Doctors’ Notes Allowed As Limited Exception To Hearsay Rules

The Nova Scotia Supreme Court has allowed the admissibility of six doctors’ records in a personal injury case even though the physicians were not available to testify, but the opinions contained in the doctors’ records are not admissible astruth. InTingley v. Wellington Insurance, theplaintiffs, Patricia Tingley, Margaret Burton, Kelli Smith and Todd Smith, wanted to enter the medical records of six doctors, even though two of the doctors were deceased and four others were unavailable to testify.

The plaintiffs said it was beyond their financial means to fly in two doctors in to be cross-examined, since one works in California and the other in Philadelphia. A third, a doctor from Nova Scotia, agreed to testify for half a day at a cost of $3,500, which the plaintiffs said they couldn’t afford. The defendants, Wellington Insurance and Larry Hay, objected to the doctors’ records being entered into evidence without the presence of the doctors in court for cross-examination.

In his decision, Nova Scotia Supreme Court Justice David MacAdamnotedthatina1970case, Ares v. Venner, thecourt did allow for the admission of medical records into evidence as an exception to the rules prohibiting hearsay evidence. But he also noted the court’s Rules of Civil Procedure, which state: “The expert shall be required to attend at the trial unless the person receiving the report gives notice that he does not require the attendance of the expert at the trial.”

Since the doctors’ reports entered into evidence were questioned even by the plaintiffs themselves — the plaintiffs said the physicians’ notes were 75 per cent accurate and 25 per cent inaccurate — it would be necessary to have the doctors present to be cross-examined, MacAdam ruled. Thus, while the notes were admitted into evidence, they were only admitted as proof they had been written. They had no other weight assigned to them. •