Opinion
No. 3774 EDA 2002.
Filed: January 9, 2004.
Appeal from the Judgment entered on December 9, 2002, in the Court of Common Pleas of Philadelphia County, Civil Division, No. 1010 July Term 1996.
BEFORE: JOYCE, MUSMANNO and BECK, JJ.
The Opinion by Judge Musmanno filed January 9, 2004 has been withdrawn. The application for reargument was granted on March 12, 2004.
¶ 1 Joseph Robert Folger ("Joseph"), by his parents and natural guardians, Robert J. Folger and Mary T. Folger ("Mother") (collectively, the "Plaintiffs"), and Joseph's parents in their own right, appeal from the Judgment entered against them and in favor of Appellees Theresa Dugan, M.D. ("Dr. Dugan"), Frankford Hospital, Sondra Dantzic, M.D. ("Dr. Dantzic"), The Medical College of Pennsylvania, Eugene Andruczyk, D.O. ("Dr. Andruczyk"), Marilyn Wettlaufer, M.D. ("Dr. Wettlaufer"), and the partnership of Wettlaufer, Andruczyk and Dugan (collectively, the "Defendants"). We reverse and remand for a new trial.
¶ 2 The trial court aptly summarized the history underlying the instant appeal as follows:
This is a medical malpractice action brought by ["Plaintiffs"] . . . against [the Defendants]. On July 13, 1994, [Joseph] was born at . . . Frankford Hospital. Dr. Dugan was the [obstetrician] attending at the birth . . . [who] performed post-natal examinations. The testimony revealed that [Joseph] had no significant problems at birth, had normal APGAR scores, had normal blood gasses and feedings were normal. Mother and baby were thereafter discharged on July 14, 1994.
Six days later, [Joseph] developed a fever and was admitted to St. Christopher's Hospital for Children. While there, he was diagnosed with Herpes encephalitis. The diagnosis was made in part on the basis of the results of a polymerase chain reaction test (hereinafter "PCR test") performed on [Joseph's] spinal fluid at the University of Alabama. This diagnosis was recorded into his medical chart and taken into consideration by his doctors, who determined the cause of his illness and recommended treatment accordingly.
[Plaintiffs] sought to prove that the cause of Joseph's infirmities was negligence during the delivery which resulted in neurological defects. [Plaintiffs] produced testimony that [Joseph] was born as a face presentation, as opposed to a normal vertex presentation, causing traumatic birth injuries. Defendants countered that [Joseph] was born as a normal vertex presentation and that his present condition is not a result of any negligence on the part of the Defendants. It is uncontested that [Joseph] now suffers severe and permanent neurological injuries.
Trial commenced on June 7, 2002 and the jury returned a verdict in favor of [Defendants] on June 21, 2002.
On June 25, 2002, [Plaintiffs] filed Post-Trial Motions requesting a New Trial.
Trial Court Opinion, 4/8/03, at 1-2. The trial court denied Plaintiffs' post-trial Motions on April 8, 2003, after which Plaintiffs filed the instant appeal of the trial court's Order denying post-trial Motions.
After Plaintiffs filed the instant appeal, the trial court entered judgment on the verdict. Accordingly, the appeal is properly before this Court for disposition.
¶ 3 Plaintiffs present the following claims for our review:
(1) Whether, when the evidence clearly compelled a finding that Dr. Dugan was negligent, and the defense verdict can only have resulted from the manifestly unreasonable and unconscionable determination that Joseph Folger's mother knowingly imperiled her baby's life by lying to the doctors who were trying to diagnose and save him, and/or from improper consideration of evidence as to the etiology of Joseph's injuries which was patently inadmissible, that verdict shocks the conscience, making a new trial necessary[?]
(2) Whether the "evidence" upon which the [D]efendants' entire exculpatory theory rested, the alleged result of the polymerase chain reaction ("PCR") testing, was facially incompetent, unauthenticated, inherently untrustworthy and unreliable, and otherwise patently inadmissible, so that the trial court's rulings refusing to preclude that "evidence' (or even to properly subject it to prior scrutiny, as gatekeeper) was reversible error[?]
(3) Whether it was reversible error to permit the defense to improperly use and introduce, as expert testimony, the discovery deposition of [Joseph's] treating physicians, and the baseless, unqualified, inadmissible opinions contained therein[?]
¶ 4 Brief for Appellants at 2. We will first address Plaintiffs' second claim of error.
¶ 5 In their second claim of error, Plaintiffs assert that the trial court erred when it admitted the results of the PCR test at trial. According to Plaintiffs, the test results, which were set forth in Joseph's medical records, constituted inadmissible hearsay. They further assert that the results were not authenticated and could not be challenged through cross-examination. Finally, Plaintiffs assert that the admission of the PCR test results caused them prejudice. For these reasons, Plaintiffs claim that they are entitled to a new trial. We agree.
¶ 6 A trial court's decision regarding the grant or refusal of a new trial will not be reversed on appeal absent an abuse of discretion or an error of law that controlled the outcome of the case. Phillips v. Gerhart, 801 A.2d 568, 571 (Pa.Super. 2002). "To reverse the trial court, the Superior Court must consider all of the evidence in the light most favorable to the appellee and conclude that the verdict would be changed if another trial were granted." Brady v. Ballay, Thornton, Maloney Medical Associates, Inc., 704 A.2d 1076, 1079 (Pa.Super. 1997). If there is any support in the record for the trial court's decision to deny a new trial, that decision must be affirmed. Id.
¶ 7 A trial court's rulings on evidentiary questions are controlled by the sound discretion of the trial court, and the appellate courts of this Commonwealth will not disturb those rulings unless a clear abuse of discretion is shown. Hall v. Jackson, 788 A.2d 390, 401 (Pa.Super. 2001). "An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused." Paden v. Baker Concrete Constr., 658 A.2d 341, 343 (Pa. 1995).
¶ 8 In their post-trial Motions and at the argument in support of their post-trial Motions, Plaintiffs challenged the admissibility of the PCR test, asserting that it violated the rule against hearsay. Defendants assert that hearsay statements contained in Joseph's medical records were admissible to prove "such things as facts, the treatment prescribed, symptoms, `or the existence of some readily ascertained substance or chemical within the body.'" See, e.g., Brief for Dr. Dugan, Dr. Andruczyk, Dr. Wettlaufer, and Wettlaufer, Andruczyk and Dugan, at 33 (quoting Williams v. McClain, 520 A.2d 1374, 1376 (Pa. 1987)). They further assert that the statements contained in the medical records are admissible under Pa.R.E. 803(6).
¶ 9 Pennsylvania Rule of Evidence 803(6) provides as follows:
A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from the information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or other circumstances indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
Pa.R.E. 803(6).
¶ 10 The Official Comments to Rule 803(6) include the admonition that "Pa.R.E. 803(6) does not include opinions and diagnoses." Comment, Pa.R.E. 803(6). In Commonwealth v. Green, 380 A.2d 798 (Pa.Super. 1977), this Court defined the terms "medical diagnosis" and "opinion" as entailing "a conclusion concerning a condition not visible but reflected circumstantially by the existence of other visible and known symptoms." Id. at 801. In Commonwealth v. Xiong, 630 A.2d 446, 453 (Pa.Super. 1993), this Court explained that "[t]he existence of a readily observable physical condition, the evaluation of which does not require a complex application of technical knowledge, can as easily be ascertained by the lay person as by the trained physician." Id. A medical opinion contained in a hospital record is not admissible unless the doctor who prepared the report is available for in-court cross-examination regarding the accuracy, reliability, and veracity of his or her opinion. Phillips v. Gerhart, 801 A.2d 568, 575 (Pa.Super. 2002) (citing Commonwealth v. McMaster, 666 A.2d 724 (Pa.Super. 1995)).
In Green and in Xiong, this Court addressed the hearsay exception codified in the Uniform Business Records as Evidence Act, 42 Pa.C.S.A. § 6801, which differs only slightly from Pa.R.E. 803(6).
¶ 11 Drawing the line between what is fact and what is opinion is often difficult and has led to varying results. In Commonwealth v. Campbell, 368 A.2d 1299, 1301 (Pa.Super. 1976), a panel of this Court held that the detection of spermatozoa in the victim's vagina was fact, and therefore was admissible without the testimony of the individual who conducted the test. Therein, we explained that "[w]hen a circumstance becomes very routine or basic it is designated as a fact." Id. As further support for this conclusion, the Court stated that "[t]ests to determine the presence of sperm are basic and routine and leave little room for error. Either there was spermatozoa present in her vagina or there was not." Id.
¶ 12 Likewise, in Commonwealth v. Karch, 502 A.2d 1359, 1361 (Pa. Super. 1986), this Court held that the results of a blood alcohol test may be properly admitted into evidence without the presence of the technician who performed the test, and opined as follows:
It is well established that hospital records are admissible to show the facts of hospitalization, treatment prescribed, and symptoms present. In Commonwealth v. Seville, [ 405 A.2d 1262 (Pa.Super. 1979)] . . . the Court held that blood-alcohol test results were properly admitted into evidence without the presence of the technician who performed the test. The Court reasoned that the test results were admissible under the hospital records exception to the hearsay rule: since a blood-alcohol test is basic and routine, it is highly reliable and thus rises beyond a mere opinion or conclusion to the level of medical fact. "No such doubts as to reliability and accuracy are entertained when a record is offered merely to prove facts . . . or the existence of some readily ascertained substance or chemical within the body." Id. [at 1264]. (Emphasis added). Even if the hospital records are hearsay, ". . . the elements of trustworthiness serv[e] in place of the safeguards ordinarily afforded by confrontation and cross-examination, which justifies admission of the writing or record without the necessity of calling all persons who may have had a hand in preparing it." Commonwealth v. Seville, [ 405 A.2d at 1265].
Id. at 1369; accord Commonwealth v. Kravontka, 558 A.2d 865, 867 (Pa. Super. 1989).
¶ 13 Our review of the record discloses that the PCR test, the results of which were set forth in Joseph's medical records, was not a basic or routine test, nor did it involve "[t]he existence of a readily observable physical condition, the evaluation of which does not require a complex application of technical knowledge, [which] can as easily be ascertained by the lay person as by the trained physician." Xiong, 630 A.2d at 453. Moreover, there is no indication in the record that PCR test results are so reliable "as to rise beyond a mere opinion or conclusion to the level of medical fact." Karch, 502 A.2d at 1369.
¶ 14 In their Motion in limine to preclude admission of the PCR test results, Plaintiffs asserted as follows:
Defendants have not and cannot present one shred of record evidence to authenticate the so-called "positive" results of PCR testing whose sample was drawn at St. Christopher's Hospital for Children. They cannot identify who at the University of Alabama provided those test results. They have produced no information regarding how the sample was gathered, where it was stored, how it was transported, or what chain of custody existed between the patient and the University of Alabama. Defendants cannot explain the meaning of the "research only" designation attached to the University of Alabama's PCR testing in 1994, as that information lies exclusively with the University of Alabama. Likewise, [D]efendants cannot produce any St. Christopher's Hospital records custodian to authenticate the University of Alabama PCR test results that are noted in the St. Christopher's Hospital progress notes, as those PCR test results are outside the regular course of business of St. Christopher's Hospital, having been performed at an outside facility.
Plaintiffs' Brief in Support of Motion In Limine, at 5-6. Plaintiffs further pointed out that the University of Alabama could not locate any records regarding Joseph or the PCR test. Id. at 8. At the hearing on their Motion in limine, Plaintiffs presented an affidavit from Ernestine Hendricks of the University of Alabama stating that although the University keeps records of Herpes PCR testing in the ordinary course of business, there is no record of a specimen having been received for Joseph during 1994. N.T., 6/10/02, at 10-11. Defendants acknowledged that in a book on infectious diseases followed by physicians throughout the country, the PCR test was subject to the possibility of false positive results. Id. at 15.
¶ 15 Thus, the evidence of record established that the test was not basic or routine, in that the sample had to be forwarded to a research hospital for analysis. Moreover, there is no evidence to support a finding that the test involved "[t]he existence of a readily observable physical condition, the evaluation of which does not require a complex application of technical knowledge, [which] can as easily be ascertained by the lay person as by the trained physician." Xiong, 630 A.2d at 453. Based upon the foregoing, we conclude that the results of the PCR test, set forth in Joseph's medical records, did not fall within the hearsay exception set forth in Pa.R.E. 803(6). Accordingly, we conclude that the trial court improperly admitted this evidence at trial. Defendants, however, assert that evidence regarding the PCR test results related only to causation, and accordingly, the admission of the results caused no prejudice requiring the grant of a new trial. We disagree.
¶ 16 Our review of the record discloses that the pivotal question in this case was whether Joseph's injuries were caused by the negligence of Dr. Dugan during Joseph's delivery, or by herpes encephalitis. Accordingly, the PCR test results presented the jury with circumstantial evidence of a lack of negligence by Dr. Dugan. Because the PCR test results provided evidence of a lack of negligence by Dr. Dugan and the Defendants, we cannot conclude that the error in the admission of the results was harmless. Accordingly, we reverse the judgment of the trial court, and remand for a new trial.
Because of our resolution of this issue, we need not address Plaintiffs' first claim, which sought a new trial because the verdict is against the weight of the evidence.
¶ 17 Plaintiffs also claim that the trial court erred by admitting the results of the PCR test without first conducting a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), as adopted by the Pennsylvania Supreme Court in Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977). We disagree.
¶ 18 The Frye test sets forth a rule of evidence that applies "only when a party wishes to introduce novel scientific evidence obtained from the conclusions of an expert scientific witness." Cassell v. Lancaster Mennonite Conf., 2003 PA Super 387 (No. 251 MDA 2002, filed October 17, 2003).
Under Frye, a party wishing to introduce such evidence must demonstrate to the trial court that the relevant scientific community has reached general acceptance of the principles and methodology employed by the expert witness before the trial court will allow the expert witness to testify regarding his conclusions. However, the conclusions reached by the expert witness from generally accepted principles and methodologies need not also be generally accepted. Thus, a court's inquiry into whether a particular scientific process is "generally accepted" is an effort to ensure that the result of the scientific process, i.e., the proffered evidence, stems from "scientific research which has been conducted in a fashion that is generally recognized as being sound, and is not the fanciful creations [sic] of a renegade researcher."
Id. at Paragraph 8 (quoting M.C.M. v. Milton S. Hershey Med. Ctr. Of the Pa. State Univ., 2003 PA Super 346, at Paragraph 11 (filed September 15, 2003)).
¶ 19 In Trach v. Fellin, 817 A.2d 1102, 1109 (Pa.Super. 2003) ( en banc), this Court explained that the Frye standard does not apply every time that scientific evidence enters the courtroom. Id. "While courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have attained general acceptance in the particular field in which it belongs." Id. at 1110 (quoting Frye, 293 F. at 1013). Thus, the essence of admissibility is general acceptance. Id.
¶ 20 In its Opinion, the trial court stated as follows:
As to the testimony at issue, there was testimony at trial that PCR testing was the "gold standard" for diagnosing herpes encephalitis. . . . The methodology used to obtain testing and the record results were in accordance with the usual practices of research lab facilities.
Trial Court Opinion, 4//8/03, at 8 (citations omitted). In their brief, Plaintiffs set forth a multitude of reasons why the PCR test should be deemed unreliable. However, we conclude that these arguments challenge the weight that should be afforded to evidence of the PCR test results, rather than the admissibility of such evidence. Here, the record supports the trial court's determination that evidence concerning the PCR test did not violate the Frye standard. Thus, while the results of the PCR test, as set forth in the medical records, constituted inadmissible hearsay, we discern no error or abuse of discretion in the trial court's determination that the PCR test met the Frye standard.
¶ 21 In their final claim of error, Plaintiffs challenge the admissibility of the deposition testimony of Joseph's treating physicians at St. Christopher's Hospital, Drs. Beth Moughan and Jane Gould. Plaintiffs claim that the trial court improperly admitted the physicians' deposition testimony. At trial, defense counsel read into the record the depositions of Drs. Moughan and Gould, both of whom testified regarding their diagnoses of Joseph as having herpes encephalitis. In support, both physicians testified regarding the PCR test result. For example, Dr. Moughan testified that she had never seen a hard copy of the test results from the University of Alabama. Rather, the test results were written in Joseph's progress notes by an unnamed person in the hospital's department dealing with infectious diseases. N.T., 6/20/02, at 138-40. Dr. Gould testified that she based her diagnosis of herpes encephalitis upon her review of Joseph's chart "and seeing what the PCR results were on two separate spinal taps." Id. at 177. The results referred to by Dr. Gould are those set forth in Joseph's medical records.
¶ 22 As discussed supra, the results of the PCR test, as set forth in Joseph's medical records, constituted inadmissible hearsay. The testimony of Joseph's treating physicians did not provide a new basis for introducing this evidence, but merely repeated the inadmissible hearsay evidence set forth in Joseph's medical records. Accordingly, this testimony was inadmissible, and its admission constituted reversible error.
¶ 23 Judgment reversed and remanded for a new trial; jurisdiction relinquished.