Seven decades ago, the Court of Appeals determined that statements contained in medical records are admissible as business records, an exception to hearsay, so long as they are "germane to diagnosis or treatment." Williams v. Alexander, 309 N.Y. 283, 287 (1955). However, as many litigators have experienced, this standard has been applied vaguely and inconsistently. The Second Department, in a decision issued by Judge Connolly, issued a ruling which will hopefully clarify this.

In Pilico v. 160 Dikeman Street, LLC et al., the Court was presented with a medical record that contained the following statement: "Accident: Patient was on a ladder, was picking up heavy [sheetrock] and felt a pull on his lower back and R shoulder."

The evidence submitted by the plaintiff in the case indisputably established prima facie evidence of a Labor Law 240(1) violation. The question then became whether the statement contained in the medical record created an issue of fact, since, presumably, it would establish that the plaintiff's injury came prior to any alleged Labor Law violation. It is important for litigants to remember that not only is the record itself hearsay, but the statement contained in the record is hearsay within hearsay, and a litigant must establish an exception for both to become admissible. As stated above, for the record itself to become admissible, it must be germane to diagnosis and treatment.

The decision conducts an in-depth analysis of the record. The ruling provides a strong basis for litigants to introduce records into evidence. For those who may take for granted that these records are nothing more than hearsay, the decision offers a compelling reminder to reconsider this position and to treat records as vital pieces of evidence for the defense of a case. Conversely, it serves as a caution to those who assume that these statements will become vital pieces of evidence that the necessary groundwork must be laid for them to be admissible.