The medical exception in evidence.

Prof. Colin Miller brings, The Admissibility of Statements Made to Doctors Consulted For the Purpose of Enabling Him/Her to Testify

Federal Rule of Evidence 803(4) provides an exception the rule against hearsay for

A statement that:

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

So, if Pam feels sick and goes to a doctor to be diagnosed and treated, clearly her statements would be admissible under Rule 803(4). And the same would apply to statements made to the doctor by Pam’s family and friends so she can be diagnosed/treated. But what if Pam believes that she has been injured or made sick based on the wrongdoing of someone and consults with a doctor solely so that the doctor can testify at her trial. Are Pam’s statements admissible

The Advisory Committee’s Note to Rule 803(4) states that

Conventional doctrine has excluded from the hearsay exception, as not within its guarantee of truthfulness, statements to a physician consulted only for the purpose of enabling him to testify. While these statements were not admissible as substantive evidence, the expert was allowed to state the basis of his opinion, including statements of this kind. The distinction thus called for was one most unlikely to be made by juries. The rule accordingly rejects the limitation.

Moreover, as the Supreme Court of Georgia noted in Smith v. State, 2020 WL 3581185 (Ga. 2020),

the federal appellate courts to have addressed the specific issue in this case have concluded that statements made for medical purposes to experts hired in anticipation of litigation generally are admissible under Rule 803 (4).

The Supreme Court of Georgia found that it didn’t have to resolve this issue under its state version of Federal Rule of Evidence 803(4), but it noted some hesitancy about adopting this federal precedent. According to the court, “we view the aforementioned cases unpersuasive to the extent that they suggest that the question of admissibility under Rule 803 (4) is anything other than a case-specific, fact-intensive inquiry.”

In other words, it sounds like the Supreme Court of Georgia may allow for the admission of “statements to a physician consulted only for the purpose of enabling him to testify,” but only under certain circumstances.