Hall v. UMMS

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Tina A. Hall, Guardian v. The University of Maryland Medical System Corporation, No. 75, September Term 2004. Opinion by Bell, C.J. EVIDENCE - HEARSAY - BUSINESS RECORDS EXCEPTION Entries containing pathologically germane statements relevant to the diagnosis or treatment of a patient s condition, made in a medical record, during the normal course of business, consistent with the standard practices of a hospital, meet the requirements of the business records exception to the hearsay rule, and their exclusion on the ground that they are hearsay is error. IN THE COURT OF APPEALS OF MARYLAND No. 75 September Term, 2004 Tina A. Hall, Guardian v. The University of Maryland Medical System Corporation Bell, C. J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Bell, C. J. Filed: March 21, 2007 *Wilner, J., now retired, participated in the hearing and conference of this case while an active membe r of this Co urt; after bein g recalled pursuant to the Cons titution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. This is a medical malpractice action against the University of Maryland Medical Systems Corporation ( UMMS ), the appellee. It arises from the birth of Teonna Boyce, the appellant, 1 by emergency cesarian section ( c-section ) at the University of Maryland Hospital on November 12, 1992. UMMS is the parent corporation of the hospital. The appellant presents two issues: 1. Whether the court erred by excluding as hearsay certain entries in the Defendant s own medical records pertaining to the medical history of the minor c hild and he r mother at th e Defen dant Ho spital? 2. Whether the court erred by excluding certain entries in the Defendant s own medical records pertaining to the medical history of the minor child and her mother at the Defendant H ospital on the basis they were not relevant to corroborating the testimony and rehabilitating the credibility of the minor child s mother? Underlying these issues is the factual dispute with respect to the appellee s c ulpability for the appellan t s injuries and damages. The appellant contends that her mother sought treatment at UMMS and waited in the hospital, without treatment, for approximately five hours before the emergency c-section was performed. The appellee, on the other hand, maintains that the appellant s mother arrived at the hospital just prior to her emergency csection. The trial court resolved the dispute, when ruling on a motion in limine filed by the appellee, by excluding from the appellant s medical records, created by the hospital, two entries tending to corroborate the appellant s contention that her mother was seen by someone at the hospital at approximately 2:00 a.m. on November 12, 1992. Thereaf ter, in a bifurcated trial, the jury returned a verdict in favor of U MM S on the is sue o f liab ility. The 1 Teonna s interests are represented by her guardian, Tina A. Hall, Esquire. appellant noted this appeal to the Court of Special Appeals, but, prior to that court s consideration of the matter, we, on our own motion, issued a Writ of Certior ari. Hall v. UMMS, 383 M d. 211, 8 57 A.2 d 1129 (2004 ). Answering the first question in the affirmative, we shall hold that the trial court erred as a matter of la w by excluding the two entries in the appellant s medical records on the grounds that they were hearsay. The entries met the requirements of the business records exception to the hearsay rule, and they were pathologically germane to the diagnosis or treatment of Teonna Boyce. In light of our holding and the subsequent procedural disposition of the case, we need not, and thus do not, address the second issue. I. On Novemb er 12, 1992, sometime be fore 7:03 a.m., Joyce Boyce, the app ellant s biological mother, w as admitted to the University of Maryland Hospital for an emergency c-section. The c-section began at 7:03 a.m., and the appellant was delivered at 7:06 a.m. She did not have a heartbeat at birth, was having difficulty breathing, and her Apg ar scores were low (0 at one minute, 3 at 5 minutes, and 6 at 10 minutes). 2 The appellant had a breathing 2 Apgar sc ore is define d as: A system for evaluating an infan t s physical condition at birth. The infant s heart rate, respiration, muscle tone, response to stimuli, and color are rated at 1 min, and again at 5 min after birth. Each factor is scored 0, 1, or 2; the maximum total sco re is 10. Interpretation of scores: 7-10, goo d to excellen t; 4-6, fair, less than 4, poor condition. A low score at 1 min is a sign of perinatal asphyxia [lack of oxygen around the time of birth] and the need for immedia te assisted ventilation. Infants w ith scores be low 7 at 5 m in. should (continued...) 2 tube inserted, was placed on a ventilation machine, and was admitted to the Neonatal Intensive Care U nit ( NIC U ). Am ong other disabilities, the ap pellant currently suffers from cerebral palsy, mental retardation, and developmental delay. Apparently, a placental abruption (a premature separation of the placenta from the uterus) created the need for the emergency c-section and caused her disabilities. On August 20, 2002, the appellant filed with the Health Claims Arbitration Office of Maryland a medical malpractice action against UMMS . She subsequently waived her right to arbitration in accordance with Maryland Code (1973, 2006 Repl. Vol.), § 3-2A-06B(b) of the Courts and Judicial Proceedings Article 3 and the matter was referred to the Circuit Court 2 (...continued) be assessed again in 5 more min; scores less tha n 6 at any time m ay indicate need for resuscitation. . . . Taber s Cyclopedic M edical Dictionary 141 (19th ed. 2001). 3 Maryland Code (1973, 2006 R epl. Vol.), § 3-2A-06B(b) of the Courts and Judicial Proceedings Article provides: (b)(1) Subject to the time limitation under subsection (d) of this section, any claimant may waive arbitration at any time after filing the certificate of qualified expert requ ired by § 3-2A -04(b) of th is subtitle by filing with the Director a written elec tion to waive arbitration signed by the claimant or the claimant's attorney of record in the arbitration proceeding. (2) The claim ant shall serve the written e lection on a ll other parties to the claim in accordance with the Maryland Rules. (3) If the claima nt waives arbitration un der this subs ection, all defenda nts shall comply with the requireme nts of § 3-2A-04(b) of this subtitle by filing their certificates at the Health Care Alternative Dispute Resolution Office or, after the election, in the app ropriate circuit co urt or U nited S tates D istrict Co urt. Subsection (d) (1) prescribes when a waiver of arbitration must be filed, not later than 60 (continued...) 3 for Balt imore City, where the appellant, on Augus t 22, 2003, f iled an am ended co mplaint. 4 The amended co mplaint asserted that the appellant s m other s prenatal evaluations w ere consistent with a normal pregnancy and with normal fetal development until the evening of November 11-12, 1992.5 On that day, it asserted furth er, the appellant s mother, having developed abdominal pain at home, was seen at University of Maryland Hospital at approxim ately 2:00 a.m. on the morning of November 12, 1992 approx imately five hours before her emergency c-section. Additionally, the complaint alleged that, even though her mother was having abdominal pain and was near the end of her term, she staye d at the 3 (...continued) days after all defendants have filed a certificate of qualified expert und er § 3-2A -04(b) of th is subtitle. Section 3-2A-04 (b) (1) (i) prescribes the time frame in which a certificate of qualified expert is to be filed, 90 days from the date of the complaint. 4 The appellant s moth er, Joyce Boyce, filed the original complaint on behalf of her minor child. On August 20, 2003, pursuant to Maryland Code (1974, 2001 Repl. Vol.), § 13201(b) of the Estates and Trusts Article, the Circuit Cou rt for Baltimore City appointed Tina A. Hall, Esqu ire, as guardia n of the pro perty of Teo nna Bo yce. Thus, there was a ne ed to amen d the or iginal co mplain t. Maryland Code (1974, 2001 Repl. Vol.), § 13-201(b) of the Estates and Trusts Ar ticle provides: Appointment of guardian. * * * * (b) Minors. - A guard ian shall be a ppointed if the court de termines tha t: (1) A minor owns or is entitled to property that requires management or protection; or (2) Funds are needed for his support, care, welfare, and education and protection is neces sary or de sirable to obtain o r provid e fund s. 5 Joyce Boyce was approximately 39 weeks into her pregnancy at the time of Teonn a s birth. 4 hospital for several hours without fetal monitoring, fetal ultrasonograph y, or obstetric evaluation being ordered. In other words, the appellant alleges that, after her mother initially made contact w ith a hospital m edical emp loyee at appro ximately 2:00 a.m., she was not seen or treated by the hospital staff until approximately 6:45 a.m. According to the appellant s complain t, the hospital s actions (or inactions) did not com ply with the requisite standard of care and were the direct and proximate cause of the appellant s aforementioned disabilities resulting from the placental abruption. The appellee disputed the appellant s version of events. Sp ecifically UMMS asserted that Joyce did not arrive at the hospital until minutes before 6:45 a.m. on November 12, 1992, when she was taken directly to labor and delivery. Simply put, UMMS asserts that it did not become aware of Joyce s difficulties until she arrived at the hospital shortly before 6:45 a.m. (not the approximately five hours earlier alleged by Teonna) and that it complied with the requisite standard of care once it became aware of Joyce s situation. The parties agreed that liability was dependent on one factual issue - when the appellant s mothe r presen ted and was tre ated at th e hosp ital, i.e. whether she was in the hospital for approximately five hours without treatment or whether she arrived just prior to being taken directly to labor and delivery -, which would be resolved by a jury. Thus, all other facts having been stipulated, the jury was asked to answer the following question: Do you find, more likely than not, that Joyce Boyce wa ited in the Unive rsity of Maryland Emergency Room for approximately five to six hours without treatment until she was taken to Labor and Delivery at approximately 6:45 a.m.? 5 On the evidence admitted, the jury answered No. Prior to the commencement of the liability phase of the trial, UMMS filed a motion in limine seeking to e xclude tw o entries in Teonna s medical record and any testimony about the entries from, as relevant to this case, the appellant s mother or the doctors who made them. The basis for the motion was the appellee s contentions that the entries were inadmissib le double hearsay that did not fall within an exception to the hearsay rule, that they were not pathologically germane, and that the appellant s mother s own testimony contradicted the notes. The first disputed entry was made by the attending neonatologist, Dr. Renee Fox, at 4:45 p.m. on November 12, 1992. It read: Moth er apparen tly develope d abdom inal pain at 2 a .m. Repo rtedly seen by Family Practice. Returned to E R and reevaluated and brought to Labor and Delive ry and fe tal heart r ate less th an 100 . [6] The second disputed entry was made by third-year residen t, Dr. Kevin Seymour, who wrote: Mom reported to be seen in ER around 2 a.m. for abdominal pain, evaluated, discharge, returned and referre d to OB. Where fetal HR fou nd to be much less than 10 0 nece ssitating a stat C- section . [7] At her deposition, Dr. Fox testified that she had no first-hand information regarding the admittance of the appellant s mother. When asked to explain the above quoted entry, Dr. 6 Each of these entries was handwritten by each doctor using a slightly different type of sho rthand which does n ot transla te well in to print. 7 Dr. Seymour estimated, based on the location of his entry in relationship to other entries in the appellant s medical chart, that he made the entry sometime around 5:00 p.m. on November 12, 1992. 6 Fox initially stated that it was a history, after which the following exchange occurred: Q. O kay. Let s go to you r next se ntence . Mother apparently developed abdomin al pain at 2 a.m. Do you know where you obtained that information? A. No. Q. You don t know if you read it somewhere in the medical record? A. I I suspect that I was told it on rounds. Q. An d why do you suspect tha t? A. Because I typically do not go back to the mother s medical record personally. I rely on th e data that is provided to me by residents. Q. So when you write your note, you are, just as you said, relying on information that s provided to you, and you don t go back to verify it in any w ay? A. I do at times when when I don t h ave the inform ation . . . . I would have had to walk someplace else, pull up her [Joyce s] chart . . . I know that I did not do that very often, unless I had you know, somebody hadn t bother ed to do their job . My job is to supervise residents and ensure that they get information. ... Q. And [the residents] acquire [this kind of history] from what source? A. They acquire it typically, they acquire it from an obstetric al reside nt telling them so methin g. The rest of Dr. Fox s deposition testimony regarding the above quoted portion of h er entry is substantially the same, explaining how she most likely gathered the information for the entry in the medical record from forms arriving in the N ICU or from Dr. Seymour. At his dep osition, Dr. S eymour testified , as relevant: Q. Now, I u nderstand that residents perform rounds with the attending. Can you describe what that process was like in [19]92? A. For each infant in the NICU , we wo uld go around and discuss what had happened the night before, in order to pass the information so that 7 we would have continuity of care. The rounds would include the attending, the residents th at were ass igned to the NICU, the nurses, the residents that were on call the night before, and usually NICU fellows, both the one that s there during the day and the one that was on call the night before. Q. Okay. A nd, dur ing tho se roun ds, wh o wou ld be, if you will, presenting the patient? Would the attending be doing the presenting or would th e residents b e doing it? A. Usually, it s the residents doing the presenting or the NICU fellow. ... Q. Assuming the baby arrives sometime between 7:00 and 7:30 [a.m .], would your rounds taking practices have changed any for that child, in all likelihood? A. In all likelihood, if the child showed up while rou nds were due to begin, the p rocedures may have b een diffe rent. Q. Ho w wou ld they have b een diffe rent? A. The rounds may have continued for the rest of the patients, with some of the physicia ns may not h ave been in those rou nds. They w ould have been assig ned to care for the new baby. And then, ordina rily, if it s a patient that comes again to the best of my knowledge . If it s a patient that came during rounds, that would often be the last patient, so that the folks would have a chance to stabilize the baby and gather some information. Q. But still th e bab y wou ld be part of th e rou nds p roce ss, ev entu ally? A. Th at s corr ect. Dr. Seymour was then asked about his recollection of his discussion with Dr. Fox regarding the appellant s admission to the NICU and the quoted entry he made in her medical record: Q. Well, at the time you were spe aking and discussing with her, would she have the note in front of her to review? A. No. It would have been the speaking and discussing was done prior to the writing of the note. Q. Would you have discussed the patient s history with her as well? The history you obtained? A. I cannot recall in this instance. The history would have been 8 obtained through th e report that w e received. received the history at the same time tog ether. Q. What report would you have received A. This would have been the rounds. ... So, we may have Q. Okay. Wo uld you agree with me that Dr. Fox s history is differen t, in some respects, than the history you recorded? A. I would agree. ... Q. Would it have been a standard practice of yours, if you obtained a different history than another health ca re provider, especially [one] that your attending had obtained, to point that out to your attending? A. The history again, for a NICU baby, is a little differe nt. Because, again, you can t obtain the h istory from the c hild itself. So, the history is often second or third hand obtained on rounds. And the urgency of the care may require that we [w ould ] be just ta king care of th e bab y, without having obtained a c omplete history as to the events prior to birth. ... Q. Have you ever obtained a history, for a NICU patient, from a mother? A. I would have to say yes, but it was not a frequent occurrence. Q. On those instances, when you obtained a history directly from the mom, w hat langua ge did you us e to docum ent it? A. I don t unders tand . Oh, what h ow d id I sa y? Q. Did you say mom reported? A. If I righ t. If my reading of that line, loo king back on it from all these years, and knowing how I write and what I would have written, as I look at it, if I had received it directly from mom, I think I would have said; mom reported be ing seen in the emergency room, as I would have put it more directly from mom. By my reading, [ ]mom reported to be seen[ ], tells me that I [got] [] that [information] [] from staff. Q. Where are the places that you would obtain a history from, on a NICU patient? Or, when I say the places, let me be more precise. Whom would you ordinarily obtain histories from? A. It s often a synthesis of information obtained from the residents on rounds. The nurses ma de some report[s]. There may have been some paperwork from upstairs that came down as well. But it would have 9 been residents and nurses. Q. All of whom have the responsibility to go and tak e an accu rate histo ry? A. Not all o f who m. Because again, dependin g on wh ere they are in the chain, sort of coming from OB down to the NICU, they may have heard it from the OB. The N ICU nurses m ay have gotten [a] report from the O B nurses. S o, they would not have h ad direct co ntact. Q. But we can agree, at the University of Maryland hospital, that the health care providers, who would be taking and passing along, and/or passing along history information, have an obligation to initially take it cor rectl y and pass it alo ng accur ately? A. Th at s corr ect. Answering the appellee s motion in limine, the appellant argued that the en tries were business records an d, thus, fell w ithin the exce ption to the hearsay rule for business records. In support of her argument, she submitted an affidavit from Dr. Marcus Hermansen, the director of the NICU at Southern New Hampshire Medical Center and an associate professor of pediatrics at Dartmouth Medical School. With respect to the two disputed entries, Dr. Hermansen opined: It [is] remarkable that anyone would claim that such information is not pathologic ally germane to the diagnosis and treatm ent of a ne wborn in Teonna s condition. ... In assessing a diagnosis and determining the proper course of treatment of a newborn in Teonna s condition it is helpful to know approximately when the mother s abdomin al pain began, w hat m edic al tre atme nt, if any, was sought at that time, and from whom, whether and when an evaluation of the condition had occurred, a nd by who m, wheth er the moth er (and thus the unborn baby) were treated, whether they were kept for monitoring at the hospital or released, what happened upon return to a health care provide r and the baby s condition at that time. ... None of the information contained in [the quoted entries] is extraneous to the 10 medical inquiry in diagno sing an d treatin g a new born in Teon na s co ndition . The appellant s mother also testified on deposition. At that deposition, she testified that, beginning in month seven of her pregnancy, she had occasionally had pain in her lower abdomen and legs. She also testified that sh e visited Dr . Robinso n at the M aryland Fam ily Practice on November 11, 1992, the day before Teonna was born. She had no pain during the visit, she asserted. When she got home from the F amily Practice C linic, the pain returned, then eased, and then got progressively worse as the night continued. She stated that she was ab le to fall a sleep fo r a perio d of tim e, but aro und 10 :30 p.m ., she got up to use the bathroom, at which time, she experienced pain that reminded her of the labor pains she experienced when her othe r, older children were born. The appellant s mother testified that she woke up her family and they walked to her mother s house, arriving around 11:30 p. m. A friend, whom the appellant s mother called, picked up her and her husband and drove them to the hos pital. Sh e stated t hat, upo n her ar rival at th e hosp ital, at arou nd 12:3 0 a.m., a nurse who was leaving the hospital, asked her whether she needed a wheelchair, and, upon being told that she did, went back inside and brought one out. According to the appellant s mother, the nurse took her into an examination room and performed a vaginal exam to determine the extent of Joyce s dilation . The nurse informed her, she said, that she was not dilated and went to get a doctor. From this point on, the appellant s mother s testimony, while in conflict with the statement of facts in the appellant s original com plaint, is consistent with the appellant s 11 amended complaint. At her deposition, the appellant s mother testified that no one else on the hospital staff examine d her and that she did not see a member of the staff for another five to six h ours until she was rush ed to the d elive ry roo m fo r the eme rgen cy c-section (her deposition testimony was consistent with the amen ded co mplain t on this p oint). The original complaint stated that, after arriving at the hospital around 2:00 a.m., Ms. Boyce was reassured by Defe ndant a nd sen t home . . . . Ms. Boyce returned to University Hospital a few hours later. . . . UMMS asked Joyce about this discrepancy at her deposition: Q. Miss Boyce, when you originally filed suit, you alleged that you had come to the hospital at about 2 a. m. but were sent home and then came back. B ut, today, it sounds like you came to the hospital about 12:30, weren t sent home but just didn t get any care. Which version is correct? A. I was, I never left the hospital once I went there. I never left the hospital. Q. Okay. So you were no t sent home after presen ting to the ho spital. A. No. Q. You just stayed there and nobody came to treat you. A. Y es. On the day of the liability phase of trial and prior to its start, the trial judge heard argumen ts on several motions, including the motion in limine filed by UMMS . She granted the motion in limine, ruling in relev ant part: I have reviewed the deposition testimony of [Doctors] Seymour and Fox in which they testify that the statem ent[s] related to the moth er s treatmen t, in essence, is not patholo gically g ermane becau se it is related to the mother s treatment and they we re treating the m inor child. I have also reviewed plaintiff s expert witness affida vit . . . . Dr. Hermanson [] points out that at the time of the alleged note, mother and child were one, and he concluded that the information is pathologically germane. ... 12 In this case, Joyce Boyce s testimony is in conflict with the notes contained in Dr. Fox and D r. Seymour s records. Joyce Boyce does no t confirm that she arrived at 2 a.m. She does not confirm that she was seen at family practice. She spec ifica lly says that she never left the E.R. and that she waited either with her husband or alone for medical care. It is my view[,] that the fact that the patient dis agrees w ith the accura cy of the note precludes a fin ding that t he note is path olog ically germane under the definition of what a pathologically germane statement must be. To reiterate, the definition of a pathologic ally germane statemen t[,] that is[,] [] that statement must be a statement that falls within the b road rang e of facts in which a hospital[ s] practice[s] are considered relevant. I do not believe that hospital practice would consider relevant statements which a patient spe cifically disavows and says are not accurate pertaining to her treatment. Moreover, I give little weight to Dr. Hermanson s report [asserting that the statements are pathologically germane] because he does not discuss or seem to be aware in his af fidavit th at the pa tient disa vows the acc uracy of the note . . . . ... So, for the reasons that I have assessed, I do not believe that the information in the note fits the definition of a pathologically germane statement because it s contradicted by the patient, because the plaintiff s expert witness was unaware of that fact, I give little weight to his testimony and greater weight to the testimony of [Dr.] Fox and Dr. Seymour who knew that they didn t know the source of the information. So, I believe it s unlikely under those facts that they would have given it great weight because, at the time they were treating the baby, they knew tha t they didn t know who told them a bout this 2 a.m . report. I also f ind that t he info rmation is gene rally unreli able. Thus, the two contested entries in the appellant s medical record were excised from the record and the jury was not allowed to consider them. At the conclusion of the trial, the appellant n oted this app eal. II. Gen erall y, the standard of review with respect to a trial court s ruling on the 13 admissibility of evidence is that such matters are left to the sound discretion of the trial cou rt and unless there is a showing that the trial court abused its discretion, its ruling[] will not be disturbe d on ap peal. Bern-Shaw Ltd. Partnership v. Mayor and City Council of Baltimore, 377 Md. 277, 291, 833 A.2d 502, 510 (2003), quoting Farley v. Allstate Ins. Co., 355 Md. 34, 42, 733 A.2d 1014, 10 18 (1999) (bracke ts in original). The application of that standard, however, depends on whether the trial judge s ruling under review was based on a discretionary weighing of relevance in relation to other factors or on a pure conclusion of law. Bern-Shaw, 377 Md. at 291, 833 A .2d at 51 0 (emp hasis ad ded). If the trial judge s ruling involves a pure legal question, we generally review the trial court s ruling de novo. Id.; Nesbit v. GEICO, 382 Md. 65, 72, 854 A.2d 879, 883 (2004) (concluding that when a trial court s decision in a bench trial involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court s conclusions are legally correct under a de novo standa rd of re view ), quoting Walter v. Gunter, 367 Md. 386, 392, 78 8 A.2d 609, 61 2 (200 2). See also Bern adyn v. State, 390 Md. 1 , 8, 887 A.2d 602, 606 (2005) (concluding, in a criminal case, that a trial court s decision to admit o r exclude hearsay is not discretionary and that whether evidence is hearsay is an issue of law reviewed de novo ). Under the Maryland Rules, hearsay mus t be exclud ed as evide nce at trial unle ss it falls within an exception to the hearsa y rule. Rule 5-802.8 Thus, a trial co urt s decision to admit 8 Rule 5-802 provides: Except as otherwise provided by these rules or permitted by (continued...) 14 or exclude h earsay ordinarily is an issue of law and, as discussed above, we review decisions of law de novo. III. A. It is not disputed that the two entries, one written by Dr. Fox and the other written by Dr. Seymour, are hearsay. 9 Gene rally, hears ay is not ad missible . See Rule 5 -802, supra. In Globe Indem nity Co. v. Reinhart, Judge D igges exp lained the m ain reason why hearsay is inadmissible: Among the reasons for excluding hearsay testimony is the inherent uncertainty of its reliability, and the fact that the person stating the thing to be a fact is not under oath and subject to cross-examination. The purpose of presenting evidence in support of a contention is to establish facts from which reasonab le minds form conclusions and render judgments. In a majority of cases these facts are established by testimony of witnesses who have personal knowledge upon the subject, and this testimony is received for the reason that it has the guaran tee of re liability. 152 Md. 43 9, 446, 137 A. 43 ,45-46 (1927). Hearsay is admissible, however, if the statement falls within an exception to the 8 (...continued) applica ble con stitutiona l provisi ons or s tatutes, h earsay is n ot adm issible. 9 Rule 5-801: The following definitions apply under this Cha pter: (a) Statem ent. A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Decla rant. A declara nt is a person who m akes a statem ent. (c) Hear say. Hearsay is a statement, other than one made by the declaran t while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted . 15 hearsay rule. One of the exceptions to the hearsay rule is the business records exception. The business records exception is currently found in Maryland Rule 5-803(b)(6). It reads: Records of regularly conducted busine ss activity. A me morand um, report, record, or data compilation of acts, events, conditions, opinions, or diagnoses if (A) it was made at or near the time of the act, event, or condition, or the rendition of the diagnosis, (B) it was made by a person with knowledge or from information transmitted by a person with knowledge, (C) it was made and kept in the course of a regularly conducted business activity, and (D) the regular practice of that business was to make and keep the memorandum, report, record, or data compilation. A record of this kind may be exc luded if the source of information or the method or circumstances of the preparation of the record indicate that the information in the record lacks trustworthiness. In this paragraph, business includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Rule 5-803(b)(6). Prior to this Court s adoption of Rule 5-803(b)(6), a statute controlled the admission of business records and some of o ur cases interpreting the various v ersions of that statute are relevant in the case sub judice. By enacting Chapter 517 of the Acts of 1929, the General Assemb ly added Article 35, § 54A to the Maryland Code which, this Court determined, was designed to create a more liberal approach to the admission into evidence of business records than existed at common law.10 State v. Garlick, 313 Md. 209, 218-20, 545 A.2d 27, 31-32 10 Article 35, § 54A provided: Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, sha ll be admissible in e vidence in proof of said act, transac tion, occ urrenc e or eve nt, if made in the regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, (continued...) 16 (1988). 11 We said that the purpose of the Act is to put an end to narrowness in the use of the familiar rule of evidence that the person whose statement is re ceived as te stimony shou ld speak from p ersona l observ ation or know ledge[ .]. . ., id. at 220, 545 A.2d at 32 ; BethlehemSparrows Point Shipyard, Inc. v. Scherpenisse, 187 Md 37 5, 381, 50 A.2d 2 56, 260 (1946), and that the statute was clearly intended to liberalize the com mon la w rules on the s ubject. Morrow v. State, 190 M d. 559, 562 , 59 A.2d 3 25, 326 (1 948). The current, and substantially unchanged, version of the statute is found in Maryland Code (1973, 2006 Repl. Vol.), § 10101 of the Courts and Judicial Proceedings Article.12 10 (...continued) occurrence or event or w ithin a reason able time the reafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term business shall include business, profession, occupation and calling of every kin d. 11 Rule 5-803(b)(6) and Maryland Code (1973, 2006 Repl. Vol.), § 10-101 of the Courts and Judicial Proceedings Article have been applied in both civil and criminal cases. Jones v. State, 205 Md. 528, 532, 109 A.2d 732, 735 (1954), but see Crawford v. Washington, 541 U.S. 36, 55-58, 124 S. Ct. 1354, 1366-68, 158 L. Ed. 2d 177, 195-97 (2004) (holding, in the context of a criminal case, that confrontation is the only constitutional way to test the reliability of testimonial evidence). In a civil case, such as the present on e, we are generally free to rely on o ur civil and criminal cases addressing the application of the business records exception because the protections provided to a criminal defe ndant are greater than those provided to a civil defendant. We express no opinion on the construction of Crawford in relation to Rule 5-803(b)(6) and § 10-101. 12 Maryland Code (1973, 2006 Repl. Vol.), § 10-101 of the Courts and Judicial Proceed ings Article provides § 10-101. Written record. (a) Business defined. Business includes business, profession, and (continued...) 17 Ordinarily, hospital records may be admitted under the business records exception to the hearsay rule, Rule 5-803(b)(6). State v. Bryant, 361 Md. 420, 430 n.5, 761 A.2d 925, 930 n.5 (2000 ); Scherpenisse, 187 M d at 381, 50 A.2d at 26 0 ( [A] h ospital record containing the history of a patient s case is admissible in evidence, whether or not the statements therein were m ade by the pa tient himself ); Beverley Beach Club v. Marron, 172 Md. 471, 475, 192 A. 278, 280 (1937) (recognizing that a hospital rec ord was a dmitted into evidence to show that appellee cut his foot on gl ass). In the past, w e have g one far in admitting the particulars set forth in the history of a patient in a hospital record[ ,] Old v. Cooney Detective Agency, 215 Md. 517, 524-25, 138 A.2d 889, 893 (1958), and we have readily permitted the introduction of proper hospital records under the statute. Yellow Cab Co. v. Hicks, 224 Md. 563, 570, 168 A.2d 501, 504 (1961); Old, 215 Md. at 524, 138 A.2d at 893. Even prior to the enactment of the statutory business records exception to the hearsay rule, this Court held that hospital records were admissible. In Globe, supra, the Court 12 (...continued) occupation of every kind. (b) Adm issib ility. A writing or record made in the regular course of business as a memorandum or record of an act, transaction, occurrence, or event is ad missible to prov e the ac t, transac tion, occ urrenc e, or event. (c) Time of making records. The practice of the business must be to make such written records of its acts at the time they are done o r within a reasonable time afterwards. (d) Lack of kno wledge of m aker. The lack of personal knowledge of the maker of the written notice may be shown to affect the weight of the evid ence b ut not its a dmissib ility. 18 explained why hospital records, in most circumstances, are not subject to the problems asso ciate d with he arsay: The question here presented is whether evidence represented by the hospital chart contains a sufficient guarantee of its truthfulness. We are of the opinion that it does. It is a record required by the hospital authorities to be made by one whose d uty it is to correctly make the entries therein contained. So far as the hospital is con cerned, ther e could be no more important record than the chart which indicate s the dia gnosis , the con dition, and treatment of the patients. This record is one of the important advantages incident to hospital treatment, for it not only records for the use of the physician or surgeon what he himself observes during the time he is with the patient, but also records at short intervals the symptoms, condition, and treatment of the patient during the whole time of the physician s absence. Upon this record the physician depends in large measure to indicate and guide him in the treatment of any given case. Lon g experien ce has sho wn that the physician is fully warranted in depen ding up on the r eliability an d trustw orthine ss of su ch a rec ord. It is difficult to conceiv e why this record should not be reliable. There is no motive for the person whose duty it is to make the entries, to do other than record them correctly a nd accur ately. On the other hand, there is the strongest reason why he should: First, because of the great responsibility, he knowing that the treatment of the patient depends largely upon this record, and if it be incorrect it may result, and probably will result, in the patient s failure to receive proper surgical or medical treatment, which failure might be followed by serious consequences or even death. Second, the entrant must realize and appreciate that his position is dependent upon the accuracy with which the record is made. Third, as was stated by Tindall, C. J., in Poole v. Dicas, 1 Bing. (N.C.) 649: It is easier to state what is true than what is false; the process of invention implies trouble in such a case unnecessarily incurred. Globe, 152 Md. at 44 6-47, 137 A. at 46. In Garlick, we referred to the above passage stating, [t]hat basic attitude towards hospital records and business records[,] in general[,] has never really changed. 313 Md. at 218, 545 A.2d at 31. Applying the above stated law Rule 5-803(b)(6), § 10-101, and our case law to the case sub judice leads us to the conclusion that the two entries should have been admitted. 19 The entries were made contemporaneous with the actual occurrence of the event. Entries made by a doctor or doctors prior to the en d of their sh ifts or at the co nclusion o f their shifts are within the meaning contemplated by the words in Rule 5-803(b)(6)(A) at or near the time. 13 The appellee spends a great deal of time and effort arguing that the entries should be excluded under 5-803(b)( 6)(B), b ecause Doctors Fox and Seymour did not have personal knowle dge of the events con tained in the entries, which, according to the appellee, created doubt as to the trustwo rthiness of the e ntries. This argument runs counter to the purpose of Rule 5-803(b)(6) as well as the history of the Rule, as our summation of that history makes clear. Were we to affirm the trial court s decision, we would be eviscerating the business records exception as it is applicable in the area of hea lth care. The very purpose of Rule 5803(b)(6) (and § 10 -101) is to carve out a n exceptio n to the personal knowledge requirement in order to allow greater admissibility of b usiness reco rds. The co mmenta tors suppo rt this conclusion. Chief Judge Murphy of the Court of Special Appeals, in his Maryland Evidence Handbook, referring to § 10-101, sta ted that: [This] law[] represent[s] legislative recognition that if records are reliable enough for the running of a business[,] . . . they are trustworthy enough to be admissible at trial, particularly when one con siders the practical difficulty of proving the specific facts contained in many of these records. Where the record is made within a reasonable time after the even t it records, it is 13 Section 10-101(c) uses at the time they are done or within a reasonable time afterw ards. 20 suffici ently reliab le. It does not matter th at the person who ac tually does the recording may not have personal knowledge of the fact recorded. What matters is that both the reporter and the recorder are required by the business to r eport and re cord accu rately. Joseph F. Mu rphy, Jr., Ma ryland Evidence Handbook, § 804, 31 8 (3d. 199 9) (emph asis added). Chief Judge Murphy correctly points out that the entire purpose of the business records exception is based on the premise that because the records are reliable enough for the running of a business, in part because of the business duty imposed on the reporter and the recorder, that they are reliable enough to be admissible at trial. This is true regardless of whether the person who ac tually did the reco rding has p ersonal kn owledg e of the inf ormation recorded. Professor McLain states that the lacks trustworthiness portion of the Rule was designed to: [C]odify the rules of Aetna Casualty [& Sur. Co. v. Kuhl, 296 Md. 446, 45355, 463 A.2d 822, 826-27 (1983)] and Weishaar [v. Canestra le, 241 Md. 676, 686, 217 A.2d 525, 531 (1966)]. These rules are more widely known as the rules of Johnson v. Lutz, 253 N.Y . 124, 170 N .E. 517 (C t. App. 1930), that the business records exception does not embrace statements by persons outside the business, because those perso ns are under no bu siness duty to record or transmit informatio n truthfully, so that their statements lack a circumstantial guarantee of trustworthiness, and Palmer v. Hoffman, 318 U.S . 109, 63 S . Ct. 477, 87 L. Ed. 645 (1943), that the business records exception does not embrace self-serving records, made in anticipation of litigation, which lack circumstantial guarantees of trustworthiness. Lynn McL ain, Maryland Rules of Evidence, Rule 5-803(b)(6), § 4(q)(i), 237 (2nd ed. 2002) (emphas is added ). Thus, according to Professor McLain, the lacks trustworthiness portion of the Rule was only intended to exclude self-serving records and statements made by individuals not b ound by a business duty to transmit information truthfully. The entries in 21 the pres ent c ase f all sq uare ly within the ci rcum stances d escr ibed by Chief Judge Murphy and, on this record, do not run afou l of those described by Pro fessor McLain. Therefore, we conclude that the two entries contained in the appellant s medical records fall within the ambit of Rule 5-8 03(b)(6). Moreover, according to both Doctors Fox and Seymour, the information regarding the admission of the appellant s mother, to the best of their recollection, came from someone with pers onal kno wledge of T eonna s histo ry. Th is tes timo ny is consistent with the requirements of Rule 5-803(b)(6)(B). In Dr. Fox s case, she believed the information contained in her note came from Dr. Seymour. In Dr. Seymour s case, he believed that the information came from multiple people within the hospital family or from written repo rts from Obstetrics. If there was any doubt in the trial court s mind as to the reliability of the entries stemming from the doctors lack of personal knowledge, the proper course was to admit the records and allow the parties to put on evidence attacking and supporting the credibility of the pro cess by w hich the inform ation fo r the tw o entries was g athered . See § 10-101(d) ( lack of personal knowledge of the maker of the written notice ma y be shown to affect the weight of the evidence but no t its admissibility ). Both doctors stated that the methods by which they gathered the inform ation for the ir entries were consistent with how that type of information w as collected for that type of entry in the NIC U at U MM S in 19 92. See Rule 5-803(b)(6)(C). Moreover, and perhaps most important, Dr. Seymour pointed out that any history ta ken of a N ICU patie nt will alw ays 22 amount to hearsay because it can never come from the infant and will often come from the Obstetrics doctors or nurses, or even from the mother or her records. Dr. Seymour also testified at his depos ition that it was the duty of he alth care provid ers at UM MS to a ccurately keep these records. There is every indication that these entries were made in the normal course of busine ss and that it was UM MS s standard practice to make and keep these type of records. There certainly is no implication, or indication, that the records were falsified, tampered with or in any other way altered. Therefore, the two statements fall within Rule 5803(b)(6)(A)-(D). Our analysis, however, does not end here. We still must address the trial court s ruling that the tw o entries in the m edical re cord w ere unr eliable. It appears that the trial court based its finding on the fact that the doctors lacked personal knowledge of the information contained in the entries. We have already addressed that issue, along with the effect of the appellant s testimony conflicting with the entries, concluding that neither prev ented an entry from being a business record. The appellee asserts that the trial judge was correct in finding that the entries should be excluded because they are 100% wrong according to the deposition testimony of the appellant s mother. It arg ues that this co nflict indicates a lack of tru stworthin ess which requires the entries to be excluded under Rule 5-803(b)(6). We are not persuaded. The two entries and the ap pellant s mother s testimony tend to show that she was at the hospital sometime before, or at, 2:00 a.m. on November 12, 1992. This fact, if believed 23 by the finder of fact, is significant to the appellant s case. What is open to debate is what occurred, if anythin g, with respect to her treatment between approximately 2:00 a.m. and shortly before 6:45 a.m. on that morning. We agree that the re are discrep ancies betw een the en tries and the testimony of the appellant s mother, but we do not agree that the records are in direct conflict with the appellant s mother s testimony or that the inconsistencies are an indication that the entries lack trustworthiness within the meaning of the Rule. There are a number of potential reasons why her testimon y might conf lict with the entries in Teonna s record. Not the least of those conceiva ble reasons is the fact that the deposition was taken approximately ten years after the event. Even if we did agree that the appellant s mother s testimony was in direct conflict with the entries, that w ould no t preclud e, even if it wou ld not b e irrelev ant to, their admiss ibility. See § 10-101(d). We are convinced that our adversarial system of justice is better served by leaving the explanation of any discrepancies between the entries and the appellant s mother s testimony to skilled attorneys and the resolution of those potentially conflicting facts to a jury. We are equally convinced that by removing the task of explaining conflicting evidence from the hands of the parties and their attorneys and by preventing eviden ce vital to the appellant s case from reaching the jury, the trial court erred when it granted the motion in limine. B. Despite our general tendency to permit the admission of hospital records, there have 24 [] been some hospital records (or more p recisely some entries within those records) that have been objectionable or found to have been inadmissible. Garlick, 313 Md. at 220, 545 A.2d at 32; Dietz v. Moo re, 277 Md. 1, 7, 351 A.2d 428, 433 (1976) ( [E]ven though a particular hospital record is not barred from evidence as hearsay, it may be that some or all of its contents are open to objection on other grou nds ); Old, supra, 215 Md. at 524, 138 A.2d at 893 ( This is not to s ay that eve rything in t he reco rd is adm issible ) . When addressing the issue of whether an entire medical record is admissible, generally, we have adhered to the rule that statements in a hospital record m ust be pathologically germane to the physical condition which caused the patie nt to go to the ho spital in th e first pla ce. Yellow Cab Co., supra, 224 M d. at 570 , 168 A .2d at 50 4, citing Lee v. H ousing A uthority of Baltim ore City, 203 Md. 453, 460, 101 A.2d 83 2, 835 (19 54); Shirks Motor Express v. Oxenham, 204 Md. 626, 635, 106 A2d 46, 49-50 (1954); see also Wolfinger v. Frey, 223 Md. 184, 191, 162 A.2d 745, 749 (1960) (finding that patho logically germane portions of h ospital record were admissible). A pathologically germane statement must fall within the broad range of facts which under hospital practice are considered relevant to the diagnosis or treatment of th e patient s condition. McCormick On Evide nce, C h. 32, § 2 90. Yellow Cab Co., 224 Md. at 570, 168 A.2d at 504.14 [F]acts helpful to an understanding of the medical or surgical 14 An example of a statement that is not path ologically germ ane is found in Yellow Cab Co., where a trial court excluded a portion of the following statement made by the plaintiffappellee at a medical clin ic: * * * Got in cab & went to Amos Myers [appellee s attorney] who sent him to a doctor has reported to Dr. ev ery day, but plaintiff does not k now his (continued...) 25 aspects of the case, within the scope of medical inquiry[,] are pathologically germane. Garlick, 313 Md. at 222, 545 A.2d at 33. Therefore, entries in hospital records which are pathologic ally germane, or relevant to the diagnosis or treatment of the patient s condition, typically fall within the business records exception to the hearsay rule. In the instant case, the trial court ruled that, the fact that the patient [Joyce] disagrees with the accuracy of the note pre cludes a fin ding that the note is patho logically germane . . . . The trial cou rt placed little weight on Dr. Hermanson s affidavit stating that Joyce s medical history was pathologically germane to unborn and newly born Teonna because he d[id] not discuss or seem to be aware in his affidavit that the patient disavow[ed] the accura cy of the note . The trial jud ge then said : I know that, with resp ect to the path ologically germane exception, the source of the information need not be identified. However, in this unusual case, the patient [Joyce] does not provide information that is consistent with the information in the Doctor s notes. It leads me to conclude, generally, that the inform ation in t he note is unrelia ble. . . . Initia lly, we note th at, generally, the pa thologically germ ane test has n othing to do with reliability of the hos pital recor d. The reliability test is d esigned to p revent unre liable information, i.e. information recorded in a hospital record for the purposes of litigation, from being put in front of the fact-fin der. See Rule 5 -803(b )(6). The pathologically germane test 14 (...continued) name * * * 224 Md. at 569, 168 A.2d at 50 4. Only the pa rt of the statem ent referring to appellee s trip to the lawyer and the referral by the lawyer to the doctor was ex cluded . Id. at 570, 168 A.2d at 504. We affirmed on the grounds that those portions of the statement were not pathologically germane. Id. 26 is designed to prevent creative attorneys from putting information in front of the fact-finder that may not otherwise be admissible solely because it is in a hospital record . See Yellow Cab Co., 224 Md. at 57 0, 168 A .2d at 504 ( A patho logically germa ne stateme nt must fall within the broad range of facts which under hospital practice are relevant to the diagnosis or treatment of the patient s cond ition ). As a general p roposition, w e fail to com prehend how the medical treatment of the mother of an unborn baby within hours before delivery is not pathologically germane to the treatment of an unb orn (or n ewbo rn) bab y. Our general proposition is specifically illustrated, in this case, by Dr . Herman son s affid avit. 15 He stated that, [i]t [is] remarkable that anyone would claim that such information is not pathologically germane to the diagnosis and treatme nt of a n ewbo rn in Te onna s conditio n. Furthermore, contrary to the trial court s ruling, the importance of the two entries to Teonna s treatment, under UMMS s practice, is supported by the testimony of Doctors Fox and Se ymour. Both testified to the effect that UMMS s standard practice was for oral and written information to be passed between Obstetrics, where the mother was cared for and where the b aby w as ac tuall y born , and the N ICU , where th e bab y was treated. Dr. Fox 15 The trial court essentially ignored Dr. Hermanson s affidavit because he does not discuss or seem to be aware in his affidavit that the patient disavows the accuracy of the note. Again, we are not of the opinion that the appellant s mother s deposition testimony directly contradicted the entries, bu t even if it had, that alleged contradiction had nothin g to do with wh ether Joyce s trea tment, or lack thereof, w as patholog ically germane to Teonna s treatment or diagno sis. Any conf lict between Joyce s testimo ny and the fa ctual scena rio which was the basis for the affidavit should have been addressed by the parties to a jury at trial, not by the Circuit Court in a pre-trial motion. 27 testified that, if necessary, she would go to a different ward and look at the mother s chart to make su re the inform ation in the NIC U patie nt s histo ry was ac curate. Dr. Seymour stated in his testim ony that, as part of his history taking duties, he ha d, on occa sion, spoke n with mothers and regularly gathered information from Obstetrics doctors and nurses to obtain a history on a NICU patient. It seems self-evident that, by its practice, UMMS considered the history of the mother relevant to the diagnosis and treatment of NICU patients. If that is not the case, why would information ever be passed from Obstetrics to the NICU? W hy else would Doctors Fox and Seymour ever concern themselves with the history of a mother of a NICU patient? W e conclud e that the trial co urt erred in finding that the two entries in question were not pathologically germane to Teonna s treatment under UMM S s practices.16 IV. Conclusion For the fore going r easons , we ho ld that th e trial cou rt erred, a s a matte r of law , by excluding two entries made by UMMS in Teonna Boyce s medical records on the grounds that they were hearsay. The entries met the requirements of the business records exception to the hea rsay rule, see Rule 5-803(b)(6); § 10-101 of the Courts and Judicial Proceedings Article, and they were patholog ically germane to the diagnosis or treatment of Teonna Boyce. As a result of our resolution of the first question presented, it is not necessary to address the 16 The appellee argues that even if we find that the exclusion of the notes was improper, appellant has not demonstrated prejudice, and that the exclusion was harmless error not warranting reversal. Under the circumstances described above, we are unable to conclude that the e rror wa s harm less. See In re Yve S., 373 M d. 551, 616-18, 819 A.2d 1030, 1068-69 (2003) (discussing the parameters this Court has established for finding harmless error). 28 second question. JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE P AID BY THE APPELLEE. 29

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