Few other concepts in law arise so often and yet are so inadequately understood as the concept of hearsay. The hearsay rule is important in the medical setting because the admissibility of the medical record into the court as evidence is governed by the hearsay rule. A basic understanding of this rule is necessary to an understanding of the legal significance of medical recordkeeping protocols. The hearsay rule holds that one person cannot testify about the truth of what another person said. Witnesses can testify only as to what they heard the person in question say. For example, a nurse may testify that she heard Dr. Jones say, “I must have been drunk to have nicked that patient’s intestine!” The jury could accept this as evidence of what Dr. Jones said but not as evidence that she was drunk or had nicked the intestine. These facts would need to be proved through the testimony of Dr. Jones herself or the testimony of appropriate expert witnesses.

The hearsay rule arises from the need for counsel to cross-examine every witness and document to determine its truthfulness. If a statement made out of court is accepted as evidence, the person making that statement cannot be cross-examined about the truthfulness of it. The court demands that the person who actually made the statement be brought into the courtroom, placed under oath, and asked to repeat the statement.

If this rule were applied to the medical record, everyone who made an entry in the record would have to be called into the courtroom and asked which entries they made, why they made them, and what information they based these entries upon—an extremely time-consuming process and maybe even impossible. Because of these practical difficulties, the courts have created the business records exception to the hearsay rule: documents may be admitted into evidence without the requirement that the persons who made the entries be available for cross- examination.