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### STATE OF MICHIGAN

COURT OF APPEALS

HURLEY MEDICAL CENTER,

Plaintiff-Appellant,

and

CRAIG MAKELA,

Plaintiff, UNPUBLISHED June 18, 2015

v No. 320936

Oakland Circuit Court MICHIGAN ASSIGNED CLAIMS PLAN, a/k/a MACP, LC No. 2013-134720-NF

Defendant-Appellee.

Before: S TEPHENS , P.J., and B ORRELLO and G ADOLA , JJ.

G ADOLA

, J. (dissenting)

.

I respectfully dissent. I disagree with the majority’s assess ment that Makela’s hearsay statements to the psychologist regarding his motive for jumping from the moving vehicle were both sufficiently trustworthy and reasonably necessary for his medical diagnosis or treatment to warrant admission under MRE 803(4).

“Exceptions to the hearsay rule are justified by the belief th at the hearsay statements are both necessary and inherently trustworthy.” People v Meeboer (After Remand) , 439 Mich 310, 322; 484 NW2d 621 (1992). Hearsay evidence is not admissible u nless it falls within one of the clearly established exceptions. People v Eady , 409 Mich 356, 361; 294 NW2d 202 (1980). Under MRE 803(4), to be admissible, a statement must be “made f or purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably necessary to s uch diagnosis and treatment.” The rationale underlying MRE 803(4) f urther requires that (1) the s tatements must be trustworthy

because the declarant had “a self-interested motivation to be t ruthful in order to receive proper medical care,” and (2) the statements must be reasonably necess ary for the declarant’s medical diagnosis and treatment. People v Mahone , 294 Mich App 208, 215; 816 NW2d 436 (2011).

In my opinion, Makela’s statements to the psychologist that he jumped from the moving vehicle to avoid being robbed were not sufficiently reliable to warrant admission under-2- MRE 803(4). In People v LaLone , 432 Mich 103, 109-110; 437 NW2d 611 (1989), our Supreme Court addressed the scope of MRE 803(4) as it relates to a decl arant’s statements made to a psychologist during the course of a psychological evaluation, a nd concluded the following:

A psychologist treats mental and emotional disorders rather th an physical ones. Lying to one’s health care provider about symptoms and t heir general causes would be detrimental to the patient, and it is, in part, for this reason that we permit the introduction of such hearsay statements. It is ther efore fair to say that, while medical patients may fabri cate descriptions of their comp laints and the general character of the causes of these complaints, we would t hink it less likely that they will do so than psychol ogical patients. In addition, although there are psychological tests, fabrications of physical complaints would seem to be far easier to discover through empirical tests than are fabrication s which might be heard by an examining psychologist. Indeed, statements which a re untrue, and which the examining psychologist knows to be untrue, may nevert heless serve as a basis for accurate diagnosis and treatment. Thus, statements made in the course of the treatment of psychological disorders may not always be a s reliable as those

made in the course of the treat ment of physical disorders. [Fo otnotes omitted.]

The fact that Makela’s only statements regarding his motive for jumping out of the moving vehicle were made to a psychologist during the course of a psyc hological evaluation renders the reliability of those statements uncertain. Moreover, there is insufficient evidence that Makela

had a “self-interested motivation to be truthful in order to re ceive proper medical care” when speaking with the psychologist. Mahone , 294 Mich App at 215. At the time Makela made the statements concerning his motivation for jumping, he was seekin g medical care for his physical injuries and was not independently seeking psychological care. Rather, hospital personnel ordered the psychological evaluation on their own initiative to evaluate whether Makela required mental-health services. Under these circumstances, I do not be lieve Makela’s statements to the psychologist were marked by sufficient indicia of trustworthine ss to warrant admission under MRE 803(4). 1

Further, Makela’s statements to the psychologist were not reas onably necessary for his medical treatment or diagnosis. The language in MRE 803(4) spe cifically limits the exception to “medical treatment or medical diagnosis,” and the rule does “no t leave room for speculation on

1 It is noteworthy that in Meeboer , 439 Mich at 328, the Court atta ched significance to the fact

that in LaLone , where the Court determined the hearsay statements must be exc luded, “it was the Department of Social Services who initiated the examination by the psychologist of the complainant.” This suggests that when, as here, the declarant has not independently sought out psychological care, the declaran t’s statements to a psychologis t should be considered less trustworthy. “To be admissible under MRE 803(4) . . . statemen ts must also be made with the understanding by the declarant of the need to tell the truth . . . .” Id. at 331 (emphasis added). A motivation to tell the truth is less apparent when the declaran t has not initiated the psychological

evaluation or treatment at issue.-3- hearsay which may indeed be reliable and useful for other kinds of treatment.” LaLone , 432 Mich at 114 (emphasis added). In this case, Makela’s statement s concerning his motive to jump were made to a psychologist, not a physician with the ability t o practice medicine. See Merriam Webster’s Collegiate Dictionary (11th ed) (defining “medical” as “of, relating to, or concerne d with physicians or the practice of medicine”). Although Makela ’s statements concerning his motive to jump may have been r easonably necessary for his psychological diagnosis or treatment, in my assessment, the statements were not in any way necessary for his medical diagnosis or treatment. 2 Accordingly, the statements c onstitute inadmissible hearsay. I would

therefore affirm the dismissal of the medical center’s claim be cause there is no admissible evidence demonstrating that Makela’s injuries were accidental, as is required for recovery of nofault benefits under MCL 500.3105.

/s/ Michael F. Gadola

2 I acknowledge that this Court has held that “in cases of sexua l assault, in which the injuries might be latent, such as contracting sexually transmitted disea ses or psychological in nature, and thus not necessarily physically manifested at all, a victim’s c omplete history and recitation of the totality of the circumstances of the assault are properly consi dered to be statements made for

medical treatment.” Mahone , 294 Mich App at 215; see also Meeboer , 439 Mich at 329 (“[S]exual abuse cases involve med ical, physical, developmental , and psychological components, all of which require diagnosis and treatment. . . . LaLone involved statements made during a psychological examination, rather than psychological t reatment resulting from medical diagnosis.”). However, the present case does not involve an in cident of sexual assault, does not concern a patient seeking treatme nt for psychological injuries arising from a physical event, and does not involve psychological tre atment resulting from a medic al diagnosis.