                           STATE OF MICHIGAN

                           COURT OF APPEALS



HURLEY MEDICAL CENTER,                                              UNPUBLISHED
                                                                    June 18, 2015
               Plaintiff-Appellant,
and

CRAIG MAKELA,

              Plaintiff,
v                                                                   No. 320936
                                                                    Oakland Circuit Court
MICHIGAN ASSIGNED CLAIMS PLAN, a/k/a                                LC No. 2013-134720-NF
MACP,

               Defendant-Appellee.


Before: STEPHENS, P.J., and BORRELLO and GADOLA, JJ.

GADOLA, J. (dissenting).

       I respectfully dissent. I disagree with the majority’s assessment 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 that 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 unless 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 for 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 such diagnosis and treatment.” The
rationale underlying MRE 803(4) further requires that (1) the statements must be trustworthy
because the declarant had “a self-interested motivation to be truthful in order to receive proper
medical care,” and (2) the statements must be reasonably necessary 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

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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 declarant’s statements made to a
psychologist during the course of a psychological evaluation, and concluded the following:

               A psychologist treats mental and emotional disorders rather than physical
       ones. Lying to one’s health care provider about symptoms and their 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 therefore fair to say that,
       while medical patients may fabricate descriptions of their complaints and the
       general character of the causes of these complaints, we would think it less likely
       that they will do so than psychological 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 fabrications which might be
       heard by an examining psychologist. Indeed, statements which are untrue, and
       which the examining psychologist knows to be untrue, may nevertheless 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 as reliable as those
       made in the course of the treatment of physical disorders. [Footnotes 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 psychological 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 receive 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 seeking 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 believe Makela’s statements to the
psychologist were marked by sufficient indicia of trustworthiness to warrant admission under
MRE 803(4).1

      Further, Makela’s statements to the psychologist were not reasonably necessary for his
medical treatment or diagnosis. The language in MRE 803(4) specifically limits the exception to
“medical treatment or medical diagnosis,” and the rule does “not leave room for speculation on



1
  It is noteworthy that in Meeboer, 439 Mich at 328, the Court attached significance to the fact
that in LaLone, where the Court determined the hearsay statements must be excluded, “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 declarant’s statements to a psychologist should be considered less
trustworthy. “To be admissible under MRE 803(4) . . . statements 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 declarant has not initiated the psychological
evaluation or treatment at issue.


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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 statements concerning his motive to jump
were made to a psychologist, not a physician with the ability to practice medicine. See Merriam
Webster’s Collegiate Dictionary (11th ed) (defining “medical” as “of, relating to, or concerned
with physicians or the practice of medicine”). Although Makela’s statements concerning his
motive to jump may have been reasonably 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 constitute inadmissible hearsay. I would
therefore affirm the dismissal of the medical center’s claim because there is no admissible
evidence demonstrating that Makela’s injuries were accidental, as is required for recovery of no-
fault benefits under MCL 500.3105.

                                                             /s/ Michael F. Gadola




2
  I acknowledge that this Court has held that “in cases of sexual assault, in which the injuries
might be latent, such as contracting sexually transmitted diseases or psychological in nature, and
thus not necessarily physically manifested at all, a victim’s complete history and recitation of the
totality of the circumstances of the assault are properly considered 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 medical, physical, developmental, and psychological
components, all of which require diagnosis and treatment. . . . LaLone involved statements made
during a psychological examination, rather than psychological treatment resulting from medical
diagnosis.”). However, the present case does not involve an incident of sexual assault, does not
concern a patient seeking treatment for psychological injuries arising from a physical event, and
does not involve psychological treatment resulting from a medical diagnosis.


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