Matter of Fortunato v Murray, 2010 NY Slip Op 03122 (2d Dept. 2010)
“Contrary to the Family Court’s general statement of the applicable law, “[a] physician’s office records, supported by the statutory foundations set forth in CPLR 4518(a), are admissible in evidence as business records. However, medical reports, as opposed to day-to-day business entries of a treating physician, are not admissible as business records where they contain the doctor’s opinion or expert proof” (Matter of Bronstein-Becher v Becher, 25 AD3d 796, 797 [internal quotation marks and citations omitted]; see Batts v Rutrick, 298 AD2d 417; Napolitano v Branks, 141 AD2d 705, 705-706). Moreover, a physician’s office records “may be received as evidence despite the fact that a physician is available to testify as to the substance and contents of the records” (Napolitano v Branks, 141 AD2d at 705-706; see Clarke v New York City Tr. Auth., 174 AD2d 268). Here, upon the father’s appeal of the Family Court’s order, this Court does not have the benefit of the actual medical documents in dispute since the documents are not part of the original papers before this Court. Thus, from the record, it is unclear whether the subject documents were the type which this Court views as admissible. Accordingly, we remit the matter to the Family Court, Nassau County, for a review by the Support Magistrate of the subject medical documents in light of and pursuant to the aforementioned standard as to admissibility.”
This case tells us a few things about business records and medical opinions. First, day to records, i.e., soap notes, treatment logs, and other day to day documentationare admissible as business records. As we also learned in Faust v. McPherson, 4 Misc.3d 89 (App. Term 2d Dept. 2004), an employee of the physician or the medical facility can lay this foundation. Second, medical reports are admissible as business records except for the portion that contains “the doctor’s opinion or expert proof”.
Keep this in the back of your head when you are a plaintiff in an IME cut-off case and you want to have an expert opine on the medical records subsequent to the IME cut off. As a defendant, keep your eyes open for when you see certain violations of the above-stated rule.
