There is a great misconception that all of the plaintiff’s medical records may be used in your defense when your patient sues you for medical malpractice.   That is not true.  Generally, medical records are hearsay (out of court statements) and are not admissible in court proceedings to use in your defense unless an exception to the hearsay rule applies.  Good news-there are such exceptions; bad news-the exceptions are not as expansive as oftentimes thought.

The following statements in medical records are not hearsay and are admissible into evidence in court proceedings:

  1. Rev. Stat. § 27- 803(4): Statement by the patient (or others) made for medical diagnosis or treatment describing the patient’s medical history, symptoms, pain or sensations, but only if pertinent to diagnosis or treatment.
  2. Rev. Stat. § 27- 803(6): Medical records that do not contain opinions or diagnosis and are the business records of the health care provider.

What this means is that statements of opinion or diagnosis contained in a patient’s medical record are hearsay and not admissible into evidence in court proceedings.  Arens v. NEBCO, Inc., 291 Neb. 834, 856, 870 N.W.2d 1, 18 (2015).  Where a medical record contains statements of opinion or diagnosis, the Court has the discretion to exclude those statements and admit the rest of the record or to exclude the record entirely.  This differs from the federal rule, which allows medical records to be admitted

A litigant must be prepared to present evidence of diagnosis and opinions by the expert testimony of qualified witnesses rather than through contemporaneous (hearsay) medical records alone if the opponent objects. It is always best to try to agree in advance which records are admissible and which are not in order to avoid the trap of § 27-803(6).

In explaining this statute, the Nebraska Supreme Court has indicated the purpose of this exception to the hearsay rule is that a person seeking medical attention will give a truthful account of the history and current status of his or her condition in order to ensure proper treatment. State v. Edwards, 28 Neb. App. 893, 914, 949 N.W.2d 799, 818 (2020).  Statements of opinion or diagnosis do not have the same circumstantial guarantee of trustworthiness.