The history notes are as follows: "As per significant other
pt did cocaine last night"; "apnea, asthma, cocaine and marihuana use"; "he has been
complaining of left leg pain, + poly substance abuse"; "on physical exam pt appears intoxicated
and admits to drug use recently." Plaintiff does not appear to contend that the last quoted
statement, clearly attributed to him, is not admissible. (See Affirmation in Support of
Motion In Limine ¶ 10.) Even if recent drug use were "not germane to diagnosis
and treatment", if the statement is inconsistent with Plaintiff's position at trial, the statement
would be admissible under the party-admission exception to the hearsay rule. (See Kamolov v BIA Group, LLC, 79
AD3d 1101, 1102 [2d Dept 2010]; Coker v Bakkal Foods, Inc., 52 AD3d 765, 766 [2d Dept 2008]; Berrios v TEG Mgt. Corp., 35 AD3d
775, 776 [2d Dept 2006]; but see
Sermos v Gruppuso, 95 AD3d 985, 986-87 [2d Dept 2012].)
On the other hand, even if the entry in the record is germane to diagnosis or treatment, if the
source of the information is unknown, the entry is inadmissible. (See Matter of Progressive Northeastern Ins.
Co. v Randazzo, 24 AD3d 560, 560 [2d Dept 2005]; Ginsberg v North Shore
Hosp., 213 AD2d 592, 592 [2d Dept 1995].) The notation as to "cocaine and marihuana use"
is, therefore, inadmissible. The source of "+ poly substance abuse" is unclear given the context.
But since the statement itself is unclear, and it seems hardly likely that Plaintiff would admit to
"substance abuse," the potential prejudice outweighs any probative value, and the statement
should be excluded. (See People v
Caban, 14 NY3d 369, 374-75 [2010]; Gric v City of New York, 139 AD2d 621,
626 [2d Dept 1988].)