NY Appellate Court Clarifies Hearsay Standards For Admission of Accident-Related Entries in Medical Records

New York, N.Y. (August 5, 2025) - A recent New York appellate opinion focused on an all-too-common occurrence in the defense of injury actions: an entry in a hospital or medical record containing a statement from the plaintiff concerning the accident that contradicts the version the plaintiff has presented in litigation. Although encountering such an entry often feels like locating the proverbial silver bullet, it is largely worthless if it is not admissible. The problem is that such entries tend to constitute hearsay.

Attorneys typically invoke the business records exception to the hearsay rule to admit such an entry into evidence, although the entry may also qualify as a party admission in appropriate circumstances (see Fraser v 147 Rockaway Pkw, LLC, 203 AD3d 894, 896 [2d Dept 2022]). New York’s Court of Appeals has long held that an entry that contains “a narration of the accident” is only admissible under the business records exception if it is “germane to diagnosis or treatment” (Williams v Alexander, 309 NY 283, 287 [1955]). However, judges and attorneys alike have long struggled with applying this standard in the context of particular cases.

Fortunately, the Appellate Division, Second Department recently issued a helpful opinion on this topic. In Pillco v 160 Dikeman St., LLC (__ AD3d __, 2025 NY Slip Op 04495 [2d Dept July 30, 2025]), Justice Francesca E. Connolly clarified the standards courts should apply when considering whether to admit an accident-related entry in a hospital or medical record into evidence. Following the guidance offered in her opinion should make it easier for practitioners to admit such entries into evidence.

Attorneys should heed Justice Connolly’s guidance, among other things, as to the circumstances in which expert testimony may be needed to establish whether an entry is germane to diagnosis or treatment. It is also important to be aware of the apparent rift between the First and Second Departments as to the evidence needed to establish the plaintiff as the source of the information in the entry, with the Second Department offering a less burdensome path for defendants. Lewis Brisbois’s Appellate Practice Group, in an appropriate case, will work to have the Court of Appeals resolve this split and argue in favor of the Second Department’s view.

The plaintiff in Pillco claimed that he was injured at a construction site while demolishing a sheetrock ceiling when he fell from a ladder that started to shake (see id. at *1-2). However, a medical record included an entry from a doctor who wrote that the plaintiff reported that he “was on a ladder” when he “felt a pull on his lower back and [right] shoulder” (id. [internal alterations omitted]). The plaintiff moved for summary judgment on his Labor Law § 240(1) cause of action. His employer, a third-party defendant, opposed the motion in part by submitting the subject medical record (see id.). The trial court denied the motion, and the plaintiff appealed (see id.).

In a thoughtful and well-reasoned opinion written on behalf of a unanimous four-member panel, Justice Connolly affirmed the trial court’s determination (see id.). She noted that “courts and members of the bar . . . [regularly] grapple with the circumstances under which entries in hospital and medical records may be admissible,” prompting her “to provide guidance on th[e] issue”(id. at *1). In doing so, Justice Connolly began by reminding members of the New York bench and bar that a “statement regarding how [an] accident occurred in . . . [a] medical record[] involves multiple levels of hearsay” (id. at *3). This means that the records themselves must be properly authenticated or certified, typically by a custodian of records (see CPLR 3122-a), while the challenged statement must satisfy, for example, the business records exception to the hearsay rule by being “germane to treatment or diagnosis” (Pillco, 2025 NY Slip Op 04495, *4).

As Justice Connolly explained, one issue is that “the business of the hospital or medical provider [is] to diagnose the patient’s condition and to treat his or her injuries, not to record a statement describing the cause of the incident in which the patient’s injuries were sustained” (id.). Nonetheless, “n some instances, the patient’s explanation as to how he or she was hurt may be helpful to an understanding of the medical aspects of his or her case” (id. at *5 [internal quotation marks and alterations omitted]).

Ultimately, in Pillco, Justice Connolly held that “the challenged statement,” which “ma[de] no mention that the plaintiff fell off the ladder” (id.), “was germane to the plaintiff’s medical diagnosis and treatment” (id. at *1). She explained that “the statement that the plaintiff ‘felt a pull’ indicate[d] the sensation that [he] felt as the injury allegedly occurred” (id. at *6). Justice Connolly also reasoned that “njury and pain caused by a seven-foot fall from a ladder present different diagnostic and treatment concerns than injury and pain caused by lifting a heavy object and a ‘pull,’ especially absent any reference to the plaintiff suffering a fall after that pull” (id.). That said, she cautioned that “[t]here . . . may be instances where it is not obvious whether a particular entry is or is not germane to medical diagnosis or treatment,” thereby requiring “evidence from a medical provider or an expert on th[at] issue” (id.).

In addition, for an entry to be admissible, Justice Connolly noted that “the medical record must clearly indicate that the plaintiff was the source of the information,” a standard which was deemed satisfied in Pillco (id. at *7). On this point, Justice Connolly noted an appellate split with the First Department, which “has held that the testimony from the medical provider who recorded the challenged statement is always necessary to establish that the patient was the source of the information,” and which Justice Connolly and her colleagues “respectfully disagree[d]” with (id.).