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59. Should the court admit the photocopy?
The beneficiary of a decedent's life insurance policy has sued the life insurance company for the proceeds of the policy. At issue is the date when the decedent first experienced the heart problems that led to his death. The decedent's primary care physician has testified at trial that the decedent had a routine checkup on February 15. The physician then identifies a photocopy of a questionnaire, provided by the physician and completed by the decedent on that date, in which the decedent wrote: «Yesterday afternoon I broke into a big sweat and my chest hurt for a while.» The beneficiary now offers the photocopy in evidence.
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A statement that describes a person's medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for — and was reasonably pertinent to — medical diagnosis or treatment. Fed. R. Evid. 803(4). The cause or source of the injury must be reasonably pertinent to diagnosis or treatment to be admissible, and statements assigning fault or identifying a perpetrator are generally not considered pertinent. Statements by family members and bystanders may be admitted under this exception as long as the statements were clearly made to obtain a diagnosis or treatment for the patient.
The best evidence rule is more accurately called the «original document rule.» The rule is as follows: In 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 courts 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.
Although traditionally called a «business record,» the 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.
D is correct. The decedent's statement of his medical history was made for the purpose of medical diagnosis and treatment, and it is clearly pertinent to the physician's diagnosis and treatment. Therefore, it is admissible under FRE 803(4). Further, even though it is a duplicate, it is admissible because duplicates are admissible to the same extent as originals in federal courts 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.
A is incorrect. This answer refers to the best evidence rule. Under the best evidence rule, a copy of a document is as admissible as the original unless a genuine question is raised about the authenticity of the original or the circumstances that make it unfair to admit the copy. No such question or circumstances are present here. The photocopy should be admitted as a statement for the purpose of obtaining medical treatment.
B is incorrect. FRE 803(4) allowing hearsay statements to be admissible for purposes of medical diagnosis or treatment do not require that the statement had been related to present symptoms. If they are related to medical diagnosis and/or treatment, they are admissible as an exception to the hearsay rule.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the photocopy should be admitted, it is not under the business record exception, but rather, the exception for statements made for medical diagnosis or treatment. The business records exception under FRE 803(6) requires that the statements in the record be made by someone who had a duty to make it as part of the regularly conducted business activity. However, the record here was made by the decedent, not the physician, and no facts are given that indicate the decedent had a duty to regularly prepare this type of record.