Rule 45. This rule surprised me. Before I learned about it, I assumed that when a party sought to introduce hospital medical records at trial, a records custodian appeared in court to testify that the records met the requirements for the business records hearsay exception. Turns out, however, that because of this rule, custodians of hospital medical records, unlike custodians of other types of business records do not routinely have to appear in court to authenticate such records or establish the hearsay exception.
Subsection (c)(2) of Rule 45 of the North Carolina Rules of Civil Procedure permits the custodian of hospital medical records that are the subject of a subpoena to tender along with the records an affidavit “testifying that the copies are true and correct copies and that the records were made and kept in the regular course of business.” The rule further provides that “[a]ny original or certified copy of records or an affidavit delivered according to the provisions of this subdivision, unless otherwise objectionable, shall be admissible in any action or proceeding without further certification or authentication.” See also G.S. 8-44.1 (providing that hospital medical records “shall not be held inadmissible . . . on the grounds that they lack certification, identification, or authentication, and shall be received as evidence if otherwise admissible, in any court . . . if they have been tendered . . . in accordance with G.S. 1A-1, Rule 45(c)”).
Applicability to Criminal Cases. Even though Rule 45 is a rule of civil procedure, its provisions (other than the requirement that a copy of the subpoena be served on each party) govern the issuance of subpoenas for the production of documents in a criminal proceeding. See G.S. 15A-802.
North Carolina’s appellate courts have never squarely addressed whether an affidavit executed pursuant to the provisions of Rule 45 may substitute for live testimony by the custodian in a criminal case. In State v. Woods, 126 N.C. App. 581 (1997), the court noted that “[t]he State offered the challenged medical records by presenting written affidavits/certifications from the custodian of the records” and the defendant did not contend “the custodian should have been present to testify at trial.” Id. at 589. Indeed, the defendant’s attorney stated: “‘I’m not asking they produce the librarian.’” Id. Thus, the court concluded that it “need not address whether the affidavits/certifications were sufficient under N.C.R.Evid. 803(6), in lieu of the custodian’s in-court testimony.’” Id.
Notwithstanding the lack of case law on point, there’s a good argument that G.S. 15A-802 renders the Rule 45(c)(2) provisions applicable in criminal court. And anecdotal reports I’ve received indicate that it is not uncommon for the State in a criminal case to rely on an affidavit executed by custodian of hospital records to establish the business records hearsay exception.
Confrontation rights. In impaired driving cases, the State typically seeks to introduce hospital records that contain laboratory blood chemistry records and toxicology results. Even if the State is on firm ground for purposes of the hearsay exception in relying on an affidavit from the custodian, it may still encounter an argument from the defendant that the admission of such records violates the defendant’s right to confrontation.
The State’s ready response is, of course, that medical records created for purposes of treatment are nontestimonial. See Melendez-Diaz v Massachusetts, 577 U.S. 305, 312 & n.2 (2009). Yet there is some question as to whether the State can establish that medical records are created for purposes of treatment, and thus are nontestimonial, based on the records themselves without introducing testimony from a live witness.
A fairly recent unpublished case from the North Carolina Court of Appeals indicates that the State may be able to do just that. The court in State v. Wood, __ N.C. App. __, 736 S.E.2d 649 (January 15, 2013) (unpublished op.), rejected the defendant’s argument that the admission of medical records relating to his treatment in the emergency room after he allegedly drove while impaired violated his right to confront witnesses. The court determined that the records were related to treatment and, thus, were nontestimonial by looking at the records themselves. The records, as described by the court, “consist[ed] of the emergency room treatment notes made by doctors and nurses responsible for examining and treating Defendant after he was brought to the hospital following the accident” and documented “Defendant’s medical history, the observations made by various medical personnel concerning Defendant’s condition, the diagnosis of Defendant’s medical condition made by the team responsible for examining and treating him, and the nature and extent of the medical treatment that Defendant received.”
The Supreme Court of Massachusetts in Commonwealth v. Irene, 970 N.E.2d 291, 305 (Mass. 2012), cert. denied, 133 S. Ct. 487 (U.S. 2012), endorsed, in dicta, a similar approach, stating that “where statements contained in hospital medical records demonstrate, on their face, that they were included for the purpose of medical treatment, that evident purpose renders the statements . . . nontestimonial . . . .”
In other instances, however, courts have based their determinations of whether medical records were created for treatment purposes on testimony from the treating physician. See, e.g., Commonwealth v. Dyer, 934 N.E.2d 293, 299 (Mass. App. Ct. 2010) (relying on testimony from the treating physician that based upon hospital trauma protocol, information of possible alcohol involvement, and her own clinical observations of a patient, she would order blood work as the normal course of treatment for a trauma patient in the circumstance presented by the defendant’s case and concluding that the physician “utilized the blood alcohol content test results exclusively for her medical evaluation and treatment of the defendant” and that the records were admissible without testimony from the analyst responsible for processing the hospital blood sample); see also Commonwealth v. Sheldon, 667 N.E.2d 1153, 1155-56 (Mass. 1996) (determining in a case decided before Crawford v. Washington, 541 U.S. 36 (2004), that blood alcohol results contained in the defendant’s medical records were not admissible under a hearsay exception for recorded information that relates to medical diagnosis or treatment as the treating physician testified that the hospital had no set protocol regarding blood alcohol tests and that he suggested the blood test in an effort to prove that the defendant was not intoxicated); State v. Garlick, 545 A.2d 27 (Md. 1988) (concluding in a case decided before Crawford that the emergency room physician’s testimony that the toxicological screen of the defendant’s blood was germane to treatment rendered the test results admissible as a business record without producing the technician who performed the analysis).
Have your say. Until our appellate courts weigh in by published decisions on these issues, they are fair game for debate. What’s your view? May the State establish a hearsay exception for hospital business records based solely on an affidavit from a records custodian? May it establish that such records are nontestimonial by reference to the records themselves?