Admissibility of Medical Records Without Live Testimony

Unlike many other states, Maryland has greatly relaxed the rules for admission of medical records and bills in personal injury cases initially filed in the state district court system whether or not these cases are later transferred to the Circuit Court. Under Section 10-104 of the Courts and Judicial Proceedings Article of the Maryland Annotated Code, medical, dental or hospital records are now admissible into evidence without the need for supporting testimony by a physician, dentist or hospital employee. Although these records (for the exception of hospital records) were previously excluded from evidence as inadmissible hearsay, the new statute now permits plaintiffs' counsel to avoid the expense of live testimony by the treating physician if, at least 60 days prior to trial, plaintiffs' counsel file with the clerk's office a notice of the party's intent to introduce the document without the support of live testimony and provide the Court with a copy of all such documents.

Once introduced, these records may be used to prove the existence of a medical condition, the opinion of the health care provider and the necessity for providing the medical treatment at issue. Furthermore, if this procedure is followed, medical bills are now admissible to prove the amount, fairness, and reasonableness of the charges for the services provided.

To counteract plaintiffs' use of this procedure, defense counsel may also take advantage of the new law by submitting the independent medical reports of physicians and other health care providers who may raise doubts regarding the cause or severity of injury, as well as the fairness, reasonableness and necessity of medical treatment. While this procedure would similarly eliminate the need for the live testimony of defense doctors, there is little doubt that plaintiffs will be the primary beneficiary of this procedure. Although plaintiffs' counsel have frequently discounted the value of their claims in light of the expense associated with producing the live testimony of doctors, this will no longer be necessary in cases affected by the new law. Instead, plaintiffs' counsel may simply follow this procedure and admit relevant medical records and bills without the need for any stipulation by defense counsel.

Although an earlier version of this law required the live testimony of medical experts in cases transferred from the District Court to the Circuit court, the new  procedure eliminates the need for such testimony in the Circuit Court as well, provided that the claim does not exceed $25,000.00. Thus, in cases removed for jury trials in the Circuit Court, defense counsel will no longer be able to cross examine expert medical witnesses on their close associations and business relationships with plaintiffs' counsel, their relative lack of qualifications, and their apparent interest in the outcome of cases for which they are waiting to be paid.

This statute applies to all cases originally filed in the District Court on or after October 1, 1997.  While this law represents yet another in a series of lobbying defeats suffered by the insurance industry in the Maryland General Assembly, it need not spell defeat in cases subject to this procedure.  Plaintiffs' counsel who wish to save expert witness fees by using this procedure may be "penny wise and dollar foolish." Unhampered by the live, adverse testimony of treating physicians, able defense counsel should provide live "testimony" on behalf of the insured by exploiting gaps and flaws in the records during closing argument and by emphasizing all of the questions which plaintiff's counsel left unanswered by failing to call the treating physician to the stand.   In this way, defense counsel may actually turn what appears to be a legislative defeat into victory at trial.