Expert Reports, Testimony, and Stipulations — Make Sure Their Expert Comes to Court

The Pennsylvania Rules of Evidence, promulgated rules and case law interpreting those rules, apply to administrative proceedings. An experienced trial attorney should utilize civil and criminal trial evidentiary rulings discussing the rules to their client’s advantage in licensing disciplinary hearings.

The importance of understanding these rules and keeping up to date with the case law cannot be overstated. Inadmissible evidence not objected to becomes part of the record while properly objected to inadmissible evidence is stricken and unavailable for the Board or hearing officer to rely in rendering its decision. This means that any Pennsylvania trial court evidentiary decision should be researched for their applicability in licensing cases.

On March 15, 2016 the Superior Court of Pennsylvania rendered an important evidentiary decision regarding medical records and expert testimony. In that criminal case, the Commonwealth sought to introduce into evidence an emergency room medical record which contained a medical evaluation, diagnosis, and medical conclusion of an injury. The Commonwealth did not ask the doctor to testify, claiming the medical record was not testimonial, admissible as a business record, and therefore the defendant’s sixth amendment right to confrontation did not apply. Commonwealth claimed the medical record/report is a business record, which is an exception to the hearsay rules. Superior Court reviewed the Rules of Evidence and the case law, rejecting the Commonwealth’s position.

Understanding why this ruling is important for your license case is necessary to hiring the right attorney to handle your licensing case. Medical facts (size, shape and where is an injury) contained in medical report are admissible under hearsay rules.

However, a medical opinion or diagnosis (the specific type and cause of an injury – addictions or impairments) are not. The declarant of the medical conclusion, the doctor rending the expert opinion, must testify. Pennsylvania Rule of Evidence 803.1 provides: The following statements are not excluded by the rule against hearsay if the declarant testifies and is subject to cross-examination about the prior statement:

(3) Recorded Recollection of Declarant-Witness. A memorandum or record made or adopted by a declarant-witness that:

(A) is on a matter the declarant-witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the declarant-witness when the matter was fresh in his or her memory; and

(C) the declarant-witness testifies [sic] accurately reflects his or her knowledge at the time when made.

If admitted, the memorandum or record may be read into evidence and received as an exhibit, but may be shown to the jury only in exceptional circumstances or when offered by an adverse party.

In every impairment case – not just criminal cases – if the Commonwealth seeks to introduce an expert’s report regarding his/her opinion of medical condition, addiction, impairment, and affect on a licensee’s ability to practice, the doctor must come to court. Licensees should never stipulate to the expert report. The expert should be compelled to testify.

This is hugely important in many parts of the licensee disciplinary process. First, never stipulate to any impairment. Signing the PHMP contract admitting you suffer from an addiction or impairment eliminates the legal necessity of the Commonwealth having a licensee evaluated and then calling the expert to testify at a hearing. Secondly, never go to the evaluation of a PHMP approved expert without counsel. You need to be prepared for that evaluation. My prior blogs address these issues.

If the expert concludes the licensee is impaired, hire counsel to fight that conclusion and make sure the expert comes to court. Again, counsel is important here. Make sure you have the expert report before the hearing and that the expert testifies at the hearing. Do not stipulate that his report is admissible and he/she does not have to testify. This is where the Commonwealth v Davis decision is important. The expert must be available and subject to cross examination.

Experienced counsel will know of what issues to cross examine the expert to eliminate certain factual and medical basis for their medical conclusion. It is only during cross examination that the expert’s conclusions will be tested. Thereafter, when briefing the case after the hearing, the record will reflect the doctor’s admissions of what facts are not present in the record to support his decision. When a licensee stipulates to a doctor’s report, such testing and examining the expert’s opinion does not take place.

Three of my recent impairment trials have resulted in significant cross examination and admissions from the Commonwealth’s expert. These admissions eliminate the factual basis for that expert’s medical conclusions. If I stipulated to his report, I would have not secured this type of evidence for my clients. If the expert did not testify, and his report constituted the only evidence upon which the Board could rely to rendering a decision, my clients would not have a chance of winning their impairment case.

Because the expert was subject to the great test of cross examination, as Davis states is required, my clients can win their cases. In each case cross examination revealed omissions of fact and evidence upon which the expert should have but did not consider in rendering his conclusion. Cross examination also revealed the absence of a current medical basis for the expert opinion. Compelling the expert to affirm a licensee’s ability to safely practice, regardless of a medical condition, immediately reveals to a licensee board the weakness in any expert report stating the contrary.

Here is where cross examination is really important. 63 P.S. § 224(a) provides the standard to which the court must subject the expert’s testimony. The provision states: (a) The Board may refuse, suspend or revoke any license in any case where the Board shall find that— (2) The licensee is unable to practice professional nursing with reasonable skill and safety to patients by reason of mental or physical illness or condition or physiological or psychological dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination,

The typical expert report simply states such. However, on cross examination, factual concessions reveal how weak the expert opinions typically are. Forcing the Commonwealth at a licensing heating to have the correct witness who can testify and provide admissible and sufficient evidence is paramount. Stipulating to reports and evidence loses your case and your license.

Call me to discuss how to fight your case, properly apply the rules of evidence, make sure your professional licenses is not subject to any discipline.

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