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The Rogak Report: 02 June 2006 ** Medical Records - Hearsay **

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  • Lawrence Rogak
    PLAINTIFF S STATEMENT TO EMT ABOUT ACCIDENT, WRITTEN IN AMBULANCE REPORT, IS ADMISSIBLE AS PRESENT SENSE IMPRESSION Phyllis Bayne v City of New York, 2006 NY
    Message 1 of 1 , Jun 1, 2006
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      PLAINTIFF'S STATEMENT TO EMT ABOUT ACCIDENT, WRITTEN IN AMBULANCE
      REPORT, IS ADMISSIBLE AS PRESENT SENSE IMPRESSION

      Phyllis Bayne v City of New York, 2006 NY Slip Op 04225 (2d Dept 2006)
      (Index No. 5344/01)

      Plaintiff appealed from a judgment of the Supreme Court, Queens
      County, which, upon a jury verdict in favor of the defendant on the
      issue of liability, dismissed the Complaint.

      The plaintiff sustained injuries on August 13, 2000, when she fell on
      a sidewalk abutting a superette located at 126-02 101st Avenue,
      Queens. The plaintiff alleged that sidewalk defects caused her
      accident and injuries. The jury verdict was in favor of the sole
      defendant, the City of New York. The jury, while finding that the
      defendant received prior written notice of a specific condition at
      the site of the accident, answered, "no," by a vote of five out of
      six, to the question: "Did the plaintiff prove that the sidewalk
      where [she] claims she fell was not safe." The Supreme Court denied
      the plaintiff's motion to set aside the verdict, but the Appellate
      Division reversed, and set the verdict aside.

      "The Supreme Court erred in precluding testimony from Salome Singh,
      who would have testified to the condition of the sidewalk where the
      accident occurred. The court precluded her testimony on the ground
      that Singh was not an expert. One need not be an expert, however, to
      describe the physical condition of an area surrounding an occurrence,
      such as a sidewalk. Singh's proposed testimony was relevant and
      material to the issue of whether the sidewalk was unsafe."

      "The Supreme Court also precluded witness Michael Miller, an
      Emergency Medical Services worker, from testifying, on hearsay
      grounds, that upon his arrival at the scene, the plaintiff stated
      that she had tripped and fallen. The plaintiff's statement was
      included in an ambulance call report which was also precluded. The
      preclusion of this evidence constituted error. The plaintiff's
      statement to Miller was admissible as a present sense impression, and
      relevant to issues of whether the plaintiff had 'tripped'
      or 'slipped' on the sidewalk. The statement in the ambulance call
      report would also have been admissible as a present sense impression
      had the witness been permitted to lay the business record foundation
      for the document (see CPLR 4518[a])."

      "The verdict was based on the plaintiff's failure at trial to prove
      that the sidewalk was unsafe. The trial court's errors were not
      harmless as the precluded evidence, if allowed, may have had a
      substantial influence upon the jury verdict and the cumulative effect
      of the errors warrants a new trial."

      Comment: How do we reconcile this decision with the general rule that
      statements made by a plaintiff in a hospital record are not
      admissible unless they relate to treatment? I suppose, for one
      thing, that in this case the person to whom the statement was made
      (the EMT technician) was available to testify as to what was said to
      him. The problem with statements in a medical record usually
      revolves around trying to get them into evidence based on the records
      alone. Also, it is usually the defendant who is trying to get the
      statement in the medical record into evidence as an admission against
      interest, because it usually is a statement damaging to the
      plaintiff's case. I think it is a bit of a stretch to categorize a
      plaintiff's statement that she "tripped" as opposed to "slipped" as
      a "present sense impression," but that's what the court said. I can
      only hope that if the plaintiff had said "I tripped over my
      shoelaces," that would be admissible too.

      As for the testimony of a lay person about the condition of the
      sidewalk, I'm scratching my head over that. Why would a plaintiff
      want to introduce the testimony of a lay witness about that, instead
      of an expert? Certainly a lay witness can give a description of what
      she saw, but how could a lay witness say that a condition was
      dangerous? Lay witnesses generally can't give opinions unless it is
      an opinion within the ken of an ordinary person. And yet, here the
      plaintiff gets a new trial.

      Larry Rogak
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