The coming of the New Year brings hope for millions and in Georgia it also brought along a seismic shift in the evidence code that means that the plaintiff’s prior and post accident medical records are now coming into evidence and going out with the jury. For the uninitiated, laws come from two places; 1) the code (voted on laws) and 2) case law (the accreted body of decisions about the law from the appellate courts).
The question of what evidence is admissible at trial is an obviously critical because not every piece of evidence can be shown to the jury. This year, the Georgia legislature has thrown out over 200 years of precedent and adopted massive portions of the Federal Evidence Code. The new code generally favors the admissibility of evidence and trusting the jury to assign it weight. Scary prospect huh.
Today, we are going to discuss how this affects a particular class of evidence that is near and dear to my heart; the admissibility of medical records at trial. Over the last 200 years, medical records only came into evidence if they were heavily blacked out, leaving only the statements made by the patient necessary for medical care. The idea was that the opinions of the health care providers was hearsay and therefore inadmissible.
The New Business Records Exception in Georgia
§ 24-8-803(6): Allows the use of records,
in any form, of “acts, events, conditions,
opinions, or diagnoses” if
“(A) made at or near the time of the described acts,
events, conditions, opinions or diagnoses;
(B) made by, or from information
transmitted by, a person with personal
knowledge and a business duty to report;
(C) kept in the course of a regularly
conducted business activity; and
(D) it was the regular practice of that business
activity to make the memorandum,
report, record, or data compilation.”
In other words, all of my client’s medical records will come into evidence now, with insurance information redacted under the collateral source rule.
Is this Good or Bad?
That depends on the client. If the injury victim has a long history of prior injuries or denied having such injuries in deposition, it will crush the case. Picture a plaintiff with 10 years of prior chronic pain and they are claiming that the car accident exacerbated the prior condition. The sheer volume of the prior records cannot help but affect the jury’s perspective. Bad news for that plaintiff.
Even for the squeeky clean plaintiff, imagine the situation where the doctor they see is hyperconservative and says something like “i see no objective reason for the patient’s pain.” We see this all the time from Doctor’s too stubborn to acknowledge that medical diagnoses are a work in progress and conditions unheard of 20 years ago are now well known. It does not mean they are faking it. Nonetheless, that statement is coming in at trial and it will hurt the plaintiff’s case. Bad news.
Whiplash people with chiropractic care? Bad news. As a defense lawyer I would just put up blow up after blow up of identical medical records to show how phoney the care is. Good riddance.
For the majority of my car accident clients though, I think it is good news. I no longer have to waste thousands on medical depositions. I can introduce my clients medical records to the jury and the can read for themselves. Most of my clients have no priors, so I can just introduce the evidence that they had no prior injuries as evidence as well. No more speculative arguments by the insurance company lawyer that we are hiding something. We can just set the stack of paper on the jury box and say, ” here, we have nothing to hide.” For my clients, the new code is a win.
Next post, we will discuss another area of massive impact; the admissibilty of the police report after a car accident.