The recent Court of Appeals decision in IN RE. M.F. (No. 08-FS-733, Sept. 27, 2012), highlights how the litigation errors made at the trial level can tip the balance on the appeal.

At issue, in part, was statements admitted by MF Fentress into record as admissible under the hearsay exception: statement made during medical diagnosis.  The evidence of abuse and neglect at trial was primarily elicited through the testimonies of a therapist, a treating medical professional and the social worker.  The bulk of testimony and evidence was the child’s account of events to these individual who all testified.  The litigants at trial all objected to the hearsay testimony of the therapist accounting what the child had told him, however, never they objected to the hearsay testimonies of the treating medical professional as well as the social worker.

The Court of Appeals held flatly that the hearsay testimony of the therapist, in fact, was not admissible under the medical treatment exception as the trial MJ had held.  The Court cites the ruling in In re C.A.S., 828 A.2d 184, 190-191 (D.C. 2003), which held that the children’s statements made to the therapist were inadmissible hearsay as the interview held with the child was at the bequest of government and for the purpose of admitting the testimony at trial.  An indirect way to admit an inadmissible hearsay testimony.  Thus, similarly, the Court held that the therapist’s testimony was inadmissible hearsay and thus excluded.  However, the Court developed that the testimonies of the medical professional and the social worker both corroborated the therapist’s inadmissible testimony – the evidence overall supported the finding of neglect.  Here is the catch.  The Court of Appeals made it clear that as the litigants had not at the trial level objected to the hearsay testimonies of the medical professional and also the social worker, they were barred to argue that on appeal and thus evidence even if on its face – hearsay – was nevertheless admissible and reliable on appeal.  If the litigants had objected to these testimonies, arguably the Court of Appeals would have strike them as inadmissible and the case most likely overturned. Eldridge v. United States, 492 A.2d 879, 883 (D.C. 1985) (the Court of Appeals has held repeatedly and consistently that “hearsay that is admitted without objection may be properly considered by the trier of fact and given its full probative value”).

803(4) – Medical diagnosis/treatment exception- statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or 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 pertinent to diagnosis or treatment.