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Shpigel v. White12/10/1999
ion of documents. In the Rule 5-902(a)(11) certifications the custodians of the proffered records made oath as to the three factual elements, (A), (B), and (C), required by the Rule. The circuit court did not address the adequacy of the notice to invoke Rule 5-902(a)(11), although White argued that the notice was inadequate. The circuit court, in effect, exercised its discretion in not granting summary judgment on that ground, and we do not ordinarily undertake to sustain a summary judgment by ruling on a ground not ruled upon by the circuit court. See Three Garden Village Ltd. Partnership v. United States Fidelity & Guar. Co., 318 Md. 98, 107-08, 567 A.2d 85, 89 (1989).
In rejecting the proffered documents the circuit court in part relied on CJ § 10-104. That statute, inter alia, applies to a claim for " amages for personal injury ." § 10-104(b)(1)(i). Its application is limited to a proceeding in the District Court of Maryland, or to certain proceedings in a circuit court under circumstances which are not applicable here. § 10-104(b)(2). Under the statute a writing or record of a health care provider, which is otherwise admissible, "is admissible without the support of the testimony of a health care provider as the maker or the custodian of the writing or record to prove the existence of a medical, dental or health condition, the opinion, and the necessity and the providing of health care." § 10-104(d).
Further, under § 10-104(e)
" written statement or bill for health care expenses is admissible without the support of the testimony of a health care provider as the maker or the custodian of the statement or bill to prove the amount, fairness, and reasonableness of the charges for the services or materials provided."
In order to utilize this statute, the proponent of the evidence must give notice to all other parties, at least sixty days before the beginning of the trial of that party's intent "to introduce the writing or record without the support of a health care provider's testimony" and furnish a copy of the writing or record to all other parties. § 10-104(c)(1).
Section 10-104 does not restrict the scope and operation in a circuit court of Maryland Rule 5-902(a)(11). Rule 5-902 became effective July 1, 1994, Michie's Annotated Code of Maryland, 1 Md. Rules at 663 (1999), while CJ § 10-104 was enacted by Chapter 554 of the Acts of 1996 and has been amended subsequently. Although the statute is later in time, it would violate a well recognized rule of statutory construction to construe the statute as impliedly repealing the rule when the latter is relied upon to introduce the business records of health care providers in an action initially filed in the circuit court. More important, § 10-104 clearly is intended to liberalize the admissibility of the business records of health care providers far beyond the self-authentication provisions of Rule 5-902. Under the statute, and unlike the rule, no certification of the custodian is required to establish authenticity. Further, but without undertaking exhaustively to describe possible differences, the statute eliminates any requirement that the proponent of the evidence prove the fairness and reasonableness of the charges for the health care rendered.
Accordingly, to the extent that the circuit court indicated that a statute, such as CJ § 10-104, was needed in order to make any of the proffered records admissible in a circuit court, we disagree.
II.
" 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 grounds." Dietz v. Moore, 277 Md. 1, 7, 351 A.2d 428, 433 (19
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