In the vast majority of probate litigation (especially will contests), the medical condition of the decedent will be at issue. Did the decedent have sufficient mental capacity to make the will? Was the decedent medicated on the day the will was executed? The list of issues that can arise from the decedent’s medical history can be substantive. As such, evidence of the decedent’s medical history can become extremely important. This leads to the question of what evidence of the decedent’s medical history is admissible. Probate attorneys engaged in probate litigation involving medical evidence may find this case instructive:
Eric P. Sibbing v. 
No. 49A02-0802-CV-165
This matter arose as a result of an automobile accident and the personal injuries suffered by the plaintiff. At trial, the plaintiff was allowed to testify regarding what a physician told her about diagnostic tests and the cause of her (the plaintiff’s) pain. On appeal, the defendant claimed that trial court erroneously admitted hearsay evidence. The Court of Appeals disagreed.
The Court first noted that “[h]earsay is defined by rule as ‘a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted’” citing Ind. Evidence Rule 801(c) and that “[a]s a general rule, hearsay evidence is not admissible” citing Ind. Evidence Rule 802. However, the Court also noted that “there are several exceptions to this general rule. At issue here is the following exception contained in Evidence Rule 803(4):
The following are not excluded by the hearsay rule, even though the declarant is available as a witness.
* * *
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."
The defendant argued that this exception “applies only to statements made by patients, not statements made to patients.” The Court of Appeals rejected this argument noting that in Coffey v. Coffey, 649 N.E.2d 1074, 1078 (Ind. Ct. App. 1995), the court decided that the trial court erred in excluding a letter from the husband’s physician which addressed the husband’s physical diagnosis and treatment agenda and further opined that the husband was unable to work due to his physical condition.” The defendant attempted to distinguish the Coffey decision by claiming that “only the physician’s letter was deemed admissible, not testimony from the husband regarding what his physician had said.” The Court was not persuaded: “To us, this is a distinction without difference. The physician’s out-of-court statements would be hearsay regardless of whether they were admitted through the letter or by the testimony of a witness.” (emphasis added).
On a personal note, James A. Mellowitz was the attorney for the plaintiff and he is “Of Counsel” with Robert W. York & Associates. Jim is an outstanding personal injury attorney.
The opinion was handed down on March 5, 2009 and the full text of the opinion can be found here.
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