Segrest v. Gillette12/5/1989
slip." That slip specified that, of the two available Epstein-Barr tests, Presbyterian had performed an IgM test. The admissibility of this "IgM slip," as well as expert opinions based upon it, is the subject of plaintiff's assignment of error.
Hospital records are admissible under an exception to the rule against hearsay if the records meet the requirements of G.S. § 8C, Rule 803(6), which in pertinent part provides:
(6) Records of Regularly Conducted Activity. -- A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the
testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
See Sims v. Insurance Co., 257 N.C. 32, 35, 125 S.E.2d 326, 328-9 (1962). The IgM slip does not satisfy the requirements of [ § 8C-1 ] Rule 803(6). Specifically, the test for Epstein-Barr virus was conducted on 24 or 25 January 1983. Although defendants' witnesses could not place precisely when the slip was written, Dr. Hershey, President of Southeast Anesthesia Associates, P.A., testified that he requested the information on Amy Segrest's Epstein-Barr test results sometime after November 1985, at least two years and nine months after Amy Segrest's death. The IgM slip was not, therefore, made "at or near the time" of the test itself and does not possess the guarantees of trustworthiness sufficient to justify its admission into evidence.
Although the IgM slip was not admissible as substantive evidence of the information it contained, the IgM slip could serve as the basis of expert opinion testimony. N.C.G.S. § 8C, Rule 703 in pertinent part provides:
The facts or data in a particular case upon which an expert bases an opinion . . . may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions . . . upon the subject, the facts or data need not be admissible in evidence.
An expert may testify to the facts or data that form the basis of his opinion,
not . . . to indicate the ultimate truth [of those facts], but as one of the bases for reaching his conclusion, according to accepted medical practice. The court should therefore exercise care in the manner in which such testimony is elicited, so that the jury may understand that the [facts forming the basis of the expert opinion do] not constitute factual evidence, unless corroborated by other competent evidence.
State v. Wade, 296 N.C. 454, 463-4, 251 S.E.2d 407, 412 (1979) (quoting State v. Griffin, 99 Ariz. 43, 49, 406 P.2d 397, 401 (1965)).
Two defendants, Doctors Greenhoot and Gillette, and Dr. Pollard, an associate of Greenhoot and Gillette, each testified as to their
opinion on Amy Segrest's cause of death. Each testified that her death was, in their opinion, caused by active Epstein-Barr virus. Each supported their opinion with the IgM slip, which showed a positive diagnosis of active Epstein-Barr virus. Even though the IgM slip was inadmissible hearsay, it was admissible to show the basis of expert opinion testimony.
The court erred in admitting the IgM slip wit
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