Introducing Medical Records Without The Physician

John Paul Troyan suffered a permanent injury to his cervical spine when he was involved in an automobile accident with Dana Reyes in Joliet in 1993. He went immediately to a hospital emergency room, where he was given pain medication and referred to an orthopedic specialist for follow-up treatment.

Troyan received prescribed physical therapy at a rehabilitation center, and saw his orthopedic doctor several times. His bills related to the accident amounted to $4,052.38.

Troyan sued Reyes and, following a jury trial, was awarded $359.92 for medical expenses and $2,042.60 for property damage to his car. His lawyer appealed the case on several grounds, including the fact that the trial court admitted only redacted portions of Troyan’s three pages of medical records, inasmuch as the physician had died and the rehabilitation specialist could no longer be found.

The plaintiff contended that preventing the jury from seeing his full medical records was misleading and prejudicially impacted his award because, without the complete records, the defendant was allowed to argue that the plaintiff received medical treatment due to his complaints that his neck hurt, not based on any medical exam by a doctor.

On appeal, the plaintiff argued that the medical records should be admitted as a proper exception to the hearsay rule because they fulfilled the foundational requirements of a business record. The court agreed.

Referring to Illinois Supreme Court Rule 236, which has allowed the admissibility of such business records since 1992, the court found that circumstances surrounding the making of the record, such as whether or not the author testifies, goes to the weight and does not affect its admissibility. Troyan v. Reyes, 855 N.E.2d 967 (3d Dist.2006).

The court further noted that the medical and therapy records at issue were relevant and were not too complex for the jury to understand.

"Business records should only be barred from admission if they are irrelevant, prejudicial or for some other legally appropriate reason." Id.

In finding that the treatment charts, including the doctor’s opinions, were admissible, the court held that medical records have a particular reliability in that doctors are attempting to enter correct data because their patient’s treatment, prognosis, and health rely upon the accuracy of the notes.

"With proper treatment hanging in the balance, accuracy has an extra premium." Id.

The court also found that the reliability of the medical records was a proper substitute for cross-examination.

Despite a vigorous dissent filed by one of the appellate court justices, the defendant did not appeal the decision to the Illinois Supreme Court and the case is heading back to Will County for a re-trial with the additional evidence. Regardless of the outcome of that trial, the case represents a victory for plaintiffs and for the civil justice system on many fronts.

Not only will the introduction of a patient’s medical records without the necessity of the treating physician save the plaintiff litigation costs, it will be more efficient for the civil justice system in not requiring unnecessary testimony. It also allows doctors to remain in their offices treating patients, rather than needlessly appearing in court to testify, particularly in minor cases where the records are self-explanatory.

Given the inherent reliability and trustworthiness of diagnoses and opinions contained in medical records, "Our decision is in accord with a large and growing national trend. The federal courts and at least 35 states allow the admission of records containing diagnoses or opinions either by statute, rule or case law, See, 5 C. Fishman, ‘Jones on Evidence,’ section 33:4, at 103 - 13 (7^th ed.2003)." Id. Respectfully, I submit that the Supreme Court should consider the expediency of allowing these types of requests into evidence, as the court did in Troyan.

The Troyan case is also significant in that it stands for the premise that a defendant cannot avoid an obligation to investigate the evidence and must answer requests to admit.

Here, the plaintiff asked the defendant in requests to admit whether (1) the plaintiff’s medical bills were "reasonable and customary"; (2) the medical records "were kept in the ordinary course of business at each medical facility"; and (3) the plaintiff suffered a "permanent injury" as a result of the auto accident.

The defendant objected to these requests on the grounds that she lacked personal knowledge of the information and because the physician-patient privilege prevented her from investigating the truth of some of the assertions. The appellate court held that the privilege did not apply here because the plaintiff placed his physical condition in issue and provided the defendant with his own medical records and bills. Nor did the requests seek an opinion.

The court found that "A party has a good-faith obligation to make a reasonable effort to secure answers to requests to admit from persons and documents within the responding party’s reasonable control." Id., citing Szczeblewski v. Gossett, 342 Ill.App.3d 344, 349, 795 N.E.2d 368 (5^th Dist.2003).

The questions asked of the defendant here were found to be reasonable, and the court ordered on remand that the trial court should allow the defendant to amend her responses. "Requests seeking conclusions or opinions of law are improper. However, requests for admissions of factual questions which might give rise to legal conclusions are not improper." Id.

The court stated that Reyes had an obligation to conduct a reasonable investigation into these issues. "A request for admissions is proper if a finder of fact must take some analytical step, no matter how small, from the contents of the admissions to the final conclusion that the party seeks to establish." Id.

The use of these Rule 216 requests also would save the plaintiff time by requiring a defendant to admit that these records are kept in the ordinary course of business, thereby alleviating the need to call the record keeper to lay a foundation for the same information.

The finding of the court in Troyan was just, given that liability was not a major issue and the question of damages hung on documents that were easily understandable by a jury. The court chose not to penalize a plaintiff who had made every good-faith effort over the years to prove his damages caused by the defendant’s negligence.

The Illinois Supreme Court Rules Committee is holding a public hearing on Rule 216 regarding requests to admit fact or genuineness of documents in certain cases in Chicago on Jan. 22. A proposal has been put forth that would prohibit using 216 requests in this fashion in cases involving less than $50,000 without leave of court. The proposal also limits the requests to be served no more than 120 days after the filing of a responsive pleading to the complaint. Those wishing to testify should advise the Rule Committee in writing no later than Jan. 15.