Matter of Raheem D.

[*1] Matter of Raheem D. 2017 NY Slip Op 50298(U) Decided on February 10, 2017 Family Court, Bronx County Hettleman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 10, 2017
Family Court, Bronx County

In the Matter of. Raheem D., A person alleged to be a juvenile delinquent, Respondent.



D-XXXX/16



APPEARANCES:

For the Presentment Agency:

Zachary W. Carter, Corporation Counsel

(Katherine R. Vogel, Esq., of Counsel)

N.Y.C. Law Department

Family Court Division

900 Sheridan Avenue, Room 6A-28

Bronx, NY 10451

For the Respondent:

Tamara A. Steckler, Esq.

(Judith Harris, Esq., of Counsel)

The Legal Aid Society - Juvenile Rights Division

900 Sheridan Ave. Rm. 6C12

Bronx, New York 10451
Robert Hettleman, J.

This decision memorializes the oral decision I made on the record in court on January 24, 2017, following a pretrial conference with the attorneys. Corporation Counsel and the attorney for Raheem sought a ruling about the admissibility of certain statements and entries contained within the medical records of the complainant. I made various rulings about a variety of different types of entries, but this written opinion specifically relates to statements made by the complainant's mother to the complainant's treatment providers. For the reasons that follow, I find that these statements — statements made by the parent to the child's doctors — are admissible under the medical records exception to the hearsay rule.

I. PROCEDURAL HISTORY

On August 25, 2016, the presentment agency filed this petition, alleging that on or about June 27, 2016, the respondent, Raheem D. (twelve years old), sexually abused his eight year old half-sister ("the complainant"). Raheem entered a general denial, and discovery and motion practice have proceeded. Pre-trial hearings and trial are scheduled for February 10, 2017, and on January 24, 2017, I held a pre-trial conference to resolve a dispute over what portions of the child's medical records would be admissible at the trial.

On June 28, 2016, the complainant was seen and treated at Lincoln Hospital. The records from this treatment are lengthy, and they contain, among other things, statements from the complainant and the complainant's mother. Specifically, the mother described, in substance, that on June 27, 2016, she walked into her daughter's bedroom and found Raheem and the complainant under the covers on the bed, with their pants pulled down, and that Raheem was holding his penis in his hand.

Corporation counsel argued that these statements, made by a third party instead of the patient herself, are admissible under the medical records exception to the hearsay rule, in that they fall within the parameters of statements that are "germane to treatment." The attorney for Raheem took the opposite position, asserting that the medical records exception does not cover statements made by someone other than the patient.

II. LEGAL ANALYSIS

A. The Medical Records Exception to the Hearsay Rule

Statements made by a patient that are germane to medical treatment are considered to be exceptions to the hearsay rule and therefore admissible for their truth. See People v. Ortega, 15 NY3d 610 (2010); Williams v. Alexander, 309 NY 283 (1955). The rationale behind this hearsay exception is simple and well established throughout federal and state law: statements made to a health care worker are intrinsically reliable, as "only a foolish person would lie to his or her own doctor when seeking medical help." Ortega, 15 NY3d at 621 (J. Smith, concurring op.) (citing Davidson). Traditionally, this exception did not include statements by the patient about who caused the injuries, as that was not viewed as relevant to the treatment of the physical injury. See Ortega, 15 NY3d at 617 (citing Davidson v. Cornell, 132 NY 228 (1892)).

But in recent years, New York State courts (and other states as well) have broadened this exception considerably to include not only statements about the injuries themselves, but also statements identifying the perpetrator and the context of how the injury occurred. See, e.g., Ortega, 15 NY3d at 617; People v. Duhs, 16 NY3d 405 (2011) (holding the same and also that admission of such statements in a criminal case did not violate the 6th Amendment right to cross-examination). In making this significant change, the Court of Appeals stated that particularly in cases of domestic violence or intrafamilial conflict, "treatment" at a hospital involves much more than merely bandaging a physical wound:

In addition to physical injuries, a victim of domestic violence may have a whole host of other issues to confront, including psychological and trauma issues that are appropriately part of medical treatment. Developing a safety plan, including referral to a shelter where appropriate, and dispensing information about domestic violence and necessary social services can be an important part of the patient's treatment.

Ortega, 15 NY3d at 619. Accordingly, a patient's statements about who caused the injury and under what circumstances may be admissible in these types of cases.

B. Statements Made in Medical Records by Someone Other than the Patient

New York State appellate courts have not ruled specifically on the issue raised in this case: is the medical records exception to the hearsay rule broad enough to cover statements made by a third party to a patient's treatment providers? Federal courts have answered this question in the affirmative when interpreting the Federal Rules of Evidence. For example, in Mendez v. United States, 732 F. Supp. 414 (S.D.NY 1990), the District Court held that under Federal Rule of Evidence §803(4), "[s]tatements need not refer to the declarant's physical condition." Id. at 423 (citing 4 J. WEINSTEIN & M. BERGER, WEINSTEIN'S EVIDENCE para. 803(4)[01] [*2][1988]) (emphasis in original). The court admitted the statements of the patient's mother in that case, stating that "[i]n the case of a child, the parent or guardian's statements on behalf of the child is assumed reliable ." Id. at 424. Other courts have applied this same rationale, noting that a parent has an equally strong incentive to provide truthful information to a treatment provider in order to get proper treatment for their child. See, e.g., Danaipour v. McLarey, 386 F.3d 289, 298 (1st Cir. 2004) (mother's statements to doctor about children's abuse at the hands of their father admissible as pertinent to diagnosis and treatment); Lovejoy v. United States, 92 F.3d 628, 631-32 (8th Cir. 1996); United States v. Yazzie, 59 F.3d 807, 812 (9th Cir. 1995). In fact, a few federal courts have gone even further in admitting statements by third parties. The Fifth Circuit Court of Appeals upheld the admission of statements made in medical records by a patient's sister, Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 272 (5th Cir. 1990); and the First Circuit extended the exception to statements by an unknown witness. Bucci v. Essex Ins. Co., 393 F.3d 285, 298-99 (1st Cir. 2005). The Court of Appeals in Bucci provided a detailed analysis of the issue:

There is no requirement, either in the text of the Rule, or the case law, that the speaker be the patient himself. [Danaipour, 386 F.3d 289]; see also 4 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 803.02[5][d] (8th ed. 2002) ("Statements by bystanders, family members, and others, made for the purposes of treating an injured person and pertinent to that treatment, have often been admitted under Rule 803(4).). In general, under Rule 803(4), "the declarant's motive to promote treatment or diagnosis is the factor crucial to reliability." Danaipour, 386 F.3d at 298. Bucci, 393 F.3d at 298.

In addition, at least some state courts have expanded the exception in this same way. See, e.g., Lawson v. Kreative Child Care Ctr., 2006 Mich. App. LEXIS 494 (Michigan 1st District Ct. of App. 2006); Warfield v. Commonwealth, 2004 Ky. App. Unpub. LEXIS 931 (Kentucky Ct. of App. 2004) (upholding trial court's decision to exclude particular statements, but stating that "the [Kentucky rule of evidence] is clearly broad enough to catch statements made by other persons on behalf of patients (so long as they were made for treatment or diagnosis), and has occasionally been so used") (citing Weinstein)).

Turning to New York State, only a few trial-level courts have weighed in on this subject, including me in 2014. See Matter of A.M., 44 Misc 3d 514 (Bronx Co. Family Court 2014). In that case, I reviewed and agreed with the holdings in Matter of Dolan, 35 Misc 3d 781 (Nassau Co. Sup. Ct. 2012), and Feinstein v. Goebel, 144 Misc 2d 462 (Sup. Ct. Queens Co. 1989), admitting into evidence statements in medical records made by someone other than the patient. In Dolan, a civil proceeding about whether ongoing treatment was necessary for a patient, the trial court admitted statements reflected in medical records made by (1) the patient's son, (2) an outpatient program representative, and (3) the patient's caseworker outside of the hospital. In analyzing the issue, the court cited Justice Smith's concurrence in Ortega: "when a patient has a mental health problem, it may often be true that almost any statement about his or her history will be within the hearsay exception." Dolan, 35 Misc 3d at 783 (quoting Ortega, 15 NY3d at 622 [Smith, concurring op.]). It then held that these third party statements were "relevant to [the patient's] treatment, and could be used to develop a discharge plan that would ensure his safety." Id. at 784 (quoting Matter of Anthony H., 82 AD3d 1240, 1241 (2nd Dept. 2011)).

In Feinstein, the court ruled in a civil action that statements made by a patient's son were admissible under the exception, holding that the son was under a duty to relate truthful information in order to insure the appropriate treatment for his parent. That court found that [*3]"[t]he trustworthiness of the son's statements to the house doctor are [sic] unquestionable," following the logic of Williams v. Alexander's holding that statements which are "helpful to an understanding of the medical or surgical aspects of [the hospitalization]" should be admitted. 144 Misc 2d at 465-66; see also 20-22 Prince LLC v. Tsue Kwai Yen, 32 Misc 3d 1224(A) (Sup. Ct. NY Co. 2011) (third party declarations admissible as germane to medical treatment).

In A.M., a child neglect proceeding under Article 10 of the Family Court Act, I admitted statements made by the patient's wife and mother relating to their observations about the patient's mental health. 44 Misc 3d 514.

Returning to the instant matter, the eight year old complainant here was being evaluated and treated for allegations of sexual abuse by of her half-brother. The child's mother spoke to the treatment providers, stating that she observed firsthand Raheem and her daughter in bed together with their pants down. Plainly, this information is relevant to the physical treatment of the child, safety planning for the child and the family, and the ongoing treatment of the child's mental health. See Ortega, 15 NY3d at 619. And under the facts of this case, I find that the complainant's mother's motive to provide correct and relevant information to the treatment providers is strong and inherently reliable, and that it satisfies the medical records exception.

As I noted in A.M., I recognize that it can always be argued that a particular declarant might have a motive to fabricate a statement, even one made to a medical provider. But this is true whenever business or medical records are entered into evidence pursuant to a hearsay exception, and parties are free to argue at trial that the statements within those records, or portions of them, are not reliable or probative for any number of reasons. The parties can call witnesses and use cross examination to probe these factors, but this goes to the weight of the evidence in the medical records, however, not to its admissibility.

III. CONCLUSION

For the reasons described above, I find that the statements made by the complainant's mother to the treatment providers, contained within the child's medical records, are relevant and germane to the child's treatment and admissible under the medical records exception to the hearsay rule.

Dated: Bronx, NY

February 10, 2017

ENTERED:

___________________________

ROBERT HETTLEMAN, J.F.C.