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Medical Records are admissible without a witness in a Georgia DUI

On February 16, 2016, in Samuels v. State, 335 Ga. App. 819, 783 SE2d 344 (2016), the Georgia Court of Appeals medical records may be admitted into evidence without a testifying witness including diagnoses and medical opinions as business records under OCGA 24-8-803(6) if presented as Declarations under OCGA 24-9-902(11).

The Court began its analysis by looking at OCGA § 24-8-803(6), which provides:

“Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness and subject to the provisions of Chapter 7 of this title, a memorandum, report, record, or data compilation, 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, all as shown by the testimony of the custodian or other qualified witness or by a certification that complies with paragraph (11) or (12) of Code Section 24-9-902 or by any other statute permitting certification. The term “business” as used in this paragraph includes any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit…”

OCGA § 24-9-902(11) provides that “the original or a duplicate of a domestic record of regularly conducted activity that would be admissible under paragraph (6) of Code Section 24-8-803 if accompanied by a written declaration of its custodian or other qualified person certifying that the record … was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of such matters; was kept in the course of the regularly conducted activity, and was made by the regularly conducted activity as a regular practice.”

The Court of Appeals held that medical records and opinions are admissible under 803(6) citing the identified Federal Rule of Evidence 803(6) as held in Manocchio v. Moran, 919 F.2d 770, 780(I)(D)(2) (1st Cir.1990); see also United States v. Hall, 419 F.3d 980, 987(II)(A) (9th Cir.2005) (holding that medical records from a hospital visit were kept in the ordinary course of business and are “classic exceptions” to the hearsay rule under Federal Rule of Evidence 803(6)). Cf. Corbett v. State, 266 Ga. 561, 565, 468 S.E.2d 757 (1996) (noting that under Georgia’s former business exception rule, (3) which unlike OCGA § 24-8-803(6) did not expressly permit opinions, hospital records were admissible to the extent they were made in the regular course of business but would constitute hearsay to the extent they contained opinions of third parties not before the court).
This is a big change in the practice of both civil and criminal law in Georgia. In the past, Medical Records Custodians would have to be brought to court to authenticate records and a doctor’s deposition would have to be taken to obtain the testimony of medical opinions and diagnoses. Now you just need a signed declaration.  At least in civil cases, you can object to the testimony under OCGA 24-7-702 that the party offering the medical records can not lay the foundation that the records are reliable expert opinions under OCGA 24-7-702. This can be remedied by well-crafted requests for admissions before trial.  In criminal cases, there is no need to establish reliable expert testimony before offering medical records. Under OCGA 24-7-707, “In criminal proceedings, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.”
Finally, because the records were not made in anticipation of litigation, they are not testimonials. If they are not testimonial, then there is no right to confrontation about the medical records. Your only recourse is to subpoena the doctors and nurses for trial. That should be fun.
Bring on the junk science!
-Author: George Creal