LeClaire v. Hovey

WOLLMAN, Justice

(dissenting).

Because I do not believe that a letter setting forth one doctor’s medical opinion regarding the condition of a patient and sent to another doctor is the type of record the admission of which the Uniform Business Records as Evidence Acts, SDCL 19-7-11, was designed to facilitate, I would hold that the trial court erred in admitting Dr. Giebink’s letter. See Clark v. Bergen, 75 S.D. 48, 59 N.W.2d 250; Bentz v. Cimarron Insurance Co., 79 S.D. 510, 114 N.W.2d 96; Plank v. Herigs, 83 S.D. 173, 156 N.W.2d 193; Olson v. Aldren, 84 S.D. 292, 170 N.W.2d 891.

I would adopt the following statement, made with respect to letters written by physicians setting forth their findings and conclusions concerning an allegedly injured plaintiff:

“ * * * Moreover they were not confined to a record of objective acts, conditions, transactions, occurrences or events which took place at or near the time of recording, as the statutes require. For in addition to statements of the observed condition of the plaintiff they contain many facts relating to his prior history, apparently given by him to the writers, as well as the writers’ subjective findings and conclusions. The cited statutes clearly do not authorize the admission of unsworn statements, such as these, made by a physician to a third party giving his opinion as to the condition of a patient whom he has examined. It is incumbent upon a party who desires to put such an opinion in evidence to call the physician as a witness at the trial or take his deposition if otherwise permissible.” Masterson v. Pennsylvania R. Co., 3 Cir., 182 F.2d 793, 796.

For cases indicating that portions of written records which are merely diagnostic or expressive of opinions or conclusions of doctors are not admissible, see Hussein v. Isthmian Lines, Inc., 5 Cir., 405 F.2d 946, 948. See also Boland v. Jando, Mo., 395 S.W.2d 206; McCormick on Evidence (2d Ed. 1972) § 313.