Lead Opinion
delivered the Opinion of the Court.
T1 Respondent Vasilios Haralampopoulos visited the emergency room with severe abdominal pain. After a CT sean revealed a large cystic mass in his liver, Petitioner Dr. Mauricio Waintrub examined Respondent, gave a differential diagnosis identifying four possible causes for his condition, and approved a fine-needle biopsy to determine the nature of the cyst. Petitioner Dr. Jason Kelly performed the procedure, during which Respondent suffered respiratory and cardiac arrest,. Normal resuscitation efforts were unsuccessful, and it took over 30 minutes to revive Respondent's heart,. Lack of oxygen to his brain left Respondent in a vegetative state.
12 Ten days later, Respondent's family and friends met with doctors to determine why Respondent went into arrest and had such a poor reaction to resuscitation efforts. After the meeting, Respondent's then-roommate and ex-girlfriend Gulsans Akyol Hurd approached Dr. Kelly and asked him whether Respondent's prior cocaine use could have contributed to his injuries. Dr. Kelly responded that cocaine could have contributed to Respondent's resistance to normal resuscitation efforts, but he was not a cardiologist so he did not know.
T3 Respondent brought a medical malpractice suit against seven individuals, including Petitioners Dr. Kelly and Dr. Wain-trub. Respondent filed a motion in limine seeking to exclude Hurd's statements to Dr. Kelly as inadmissible hearsay not covered by any hearsay exception. In particular, Respondent argued that the statements did not qualify under Colorado Rule of Evidence 808(4), which creates a hearsay exception for statements "made for purposes of medical diagnosis or treatment." Further, Respondent argued that because Hurd's statements were inadmissible, any additional testimony regarding cocaine use was inadmissible as irrelevant. The trial court denied the motion in limine, finding that Hurd's statements were made for purposes of diagnosis and treatment under Rule 808(4), and that their probative value was not substantially outweighed by the danger of unfair prejudice under Colorado Rule of Evidence 403.
14 The court of appeals reversed, finding that the trial court abused its discretion by admitting evidence of Respondent's cocaine use. Haralampopoulos ex rel. Haralampopoulos v. Kelly,
I 5 We now reverse. The court of appeals erred in limiting the seope of Rule 808(4) to statements made for the purpose of prospective treatment. The Rule's plain language applies to "diagnosis or treatment," and while the term "treatment" has a prospective focus, the term "diagnosis" does not. Instead, diagnosis focuses on the cause of a patient's medical condition, and may or may not involve subsequent treatment. Here, Hurd's statements were made for the pur
I.
16 On November 28, 2004, Respondent visited the emergency room complaining of severe abdominal pain. During his intake, Respondent denied any drug use. A CT sean of Respondent's liver revealed a large cystic mass. The on-call surgeon recommended a fine-needle aspiration biopsy. Dr. Waintrub, an internal medicine specialist, examined Respondent and issued a differential diagnosis identifying possible causes for Respondent's cyst: hydatid eyst, amoebiasis, abscess, or cancer. To determine the cause of Respondent's condition, Dr. Waintrub approved the aspiration. The next day, Dr. Kelly, an interventional radiologist, performed the aspiration. During the procedure, Respondent went into respiratory arrest, and then cardiac arrest. Respondent did not react to normal resuscitation efforts, and it took over 30 minutes to revive his heart. Lack of oxygen to his brain caused a brain injury, and Respondent is now in a vegetative state. Subsequent tests revealed that the cyst was a hydatid cyst.
T7 On December 3, 2004, Dr. Kelly and other doctors met with Respondent's sisters, his mother, an attorney, and his ex-girlfriend and then-roommate Gulsans Akyol Hurd ("Hurd") because they wanted to know what caused Respondent's injuries Before the meeting and outside the doctors' presence, Hurd asked the family whether Respondent's past cocaine use could have had anything to do with his failure to respond to resuscitation. No one mentioned Hurd's question or Respondent's past cocaine use at the meeting with the doctors.
18 About two weeks after the aspiration, Hurd approached Dr. Kelly privately and asked him whether cocaine use could have contributed to Respondent's injures. Hurd testified at trial that she asked Dr. Kelly this question because "we were all searching for answers ... I was asking these questions because nobody had answers for me, and so therefore I kept questioning and questioning hoping to find an answer." Hurd testified that she told Dr. Kelly,
[Respondent] used to do drugs in the past, he used to do a little cocaine, and, you know, could it have been in his system and could it have interacted with the anesthesia or could it have sent him into cardiac arrest or-you know, I was-I don't know if I was asking it right, but I was searching for some kind of answer or reason why this happened.
19 Dr. Kelly testified that in addition to asking whether Respondent's cocaine use could have contributed to his injuries, Hurd told him that
[Respondent] was a recreational cocaine user and that that had been an issue in their relationship, and that in the days around his first emergency room visit,[2 ] he had been using a significant amount of cocaine because of the pain; and he didn't feel that the physicians at the hospital after his first visit had given him enough pain medicine.
Dr. Kelly told Hurd that cocaine use could have contributed to the cardiac arrest, but he was not an expert on cocaine or cardiology, so he did not know. Dr. Kelly asked Hurd whether she knew that Respondent had been
1110 Respondent, through his brother and guardian John Haralampopoulos ("John"), brought a medical malpractice action against seven individuals, including Dr. Kelly and Dr. Waintrub. Before trial, Respondent filed a motion in limine, arguing that Hurd's statements to Dr. Kelly were hearsay that did not fall within any exception, including Rule 808(4). Respondent also argued that, because Hurd's statements were inadmissible, any lay or expert testimony regarding Respondent's cocaine use and the possible health effects of cocaine use should be excluded as irrelevant. Finally, Respondent offered that even if Hurd's statements to Dr. Kelly qualified under a hearsay exception, they were inadmissible under Rule 403 because their probative value was substantially outweighed by the danger of unfair prejudice.
{11 The trial court denied the motion in limine, reasoning that Hurd's statements were made for the purpose of medical diagnosis or treatment under Rule 808(4), that they were also admissible under the residual hearsay exception contained in Colorado Rule of Evidence 803(24) (now Rule 807), and that their probative value was not substantially outweighed by the danger of unfair prejudice. Specifically, the court stated:
[Hurd's statements to Dr. Kelly are] really the key to this case ... the probative value of those statements is imperative to the defense presentation of the case, but all of the issues brought up by [Respondent] in the motion ... are suitable for cross-examination and also for ultimate argument. But to-I think it is under the hearsay exception for purposes of medical diagnosis. Doctors every day rely on statements made to them not just by the patient, but also family members, in making treatment decisions ...
Furthermore, under the residual hearsay (sic), I find that it's also appropriate under that hearsay exception. Under [Rule] 408, it is intensely probative in the case, and which it is also intensely prejudicial to [Respondent] in this case, on balance I think that it is appropriate to permit that information in.
112 After an unrelated mistrial, Respondent filed a second motion in limine requesting re-examination of the previous ruling because, according to Respondent, Petitioners had admitted that Dr. Kelly was not one of Respondent's treating physicians when he spoke to Hurd, and because Hurd, who was not deposed, submitted an affidavit disagreeing with Dr. Kelly's testimony and asserting that although she mentioned Respondent's past cocaine use to Dr. Kelly, she did not state that he used cocaine recently. The trial court refused to revisit the issue.
113 At trial, Petitioners introduced evidence to support the theory that Respondent's resistance to normal resuscitation efforts was caused by recent or chronic cocaine use. Respondent's brother John testified that between 1990 and 1995, he became concerned that his brother was abusing cocaine, so he confronted him and asked him to stop. John stated that Respondent did not completely stop using cocaine after this confrontation. To John's knowledge, Respondent never attended a drug rehabilitation program. Respondent's sisters were also questioned regarding their knowledge of Respondent's cocaine use, but denied knowledge of such use.
14 On cross-examination, Hurd testified that Respondent used cocaine in the late 1990s, and that she observed him using cocaine on two occasions. During that time, she approached his family and expressed concern about his drug use. According to Hurd, Respondent continued using these substances after she spoke to the family, and after he assured her that he was going to stop. Hurd also recalled that a few days before he sought medical care, when Respondent was living with her, he told her that he saw a "white puffy cloudlike thing" coming towards him and believed it was Hurd's dead roommate coming to "get" him. When Re
115 Petitioners also presented other evidence to show that Respondent may have been a recent or chronic cocaine user. He had financial problems throughout his life, particularly in the 1990s, when Hurd said he used cocaine. Respondent's medical record showed that he had hepatitis C without any record of a blood transfusion from 1992 onwards.
16 Relying on Hurd's statements to Dr. Kelly and other evidence that Respondent used cocaine, several experts testified regarding the possible effects of cocaine use on health, and the relationship between cocaine use and Respondent's various health issues, including hallucinations and delusions, hepatitis C, cardiac arrhythmia, and cardiomyopa-thy. For example, Dr. Michael Freeman, a forensic epidemiologist, noted that cocaine use is associated with cardiac arrest or heart attacks. Dr. Gary Salzman, a critical care and pulmonary medicine specialist, opined on whether recent or chronic cocaine use could affect resuscitation efforts, and noted that cocaine has a toxic effect on the heart. Dr. Roger Freedman, a cardiologist, stated that after Respondent's cardiac arrest he had cardiac arrhythmias and death of heart muscle, which can sometimes be caused by cocaine use. Dr. Ken Kulig, a toxicologist, discussed cocaine's addictive nature and its effects on the heart. Dr. Dennis Clifford, a critical care and pulmonary medicine specialist, testified on the effects of cocaine use on the heart, and how residual abnormalities after ceasing cocaine use might make a person resistant to resuscitation after cardiac arrest. Finally, Dr. Eric Zacharias, an internal medicine specialist, testified that cocaine decreases the heart's response to stimulants given to resuscitate a patient.
{17 The jury found in Petitioners' favor. On appeal, the court of appeals reversed, holding that the trial court abused its discretion in admitting any evidence of Respondent's cocaine use and that its admission "derailed" the trial proceedings. Haralampopoulos ex rel. v. Kelly,
118 We granted Petitioners' petition for certiorari,
IL
Rule 808(4) creates a hearsay exception for: ©
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.
$20 Rule 803(4) thus provides an exception for statements 1) made for purposes of medical diagnosis or treatment; 2) that describe medical history, symptoms, or the inception or cause of symptoms; 3) insofar as they are reasonably pertinent to diagnosis or treatment. King v. People,
1 21 We first consider the court of appeals' rationale that Hurd's statement could not fall within Rule 803(4) because the rule has only a prospective application. Next, we consider the application of the court of appeals' two-part test for reliability of statements under Rule 803(4). Because these issues require us to interpret the seope of Rule 803(4), our review is de novo. Bly v. Story,
A.
22 The court of appeals held that Hurd's statements to Dr. Kelly about Respondent's prior cocaine use could not fall within Rule 803(4) because the Rule "contemplates prospective application" only. Kelly,
123 The court of appeals' foeus on prospectivity ignores the fact that the Rule is written in the disjunctive, applying to "statements made for purposes of medical diagnosis or treatment." (Emphasis added). A statement made for purposes of "treatment" suggests that it is made in conjunction with developing a course of action to treat a patient's medical condition. See Stedman's Medical Dictionary 2022 (28th ed.2006) (defining treatment as "[mJedical or surgical management of a patient"); King,
4 25 We made this point almost twenty-five years ago in King v. People,
$26 The question, then, is whether Hurd's statements were for the purpose of determining the nature, source, or cause of Respondent's medical condition. We conclude that they were.
127 Hurd attended the meeting between Respondent's family and his doctors held about a week after the biopsy was performed.
28 Hurd testified that when she spoke to Dr. Kelly, she was "searching for some kind of answer or reason why this happened." She believed Respondent's past drug use was relevant to determining what happened because she thought cocaine could have "been in his system and ... interacted with the anesthesia or ... sent him into cardiac arrest." She also stated, "we were all searching for answers ... because nobody had answers for me, and so therefore I kept questioning and questioning hoping to find an answer." In her quest for answers, Hurd made statements to Dr. Kelly regarding the possible cause of Respondent's failure to react to resuscitation efforts-that is, she made statements for the purpose of diagno-sig.
29 This is true despite the fact that the statements were made after Respondent was in a vegetative state. Although treatment was not available at the time that the statements were made, the diagnostic process was still ongoing, as shown by Hurd's own statements to Dr. Kelly. Respondent's condition was irreversible, but its cause was still a mystery, prompting Hurd to speak to Dr. Kelly. We conclude that Hurd's statements were made for the purpose of determining the nature, source, or cause of Respondent's medical condition, and therefore made for the purpose of diagnosis.
130 Hurd's statements also satisfy Rule 803(4)'s remaining requirements. The statement met the Rule's second requirement because it described Respondent's medical history. Drug use is part of a patient's medical history. See Phillips v. Hillcrest Med. Ctr.,
181 Hurd's statements also met the third requirement of Rule 803(4), which requires the statement to be "reasonably pertinent to diagnosis." The court of appeals reasoned that although such statements might be reasonably pertinent to treatment generally, they were not reasonably pertinent here because Respondent was already in a vegetative state and no treatment was possible. Kelly,
132 We therefore hold that the court of appeals erred in concluding that Hurd's statements could not fall within the language of Rule 808(4) because they were not made in the context of prospective treatment. Using the proper interpretation of Rule 808(4), we conclude that the statements fall within the rule because they were made for purposes of diagnosis, described Respondent's medical history, and were reasonably pertinent to diagnosis.
B.
€383 Citing a similar prospectivity rationale, the court of appeals concluded Hurd's statement was inadmissible under Rule 803(4) for the additional reason that it failed that court's two-part "reliability" test. Kelly,
34 Relying on People v. Allee,
135 To the extent that the court of appeals' test simply restates two of the requirements of Rule 8083(4)-namely, that statements be made for purposes of medical diagnosis or treatment and be reasonably pertinent to diagnosis or treatment-we take no issue with it. What is problematic, however, is the court of appeals' application of the test.
$36 In applying the first prong, for example, the court of appeals raised the question of whether Hurd was "sufficiently close" to Respondent to make a reliable statement, but did not fully resolve the issue because Hurd had no "treatment motive" given the fact that Respondent was in a vegetative state at the time. Id. at *7, ---. The court of appeals' application of the first prong fails for its focus on prospectivity, as noted above. But it further fails to the extent that it suggests that there is a test of reliability that is separate from the "made for the purpose of medical diagnosis or treatment" language of the Rule.
137 In King, we addressed this precise issue. In that case, the court of appeals concluded that even though the statements at issue were made to an expert for the purpose of medical diagnosis, they lacked independent guarantees of trustworthiness and were therefore inadmissible. King,
188 As applied in this case, Hurd's statements were made for the purpose of medical diagnosis, as noted above. No further inquiry into her motivations is required or permitted by the language of the Rule. Thus, for example, there is no separate inquiry into whether a declarant is sufficiently close to the patient to make a reliable statement, as the court of appeals appears to suggest. Rather, the question is whether the declarant made the statement for purposes of medical diagnosis or treatment, which was the case here. To the extent that the court of appeals required in this case, or in its case law more generally, an indicia of trustworthiness or reliability in addition to establishing that the statement was made for purposes of medical diagnosis or treatment, it is again overruled. Id. at 599 n. 3; see also Vigil,
T89 The court of appeals' application of the second prong of its test is similarly problematic. The second prong requires that "the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis." Kelly,
{40 But the court further erred by concluding that the statements were not reasonably pertinent because Dr. Kelly did not actually rely upon them. Id. By its language, Rule 803(4) suggests an objective inquiry-that is, whether the statements were of a kind "reasonably pertinent to diagnosis or treatment"-not a subjective one, as the court of appeals applied. Thus, contrary to the court of appeals' inquiry, the question is not whether Dr. Kelly actually relied upon Hurd's statements, but whether the statements were reasonably pertinent to finding a cause of Respondent's poor response to resuscitation efforts. Here, they were. See Phillips,
141 It is true that in King, we referenced a testifying expert's reliance upon hearsay statements. In that case, we stated that the "concern over the possibility of exaggerated or false testimony coming into evidence under the aegis of Rule 808(4) is effectively allayed by the [RJlule itself," given that the Rule "requires as a foundation for admission that the proponent establish that statements made to a nontreating psychiatrist be reasonably pertinent to diagnosis and be relied upon by the psychiatrist in arriving at an expert opinion on the mental condition in issue." King,
142 Here, in fact, six healthcare professionals hired as expert witnesses actually relied on Hurd's statements (and other evidence of Respondent's cocaine use) to form their opinions regarding the effects that cocaine use may have had on Respondent's health and efforts to resuscitate him. These experts testified that cocaine use is associated with cardiac arrest; that cocaine has a toxic effect on the heart; that cocaine is addictive and may cause long-term heart damage; that cardiac arrhythmias and death of heart muscle can be attributed to cocaine use; that residual abnormalities after ceasing cocaine use might make a person resistant to resuscitation efforts; and that cocaine decreases the heart's response to stimulants administered to resuscitate a patient. In sum, these experts actually relied upon Hurd's statements to Dr. Kelly to form their expert opinions, and-given our conclusion that Hurd's statements were reasonably pertinent to diagnosis or treatment-they did so reasonably under Rule 708.
1 43 By contrast, Dr. Kelly is not a testifying expert who has formed an expert opinion in reliance upon Hurd's statements. Rather, he is testifying as to what he heard. As noted above, under Rule 803(4), actual reliance upon the statements is not required. Indeed, a statement may be made to someone-to a family member, for example-who has no involvement in the provision of medical services, thus precluding actual reliance. See Fed.R.Evid. 808(4) advisory committee's note (statements may be made to non-physicians, including family members). But that statement is admissible under the Rule as long as it is made for purposes of medical diagnosis or treatment, and is reasonably pertinent to diagnosis or treatment. Because such requirements were shown here, we conclude that Hurd's statements to Dr. Kelly were admissible under Rule 808(4).
IIL.
144 Given its determination that Hurd's statements were not admissible under Rule 803(4), it was unnecessary for the court of appeals to determine that they would be inadmissible under Rule 408 even if they fell within the ambit of Rule 803(4). Kelly,
€45 Rule 408 establishes the principle that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Thus, we have held that "[the liberal approach in admitting evidence is tempered by Rule 403 which gives a court discretion to exclude ... testimony where its probative value would be substantially outweighed by unfair prejudice." People v. Martinez,
46 In this case, we cannot conclude that the trial court's decision to admit Hurd's statements under Rule 408 was manifestly arbitrary, unreasonable, or unfair. With regard to probative value, the trial court stated that Hurd's statements were "really the key to this case ... the probative value of those statements is imperative to [Petitioners'] presentation of the case." As for the danger of unfair prejudice, the trial court stated that [Rule] 403, [the evidence of Hurd's statements] is intensely probative in the case, and ... is also intensely prejudicial to [Respondent] in this case, on balance I think that it is appropriate to permit that information in." The trial court also stated that any issues of prejudice would be "suitable for cross-examination and also for ultimate argument." In sum, the trial court concluded that Hurd's statements were "intensely prejudicial" because they were "intensely probative," and that on balance the statements should be admitted.
{47 The court of appeals focused on the trial court's conclusion that the statements would be "intensely prejudicial," suggesting that the statements should be exelud-ed because even the trial court thought they were prejudicial. Kelly,
148 Further, Rule 408 not only requires that there be a danger of unfair prejudice, such danger must "substantially out-weig[h]" the probative value of the evidence. Dist. Court,
149 Ultimately, we cannot conclude that the trial court abused its discretion in determining that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. We therefore do not disturb its determination, and
IV.
T 50 Respondent also argued in his motions in limine that any additional testimony regarding cocaine use-including testimony from family members about Respondent's cocaine use and expert testimony about the health effects of cocaine use-should be excluded. Importantly, however, his argument to preclude this testimony was based on the success of his argument to exclude Hurd's statements to Dr. Kelly. In other words, Respondent argued that because Hurd's statements were inadmissible, any other testimony regarding cocaine use would be irrelevant. Based on Respondent's argument, the trial court made no individual determinations regarding the relevance of any particular testimony, but rather denied the motions in limine in their totality based on its conclusion that Hurd's statements were admissible under Rule 808(4).
4 51 Similarly, the court of appeals treated the admissibility of other cocaine evidence as dependent upon its conclusion regarding Rule 803(4). When it determined that the statements did not fall within Rule 808(4) and that the trial court erred in holding to the contrary (and further, that even if the statements were admissible under Rule 808(4), they should have been excluded under Rule 403), the court of appeals excluded the remaining testimony regarding cocaine use as irrelevant. Kelly,
152 Given the procedural posture of the case, we-like the trial court and court of appeals-do not perform an individualized analysis of the admissibility of the additional testimony regarding cocaine use. Instead, we perceive no abuse of discretion by the trial court in allowing it based on the admissibility of Hurd's statements to Dr. Kelly under Rule 808(4).
v.
153 For the reasons stated above, we reverse the court of appeals' decision holding as inadmissible Hurd's statements to Dr. Kelly, and other lay and expert testimony related to Respondent's cocaine use. We remand the case to the trial court to enter a judgment in Petitioners' favor.
Notes
. A hydatid cyst is a mass in the body which grows as a result of a parasitic infestation caused by a tapeworm. Stedman's Medical Dictionary 480-81 (28th ed.2006).
. Respondent's first emergency room visit was on November 21, 2004.
. The Court granted certiorari on the following issue: Whether the court of appeals erred in concluding that statements to a physician and other hearsay evidence regarding a patient's alleged cocaine use was inadmissible under the rules of evidence in a medical malpractice case in which the parties disputed the cause of the patient's complications following a medical procedure.
. We look to the analogous federal rule for guidance where possible. King,
. Before the Colorado Rules of Evidence were enacted, courts allowed statements made to a healthcare provider examining a patient to prepare for litigation, but for the limited purpose of "serving as factual support" for the healthcare provider's expert opinion. See King,
. The court of appeals noted that although there was some dispute in the trial court over the nature of Hurd's relationship to Respondent, her statement would not fall within Rule 803(4) "lelven if Hurd was sufficiently close to plaintiff," Kelly,
. We note that throughout its analysis of Rule 803(4), the court of appeals suggested that Hurd's statements were inadmissible under Clark v. People,
. The court of appeals in this case cited Allee,
. Because we find Hurd's statements to be admissible under Rule 803(4), we need not consider the district court's alternative rationale for admission under the residual hearsay exception (or the court of appeals' rejection of that rationale).
Concurrence Opinion
concurring in the judgment.
154 I agree with the majority's holding that Hurd's hearsay statements to Dr. Kelly are admissible under Rule 803(4) as statements made for purposes of diagnosis. See maj. op. 182. I write separately, however, because I disagree with the majority's conclusion that Hurd's statements satisfied Rule 803(4)'s "reasonably pertinent" requirement simply because statements regarding past drug use are objectively pertinent to diagnosing a person's failure to respond to resuscitation efforts. See id. at 1% 31, 40. Concluding that "actual reliance upon [Hurd's] statements is not required" to show that her statements are reasonably pertinent to Respondent's diagnosis, see id. at 1 43, the majority completely ignores the fundamental differences between statements made for purposes of treatment and statements made for purposes of diagnosis.
155 Unlike the majority, I believe that statements made for purposes of diagnosis can only satisfy Rule 808(4)'s "reasonably pertinent" requirement if the statements are both objectively and subjectively pertinent to diagnosis. Here, Hurd's statements to Dr. Kelly regarding Respondent's past cocaine use satisfy this requirement because they are
I. Evolution of Rule 803(4)
11 56 Hearsay is a statement other than one made by the declarant while testifying at trial that is offered into evidence to prove the truth of the matter asserted. CRE 801(c). Because hearsay statements are "presumptively unreliable," Blecha v. People,
57 Like all exeeptions to the general rule prohibiting hearsay, Rule 808(4) reflects the "special trustworthiness of and necessity for admitting the general category of hearsay embraced in the exception." Paul F. Roth-stein, Federal Rules of Evidence Rule 803 (3d ed.), available on Westlaw (updated Dec. 2013) [hereinafter Rothstein].
158 Statements made for purposes of medical diagnosis only, however, do not offer the same assurances of candor. Because individuals seeking a diagnosis are likely to be preparing a doctor for litigation, they have more of a temptation to misrepresent the nature and extent of their injuries or symptoms than individuals who are seeking only treatment or both treatment and diagnosis. See Mueller, § 8:75. Thus, where statements are made only for purposes of diagnosis, we have identified an alternative basis for reliability. Instead of focusing on the patient's incentive to tell the truth by virtue of his desire to receive effective medical services, we have focused on the physician's ability to detect inaccurate or false information by virtue of his specialized training and experience, which together safeguard
1 59 Importantly, this alternative rationale reflects Rule 808(4)s departure from the common law tradition. At common law, statements made to a testifying expert for purposes of medical diagnosis were not admissible as substantive evidence. See Fed. R.Evid. 803 advisory committee's note on para. 4 (Conventional doctrine has exeluded from the hearsay exception, as not within its guarantee of truthfulness, statements to a physician consulted only for the purpose of enabling him to testify."). Thus, prior to the adoption of the Colorado Rules of Evidence, statements to a testifying expert were only admissible "for the limited purpose of serving as factual support for the [expert's] opinion." King,
60 Recognizing that it is unrealistic to expect a jury to distinguish between statements offered only as an explanation of the basis for the expert's opinion and statements offered for their truth, in King this Court held that Rule 803(4) abolished the common law distinction between doctors consulted for treatment and doctors consulted for diagnosis. Id. at 601-02. Thus, we concluded that hearsay statements made to a non-treating physician "who examines a party for the purpose of diagnosis only" may be admissible under Rule 803(4) even though that physician was "consulted only in order to testify as a witness." Id. (internal quotation marks omitted). This expansion of Rule 803(4) to include non-treating physicians hired for litigation "is consistent with the provision of Rule 703 that the facts on which expert testimony is based need not be admissible in evidence if of a kind ordinarily relied upon by experts in the field." See Fed.R.Evid. 803 advisory committee's note on para. 4; see also King,
II. Two-Step Analysis
T61 As the evolution of the rule makes clear, there are two distinet avenues for admitting hearsay statements under Rule 808(4). One avenue is available for statements that are made for purposes of treatment, and a second, more limited, avenue is available for statements that are made for purposes of diagnosis only. Where, as here, the theory for admissibility is based on the latter avenue, I believe that King requires courts to employ a two-step analysis-considering both objective and subjective pertinence-when determining whether particular hearsay statements satisfy Rule 803(4)'s "reasonably pertinent" requirement.
T 62 In King, this Court held that hearsay statements made to non-treating physicians who are consulted only to testify as expert witnesses are sufficiently reliable to qualify for admission under Rule 803(4).
I 63 Consistent with our holding in King, I would require courts to employ a two-step analysis when determining whether particular hearsay statements are reasonably pertinent to diagnosis under Rule 803(4). Under this two-step analysis, a court should first determine whether the relevant hearsay statements are objectively pertinent to achieving a diagnosis. In other words, similar to a Rule 708 analysis, the court should determine whether an expert in the germane field would be justified in relying upon the statements in formulating an expert opinion.
1 64 If the court determines that the relevant statements are objectively pertinent, it should then determine whether the statements are also subjectively pertinent to the diagnosis rendered. In other words, the court should determine whether a non-treating physician hired for litigation actually relied on the hearsay statements in formulating his expert opinion. Importantly, an expert witness who was mot the recipient of the relevant hearsay statements can demonstrate actual reliance. Thus, contrary to the court of appeals, which concluded that Hurd's statements were not reasonably pertinent to Respondent's diagnosis because Dr. Kelly did not actually rely upon them, I would conclude that Hurd's statements were reasonably pertinent to Respondent's diagnosis because six expert witnesses did actually rely upon her statements in formulating their opinions. See maj. op. 1 42.
TI 65 Applying this two-step analysis to the present case, Hurd's statements clearly satisfy Rule 808(4)'s "reasonably pertinent" requirement. First, her statements are objectively pertinent to diagnosing Respondent's failure to respond to resuscitation efforts because cocaine use can undermine heart health. Accordingly, a cardiologist or toxicologist would be justified in relying on information about cocaine use in rendering an opinion regarding a patient's failure to respond to resuscitation efforts after cardiac arrest. Second, Hurd's statements are subjectively pertinent to the opinions rendered by six expert witnesses whose testimony regarding the possible effects that cocaine use had on efforts to resuscitate Respondent flowed directly from Hurd's suggestion that Respondent had previously used cocaine.
III. Conclusion
€66 Contrary to the majority, I believe that statements made for purposes of medical diagnosis can only satisfy Rule 808(4)'s "reasonably pertinent" requirement if the statements are both objectively and subjectively pertinent to diagnosis. Accordingly, I concur in the judgment only.
I am authorized to state that JUSTICE HOBBS and JUSTICE COATS join in this concurrence of the judgment.
. I do not separately address the Rule 403 issue because I agree with the majority's holding that the trial court's decision to admit Hurd's statements under Rule 403 was not manifestly arbitrary, unreasonable, or unfair. See maj. op. 146. Further, I decline to analyze the admissibility of Hurd's statements based on Rule 807 because such an analysis would go beyond the scope of the majority opinion, which declined to reach the Rule 807 issue. See id. at ¶ 43 n. 9.
. Because CRE 803(4) is virtually identical to Fed.R.Evid. 803(4), this Court has previously interpreted it in light of the text and purpose of the federal rule. See King v. People,
. Although the majority explicitly acknowledges that actual reliance on hearsay statements is required in the expert witness context, see maj. op. T41, the majority nonetheless concludes that the pertinence inquiry under Rule 803(4) is purely objective, see id. at 140. This conclusion wholly ignores the practical concerns that animated the rule's departure from the common law and the fundamental differences between statements made for purposes of treatment and statements made for purposes of diagnosis.
. In People v. Vigil,
. Although Hurd's hearsay statements were introduced into evidence by Dr. Kelly, who was not an expert hired for purposes of litigation, her statements are nonetheless admissible given the unique existence of the other experts in this case who relied on Dr. Kelly's testimony regarding Hurd's statements. Such reliance is appropriate given the possibility of admitting multiple levels of hearsay under this particular hearsay exception. See Mueller, § 8:75 (noting that Rule 803(4) is broad enough to pave the way to admit some statements that are passed along to a testifying physician, even though the physician's testimony would embrace double or multiple hearsay).