Undiagnosed: Court of Appeals of Indiana Finds Statements to Doctor Inadmissible Under Medical Hearsay Exception

Yesterday, I was teaching my students Federal Rule of Evidence 803(4), which provides an exception to the rule against hearsay for

A statement that:

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

In response, a student wanted confirmation that the proponent of such a statement had to satisfy both subsections (A) AND (B). I responded that both subsections did in fact need to be satisfied, prompting a discussion of cases in which subsection (B) but not subsection (A) could be satisfied. I will provide an example of such a case in this post. I then, however, tried to think of a case in which subsection (A) but not subsection (B) could be satisfied. In other words, could there ever be a case in which a patient makes a statement that is reasonably pertinent to diagnosis or treatment but that is not describing medical history, symptoms, sensations, or their inception or cause? I don’t know.

Turning back to the case of satisfying (B), but not (A), consider Morse v. Davis, 965 N.E.2d 148 (Ind.App. 2012). In Davis, “John Morse, M.D., appeal[ed] the judgment against him following a jury trial on Jeffrey Davis’ complaint alleging medical malpractice for failure to diagnose Davis’ colon cancer.” 

At trial, Dr. Morse had tried to buttress his claim that Davis had failed to inform him of his mother’s history of colon cancer by introducing a medical history questionnaire submitted by Davis to a different doctor in which he failed to check the box labeled “cancer” in he portion of the questionnaire dealing with his mother and family history. The trial court, however, deemed this portion of the questionnaire inadmissible, and the Court of Appeals of Indiana later agreed. According to the court,

Davis sought medical treatment from [the other doctor] on the date in question for sinusitis, so his mother’s medical history with respect to cancer, or lack thereof, was not “reasonably pertinent” to the diagnosis or treatment of Davis’ ailment….Indeed, Dr. Morse did not elicit testimony from [the other doctor] that he had relied on that information when he treated Davis on that date.

-CM