Federal Rules of Evidence 803(3) and 803(4) except from the hearsay rule statements of present physical condition and statements made for purposes of medical diagnosis or treatment regarding past symptoms, medical history, and those that relate to the cause of the condition, whenever those statements are reasonably pertinent to diagnosis or treatment, respectively. Traditionally, the New York courts have recognized under the common law a much more circumscribed hearsay exception for such medical statements. This exception, as originally formulated by the Court of Appeals, encompasses statements relating to one’s present pain and medical condition made to a treating physician for purposes of diagnosis and treatment.1
However, commentators have criticized New York’s limited exception as inconsistent with modern evidence doctrine and have advocated an adoption of the FRE exceptions; and the Appellate Divisions, consistent with such criticism, have broadened the scope of that otherwise limited exception, albeit without acknowledging that their decisions are not consistent with Court of Appeals precedent.2 As a result, present law is unclear on an important part of New York evidence law.3
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