Some guidance on authenticating medical records at trial

What we learn from this case is that evidentiary rulings at trial are difficult to challenge on appeal. The standard of appellate review is “abuse of discretion,” which is deferential to the trial court. While you can get a new trial based on the district court’s evidentiary rulings, that is more true in theory than in practice. Few parties win a new trial based on an objectionable evidentiary ruling.

The case is Penzo v. Consolidated Edison of New York, a summary order issue on April 2. This disability discrimination case went to trial in the Southern District of New York. The plaintiff prevailed at trial, as the jury found she was terminated from her position in retaliation for engaging in protected activity under the New York City Human Rights Law. The jury awarded approximately $200,000 in damages for lost wages, but no damages for pain and suffering. The argument on appeal was that the trial court erred in disallowing plaintiff from introducing her medical records that would have proved she sustained damages for pain and suffering resulting from the retaliation.

The trial court declined to admit the medical records because they were not authenticated. The trial judge has to ensure the medical records are true and accurate, that is, they are authentic. Otherwise, the records are inadmissible hearsay. The way to do that is to have the doctor or someone affiliated with the medical practice testify at trial that the records are authentic. Or you can get a written certification that the records are real. But, as the Court of Appeals states, “Penzo did neither of those things.”

Plaintiff argues on appeal that, as the patient, she can authenticate the medical records: that she could have laid the necessary foundation for the documents, and/or the trial court should accepted her belated certifications that the documents were authentic. But the Court of Appeals (Kearse, Lee and Komitee [D.J.]) disagrees. Parties cannot authenticate their own medical records. Trial courts have said as such, and the Court of Appeals – which I guess has never squarely ruled this way – cites those district court cases to support its holding in this case. We don’t see too many district court cases cited in appellate rulings, but the Second Circuit will do so when it thinks the rulings make sense and there is nothing at the appellate level to that effect. The district court rulings are logical to the Court of Appeals because “authentic medical records are not created by the patients themselves, nor do they maintain them.” Plaintiffs are not in a position to tell the jury that the records are real.

What about the second argument: that the plaintiff belatedly but nonetheless offered a written certification that the records are authentic? The Court of Appeals says the trial court did not abuse its discretion in rejecting the late certifications. “[A] district court is not required to permit a plaintiff to present evidence in clear violation of the Rules of Evidence. And the relevant evidentiary rule clearly requires that certifications must be provided to the opposing trial ‘before the trial." Since plaintiff “did not submit her certifications until trial was well underway . . . the district court did not abuse its discretion by declining  to accept those certifications and excluding the evidence in question.”