Friday, July 2, 2010
Is There A Doctor In The Courtroom? D.C. Court Of Appeals Opinion Reveals That D.C. Courts Have Adopted Federal Rule Of Evidence 703
Federal Rule of Evidence 703 provides that
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
While the District of Columbia does not have codified rules of evidence, the recent opinion in In re A.B., 2010 WL 2604668 (D.C. 2010), makes clear that the District of Columbia Court of Appeals has adopted this Rule in case law and that it permits a physician expert to rely on reports and opinions from nurses, technicians and other doctors in formulating her opinion.
Ma.F. was three months old when her parents, N.B. and M.F., brought her to Children's National Medical Center ("Children's Hospital") in the middle of the night because she was in discomfort, her feet were swollen, and the skin on her feet was peeling. X-rays of the feet revealed fractures of her left first metatarsal (the "big toe") and the ends of her tibias near her ankles. The tibia fractures were of the "corner" or "bucket handle" type, where a sliver of the bone shears off from the main shaft-or, to put it another way, the plane of the fracture is closer to being parallel to the length of the bone than it is to being transverse. A follow-up full skeletal survey, which x-rayed all the bones in Ma.F.'s body from multiple views, disclosed a number of additional fractures in her arms and legs, including corner fractures of her left and right tibias and her left femur near the knee, a corner fracture of her right humerus near the elbow, two fractures of her left radius (one near the wrist and the other near the elbow), and a fracture of her left ulna. The fractures were in various stages of healing, implying they had been sustained at different times.
Ma.F. was treated at Children's Hospital by emergency room staff and by the orthopedic surgeon on call. In light of the troubling x-ray results, Ma.F. also was evaluated by Dr. Allison Jackson, the Medical Director of the Child and Adolescent Protection Center at the hospital. Dr. Jackson concluded that Ma.F.'s injuries were likely caused by inflicted blunt force trauma, and she filed a report of suspected abuse with the D.C. Child and Family Services Agency (CFSA). In addition, she recommended that a pediatric geneticist be consulted. The purpose of this consultation was to rule out the alternative diagnostic possibility-one the radiologist rejected and Dr. Jackson considered unlikely, based on Ma.F.'s x-rays and other clinical evidence-that the fractures could be attributed to osteogenesis imperfecta, a congenital disorder causing weak and brittle bones. The geneticist subsequently reported that the DNA test results for that disorder were negative, confirming Dr. Jackson's and the radiologist's judgment. Over the objections of Ma .F.'s parents, Dr. Jackson testified to her diagnostic conclusions....
Neither the radiologist nor the geneticist testified at the trial against N.B. and M.F. to determine whether their three young children, including Ma.F., were neglected. After the trial court determined that the children were neglected, N.B. appealed, claiming, inter alia, that the testimony of Dr. Jackson was improperly admitted because she relied in part on the geneticist's report, which was inadmissible hearsay.
The District of Columbia Court of Appeals disagreed, finding that
"[m]edical professionals have long been expected to rely on the opinions of other medical professionals in forming their opinions." This court has adopted Federal Rule of Evidence 703, which permits an expert witness to base her opinion on information that is otherwise inadmissible in evidence, including the out-of-court opinion of another expert, so long as that information is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." The Rule was "designed to broaden the basis for expert opinions...and to bring the judicial practice into line with the practice of the experts themselves when not in court." The drafters of Rule 703 expressly contemplated that it would permit a physician expert to rely on "reports and opinions from nurses, technicians and other doctors" in formulating her opinion. This is so even if those reports and opinions concern matters outside the testifying physician's realm of expertise. "[I]t is common in technical fields for an expert to base an opinion in part on what a different expert believes on the basis of expert knowledge not possessed by the first expert; and it is apparent from the wording of Rule 703 that there is no general requirement that the other expert testify as well."