§ 33.08 MEDICAL TREATMENT-DIAGNOSIS: FRE 803(4)

• Jurisdiction: United States

§ 33.08. MEDICAL TREATMENT-DIAGNOSIS: FRE 803(4)

Rule 803(4) recognizes a hearsay exception for statements made for purposes of medical diagnosis or treatment, including: (1) medical history; (2) past or present symptoms or sensations; (3) their inception; or (4) their general cause, if reasonably pertinent to diagnosis or treatment. Such statements are often part of a hospital or medical record and thus may present double hearsay problems.⁷²

Rationale. The reliability of statements made for the purpose of medical treatment rests on the belief that the declarant will not fabricate because the effectiveness of the treatment depends on the accuracy of the statement.⁷³ Courts offer an additional rationale for the exception — that such statements are reasonably relied on by the medical profession — to support the rule.⁷⁴ In other words, the expertise of physicians in evaluating the accuracy of these statements is an additional safeguard against unreliable statements.

Rule 803(4) is not limited to statements made for the purpose of medical treatment. It also covers statements made for the purpose of diagnosis, i.e., statements made to a physician solely for the purpose of presenting expert testimony at trial.⁷⁵ Such statements were inadmissible at common law.

Statements made to expert witnesses in anticipation of trial are not validated on a reliability rationale. Rather, this aspect of the rule rests on a pragmatic assessment of the use of expert testimony at trial. A physician, consulted only for the purpose of testifying as an expert, may state an opinion, which is often based, in part, on medical history provided by the patient. Although the medical history was not admissible as substantive evidence at common law, it was admissible to show the basis of the expert's opinion.⁷⁶ The federal drafters believed that a jury instruction limiting the testimony to this nonhearsay use would, in all likelihood, be ineffective.⁷⁷ They were probably correct, and in any event, most jurors appreciate the self-serving nature of these statements.

[A] Subject Matter Requirement

Rule 803(4) is restricted to statements that describe medical history, past or present symptoms or sensations, their inception or general cause if reasonably pertinent to diagnosis or treatment.⁷⁸ The provision relating to "causes" represents an extension of the common law.

Statements of fault. Statements relating to the cause of an injury do not include statements of fault.⁷⁹ "Thus a patient's statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light."⁸⁰ Statements of fault are not germane to treatment, and therefore the declarant's motive to tell the truth does not extend to these statements. Under this rule, the fact that a declarant had been sexually attacked would be admissible, but not the identity of the perpetrator.⁸¹ A physician would need the former, but not the latter, information to treat the patient.

Dual purpose statements. In sexual abuse and molestation cases, the victim's statements often have a dual purpose: (1) medical and (2) law enforcement. One court ruled that "statements gathered strictly for investigatory purposes do not fall under rule 803(3). Statements having a dual purpose are admissible under rule 803(3) only if the proponent of the statements demonstrates that (1) the declarant's purpose in making the statements was to assist in the provision of medical diagnosis or treatment and (2) the statements were of a nature reasonably pertinent to medical diagnosis or treatment by a medical professional."⁸²

Identity of abuser. The use of Rule 803(4) in child abuse cases (e.g., incest) is controversial. Unlike child abuse by a stranger, abuse by a household member is considered relevant to treatment.⁸³ A physician, so the argument runs, would not treat a child by returning the child to the abuser's care. The leading case is United States v. Renville.⁸⁴ Frequently, these cases involve psychotherapy, which raises the issue of whether the child is aware that truth-telling is required for treatment.⁸⁵ Other courts have rejected the Renville analysis.⁸⁶

[B] Statements to Nonphysicians

Although the rule requires the statement be made for medical diagnosis or treatment, the statement need not be made to a physician. "Statements to hospital attendants, ambulance drivers, or...