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Shpigel v. White12/10/1999
he Federal Rules, like earlier courts, is likely to be reluctant to permit a decision to be made upon the basis of an un-cross-examined opinion and may require that the witness be produced." Id. (footnotes omitted).
The Illinois appellate court held that " he trial court could properly have concluded that the opinions of [the defense expert] were important enough that they should be presented by live testimony, rather than in the form of medical records." Kelly, 668 N.E.2d at 600.
In the matter now before us the factors considered by the cases and commentators reviewed above are present. Although the P.A. records were not so clearly prepared for litigation as are medical reports rating a claimant for workers' compensation benefits, nevertheless, the issuance by the P.A. of total disability certificates to Shpigel, who is self-employed, and who was on a personal trip when the accident occurred, suggests that litigation considerations were recognized in conjunction with the medical treatment. Further, the subject matter of the P.A. records are central to the litigation, the opinions contained therein are contested, as indeed is the necessity for the treatment, and the conflict with the prognosis of the emergency room discharge instructions evidences that White's insistence on the opportunity to cross-examine is not without foundation. Consequently, we hold that the circuit court acted within its discretion in ruling that the P.A. records would not be admissible. This discretion is conferred by the trustworthiness requirements of Rules 5-902(a)(11) and 5-803(b)(6), as well as by the trial Judge's discretionary power conferred by Rule 5-403 to exclude evidence if its probative value is outweighed by the danger of misleading the jury.
The findings in Dr. Stambler's reports to plaintiffs' counsel, based on his examinations of Benjamin and Daniela, are essentially negative. They report that each child "was obviously frightened, and cried immediately after the accident" and that each child "slept well that evening, experienced no vomiting, but complained of frontal headache." We infer that Dr. Stambler's report was proffered in order to evidence the reasonableness or necessity of Shpigel's engaging a psychologist to examine and treat the children. Viewed from this light, there was no error in excluding Dr. Stambler's reports because there is no report from the psychologist and Dr. Stambler's reports do not recommend any psychological consultation.
C. The Hospital Records
The hospital records of Northwest Hospital Center concerning the emergency room visits of Shpigel, Benjamin, and Daniela immediately following the accident are offered as within the business records exception to the hearsay rule, and for the purposes of this appeal, we treat the proffered records as authenticated, as described in Part I above. This Court has said that "the business records exception to the rule against hearsay, under which hospital records are included, 'properly administered ... would seem to be among the safest of the hearsay exceptions.'" State v. Garlick, 313 Md. 209, 216, 545 A.2d 27, 30 (1988) (quoting Ohio v. Roberts, 448 U.S. 56, 66 n.8, 100 S. Ct. 2531, 2539 n.8, 65 L. Ed. 2d 597, 608 n.8 (1980)). " nce it is clear that the hospital record was made during 'the regular course of business' and the recorded transactions are 'pathologically germane to treatment' the record is admissible as an exception to the hearsay rule." Id. at 223, 545 A.2d at 33. " e have held in numerous cases [that] hospital records are not inadmissible as hearsay in Maryland because they fall within the statutory business record exception." Dietz, 277 Md. at 7, 351 A.2d at 432.
Rule 5-80
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