(6) and 803(7) as a record of regularly recorded conduct as explained above.
B is incorrect. No rule of evidence requires the patient to call the nurse to prove whether the medication was administered. Although the patient has the option of calling the nurse, the patient also has the option of introducing the hospital record as a business record to prove the absence of any entry showing that the medication was administered. Both forms of proof are permissible.
C is incorrect. To fit the statement against interest exception to the hearsay rule, the declarant must be shown to be unavailable, and there is no such showing here. While it is true that the hospital record itself is hearsay, it qualifies for admission as a record of regularly recorded conduct under FRE 803(6), as explained above.