NELSON JAIME, MOLINA GARAGE, INC., AND TRAVELERS INSURANCE COMPANY, APPELLANTS,
v.
CAROL J. VILBERG AND JAMES E. VILBERG, HER HUSBAND, APPELLEES

Fla. 3d DCA | 1978-10-03
No. 77-1759
Before HENDRY, BARKDULL and KEHOE, JJ.
363 So. 2d 386 Florida District Court of Appeal, Third District (1978) Positive Treatment
Cited by 10 cases

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Synopsis

In this negligence case where liability was admitted but damages were disputed, the appellate court reversed a jury verdict for the plaintiffs because the trial court erroneously excluded evidence of a prior audiogram that would have shown the plaintiff's hearing loss predated the accident. The exclusion violated proper procedure for admitting business records and prevented the defense from laying a necessary foundation.


Holding

The prior audiogram was properly characterized as a business record admissible under Section 92.36, and the trial court abused its discretion in excluding Lucke's testimony. The exclusion prevented appellants from laying the necessary predicate for admission of evidence crucial to their damages defense.


Headnotes

[1] Medical records are frequently held to be admissible as business records.

[2] A proper predicate must be laid for the admission of a medical record as a business record.

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Key Quotes

“to be admissible as a business record, such a medical record must have a proper predicate laid for its admission”

Establishes the legal requirement that medical records offered as business records require foundational testimony

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Facts & Procedural History

Carol Vilberg was injured in an automobile accident caused by Nelson Jaime's negligence. Appellants admitted liability but disputed damages. The centr…

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Opinion of the Court
KEHOE, Judge.

KEHOE, Judge.

Appellants, defendants below, appeal a final judgment entered pursuant to a jury verdict in favor of appellees, plaintiffs below. We reverse.

Appellees filed suit against appellants alleging that appellee Carol Vilberg sustained personal injuries in an automobile accident caused by appellant Nelson Jaime’s negligence. Appellants admitted liability and defended on damages. The main element of damages alleged by appellees was the loss of hearing to Carol caused by the accident. Appellees contended that the nature of the injury to Carol concerned the aggravation of a pre-existing hearing problem. The case was tried before a jury on the sole issue of damages. From a final judgment in favor of appellees, appellants appeal.

The issues on appeal revolve around whether certain evidence pertaining to a prior audiogram testing the hearing of Carol should have been admitted into evidence. Because the extent of the loss of Carol’s hearing was at issue, appellants attempted to introduce into evidence an audiogram that was conducted on her the year before. Appellants attempted to introduce the audi-ogram into evidence as a business record pursuant to Section 92.36, Florida Statutes (1975). Appellees objected to its introduction on the following grounds: (1) it was hearsay; (2) the audiogram was not within the purview of Section 92.36 as an exception to the hearsay rule; and (3) no proper predicate was laid for its admission. Further appellees contend that the trial court did not err in refusing to allow one of appellants’ witnesses to testify in regard to the audiogram when appellants did not list this witness in their pre-trial catalogue.

Appellants contend that the audio-gram was a business record within the contemplation of Section 92.36 and, therefore, admissible as a business record. We agree. Similar medical records have frequently been held to be business records. See, e. g., Brevard County v. Jacks, 238 So. 2d 156 (Fla. 4th DCA 1970); and Exchange National Bank of Tampa v. Hospital of Hillsborough County, 181 So. 2d 9 (Fla. 2d DCA 1965). See generally Annot., 66 A.L.R.2d 537 (1959).

However, to be admissible as a business record, such a medical record must have a proper predicate laid for its admission. See generally National Car Rental System, Inc. v. Holland, 269 So. 2d 407 (Fla. 4th DCA 1972); and Annot., 19 A.L.R.3d 1008 (1968). In the instant case, one of the witnesses, Lillian Lucke, who appellants attempted to use in laying such a predicate was rejected, pursuant to objection of appellees, because she had not been listed in appellants’ pre-trial catalogue. We think that this was error. Both appellants and appellees had listed as a witness the records custodian of the business that kept the au-diogram; neither had listed a specifically named person. During the taking of Carol’s deposition, appellants asked if she had recently had any hearing tests. In response, Carol stated that she had not been recently tested, thereby, misleading appellants. If Carol had not so misled appellants, they would have discovered the actual name of the records custodian who conducted the hearing test, and listed the name on their witness list. Without Lucke’s testimony, appellants were thwarted in their attempt to lay a proper predicate for the admission of the audiogram as a business record into evidence. The prejudice to the defense of the case was manifest in being denied the right to show the jury that Carol’s deafness (the crux of the damages) was the same before the accident as after it. Based on these facts, we believe that the trial court abused its discretion in not permitting Lucke to testify.

Reversed.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Love v. Garcia, 634 So. 2d 158 (Fla. 1994)
    …the hearsay rule and fall within section 90.803(6)(a), Florida Statutes (1991).3 See Phillips v. Ficarra, 618 So. 2d 312 (Fla. 4th DCA 1993); Grant v. Brown, 429 So. 2d 1229 (Fla. 5th DCA), review denied, 438 So. 2d 832 (Fla.1983); Jaime v. Vilberg, 363 So. 2d 386 (Fla. 3d DCA 1978), cert. denied, 373 So. 2d 462 [*160] (Fla.1979). This Court has not previously-had the opportunity to rule on this issue, and we do so now for the first time. As with other forms of business records, medical records can be entere…
  • Kurynka v. Tamarac Hosp. Corp., Inc., 542 So. 2d 412 (Fla. 4th DCA 1989)
    ….F. Goodrich Co., 532 So. 2d 1121 (Fla.2d DCA 1988); Beasley v. Mitel of Delaware, 449 So. 2d 365 (Fla. 1st DCA 1984); City of Tampa v. Green, 390 So. 2d 1220 (Fla. 1st DCA 1980); Brown v. State, 389 So. 2d 269 (Fla. 1st DCA 1980); Jaime v. Vilberg, 363 So. 2d 386 (Fla.3d DCA 1978), cert. denied, 373 So. 2d 462 (Fla.1979). See also State v. James, 255 S.C. 365, 179 S.E. 2d 41 (1971). We conclude that the court erred by admitting the lab report into evidence. Considering the totality of the evidence, this err…
  • City OF Tampa v. Green, 390 So. 2d 1220 (Fla. 1st DCA 1980)
    …provides that business records may be admitted into evidence in the appropriate circumstances, and various medical tests and examinations, contained in hospital reports, have qualified as business records under § 92.36. See e. g., Jaime v. Vilberg, 363 So. 2d 386 (Fla. 3rd DCA 1978); Exchange National Bank of Tampa v. Hospital & Welfare Board of Hillsborough County, 181 So. 2d 9 (Fla. 2d DCA 1965). However, the statute provides for admissibility only “if, in the opinion of the court, the sources of informati…

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