RULE 409. PAYMENT OF MEDICAL AND SIMILAR EXPENSES
Evidence of furnishing, offering, or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove civil or criminal liability for the injury.
EXPLANATORY NOTE
The general underpinnings of this rule are the same as those dealt with in Rules 407 and 408. A salutary action, the furnishing of medical or similar expenses is not to be discouraged by attaching to it the liability that would ensue were the fact to be admitted into evidence.
Unlike Rule 408, which protects statements made during compromise even if unrelated to the offer, Rule 409 protects only the act of furnishing or offering or promising to pay medical expenses. Statements made apart from the actual offer are not covered by the rule. There is no need to protect all discussion because discussion is not a necessary part of furnishing medical expenses.
It is likely that admissions will at times be so intertwined with an offer to furnish medical expenses that the two cannot be severed. Whenever this occurs, a choice must be made between admitting the evidence, totally, or excluding it. Balance must be made of the social policy behind this rule and the need for such evidence.
Note should be made of 32-39-01, NDCC, which prohibits the use, as evidence of liability, of a voluntary partial payment of a claim. The statute is somewhat broader than this rule as it is not limited to the payment of medical or similar expenses, but applies to payment of any part of a claim.
SOURCES: Minutes of Joint Procedure Committee: April 8, 1976, pages 24, 25; October 1, 1975, page 4. Rule 409, Federal Rules of Evidence; Rule 409, SBAND proposal.
STATUTES AFFECTED:
CONSIDERED: 32-39-01, 32-39-02, 32-39-03, NDCC.