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A mother will be able to continue her pursuit of a protection order after the Superior Court ruled that findings in emergency room reports indicating signs of possible sexual and physical abuse constituted facts on which her expert could base his opinion.

On Jan. 15, a three-judge panel of the court ruled that two emergency room reports noting a rash and decreased anal muscle tone constituted factual findings. The decision overturns an Armstrong County Court of Common Pleas ruling that the reports were merely medical opinions that could not serve as a basis for an expert’s opinion.

Writing the unanimous, unreported memorandum opinion in Frame v. Froncek, Judge Mary Jane Bowes said that because the signs were visible and not based on conjecture, they constituted medical facts.

“The findings in the medical report were based upon factual observations made by a doctor,” she said. “That the child had a rash with blisters in his anal region and decreased anal tone are findings based on pure observation. It did not involve a condition that was not visible or a medical conclusion reflected circumstantially by other visible symptoms.”

Judges Cheryl Lynn Allen and Anne E. Lazarus joined Bowes’ opinion.

According to Bowes, when the child was 3, the mother, Patricia Frame, commenced a petition for protection from abuse. She alleged that the child’s father, Thomas J. Froncek, sexually and physically abused the child.

She planned to have Dr. William Simpson, a retired emergency room physician, testify about the significance of finding decreased anal tone and a rash with blisters, known as molluscum contagiosum, which is a viral infection, in the child’s rectal area.

The doctor was set to testify as the mother’s offer of proof that the reports were medical facts suggesting abuse, and that decreased anal tone was unnatural and unlikely to occur unless there had been penetration of the anus by an object bigger than the child’s sphincter.

The trial court denied Frame’s request to call Simpson, holding that the underlying medical records were inadmissible medical opinion testimony and not medical facts that could serve as the basis for an expert’s opinion, Bowes said. The court also held that Simpson could not testify to the medical evidence because the records themselves were inadmissible.

“I do not believe that the diagnosis of the rash is a purely factual observation,” the court opined, according to Bowes. “I don’t believe the quality of the tone of the muscle and the anal opening is a factual observation.”

According to the docket, Armstrong County Court of Common Pleas Judge Kenneth G. Valasek had been assigned to the case.

For the trial court, Frame needed independent evidence that there was an infection and that the muscle tone problem actually existed, Bowes said. The trial court discontinued the hearing and denied the protection from abuse petition.

Frame appealed the decision. The only issue she brought on appeal was whether the expert’s testimony should have been admitted.

Frame noted that Simpson had 35 years of emergency room experience, and argued that, pursuant to the Superior Court’s 1993 ruling in Commonwealth v. Xiong, he should have been able to educate the fact finder about the medical meaning and significance of the two medical facts.

The defendant in Xiong was charged with rape and corruption of a minor, who was his 12-year-old step-daughter. The parties stipulated to the admission of a medical report from an emergency room visit, which noted that the victim did not have a hymen. Prosecutors called a medical expert to testify that it was highly unusual for a 12-year-old female to not have a hymen. On appeal, Xiong contended that his counsel was ineffective for entering the report into evidence because the report noting the absence of a hymen was inadmissible hearsay.

The court rejected Xiong’s argument and held that the evidence in the report was admissible under the Uniform Business Records as Evidence Act, because evidence showing the lack of a hymen was factual.

The Xiong court also relied on the 1977 Superior Court ruling in Commonwealth v. Green, in which the court held that an opinion was “a conclusion concerning a condition not visible but reflected circumstantially,” and “a factual statement recounting the physician’s discovery” was not medical opinion.

Bowes noted that the Xiong court analogized the evidence to the discovery of “spermatozoa in a victim’s vagina, blood alcohol content, or bruises on a person,” and found it did not constitute inadmissible hearsay.

Bowes agreed with the previous holdings.

“Here, the findings in the medical reports were based upon factual observations made by a doctor,” she said.

Bowes further rejected the trial court’s holding that an expert cannot testify based on reports and statistics not allowed into evidence.

“An expert doctor may testify regarding facts or data that are reasonably relied upon by experts in his field for forming opinions or inferences upon the subject in question and those facts or data need not be admissible as evidence,” she said. “So long as the facts on which the expert’s opinion or inference are premised on are testified to, the underlying facts are not required to be admissible as evidence.”

Attorney David C. Martin of Martin & Lerda in Pittsburgh represented Frame and did not return a call for comment. Froncek acted per se in the appeal and said he disagreed with court’s decision to remand the case.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the seven-page opinion in Frame v. Froncek, PICS No. 14-0099, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •