Defense Digest

Superior Court Fails To Extend Pa.R.E. 803(6) To Test Results In A Medical Chart
By Lynn F. Reutelhuber, Esq.*

Recently, the Pennsylvania Superior Court handed down the opinion of Folger v. Dugan , 2004 Pa. Superior 6, in which the trial court's judgment was reversed and the case was remanded for a new trial.  The opinion, authored by Judge Musmanno, found that the trial court had improperly permitted the introduction of test results on behalf of the defendants, thereby requiring a new trial for the plaintiffs.

This medical malpractice action arose from the birth of the plaintiff-minor on July 13, 1994, at Frankford Hospital.  Dr. Dugan was the attending obstetrician.  Trial testimony revealed that the minor did not have any significant problems at birth and was discharged on July 16, 1994.  Six days later, the minor developed a fever and was admitted to St. Christopher's Hospital for Children, where he was diagnosed with herpes encephalitis.  This diagnosis was made, in part, on the basis of test results of a polymerase chain reaction test ("PCR test"), which was performed on his spinal fluid at the University of Alabama. The test results were written in the chart of the minor plaintiff.

At trial, the plaintiffs sought to prove that the injuries to the minor were due to negligence during delivery, which resulted in neurological defects.  The plaintiffs produced evidence that the minor was born as a face presentation instead of a normal vertex presentation.  The defendants countered at trial that the minor was born as a normal vertex presentation, and that there was no negligence by the defendants.  At the conclusion of the trial, the jury found in favor of the defendants, and Judge Watkins of Philadelphia County entered judgment for the defendants.  The plaintiffs filed Post-Trial Motions requesting a new trial.

One of the issues presented in the plaintiffs' request for a new trial centered around the admissibility of the PCR test results.  The plaintiffs argued that that the admittance of such testing constituted error, as the test results were inadmissible hearsay, were not authenticated, and could not be challenged through cross examination.  (The plaintiffs had filed a motion in limine to preclude the admissibility of the testing results, which had been denied by the trial court.)

In the appeal, the defendants argued that under Pa.R.E. 803(6) (Business Records Exception), the PCR test results were admissible.  Upon its review of the 803(6), the Pennsylvania Superior Court, however, disagreed.  Pa.R.E. 803(6) provides:

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 the 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.

The Superior Court found that the PCR test was not a basic or routine test, nor did it involve "the 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."  (Citing the case of Commonwealth v. Xiong , 630 A.2d at 453, 446).   The court also found that the test results were not so reliable as to rise beyond a mere opinion or conclusion to the level of medical fact.  As such, the Superior Court found that the results of the PCR test in the medical records did not fall within the hearsay exception under Pa.R.E. 803(6) and were improperly admitted at trial. 

The defendants, however, further argued that the evidence concerning the PCR testing went to causation; therefore, there was no prejudice which would require a new trial.  The Superior Court also disagreed with that argument.  Upon the review of the record, the Superior Court found that the pivotal issue at trial was the source of the injuries:  negligence by Dr. Dugan during delivery or from herpes encephalitis.  The PCR testing results provided the jury with circumstantial evidence that Dr. Dugan had not been negligent.  As such, the Superior Court could not conclude that the admission of the test results was harmless, so that a new trial was ordered.

Therefore, it appears that the Superior Court is attempting to carve out exceptions to the use of test results under Rule 803(6) at trial.  Counsel should be aware that, even though testing results may be part of medical records and may be relied upon by medical personnel for the treatment provided, such results are not necessarily admissible at trial and that the actual test results, as well as testimony from the testing center, may indeed be necessary in order for the testing results to admissible at trial.

Please note, however, that this narrowing of Rule 803(6) may not stand.  On January 14, 2004, a Petition for Reargument was filed with the Superior Court and was granted on March 12, 2004.  Accordingly, the Superior Court has withdrawn the opinion in Folger v. Dugan, 2004 Pa Super 6.  By granting this Petition for Reargument, the Superior Court obviously wishes to "revisit" its failure to extend the scope of Rule 803(6) to test results incorporated in medical records and upon which medical opinions/decisions were based.

*  Lynn, a shareholder in our Philadelphia office, can be reached at (215) 575-2881 or lreutelhuber@mdwcg.com.