Federal Evidence Review

In health care fraud trial, video of a non-witness physician performing nerve-block injection procedures was hearsay as “an assertion of proper medical performance” and offered to show how the medical procedures would be properly performed; video was inadmissible as a learned treatise since it was prepared for litigation; however, error in admitting video was harmless, in United States v. Martinez, 588 F.3d 301 (6th Cir. Dec. 1, 2009) (Nos. 06-3882, 06-4206)

Are procedures displayed in a video hearsay when offered to show that proper medical procedures were not followed? If so, can the video on medical procedures be admitted under the hearsay exception for learned treatises? These questions were recently considered by the Sixth Circuit.

In the case, defendant Martinez, an anesthesiologist who operated a pain-management clinic, was charged in a sixty-count indictment with health fraud, mail fraud, wire fraud, distributing controlled substances, and health care fraud resulting in the death of patients. At trial, during the testimony of a medical expert, the government played a video of a physician who did not testify to show the proper medical procedures and argue that the defendant used improper procedures.

On the video, the physician can be heard talking with others. Descriptive phrases were superimposed noting some of the procedures used. A medical expert used the video to explain the three medical procedures and how they should have been performed. The defendant objected that the video contained verbal and non-verbal inadmissible hearsay, which was overruled. No Confrontation Clause objection was raised at trial. The jury convicted the defendant and he received a life sentence and ordered to pay more than $14 million in restitution. On appeal, the defendant argued that the trial court erred in admitting the video was which was inadmissible hearsay and violated his Confrontation Clause rights.

The Sixth Circuit concluded the video was inadmissible hearsay but the error was harmless. The verbal and non-verbal portions of the video contained statements, under FRE 801(a), and were hearsay, under FRE 801(c), since the video was intended as an asserted and offered for the truth of the matter asserted. Specifically, the video was made to show that the defendant’s medical procedures were improper as contrasted with the proper procedures depicted in the video.

The circuit considered whether a hearsay exception justified the admission of the video at trial. The “most relevant exception” was the “learned treatise” exception, under FRE803(18). While the Sixth Circuit had not previously “considered whether a video constitutes a ‘learned treatise,’” it noted that the Second Circuit had admitted a medical video under FRE 803(18). See Constantino v. Herzog, 203 F.3d 164, 168, 171 (2d Cir. 2000) (in diversity medical malpractice action, admitting fifteen minute training video from the American College of Obstetricians and Gynecologists, which was a “contemporary variant of a published treatise”). The Sixth Circuit found the medical procedure video did not meet “the same indicia of reliability as the training video at issue in Constantino.” For example:

“In this case, the [physicial] Boswell video was prepared for and given to the FBI for litigation purposes, it was not subjected to peer review or public scrutiny, and it was not ‘written primarily for professionals . . . with the reputation of the writer at stake.’ … Because the Boswell video does not have the necessary qualities of reliability, we do not need to decide whether a video could satisfy the ‘learned treatise’ exception —we simply conclude that the video in this case was impermissible hearsay.”

Since the video contained inadmissible hearsay, the circuit considered whether the error in admitting the video was harmless. The circuit concluded that the error was harmless based on other evidence of guilt. As the circuit concluded, “given the overwhelming evidence that [defendant] Martinez was not performing medically necessary procedures and that the procedures were not those for which he was billing––and considering the weak evidence to the contrary –– we conclude that any error in admitting the [physician] Boswell video was harmless.” Martinez, 588 F.3d at 313.

The defendant also raised for the first time on appeal a challenge to the video under the Confrontation Clause. This constitutional issue was reviewed for plain error given the failure to preserve the issue before the trial court. As one of four elements to show plain error, the circuit would have to exercise its discretion to remedy the error if it “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Martinez, 588 F.3d at 313-14 (noting four elements to show plain error: “(1) that there was an error — ‘some sort of deviation from a legal rule’; (2) that the error was ‘obvious, rather than subject to reasonable dispute’; … (3) that the error affected the defendant’s ‘substantial rights.’”; and (4) the circuit exercises its “discretion to remedy the error––which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”) (quoting Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (internal quotation marks omitted)). Because the error was harmless, as previously noted, the circuit concluded the error did not rise to the level of plain error.

The Martinez and Constantino demonstrate two scenarios in which a medical video may be admitted as a learned treatise under FRE 803(18). Clearly, a medical or other video may be admitted as a learned treatise where the requirements of the rule are met.