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Wilgus v. Bayhealth Medical Center, Inc.

Superior Court of Delaware, Kent

August 10, 2018

Suzanne Wilgus
v.
Bayhealth Medical Center, Inc.

          Submitted: August 2, 2018

          Daniel C. Herr, Esquire Law Office of Daniel C. Herr, Esquire

          Steven T. Margolin, Esquire Samuel L. Moultrie, Esquire Greenberg Traurig, LLP

          Johnine P. Barnes, Esquire Greenberg Taurig, LLP

          Jeffrey J Clark Judge

         Counsel:

         This letter addresses Plaintiff Suzanne Wilgus's (hereinafter "Ms. Wilgus") motion in limine seeking to admit a medical record into evidence at trial set to begin on August 27, 2018. This case involves an allegation that Defendant Bayhealth Medical Center, Inc. (hereinafter "Bayhealth") discriminated against Ms. Wilgus because she had a record of disability.[1] Ms. Wilgus was cleared to return to work on January 5, 2017, without restrictions following approximately six months of total temporary disability leave. Ms. Wilgus proffers that her treating physician, Dr. Boulos, nevertheless orally advised her to wear a back-brace for the first several weeks after she returned to work. Ms. Wilgus claims that she informed Bayhealth personnel of this and that they refused to provide her with a reasonable accommodation and wrongfully terminated her. On the other hand, Bayhealth claims it was justified in terminating her because of its policy against permitting such assistive devices in the work place for health conditions not covered by law.

         At issue in this motion is a March 2, 2017, medical record from Dr. Boulos's office, authored two months after Ms. Wilgus's scheduled return-to-work date. That record references Dr. Boulos's findings as of the date of that visit, and his past advice that he "wanted her to wear her back-brace while she was at work for some added support."

         Bayhealth objected to this exhibit in the pretrial stipulation alleging lack of foundation, authenticity, relevance, and Delaware Rule of Evidence (hereinafter "D.R.E.") 403 concerns. At the pretrial conference, Bayhealth also lodged a hearsay objection. Ms. Wilgus responded by moving in limine for its admission. In Bayhealth's written response to the motion, it focuses only on the hearsay and relevance objections. By footnote, Bayhealth also seeks to preserve its other objections for trial, pending the testimony of a records custodian.

         With regard to the hearsay objection, Ms. Wilgus argues that the record is admissible pursuant to two hearsay exceptions - the medical records exception in D.R.E. 803(4) and the business records exception in D.R.E. 803(6). First, Ms. Wilgus argues that the record is admissible under D.R.E. 803(4), because it was a statement made for purposes of medical diagnosis or treatment. After reviewing the record and relevant authority, the Court agrees with Bayhealth's position that the exception for declarations made for purposes of securing medical treatment or diagnosis applies only to a patient's statements made to medical providers.[2] While the March 2, 2017, record references some minimal matters that may have come from Ms. Wilgus's statements as the patient, the relevant statements regarding the back-brace were obviously made by her treating physician, Dr. Boulos. Such statements do not fall within this hearsay exception.

         Second, Ms. Wilgus argues that the March 2, 2017, record is admissible based on the business record exception to the hearsay rule. In order to fit within the D.R.E. 803(6) exception, the proponent must establish the following four requirements:

(1)the record must be made at or near the time of the act or event;
(2)it must be made by or from information transmitted by a person with knowledge;
(3)the record must be prepared and maintained in the course of regularly conducted ...

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