You are here: / / Statements in Hospital Records Attributable to Plaintiff Not Admissible...
,

Statements in Hospital Records Attributable to Plaintiff Not Admissible Because Not Germane to Treatment or Diagnosis/Plaintiff’s Counsel Should Not Have Been Allowed to Comment on Defense’s Failure to Call the Nurse Who Was Going to Testify About the Statements—New Trial Ordered

The Second Department determined plaintiff's alleged statements about the trip and fall which were referenced in hospital records were not admissible because the statements were not germane to diagnosis and treatment and were not prior inconsistent statements.  The defense was therefore prohibited from calling the triage nurse who heard the statements.  Plaintiff's counsel, however, was erroneously allowed to comment on the absence of the nurse from the trial (the defense had indicated in its opening that she would testify about discrepancies in the plaintiff's account of the accident).  A new trial was therefore ordered:

Supreme Court providently exercised its discretion in precluding the admission into evidence of the entries in the injured plaintiff's hospital records. The evidence, which purportedly constituted statements by the injured plaintiff indicating that the accident did not occur on the defendants' premises, were not germane to the injured plaintiff's diagnosis and treatment … . Further, those statements were either equivocal as to how the accident occurred, or consistent with the injured plaintiff's testimony at trial … . Accordingly, they were not admissible as prior inconsistent statements to impeach her credibility. Since those entries were not admissible, the testimony of the triage nurse with respect to those entries was not admissible.

However, permitting the plaintiffs' counsel to comment on the failure to call the triage nurse as a witness was error, since the defendants in fact produced the witness and were precluded from calling her to testify by the trial court. Further, the comments by the plaintiffs' counsel in summation were not supported by the evidence, and were inflammatory and unduly prejudicial, depriving the defendants of a fair trial … . Nelson v Bogopa Serv Corp, 2014 NY Slip Op 08612, 2nd Dept 12-10-14

 

You might also like
DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE (LEVEL TWO TO ONE) IN THIS CHILD PORNOGRAPHY CASE (SECOND DEPT).
Weight of Evidence Review Applies to More than Just Credibility—It Also Applies to Failure to Prove Elements Beyond a Reasonable Doubt
PLAINTIFF, A PASSENGER IN A STOPPED CAR HIT FROM BEHIND, WAS ENTITLED TO SUMMARY JUDGMENT, WHETHER THE PLAINTIFF’S DRIVER WAS COMPARATIVELY NEGLIGENT NO LONGER PRECLUDES SUMMARY JUDGMENT (SECOND DEPT).
ATTORNEY’S MOTION TO WITHDRAW BECAUSE OF CLIENT’S FAILURE TO PAY AND LACK OF COOPERATION SHOULD HAVE BEEN GRANTED (SECOND DEPT).
ALTHOUGH DEFENDANT DRIVER HAD THE RIGHT-OF-WAY AND PLAINTIFF APPARENTLY PULLED OUT OF A DRIVEWAY IN FRONT OF DEFENDANT, PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT KEPT A PROPER LOOKOUT (SECOND DEPT). ​
DEFENDANTS’ MOTION TO DISQUALIFY PLAINTFF’S ATTORNEY ON CONFLICT OF INTEREST GROUNDS SHOULD HAVE BEEN GRANTED.
IN THIS FORECLOSURE ACTION THE DEATH OF THE MORTGAGOR/PROPERTY OWNER DID NOT TRIGGER AN AUTOMATIC STAY BECAUSE THE MORTGAGOR/PROPERTY OWNER DIED INTESTATE AND THE ACTION COULD CONTINUE AGAINST THE DISTRIBUTEES WITHOUT THE APPOINTMENT OF A REPRESENTATIVE (SECOND DEPT).
Court Should Not Have Dismissed for “Neglect to Proceed”—Criteria Explained

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Psychiatrist Deemed an Employee of a Counseling Center Repeated Invitations to Review 60 to 80 Banker’s Boxes of Documents In...