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Jack R.
Jack R., Attorney
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I need a reference to, and a description of the rules of evidence

Customer Question

I need a reference to, and a description of the rules of evidence in Wyoming that would allow a medical record to be entered into evidence without the testimony of a physician.

A citation to some case law would also be helpful
Submitted: 1 year ago.
Category: Legal
Expert:  Jack R. replied 1 year ago.

Thank you for choosing Just Answer. My name is XXXXX XXXXX I will assist you today.

 

Under Wyoming rules of evidence 803(6) all you need is someone from the hospital that keeps the records to testify that the medical report is an official diagnosis. You would contact the hospital and ask who the custodian of records is and subpoena that individual to attend the hearing. You can ask opposing counsel to waive any object to the medical record to avoid having to bring the custodian in. You do not have to bring the doctor in to testify.

 

Here is the text or the rule:

 

(6)Records of regularly conducted activity. - A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances or preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit;

 

 

See http://www.courts.state.wy.us/CourtRules_Entities.aspx?RulesPage=Evidence.xml

 

 

 

 

Jack R., Attorney
Category: Legal
Satisfied Customers: 6147
Experience: OH/TX Practicing Attorney focusing on Family Law, Foreclosure, Landlord-Tenant Issues.
Jack R. and 15 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Thank you for the answer.


 


My situation is actually the reverse, my ex wife attempted to enter into evidence a page from my daughter's medical record, no testimony for the physician. The judge deemed the attempt hearsay. On appeal the attorney is arguing the judge was wrong. I understand that the document was not sufficiently verified.


 


I'm just trying to construct the appropriate argument.


 


Additionally, in Hansen v Hansen 2012


 


Paragraph 53:


 


"We agree that the district court erred in admitting Mother’s testimony concerning the allergist’s statements. W.R.E. 803(4) applies only to statements made by the person seeking medical treatment and not to statements made by the person providing medical"


 


Can you comment on what this means in the context of someone having testified?

Expert:  Jack R. replied 1 year ago.

Your wife's statement was hearsay and the evidence was not properly admitted either the physician testifying, or the custodian of medical records testifying. There are exceptions to the hearsay rule and the lawyer may be trying to argue some of them. I suspect if this is just a standard medical record the judge's ruling will be upheld.

 

The second comment refers to the following rule:

Statements for purposes of medical diagnosis or treatment. - Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment;

 

What this means is that when a patient talks to a doctor the statements of the patient describing the illness for diagnostic/treatment purposes are not hearsay. The patients words in describing his condition are admissible. The doctors statements about the condition are not.

 

Jack R., Attorney
Category: Legal
Satisfied Customers: 6147
Experience: OH/TX Practicing Attorney focusing on Family Law, Foreclosure, Landlord-Tenant Issues.
Jack R. and 15 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

One attorney referred me to the the rules of evidence, "paragraph 7"


 


What is he referring to and How would this apply?

Expert:  Jack R. replied 1 year ago.

Look at paragraph 803. These are the hearsay exceptions. The one I quoted above I believe is 803(4, 803(3).

 

Paragraph refers to expert witness testimony. This s not really applicable here the question is admissibility of a report without the aurthor testifying to its content. Another doctor could have looked at the treating physisicans notes and testified as to his opinion of the extent of the injury. There are other rules surrounding experts for example they have to be disclosed wellin advance of a hearing, their report has to available prior to the hearing.I don't believe this is the situation you have.

Here is the link: http://www.courts.state.wy.us/CourtRules_Entities.aspx?RulesPage=Evidence.xml

 

 

Jack R., Attorney
Category: Legal
Satisfied Customers: 6147
Experience: OH/TX Practicing Attorney focusing on Family Law, Foreclosure, Landlord-Tenant Issues.
Jack R. and 15 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

I'm sorry, I must have a block on this specific topic. I understand the reason testimony was not allowed in Hansen v Hansen.


 


I am trying to understand why the "report" was not allowed?


 


is it because of: "evidence was not properly admitted either the physician testifying, or the custodian of medical records testifying." and this is per 803(4).

Customer: replied 1 year ago.

Its as simple as that?

Customer: replied 1 year ago.

I'm sorry, I must have a block on this specific topic. I understand the reason testimony was not allowed in Hansen v Hansen.




I am trying to understand why the "report" was not allowed?




is it because of: "evidence was not properly admitted either the physician testifying, or the custodian of medical records testifying." and this is per 803(4).


Expert:  Jack R. replied 1 year ago.

Expert evidence requires certain procedural actions. The expert must be declared as an export testifying, must provide his/her credentials. Expert are required to deliver the report to opposing counsel weeks before trial. If any procedural step is missed the expert will not be allowed to testify.

 

Secondly the specific report itself cannot be an end around the hearsay rules. Experts are given leeway to quote from text books or legal treatises. They cannot be used to get in a physicians statement for example in the guise of an expert report.

 

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Jack R.
Jack R.
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6147 Satisfied Customers
OH/TX Practicing Attorney focusing on Family Law, Foreclosure, Landlord-Tenant Issues.