12 Fla. L. Weekly Supp. 430a
Insurance — Personal injury protection — Coverage — Medical expenses — Relation to accident — Evidence — Hearsay — Exceptions — Double hearsay of medical provider’s records containing insured’s statement to physician that she was in automobile accident was properly admitted to prove insured’s injuries were related to accident where provider’s records were introduced by records custodian who satisfied all predicate requirements for business records exception, and statement to physician without mention of identity or fault falls within hearsay exception for statements made for purposes of medical treatment
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. ACTIVE SPINE CENTER, a/a/o MARIA DE LA PAZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 04-116 AP & 04-169 AP. February 18, 2005. An appeal from the County Court for Miami-Dade County, the Honorable Mercedes Bach presiding. Counsel: Charles Balli, Office of the General Counsel, United Automobile Insurance Co., for Appellant. Neil Gonzalez, Bernstein & Maryanoff, et al., for Appellee.
(MARIA M. KORVICK, GISELA CARDONNE ELY, and RONALD DRESNICK, JJ.)
CORRECTION OPINION
(DRESNICK, J.) This appeal arises from the trial of a personal injury protection (“PIP”) claim for medical treatment. The Plaintiff below, Active Spine Center, brought the action as assignee of Ms. De La Paz, the insured. To succeed in its claim under the PIP statute, Appellee needed to establish that Paz, the insured. To succeed in its claim under the PIP statute, Appellee needed to establish that the injuries complained of by Ms. De La Paz and treated by Appellee resulted from an automobile accident. The only evidence to that fact was Ms. De La Paz’s statement to her treating physician. That evidence came in through Dr. Riskowski, the owner of Active Spine Center, who testified as the custodian of records and as a medical expert. He was the only witness for the Plaintiff, neither Ms. De La Paz nor her treating physician testified.
After he qualified as the custodian of records, Dr. Riskowski was asked:
Q: Let’s look at the initial report and please tell us the history that Dr. Schultz took of Maria De La Paz.
Mr. Milliheiser: Objection, hearsay
The Court: Overruled.
The Witness: The history that Ms. De La Paz gave to Dr. Schultz was that she was involved in an auto accident. She was driving moderately fast and she was cut off by another vehicle and had a front end collision. She was wearing her seat belt. She had a head rest that was — lower position. Her body moved forward. Her head was forward and back — she stated she was confused the date that the accident — she received emergency care at the scene and was taken to the hospital by ambulance and paramedics, where they gave her a couple of injections and some prescription pain medication.
Tr. 148-149.
“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(1)(c), Fla. Stat. (2002). Ms. De La Paz’ statement to her treating doctor is clearly hearsay and should not be admitted for the truth of the matter asserted unless it comes into evidence under a hearsay exception. In fact, the testimony offered is hearsay within hearsay or double hearsay. Thus, to be admissible, two exceptions to the hearsay rule must exist. “Hearsay within hearsay is not excluded under s. 90.802, provided each part of the combined statements conforms with an exception to the hearsay rule as provided in s. 90.803 or s. 90.804.” § 90.805, Fla. Stat. (2002).
The first layer of hearsay, the business records of Active Spine, satisfied the Business Records Exception to the Hearsay Rule. § 90.803(6), Fla. Stat. (2002). The records were introduced by the custodian of records, who satisfied all of the predicate requirements of the statute. In fact, this was not an issue raised in this appeal.
The only issue raised was Appellee’s contention that the insured’s statements to her treating doctor, who was not present in court to testify, were hearsay, at least to that part of her statement in which she said that she was in an auto accident. Statements to treating physicians are admissible as exceptions to the hearsay rule. § 90.803(4), Fla. Stat. (2002). “The test [for the trial court], when examining whether statements contained in medical records relating to the cause of an injury are admissible hearsay, is whether such statements are of the type reasonably pertinent to a physician in providing treatment.” Saul v. John, 499 So. 2d 917, 919 (Fla. 4th DCA 1986). The burden is on the opponent to the exception to demonstrate that the statement was not for medical purposes or business records. Love v. Garcia, 634 So. 2d 158 (Fla. 1994). Other than make an objection, the Appellant did nothing to demonstrate that the statement did not go to treatment.
Here, Ms De La Paz was being examined by a chiropractor. The history given to Dr. Schultz was clearly of the type a patient would reasonably give to a treating physician so that the doctor may provide a diagnosis and a plan of treatment. Statements that a patient gives to a treating physician that are not reasonably related to treatment are excluded by the hearsay rule from evidence. Those types of statements are typically statements that attribute fault or identity. Id; Williams v. State, 865 So. 2d 17 (Fla. 4th DCA 2003). Thus, if this case was to establish the fault of the car that “cut [her] off,” then a hearsay objection would have been well taken. That was not the case here. See Tr. 148-149. Whether the insured was riding in an automobile and had been involved in an accident goes directly to treatment that her doctor prescribed. Therefore, because the statement meets the medical records exception it is admissible hearsay and can be introduced into evidence. The lower court properly admitted Ms. De La Paz’ statement to her chiropractor because it was made for medical treatment and there was no mention of identity or fault, therefore the statement was admissible.
Accordingly, the decision below is Affirmed. (KORVICK and CARDONNE ELY, JJ., CONCUR.)
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