Williams v. Alexander

Fuld, J.

Dessi Williams was struck by defendant’s automobile as he was crossing a street in Brooklyn, with the traffic light in his favor. His right leg fractured, he was taken to Kings County Hospital for treatment. At the trial, the testimony of the parties as to the manner in which the accident occurred was sharply discrepant. According to plaintiff, defendant’s automobile approached the intersection, at which he was crossing, without diminishing speed and ran into him. Defendant, on the other hand, insisting that he had brought his car to a complete stop at the light, maintained that another vehicle had struck it from the rear and propelled it forward and upon plaintiff.

In the early stages of the trial, plaintiff introduced so much of the Kings County Hospital record as bore upon his injuries and their treatment. Counsel for defendant thereupon offered the balance of the record and it was received in evidence over plaintiff’s objection. Specifically challenged by plaintiff as inadmissible hearsay was an entry to the effect that he had stated to a physician at the hospital that “ he was crossing the street and an automobile ran into another automobile that was at a standstill, causing this car (standstill) to run into him ”. Plaintiff denied making any such statement, and the doctor who recorded it was not called as a witness.

Upon this appeal — following a verdict in defendant’s favor and an affirmance by a divided Appellate Division — we are called upon to decide whether the statement attributed to plaintiff, relating the manner in which the accident occurred, was properly admitted in evidence as a memorandum or record made “ in the regular course of * * * business ”. (Civ. Prac. Act, § 374-a.)¹ While there are many out-of-state decisions on the point, we have never had occasion to consider it; neither in Roberto v. Nielson (288 N. Y. 581), nor in Dougherty v. City of New York (295 N. Y. 786) —upon which reliance is placed to sustain the trial judge’s ruling — nor in any other case was it necessary for this court to pass upon the question now posed.

Section 374-a of the Civil Practice Act permits the introduction in evidence of “ Any writing or record * * * made as a memorandum or record of any act, transaction, occurrence or event,” despite its hearsay character, “ if the trial judge shall find that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event, or within a reasonable time thereafter.” The term “ business ” is broadly defined as including “ business, profession, occupation and calling of every kind ”, and among the records within the section’s ambit are those that a hospital keeps in diagnosing and treating the ills of its patients. (See Meiselman v. Crown Heights Hosp., 285 N. Y. 389; People v. Kohlmeyer, 284 N. Y. 366.)

The statute, similar to those in effect in most jurisdictions, is designed to harmonize the rules of evidence with modern business practice and give “ evidential credit ” to the memoranda or other writings upon which reliance is placed in the systematic conduct of business undertakings. (See Johnson v. Lutz, 253 N. Y. 124, 127.) It rests upon the probability of trustworthiness which inheres in such records, by virtue of the fact, first, that they are the “ routine reflections of the day to day operations of a business ” (Palmer v. Hoffman, 318 U. S. 109, 114) and, second, that it is the entrant’s own obligation, and to his interest, to have them truthful and accurate, made and kept as they are with the knowledge, indeed, for the purpose, that they will be relied upon in the conduct of the enterprise. (See Johnson v. Lutz, supra, 253 N. Y. 124, 128; Weis v. Weis, 147 Ohio St. 416, 425; see, also, 5 Wigmore on Evidence [3d ed., 1940], § 1522, p. 369; McCormick on Evidence [1954], § 281, pp. 596-597.) It is this element of trustworthiness, serving in place of the safeguards ordinarily afforded by confrontation and cross-examination, which justifies admission of the writing or record without the necessity of calling all the persons who may have had a hand in preparing it. And it was to assure such accuracy and reliability that the legislature made explicit the condition that the memorandum may be received in evidence — and this is the heart of the provision — only if it was ‘ ‘ made in the regular course of [the] business, and * * # it was the regular course of such business to make such memorandum ”.

As the statute makes plain, and we do no more than paraphrase it, entries in a hospital record may not qualify for admission in evidence unless made in the regular course of the “ business ” of the hospital, and for the purpose of assisting it in carrying on that “ business.” The business of a hospital, it is self-evident, is to diagnose and treat its patients’ ailments. Consequently, the only memoranda that may be regarded as within the section’s compass are those reflecting acts, occurrences or events that relate to diagnosis, prognosis or treatment or are otherwise “ helpful to an understanding of the medical or surgical aspects of * * * [the particular patient’s] hospitalization.” (E.g., Green v. City of Cleveland, 150 Ohio St. 441, 443-444; Commonwealth v. Harris, 351 Pa. 325, 330-331; see, also, Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 102-103; McCormick, op. cit., § 290, p. 611.)

It follows from this that a memorandum made in a hospital record of acts or occurrences leading to the patient’s hospitalization— such as a narration of the accident causing the injury — not germane to diagnosis or treatment, is not admissible under section 374-a, and so it has been almost universally held under the identical or similar statutes of other jurisdictions. (See, e.g., Scott v. Gibbons Co., 192 Md. 319, 330; Sadjak v. Parker-Wolverine Co., 281 Mich. 84, 87-88; Valenti v. Mayer, 301 Mich. 551, 557; Green v. City of Cleveland, supra, 150 Ohio St. 441, 443-444; Weis v. Weis, supra, 147 Ohio St. 416, 425; Commonwealth v. Harris, supra, 351 Pa. 325, 330-331; see, also, Borucki v. MacKenzie Bros. Co., supra, 125 Conn. 92, 102-103; Watts v. Delaware Coach Co., 44 Del. 283; Brown v. St. Paul City Ry. Co., 241 Minn. 15, 23-27; Richardson on Evidence [8th ed., 1955], § 233, pp. 209-210, 211-212; McCormick, op. cit.,- § 290, p. 611; Medina, Current Developments in Pleading, Practice, and Procedure in the New York Courts, 30 Corn. L. Q. 449, 454-458.) In the words of the Ohio court in Green v. City of Cleveland (supra, 150 Ohio St. 441, 444), typical of those found in the other cases, “ it was the business of the hospital to diagnose plaintiff’s condition and to treat her for her ailments, not to record a statement describing the cause of the accident in which plaintiff’s injuries were sustained.”

In some instances, perhaps, the patient’s explanation as to how he was hurt may be helpful to an understanding of the medical aspects of his case; it might, for instance, assist the doctors if they were to know that the injured man had been struck by an automobile. (See Scott v. Gibbons Co., supra, 192 Md. 319, 330; cf. Roberto v. Nielson, supra, 288 N. Y. 581; Watts v. Delaware Coach Co., supra, 44 Del. 283.) . However, whether the patient was hit by car A or car B, by car A under its own power or propelled forward by car B, or whether the injuries were caused by the negligence of the defendant or of another, cannot possibly bear on diagnosis or aid in determining treatment. That being so, entries of this sort, purporting to give particulars of the accident, which serve no medical purpose, may not be regarded as having been made in the regular course of the hospital’s business. (See Scott v. Gibbons Co., supra, 192 Md. 319, 330.) Indeed, in discussing the matter, Wigmore observed that the essential “ Guarantee of Trustworthiness ” rests upon the fact that “ the physicians and nurses * * * themselves rely upon the record ” and that the record is designed to be “ relied upon in affairs of life and death.” (6 Wigmore, op. cit., § 1707, p. 36; see Loper v. Morrison, 23 Cal. 2d 600, 608.) Such reasoning, however, will not support the use,.or justify the receipt, of a statement detailing the circumstances of the accident where they are immaterial to, and were never intended to be relied upon in, the treatment of the patient. There is no need in that case for the physician to exercise care in obtaining and recording the information or to question the version, whatever it might be, that is given to In'm. The particulars may be a natural subject of the doctor’s curiosity, but neither the inquiry nor the response properly belongs in a record designed to reflect the regular course of the hospital’s business. (See, e.g., Commonwealth v. Harris, supra, 351 Pa. 325, 331.)

In conclusion, then, that portion of the hospital record containing the statement assertedly made by plaintiff as to the manner in which the accident happened was erroneously admitted, and, since we cannot say that it did not influence the jury in arriving at its verdict for defendant, there must be a new trial.

The judgment of the Appellate Division and that of Trial Term should he reversed and a new trial granted, with costs to abide the event.

1 . Although the doctor who made the entry would have been competent to testify to plaintiff’s alleged admission against interest, the entry itself was, nevertheless, excludable as hearsay, unless within the compass of section 374-a of the Civil Practice Act (see, e.g., Green v. City of Cleveland, 150 Ohio St. 441, 444-445; Richardson on Evidence [8th ed., 1955], § 233, p. 211); and the issue was sufficiently raised by the objection predicated on the hearsay rule.