ANNE VISCONTI AND JOSEPH VISCONTI, APPELLANTS,
v.
HOLLYWOOD RENTAL SERVICE, APPELLEE

Fla. 4th DCA | 1991-04-24
No. 89-2926
POLEN, J., concurs., GARRETT, J., concurs specially with opinion.
580 So. 2d 197 Florida District Court of Appeal, Fourth District (1991) Positive Treatment
Cited by 7 cases

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Synopsis

Mrs. Visconti appealed a jury verdict finding no negligence after her slip-and-fall at defendant's apartment complex. The Fourth District reversed and remanded for a new trial because the trial court erroneously admitted hospital records containing inadmissible hearsay statements about the cause of her fall without proper foundation.


Holding

The trial court committed reversible error by admitting the hospital records containing statements regarding the cause of the fall. The statements were not admissible under the medical diagnosis exception or the business records exception because no proper foundation was established, and statements about the cause of a fall are not made for purposes of medical diagnosis or treatment.


Headnotes

[1] Hospital records containing statements about the cause of an injury are inadmissible hearsay unless a proper foundation is established under an exception to the hearsay r…

[2] Statements in hospital records relating to the cause of an injury are not admissible under the exception for statements made for purposes of medical diagnosis or treatmen…

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Key Quotes

“The record before us does not reveal any foundation having been established for the introduction of these medical records into evidence. Appellant's denial that she gave such history as appears in these records is not sufficient foundation to render such records admissible.”

Establishes that mere contradiction does not provide foundation for admitting hearsay documents

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Facts & Procedural History

Anne Visconti, a paying guest at Hollywood Rental Service's apartments, sustained personal injuries from a slip and fall on the defendant's property. …

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Opinion of the Court
LINDSEY, HUBERT R., Associate Judge.

LINDSEY, HUBERT R., Associate Judge.

Appellants, plaintiffs below, appeal the final judgment entered on a jury’s finding of no negligence on the part of the defendant. Points two and three raised by the appellants, we find to be without merit. The record and the law as to point one, however, require, in our judgment, reversal.

Appellant, Mrs. Visconti, a paying guest of the appellee’s apartments, sustained personal injuries as a result of a “slip and fall” while on appellee’s property. She presented evidence that her fall was caused by the appellee’s negligent maintenance of the floor surface. Appellee countered that the cause of Mrs. Visconti’s fall was not lack of proper maintenance on the floor but her own negligence. Appellant’s point one is stated:

THE TRIAL COURT ERRED IN ALLOWING INADMISSIBLE HEARSAY CONTAINED WITHIN HOSPITAL RECORDS INTO EVIDENCE AND CROSS EXAMINATION REGARDING THESE STATEMENTS.

Admitted into evidence over appellants’ objections were a hospital emergency room service report which stated that Mrs. Vis-conti “fell coming out of the pool,” a hospital admission note which stated that Mrs. Visconti “slipped and fell at the pool,” a consultation note which stated that Mrs. Visconti “states that she got out of pool and was walking away when she slipped and fell” and a hospital discharge summary which stated that Mrs. Visconti “fell coming out of a pool.”

The above documents were introduced into evidence over appellant’s objections during the appellee’s cross examination of Mrs. Visconti as impeachment of her testimony. (She denied giving the history of the accident as indicated in the hospital records). The record before us does not reveal any foundation having been established for the introduction of these medical records into evidence. Appellant’s denial that she gave such history as appears in these records is not sufficient foundation to render such records admissible.

Assuming arguendo that the statements as to the cause of appellant’s fall set out in the records are "... statements made for purposes of medical diagnosis or treatment ...” as contemplated by section 90.803(4), Florida Statutes, appellee offered no evidence as a foundation for the admission of such records. Further, those statements which relate to cause of the fall are not statements made for the purpose of medical diagnosis or treatment and are, therefore, not admissible under section 90.-803(4). See Saul v. John D. and Catherine T. MacArthur Foundation, 499 So. 2d 917 (Fla. 4th DCA 1986).

The statements were not admissible under the business records exception to the hearsay rule because appellee failed to establish a proper foundation by qualifying the statements as business records pursuant to section 90.803(6), Florida Statutes (1987). See Saul, supra.

Unquestionably, the appellants were prejudiced by the admission of such records.

We hold that the trial court committed error in admitting, over objection, the hospital medical records.

REVERSED AND REMANDED FOR A NEW TRIAL.

POLEN, J., concurs.

GARRETT, J., concurs specially with opinion.

Concurrence
GARRETT, Judge,

GARRETT, Judge,

concurs specially with opinion.

I concur that the admission of the hospital records without proper foundation was reversible error. However, our holding should not be taken as foreclosing appellee from proving that appellant said she “fell coming out of the pool.” Appellee can call the person who heard appellant’s statement. If that person does not recall hearing the statement, but recalls making the report, the report may be admitted as “recorded recollection.” 1 § 90.803(5), Fla. Stat. (1989).

Further, I agree that appellant’s statement was not a statement made for purposes of medical diagnosis or treatment. § 90.803(4), Fla.Stat. (1989). Appellant could not substantiate her trial testimony by introducing her statement to the treating doctor about how the accident happened. However, appellee used the statement against appellant. As an admission, appellant’s statement should be admissible as an exception to the hearsay rule, § 90.803(18), Fla.Stat. (1989), providing the appropriate witness is available to testify about hearing the statement or making the report.

. Because appellant did not have a business duty to transmit her statement, Van Zant v. State, 372 So. 2d 502, 503-504 (Fla. 1st DCA 1979), I do not contend that the report could be admitted as a "business record" exception to the hearsay rule. § 90.803(6), Fla.Stat. (1989).


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Citator

Cited By

  • Ring Power Corp. v. Condado-Perez, 219 So. 3d 1028 (Fla. 2d DCA 2017)
    …ot at issue on appeal; moreover, Mr. Condado himself introduced the EMS Report into evidence at trial. . See, e.g., Nat'l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So. 2d 840, 843-44 (Fla. 1st DCA 2000); Visconti v. Hollywood Rental Serv., 580 So. 2d 197, 198 (Fla. 4th DCA 1991) (Garrett, J., concurring).…
  • James A. Cummings Inc. v. Larson, 588 So. 2d 1066 (Fla. 4th DCA 1991)
    …eed referred to the auto rather than the truck, section 90.-803(4), Florida Statutes (1989), makes such information in medical records admissible only “insofar as reasonably pertinent to diagnosis or treatment.” Visconti v. Hollywood Rental Service, 580 So. 2d 197 (Fla. [*1068] 4th DCA 1991); and Saul v. John D. and Catherine T MacArthur Foundation, 499 So. 2d 917 (Fla. 4th DCA 1986). Here, the unequivocal testimony of the neurologist was that such information was not pertinent to his diagnosis or treatment.…
  • Andreaus v. Impact Pest Mgmt., Inc., 157 So. 3d 442 (Fla. 2d DCA 2015)
    …ted to introduce inadmissible evidence under these circumstances. The statements about the cause of the fall — the source of which was unknown and which Ms. Andreaus denied making — were inadmissible hearsay. See Visconti v. Hollywood Rental Serv., 580 So. 2d 197, 198 (Fla. 4th DCA 1991) (“[Sjtatements which relate to cause of the fall are not statements made for the purpose of medical diagnosis or treatment and are, therefore, not admissible under section 90.803(4)[, Florida Statutes (1990) ].”). This is un…

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