New legal nurse consultants sometimes confuse the concepts of hearsay and testimony. Some LNCs believe that it’s hearsay when patients and families provide a different version of events than the medical records do. However, in Law, that version of events, when given at deposition or trial, is testimony, and it’s just as valid as the medical records are. So what is hearsay?

Hearsay is an unsubstantiated statement that refers to another person’s statements. For example, consider a nursing home case in which a sister tries to testify that her now-deceased brother told her that he walked into their mother’s room at a nursing home and saw a nursing assistant strike their mother. The court would strike that testimony as hearsay because the dead brother witnessed the incident, not the sister. It wouldn’t be hearsay if the sister testified that she herself had seen the nursing assistant strike their mother.

The law doesn’t permit hearsay because all parties in the lawsuit must have access to the person making the statement. Therefore, in our example the parties couldn’t require that the brother take an oath, provide testimony, and answer questions on cross-examination as to the veracity of his statement because he’s dead.

There are many exceptions to hearsay evidence. For example, if the brother had testified in a deposition before he died and made the statement about the nursing assistant striking his mother it would not be hearsay. By giving sworn testimony, all parties had an opportunity to ask questions and determine whether he seemed truthful.

Having said all that about hearsay, there are certainly instances in which the medical records seem more accurate than testimony of plaintiffs or potential plaintiffs. For example, if there was an incident, did the mother have marks on her? Did she have any injuries? Did the family report the incident to the nursing home administration? Did the family report the incident to the state? If the answer is “No,” there’s a good chance that the family’s version of events is less accurate than the medical records.

When reviewing cases for merit, it’s the role of the LNC to point out discrepancies between witness statements and the medical records. It’s the attorneys’ role to determine whether those discrepancies will prevent them from taking the case or not.

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