12.6.13 Medical Records

Certified medical records may be admitted into evidence without a witness. La. R.S. 13:3714(A) governs the admission of medical records in Louisiana. That statute provides that a certified copy of a medical record shall be received in evidence as “prima facie proof” of its contents, upon the condition that the opposing party has the opportunity to summon the author as witness for cross-examination.1  Because medical records are considered inherently reliable, certification is the only requirement to lay a foundation of authenticity.

In domestic violence cases, medical records can present three common evidentiary issues that lawyers should plan for in advance: (1) notice to the opposing party, (2) hearsay within the medical record, and (3) statements made by your client that conflict with her testimony because she lied about the cause of her injuries. First, the notice requirement of this statute premises admissibility on fair notice to the other side. In non-emergency cases, this means attorneys should provide copies to opposing counsel of the records they intend to use far enough in advance of trial to allow for issuance of a subpoena.2  In emergency cases, notice is a trickier issue. Judges tend to admit certified medical records in emergency proceedings, but it is still a good idea to let opposing counsel know before the case begins that you will be introducing medical records. If opposing counsel nonetheless objects to the record’s admission on notice grounds, there is a strong argument to be made in favor of admitting the records. In emergency cases where a TRO has been issued, it is the defendant’s due process rights that require a quick hearing—to ensure that he is not subjected unfairly to an order of which he had no notice. If the defendant decides that he cannot fairly defend the case on such short notice, it is his right to request more time before being made to do so. If the defendant did not feel he could be prepared to meet the evidence, he could have requested more time to prepare. If he did not, even after being told that petitioner would introduce the records, that was a strategic decision. (Then, if necessary, indicate the extent to which you made efforts to comply with the notice requirement as best as possible).

The two other issues you should plan to deal with relate to the contents of the records. If there is hearsay within the document that you intend to admit as substantive evidence to prove the truth of matter asserted, you may need to argue other hearsay exceptions. To be clear about the rule, the statute allows the contents of the record to be taken as “prima facie proof.” But if, for example, there is a hearsay statement within the report, the report is simply prima facie proof that the statement was made, not of the truth of the statement. For that hearsay to be admitted as substantive proof, it must fall within a hearsay exception. Those exceptions will usually include statements in aid of medical treatment, excited utterance, and prior consistent statement. If medical records show your client attributing her injuries to a source other than abuse by her partner but provide good proof of the injuries, you should often seek to admit them anyway and prepare your client to testify about why she did not report the abuse to her doctor. In some cases, it is because the abusive partner accompanied her to the hospital or told her what to say. In other cases, it is attributable to shame or fear. Know why she told the doctor what she told them and make sense of it to the judge during her direct examination. Don’t forget to prepare your client for tough questioning on this in cross.

• 1La. R.S. 13:3714(A); see also Judd v. State, Dep’t of Transp. & Dev., 95-1052, pp. 9–10 (La. 11/27/95), 663 So. 2d 690, 696.
• 2Compare Perniciaro v. Hamed, 20-62, pp. 27–30 (La. App. 5 Cir. 12/16/20), 309 So. 3d 813, 834–36 (medical report that opposing counsel was unaware of until trial and for which no witness was called to authenticate was inadmissible under La. R.S. 13:3714(A)), with State ex rel. C.F., 52,741, pp. 13–14 (La. App. 2 Cir. 5/22/19), 273 So. 3d 1265, 1273 (medical records admissible where certified by medical provider in court and opposing counsel had opportunity to subpoena author of records but decided not to).