9.7 Medical Records

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

9.7 MEDICAL RECORDS

9.701 Business Record. Medical records may be admitted into evidence under the business records (formerly known as the "shopbook rule") exception to the hearsay rule if the records contain facts or events that are within the personal knowledge or observation of the recorder or were transmitted to the recorder by someone with knowledge. ⁵⁰ Opinions and conclusions in the records are not admissible under this exception. ⁵¹ It is often difficult to predict what the court will deem to be an opinion rather than the observation of a trained observer. ⁵²

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9.702 Other Means of Introducing Medical Records.

A. In General. The business records exception is not the exclusive means of introducing medical records. Other exceptions to the hearsay rule may have the advantage of permitting the introduction of opinions contained in the records as well as facts. The following are some possible avenues for admission of medical records.

B. Admission of Party Opponent. Statements of an adverse party or its agent or employee during the term of agency or employment are not subject to the hearsay rule. ⁵³ Opinions contained in a party admission are admissible. ⁵⁴ Although not admissible as impeachment to contradict a witness's statement in a personal injury or wrongful death action, ⁵⁵ party admissions can be used as substantive evidence in the case in chief. ⁵⁶

C. Past Recollection Recorded. ⁵⁷ If a witness has no memory of an event, the contents of a statement made by the...