As of January 1, 2013, the medical narrative exception which was O.C.G.A. § 24-3-18 has been
renumbered to O.C.G.A. § 24-8-826.
NEW EXCEPTION TO THE HEARSAY RULE:
As Published in the VERDICT, Winter, 1997
Dwight A. Meredith
Wood & Meredith
Medical Narrative Report Form (Wood & Meredith, LLP)
To Statutes and Case Law
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The exception to the hearsay
rule provided by OCGA § 24-3-18 is not blanket
authority for the admission into evidence of any and all medical records
in any or all cases. There are several major limitations to the
effectiveness of the new provision for the admission of medical records.
Each of the limitations will be addressed in turn
The first limitation concerns
the type of cases to which the statute
applies. By its own terms, OCGA § 24-3-18 applies only to the
trial of any civil action involving injury or disease.
The exception does not apply in criminal cases and will not apply in civil
cases that do not involve injury or disease.
Thus, the hearsay exception will apply in actions arising out of motor vehicle
accidents, medical malpractice, premises liability and other personal
One can easily imagine that
certain domestic relations cases would
involve injury or disease. Similarly, will contests and
other probate matters may involve mental disease. Finally, contract
cases in which capacity is an issue may involve injury or disease.
The legislature chose the
phrase involving “injury or disease” rather than “arising out of injury or
disease” in which “compensation for injury of disease is sought.”
appears that the intent of the General Assembly was not to limit the
application of the statute to personal injury actions but rather to
provide an easy and inexpensive method of proving medical facts in all civil cases in which injury or disease is relevant.
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Record Must Be Signed And Dated
The second limitation on the applicability of the statute is that the
medical record must be signed and dated by a health care professional.
The statute requires that the medical professional signing and dating
the record have diagnosed or treated the patient. Thus, expert witnesses
who simply review medical records are not covered. Similarly, medical
reports from professionals who review medical records for HMO's or
insurance companies, but who have not treated or diagnosed the patient
are not admissible over a hearsay objection.
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The requirement that the
record be signed by a health care professional begs
the question of what type of professional is covered. The General
Assembly has answered that question by including in the statute a list
of professionals who, by signing and dating the medical narrative, bring
the report within the ambit of the statute. That list is limited to the
following: Medical doctor; Dentist; Orthodontist; Podiatrist; Physical and
Occupational Therapist; Doctor of Chiropractic; Psychologist; Advanced
Practical nurse; Social Worker; Professional Counselor; and Marriage and
narratives signed and dated by medical professionals not on that list are not
admissible over a hearsay objection. It is unclear why the
following professions were left out of the statute. Conspicuous by their
absence from that list are the following: Optometrists; Osteopathic
physicians; Physician's assistants; Radiological technicians; and,
Respiratory therapists. Since neuropsychology is defined by statute be a sub-specialty
of psychology, neuropsychologists are covered under OCGA § 24-3-18 as psychologists.
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The next limitation on the
admissibility concerns the contents and form of
the medical record itself. The statute, by its own terms, refers to
medical reports in narrative form. The statute does not
define “narrative form” but, presumably, raw test results,
x-rays, and medication charts that contain no explanatory material would
not be covered.
The statute allows the
admission into evidence of such reports only
insofar as it purports to represent the history, examination,
diagnosis, treatment, prognosis, or interpretation of tests or
examinations, including the basis therefore, by the person signing the
OCGA § 24-3-18(a).
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(Examples Of Statements In Med Records That Are Hearsay/Not Covered)
While matters not included on
that list would be subject to a hearsay
objection, that list is sufficiently broad not to unduly limit the
practitioner. To the extent that material in the medical narrative is
extraneous, it should not be read to the jury. For instance, a note in
the medical records that the defendant was insured would certainly be
Similarly, the patient's
statement recorded in the medical
records that, “I was hurt in a car wreck when a drunk driver ran a
red light at high speed” should be excluded. The reading of the
medical narrative is admitted into evidence “the same as if that
person (the author of the medical record) were present at trial and
If the doctor who wrote the
note attempted to testify
that his or patient told him the defendant was drunk, such testimony
would be excluded as hearsay.
The fact that an exception
is made that allows the medical narrative into evidence as a substitute for the
live testimony of the physician does not authorize evidence to be read from a
medical record that would be excluded if offered by the witness in live testimony.
Thus, in the example posed above, the court should allow theportion of the statement that
would be admissible via live testimony andexclude the remainder. The
portion of the statement,
“I was hurt in
a car wreck,” if introduced in live testimony could be admissible
over a hearsay objection as a statement made for medical diagnosis or treatment.
Under the provisions of OCGA
§ 24-3-18, the extraneous
material concerning insurance, red lights and drunk driving is not
within the history, examination, diagnosis, treatment, prognosis, or interpretation of tests or examinations for which the statute creates an exception to the hearsay rule.
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Potential Uses For This New Tool
Of particular interest is the
portion of the statute that notes that
the opinion of the person signing the report with regard to the
etiology of the injury or disease may be included as part of the
diagnosis Etiology of the injury ”cause” of the injury. Thus, a narrative
medical report giving a doctor's opinion that the injury was caused by the
car wreck is admissible over a hearsay objection.
OCGA § 24-3-18 is a very powerful new tool in a personal injury case.
practitioner may use medical narratives to demonstrate the nature and extent of
injury (diagnosis), the cause of the injury (etiology), whether or not the
permanent (prognosis), and the treatments undergone. In addition,
creative use of the exception to put before the jury such reports as
nursing notes or office visits may help to prove the duration and degree
of pain and suffering resulting from the injury.
potential use of the medical reports is to read nurses notes in order to
prove pain and suffering. The nurses narratives may well contain notations of
the times pain medication was administered as well as notations of the patients'
complaints of pain. The reading of such reports may bolster and support other
non-medical testimony concerning the pain and suffering.
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In order to take advantage of the provisions of OCGA § 24-3-18, the procedures outlined in the statute must be followed. First, both the medical reports intended to be introduced as well notice of such intention must be provided to the opposing party at least 60 days prior to trial.
If both a copy of the medical reports to be introduced as well as notice of intention to introduce those records are not provided to the opposing party at least sixty (60) days prior to trial, a hearsay objection to the introduction of those records is well founded.
Once the notice of intent is
sent along with copies of the records to be
introduced, the party receiving the notice has 15 days to object to the
introduction of such report, or any part thereof, on grounds other than
hearsay. In the absence of such objection, the document as a whole is admissible.
To supplement the report, the
party seeking admission of the report may
also present testimony of the signer of the report. Thus, it is possible
to read a physician's qualifications into the record, read the narrative
reports he or she authored and then call the physician to supplement the report.
Once the requirements of the
statute are met, the medical reports are presented to the court in the
same manner as deposition testimony. The statute
states that the medical narrative is admissible into evidence as if the person
signing the report was testifying as a witness. Thus, the medical narrative
stands, in effect, in the place of live testimony of the report's author.
It is read to the jury like a deposition and it is admitted, not as documentary
evidence but, rather, as a substitute for
In order to insure that the
requirements are met, certain steps are
recommended. First, in the letter written to health care providers
requesting medical records, one should explain the statute to the health
care provider. That letter should place emphasis on the fact that
properly prepared narratives by the professional (for example,
signed and dated may avoid the need to take a deposition or provide trial testimony.
When one receives medical records, each record should be checked to see if the requirements of 1) narrative, 2) signature, and 3) date are included.
If medical records are
received that are not completed in the required format and which
contain important information, one should immediately contact the office
of the doctor and explain that the oversight may result in the need for
his or her deposition. It may be that, from the doctor's point of view,
it is far less trouble to create an appropriate narrative than to sit
for a deposition.
One should not tell the physician that a proper
narrative will avoid a deposition as the opposing party has the right to
cross examine the signer of the report and the person offering the
report into evidence may decide to take a deposition as well. One can
hope that as the medical profession becomes more familiar with the
provisions of OCGA ' 24-3-18, medical reports will be routinely composed
to fit the requirements.
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