Criminal Practice

Signs of Abuse Indicated in ER Reports Are Basis for Expert Opinion

, The Legal Intelligencer



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."

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