I have previously written about how the State may obtain the medical records of a person suspected of or charged with impaired driving. This post focuses on the requirements for admitting those records at trial.
Statements (including blood test results) memorialized in a person’s medical records, though hearsay, are admissible under the business records exception to the hearsay rule if they satisfy the requirements of Rule 803(6). See State v. Miller, 80 N.C. App. 425, 429 (1986) (concluding that results of a blood test contained in medical records were admissible as business records). Given that a patient’s hospital record is “the daily history made in the course of examination, diagnosis and treatment” and “[t]he welfare, even the life of the patient, depends upon the accuracy of the record,” the North Carolina Supreme Court has concluded there is no motive to falsify such records. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 35 (1962). In addition, such records may be more accurate than the independent recollection of the physicians and others who created them. Id.
There are three foundational requirements for introducing medical records under the business records exception:
1. The medical record must be made at or near the time of the act, event, condition, opinion, or diagnosis. See Segrest v. Gillette, 96 N.C. App. 435, 440 (1989) (concluding that laboratory slip that was added to the patient’s medical record more than two years after the laboratory test did not “possess the guarantees of trustworthiness sufficient to justify its admission into evidence”), rev’d, 331 N.C. 97 (1992) (finding that trial court did not err in admitting the slip into evidence when the party questioning the trustworthiness of the slip introduced it without requesting that it be considered for a limited purpose);
2. The entries in the record must be made by a person with knowledge or must be based on information transmitted by a person with such knowledge; and
3. The record must be made and kept in the regular course of the hospital’s business.
The proponent of the record may establish these requirements through an affidavit from a records custodian. While Rule 803(6) formerly required testimony from a records custodian or other qualified witness to establish the basis for the exception, the statute was amended by S.L. 2015-247 to allow records of nonparties to be authenticated by affidavit. If the State seeks to rely on this exception, it must give advance notice to the defendant of its intent to authenticate by affidavit.
Thus, if the State obtains a defendant’s medical records through court order, it may request an affidavit from the custodian of the records that sets forth the above criteria, provide notice to the defendant, and thereafter seek to introduce the relevant portions of records at the defendant’s trial.
Even if the foundational requirements are satisfied, the records are inadmissible if the source of information or the method or circumstance of their preparation indicate lack of trustworthiness. See, e.g., State v. Galloway, 145 N.C. App. 555 (2001) (finding that trial court did not abuse its discretion in excluding the admission of statements in victim’s discharge summary about her psychiatric history that were not based on the personal knowledge of the surgeon who wrote them). Moreover, any untrustworthy portion of an otherwise admissible record must be excluded. Id. at 556 (noting that “the simple fact that a record qualifies as a business record does not necessarily make everything contained in the record sufficiently reliable to justify its use as evidence at trial” and that “[t]rustworthiness is the foundation of the business records exception” (internal quotations and citations omitted)). In addition, medical records themselves may contain hearsay that is not subject to a hearsay exception. See Sims, 257 N.C. at 35 “(noting that “[t]he court should exclude from jury consideration matters in the record which are immaterial and irrelevant to the inquiry, and entries which amount to hearsay on hearsay”); State v. Smith, 157 N.C. App. 493, 497 (2003) (statements in medical records recounting information that may have come from paramedics that the defendant was the driver should have been excluded from the jury’s consideration). Those portions of the record are inadmissible.
Medical records that satisfy the business records exception remain subject to the balancing test in Rule 403. Thus, such records may be excluded if their probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Cf. State v. Mac Cardwell, 133 N.C. App. 496 (1999) (concluding that trial court did not err in admitting evidence of blood alcohol analysis results obtained by hospital, which were highly probative and not unfairly prejudicial).
Finally, keep in mind that hospital laboratories frequently test blood serum rather than whole blood. Alcohol concentration levels based on an analysis of blood serum are higher than the concentration that would be measured in whole blood. If the State seeks to establish a particular alcohol concentration based on blood serum test results from a medical record, it must proffer testimony from an expert witness who can convert the blood serum calculations to plasma calculations. See G.S. 20-4.01(1b)(defining alcohol concentration as grams of alcohol per 100 milliliters of (whole) blood); G.S. 20-138.1 (a)(2) (defining impairment as an alcohol concentration of 0.08 or more); see also Mac Cardwell, 133 N.C. App. at 506-07 (trial court did not abuse its discretion in finding the conversion ratio of 1 to 1.18 utilized by a forensic chemist at the SBI laboratory reliable).