Kelly v. Haralampopoulos ex rel. Haralampopoulos

CHIEF JUSTICE RICE,

concurring in the judgment.

154 I agree with the majority's holding that Hurd's hearsay statements to Dr. Kelly are admissible under Rule 803(4) as statements made for purposes of diagnosis. See maj. op. 182. I write separately, however, because I disagree with the majority's conclusion that Hurd's statements satisfied Rule 803(4)'s "reasonably pertinent" requirement simply because statements regarding past drug use are objectively pertinent to diagnosing a person's failure to respond to resuscitation efforts. See id. at 1% 31, 40. Concluding that "actual reliance upon [Hurd's] statements is not required" to show that her statements are reasonably pertinent to Respondent's diagnosis, see id. at 1 43, the majority completely ignores the fundamental differences between statements made for purposes of treatment and statements made for purposes of diagnosis.

155 Unlike the majority, I believe that statements made for purposes of diagnosis can only satisfy Rule 808(4)'s "reasonably pertinent" requirement if the statements are both objectively and subjectively pertinent to diagnosis. Here, Hurd's statements to Dr. Kelly regarding Respondent's past cocaine use satisfy this requirement because they are *270(1) objectively pertinent to diagnosing a person's failure to respond to resuscitation efforts (ie., an expert in the field would be justified in relying on such statements in forming an expert opinion), and (2) subjectively pertinent to the opinions rendered by six expert witnesses who testified regarding the possible effects that cocaine use had on Respondent's health and efforts to resuseci-tate him (ie., non-treating physicians hired for litigation actually relied on Hurd's statements). Accordingly, I concur in the judgment only.1 Because my analytical divergence from the majority opinion is animated by Rule 803(4)'s departure from the common law, I start by outlining the rule's evolution. I then describe the two-step analysis that I would use to determine whether hearsay statements made for purposes of diagnosis satisfy Rule 808(4)'s "reasonably pertinent" requirement.

I. Evolution of Rule 803(4)

11 56 Hearsay is a statement other than one made by the declarant while testifying at trial that is offered into evidence to prove the truth of the matter asserted. CRE 801(c). Because hearsay statements are "presumptively unreliable," Blecha v. People, 962 P.2d 931, 937 (Colo.1998), parties are generally prohibited from introducing hearsay statements into evidence, see CRE 802. There are, however, several exceptions to this general rule. The exception at issue in this case, Rule 808(4), permits hearsay statements "for purposes of medical diagnosis or treatment." Under Rule 808(4), hearsay statements are admissible if the statements: (1) are made for the purposes of medical diagnosis or treatment; (2) describe medical history, past or present symptoms, pain, sensations, or the cause or external source thereof; and (8) are reasonably pertinent to diagnosis or treatment.

57 Like all exeeptions to the general rule prohibiting hearsay, Rule 808(4) reflects the "special trustworthiness of and necessity for admitting the general category of hearsay embraced in the exception." Paul F. Roth-stein, Federal Rules of Evidence Rule 803 (3d ed.), available on Westlaw (updated Dec. 2013) [hereinafter Rothstein].2 We have previously explained that statements made to physicians for purposes of medical treatment are "presumptively reliable because of a patient's belief that the effectiveness of the treatment he receives may depend largely upon the accuracy of the information he provides the physician." W.C.L. v. People, 685 P.2d 176, 181 (Colo.1984) (internal quotation marks omitted), superseded on other grounds by statute, § C.R.S. (1989); see also Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:75 (dth ed.), available on Westlaw (updated May 2014) [hereinafter Mueller] (explaining that a patient has a powerful incentive to speak candidly and carefully because "the patient knows that his description helps determine treatment").

158 Statements made for purposes of medical diagnosis only, however, do not offer the same assurances of candor. Because individuals seeking a diagnosis are likely to be preparing a doctor for litigation, they have more of a temptation to misrepresent the nature and extent of their injuries or symptoms than individuals who are seeking only treatment or both treatment and diagnosis. See Mueller, § 8:75. Thus, where statements are made only for purposes of diagnosis, we have identified an alternative basis for reliability. Instead of focusing on the patient's incentive to tell the truth by virtue of his desire to receive effective medical services, we have focused on the physician's ability to detect inaccurate or false information by virtue of his specialized training and experience, which together safeguard *271the reliability of his medical diagnosis. See King v. People, 785 P.2d 596, 602 (Colo.1990) (explaining that the defendant's hearsay statements to a psychiatrist hired for trial were admissible under Rule 803(4) because "physicians, by virtue of their training and experience, ... are not prone to rely upon inaccurate or false data in making a diagnosis").

1 59 Importantly, this alternative rationale reflects Rule 808(4)s departure from the common law tradition. At common law, statements made to a testifying expert for purposes of medical diagnosis were not admissible as substantive evidence. See Fed. R.Evid. 803 advisory committee's note on para. 4 (Conventional doctrine has exeluded from the hearsay exception, as not within its guarantee of truthfulness, statements to a physician consulted only for the purpose of enabling him to testify."). Thus, prior to the adoption of the Colorado Rules of Evidence, statements to a testifying expert were only admissible "for the limited purpose of serving as factual support for the [expert's] opinion." King, 785 P.2d at 601. Such statements were "not viewed as evidence of the truth of the matters asserted, and hence were not hearsay, but rather were considered as merely explanatory of the [expert's] opinion, enabling the jury to weigh [the opinion] in light of its basis." Id. (internal quotation marks omitted).

60 Recognizing that it is unrealistic to expect a jury to distinguish between statements offered only as an explanation of the basis for the expert's opinion and statements offered for their truth, in King this Court held that Rule 803(4) abolished the common law distinction between doctors consulted for treatment and doctors consulted for diagnosis. Id. at 601-02. Thus, we concluded that hearsay statements made to a non-treating physician "who examines a party for the purpose of diagnosis only" may be admissible under Rule 803(4) even though that physician was "consulted only in order to testify as a witness." Id. (internal quotation marks omitted). This expansion of Rule 803(4) to include non-treating physicians hired for litigation "is consistent with the provision of Rule 703 that the facts on which expert testimony is based need not be admissible in evidence if of a kind ordinarily relied upon by experts in the field." See Fed.R.Evid. 803 advisory committee's note on para. 4; see also King, 785 P.2d at 602 (explaining that a "statement reliable enough to serve as a basis for psychiatric diagnosis should also be considered reliable enough to escape the hearsay proscription"); Mueller, § 8:75 (noting that the rationale underlying the expansion of Rule 803(4) "suggests that statements to a doctor hired only to diagnose and aid in litigation should be admitted only if the doe-tor testifies and gives his opinion").

II. Two-Step Analysis

T61 As the evolution of the rule makes clear, there are two distinet avenues for admitting hearsay statements under Rule 808(4). One avenue is available for statements that are made for purposes of treatment, and a second, more limited, avenue is available for statements that are made for purposes of diagnosis only. Where, as here, the theory for admissibility is based on the latter avenue, I believe that King requires courts to employ a two-step analysis-considering both objective and subjective pertinence-when determining whether particular hearsay statements satisfy Rule 803(4)'s "reasonably pertinent" requirement.3

T 62 In King, this Court held that hearsay statements made to non-treating physicians who are consulted only to testify as expert witnesses are sufficiently reliable to qualify for admission under Rule 803(4). 785 P.2d at 602. Emphasizing that the rule itself allays concerns regarding the possibility of exaggerated or false testimony, we explained that Rule 803(4) requires "as a foundation for admission that the proponent establish that *272{the hearsay] statements made to a nontreat-ing [physician] be reasonably pertinent to diagnosis and be relied upon by the [physician] in arriving at an expert opinion." Id. (emphasis added).4 Put another way, we established that statements made to a non-treating physician hired for litigation are admissible under Rule 803(4) if the statements are both objectively and subjectively pertinent to diagnosis.

I 63 Consistent with our holding in King, I would require courts to employ a two-step analysis when determining whether particular hearsay statements are reasonably pertinent to diagnosis under Rule 803(4). Under this two-step analysis, a court should first determine whether the relevant hearsay statements are objectively pertinent to achieving a diagnosis. In other words, similar to a Rule 708 analysis, the court should determine whether an expert in the germane field would be justified in relying upon the statements in formulating an expert opinion.

1 64 If the court determines that the relevant statements are objectively pertinent, it should then determine whether the statements are also subjectively pertinent to the diagnosis rendered. In other words, the court should determine whether a non-treating physician hired for litigation actually relied on the hearsay statements in formulating his expert opinion. Importantly, an expert witness who was mot the recipient of the relevant hearsay statements can demonstrate actual reliance. Thus, contrary to the court of appeals, which concluded that Hurd's statements were not reasonably pertinent to Respondent's diagnosis because Dr. Kelly did not actually rely upon them, I would conclude that Hurd's statements were reasonably pertinent to Respondent's diagnosis because six expert witnesses did actually rely upon her statements in formulating their opinions. See maj. op. 1 42.5

TI 65 Applying this two-step analysis to the present case, Hurd's statements clearly satisfy Rule 808(4)'s "reasonably pertinent" requirement. First, her statements are objectively pertinent to diagnosing Respondent's failure to respond to resuscitation efforts because cocaine use can undermine heart health. Accordingly, a cardiologist or toxicologist would be justified in relying on information about cocaine use in rendering an opinion regarding a patient's failure to respond to resuscitation efforts after cardiac arrest. Second, Hurd's statements are subjectively pertinent to the opinions rendered by six expert witnesses whose testimony regarding the possible effects that cocaine use had on efforts to resuscitate Respondent flowed directly from Hurd's suggestion that Respondent had previously used cocaine.

III. Conclusion

€66 Contrary to the majority, I believe that statements made for purposes of medical diagnosis can only satisfy Rule 808(4)'s "reasonably pertinent" requirement if the statements are both objectively and subjectively pertinent to diagnosis. Accordingly, I concur in the judgment only.

I am authorized to state that JUSTICE HOBBS and JUSTICE COATS join in this concurrence of the judgment.

. I do not separately address the Rule 403 issue because I agree with the majority's holding that the trial court's decision to admit Hurd's statements under Rule 403 was not manifestly arbitrary, unreasonable, or unfair. See maj. op. 146. Further, I decline to analyze the admissibility of Hurd's statements based on Rule 807 because such an analysis would go beyond the scope of the majority opinion, which declined to reach the Rule 807 issue. See id. at ¶ 43 n. 9.

. Because CRE 803(4) is virtually identical to Fed.R.Evid. 803(4), this Court has previously interpreted it in light of the text and purpose of the federal rule. See King v. People, 785 P.2d 596, 601 (Colo.1990).

. Although the majority explicitly acknowledges that actual reliance on hearsay statements is required in the expert witness context, see maj. op. T41, the majority nonetheless concludes that the pertinence inquiry under Rule 803(4) is purely objective, see id. at 140. This conclusion wholly ignores the practical concerns that animated the rule's departure from the common law and the fundamental differences between statements made for purposes of treatment and statements made for purposes of diagnosis.

. In People v. Vigil, 127 P.3d 916, 927 (Colo.2006), this Court reaffirmed King's articulation of Rule 803(4)'s foundation requirements in the diagnosis context.

. Although Hurd's hearsay statements were introduced into evidence by Dr. Kelly, who was not an expert hired for purposes of litigation, her statements are nonetheless admissible given the unique existence of the other experts in this case who relied on Dr. Kelly's testimony regarding Hurd's statements. Such reliance is appropriate given the possibility of admitting multiple levels of hearsay under this particular hearsay exception. See Mueller, § 8:75 (noting that Rule 803(4) is broad enough to pave the way to admit some statements that are passed along to a testifying physician, even though the physician's testimony would embrace double or multiple hearsay).