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Law Office
of
GREGORY REEVE-WILSON SB# 90828
540 Bird Avenue
San Jose, CA 95125
(408) 998-2968
Attorney for Plaintiff
SUPERIOR
COURT OF CALIFORNIA
COUNTY
OF SANTA CRUZ
ANNA MORTENSEN, CASE
NO. 132750
Plaintiff
vs. ARGUMENT
FOR ADMISSION OF
HEARSAY
EVIDENCE AS PAST
RECOLLECTION
RECORDED
Evid
Code Sec 1237
DOMINICAN HOSPITAL,
et al Date:
December 27, 1997
Time:
9:00 am
Dept:
8
Defendants
___________________________/
1. Introduction
Plaintiff Mortensen has attempted to read into evidence the Dominican
Emergency Room medical record which contains her statement to the Emergency
Room nurse concerning the cause of her fall at Dominican on the evening
of July 5, 1996. The defense has made an objection that this record is
hearsay. Plaintiff Mortensen argues that her recorded statement falls
within the hearsay exception Past Recollection Recorded (Evidence Code
Section 2137).
2. The Hearsay
Statement
When Plaintiff Mortensen attempted to enter Dominican Hospital, the automatic
door would not open. When she turned the door handle, the door "kicked
back" and knocked her over. She was immediately taken to the Emergency
Room. As soon as Ms. Mortensen entered ER a nurse took her history; i.e.
the nurse asked Ms. Mortensen how she was injured. Ms. Mortensen told
the nurse that the hospital's automatic doors "kicked back"
and knocked her over when she turned the door handle. The ER nurse recorded
Ms. Mortensen's statement as part of her medical record.
3. Evidence Code Section 2137
The Past Recollection Recorded exception to the Hearsay Evidence Rule
allows a hearsay writing to be read into evidence if:
a) the statement would have been admissible if made by the witness while
testifying,
b) the statement concerns a subject as to which the witness has insufficient
present recollection to enable him to testify fully and accurately,
c) the statement is contained in a writing that was made at the time when
the fact recorded in the writing actually occurred or was fresh in the
witnesses memory,
d) the writing was made
(i) by the witness himself
or
(ii) by some other person for the purpose of recording the witnesses statement
at the time it was made,
e) the witness testifies that the statement he made was a true statement
of such fact, and
f) the statement is authenticated as an accurate record of such statement.
(Jefferson Evidence Benchbook Section 11.1)
4. Statement
would be admissible as testimony
Ms. Mortensen's statement that she saw the door "kick back"
and knock her over would clearly be admissible if she made it while testifying.
5. Witness has insufficient recollection
When I asked Ms. Mortensen (who is 87 years old) what happened as she
entered the hospital the evening of July 5th, she testified that what
happened "was a blur" in her mind.
//
6. The writing was made at the time the facts occurred
The ER nurse recorded Ms. Mortensen's statement that the door "kicked
back" within minutes of that event occurring.
7. The writing was made to record the witnesses statement
The job of the ER nurse is to interview new patients and to take their
history. Specifically, the ER nurse always asks new patients what caused
their injury, then she records their answer. That is what happened in
this case. Ms. Mortensen was injured and then, minutes later, the ER nurse
asked Ms. Mortensen how she was injured and she recorded Ms. Mortensen's
answer.
8. Witness testifies that the statement was true when made
Ms. Mortensen has testified that the statement she made to the ER nurse
was true.
9. The writing is authenticated
Defendant Dominican Hospital has stipulated that their own ER records
are authentic.
10. The plaintiff should be allowed to read her ER record
Ms. Mortensen told the defendant's ER nurse how she was injured within
a few minuets of the time when the hospital door knocked her over. The
ER nurse's job is to record what patients tell her caused their injury.
Ms. Mortensen, who is now 87, can no longer clearly recall what happened
to her; it is all a blur in her mind. Defendant Dominican hospital has
stipulated that their own records are accurate. Ms. Mortensen should be
allowed to read her statement to defendant's ER nurse into evidence.
Dated: December 15,
1997
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