May an expert rely solely on a “hearsay within hearsay” statement in medical records when forming an opinion as to a defendant doctor’s negligence?  The answer, according to the recent New Jersey Appellate Division decision in Konop v. Rosen is yes, if it meets certain hearsay rule exceptions.

In Konop, the plaintiff’s colon was allegedly perforated during a colonoscopy performed by Dr. Rosen, and plaintiff sought to introduce expert testimony as to the cause of the perforation.  Plaintiff’s expert opined that “defendant deviated from accepted medical standards by failing ‘to ensure that the patient was adequately sedated and not moving during the procedure and by [failing] to stop the procedure when excessive patient movement occurred.’”  The expert based this opinion exclusively on a notation in the hospital consultation report, written by a first-year attending physician, which included a statement allegedly made by Dr. Rosen herself that the patient was moving during the colonoscopy.

After an evidentiary hearing, the Law Division judge opined that the notation in the report was inadmissible hearsay, ordered it redacted, and granted summary judgment to Dr. Rosen. In his oral opinion, the judge cited the unreliability of the notation as underlying the finding of inadmissibility.

On review, the Appellate Division reversed the ruling and remanded the matter.  The appellate panel concluded that the medical record constituted a business record, and that the only issue as to admissibility was whether the disputed statement met one of the hearsay exceptions.  The panel ultimately found that, if plaintiff could prove that Dr. Rosen made the statement found in the hospital consultation notes, the statement would fall under an exception to the hearsay rules, and would be admissible.  The decision as to whether Dr. Rosen in fact made the statement at all would be a question for the jury, and would be determined based upon the preponderance of the evidence.

While this decision does not change the rule that an expert’s opinion may not be solely based upon an inadmissible hearsay statement, it does clarify the manner in which such statements that would otherwise be hearsay may be made admissible.

Thanks to  Christina Emerson for her contribution to this post.  If you would like further information please write to .