# Commonwealth v. Chong Xiong > Superior Court of Pennsylvania · August 19, 1993 · 428 Pa. Super. 136 URL: https://www.frixlaw.com/law-library/cases/9699303 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. Chong XIONG, Appellant - **Court:** Superior Court of Pennsylvania - **Decided:** August 19, 1993 - **Citations:** 428 Pa. Super. 136; 630 A.2d 446; 1993 Pa. Super. LEXIS 2697 - **Precedential status:** Published - **Opinion:** Concurrence by Wieand - **Judges:** Rowley, Wieand, Cirillo, Sole, Tamilia, Kelly, Popovich, Hudock, Elliott, Wieand'S - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9699303 ## How later opinions describe it (automated extraction) - holding that the admission of a business record under the Uniform Business Records as Evidence Act does not violate constitutional rights to confrontation and cross-examination because “the inherent reliability and trustworthiness of factual entries in a business record negate… ## Opinion text WIEAND, Judge, concurring: I concur in the result. “The definition of business in the Business Records Act is sufficiently broad to include medical or hospital records — The courts of Pennsylvania, however, have been reluctant to admit those portions of medical or hospital records which include the opinions of medical personnel.” Packel and Poulin, Pennsylvania Evidence, Ch. VIII, § 803.6(h), at p. 587 (1987). Therefore, the rule adopted by the Supreme Court is that “hospital records are admissible to show the fact of hospitalization, treatment prescribed, and symptoms given.” Commonwealth v. DiGiacomo, 463 Pa. 449, 455 , 345 A.2d 605, 608 (1975). See: Commonwealth v. McCloud, 457 Pa. 310 , 322 A.2d 653 (1974); Commonwealth v. Mobley, 450 Pa. 431 , 301 A.2d 622 (1973). Under this rule, medical diagnoses contained in hospital records are not admissible unless the doctor mak *152 ing the diagnosis is available for cross-examination. Commonwealth v. DiGiacomo, supra at 455-456, 345 A.2d at 608 ; Commonwealth v. McCloud, supra. This rule has not been modified by the Supreme Court, and its decisions have created no exceptions. In my judgment, the realities of modern day life require that the Pennsylvania rule be broadened. The majority has done so in this case by relying on Superior Court decisions which have treated several medical diagnoses as statements of fact. I agree. In so doing, the Superior Court has adopted the reasoning of the late Justice Roberts as expressed in his Concurring Opinion in Commonwealth v. DiGiacomo, supra at 457-460, 345 A.2d at 609-610 . The business and professional records exception to the hearsay rule, he observed, “is justified on grounds analogous to those underlying other exceptions to the hearsay rule. Unusual reliability is regarded as furnished by the fact that in practice regular entries have a comparatively high degree of accuracy (as compared to other memoranda) because such books and records are customarily checked as to correctness by systematic balance-striking, because the very regularity and continuity of the records is calculated to train the record-keeper in habits of precision, and because in actual experience the entire business of the nation and many other activities constantly function in reliance upon entries of this kind.” McCormick’s Handbook of the Law of Evidence § 306, at 720 (2d ed. E. Cleary, 1972). Wigmore finds that the fact that hospital records are “made and relied upon in affairs of life and death” renders them especially reliable. VI Wig-more, Evidence § 1707, at 36 (3d ed. 1940). The physician’s diagnosis is probably the most important element in the hospital record in determining what treatment is necessary to preserve the patient’s life and health. It would seem, therefore, that the reliability of the diagnosis is sufficiently safeguarded to allow its admission even where there is no opportunity for the non-offering party to cross- *153 examine the recording physician. Cf. Commonwealth v. Harris, 351 Pa. 325 , 41 A.2d 688 (1945). Furthermore, I question the efficacy of cross-examination to uncover discrepancies in the physician’s diagnosis. As Professor Wigmore has recognized, “[a]midst the day-to-day details of sources of hospital cases, the physicians and nurses can ordinarily recall from actual memory few or none of the specific data entered; they themselves rely upon the record of their own action; hence to call them to the stand would ordinarily add little or nothing to the information furnished by the record alone. The occasional errors and omissions, occurring in the routine work of a large staff, are no more an obstacle to the general trustworthiness of such records than are the errors of witnesses on the stand.” Wigmore, supra. See generally, 4 Weinstein’s Evidence, ¶803(6)[04] (1975); but see McCormick, supra, § 313. Finally, although the use of the record deprives the non-offering party of the opportunity to explore the physician’s qualifications, the fact that the diagnostician is a physician on the staff of a hospital assures at least minimal qualifications. The fact that no greater competence is indicated by the record can be adequately communicated to the jury. However, even assuming that there may be some danger in admitting diagnoses without cross-examination of the recording physician, this does not dictate that all records containing diagnoses must be excluded from evidence. Judge Weinstein reports that “most federal courts reached an accommodation between the need for relevant information and the fear of uncross-examined opinion. They drew a distinction between diagnoses involving ‘conjecture and opinion’ and diagnoses upon which ‘competent physicians would not differ.’ ” 4 Weinstein’s Evidence, ¶ 803(b)[04] at 803-158 (1975). Records containing diagnoses tending toward the former were excluded, those tending toward the latter were not. McCormick finds a similar development in several state courts. McCormick, supra, § 313. A sample of cases in which other jurisdictions have held that, at least *154 in some situations, diagnoses are admissible include Thomas v. Hogan, 308 F.2d 355 (4th Cir.1962); Bailey v. Tennessee Coal, Iron & RR. Co., 261 Ala. 526 , 75 So.2d 117 (1954); Tryon v. Casey, Mo.App., 416 S.W.2d 252 (1967); Brown v. St. Paul City Ry. Co., 241 Minn. 15 , 62 N.W.2d 688 (1954) (dictum); Allen v. St. Louis, 365 Mo. 677 , 285 S.W.2d 663 (1956); Weis v. Weis, 147 Ohio St. 416 , 72 N.E.2d 245 (1947) (dictum); McReynolds v. Howland, 218 Or. 566 , 346 P.2d 127 (1969); Travis Life Insurance Co. v. Rodriguez, 326 S.W.2d 256 (Tex.Ct.Civ.App.1959); Joseph v. W.H. Groves Latter Day Saints Hospital, 7 Utah 2d 39 , 318 P.2d 330 (1957); Noland v. Mutual of Omaha Insurance Co., 57 Wis.2d 633 , 205 N.W.2d 388 (1963). Id. at 457-460, 345 A.2d at 609-610 (footnotes omitted). For these reasons, I am of the opinion that the Pennsylvania rule must be expanded to allow a medical record to be received as a business record to show that a patient was found to have “no hymen.” Although this is a medical diagnosis, it is not based on conjecture and opinion but represents a finding upon which competent physicians would not differ. Therefore, I concur in the result reached by the majority. Whether or not defense counsel stipulated to the notation, the medical record was admissible as a business record to show that the child was found to have no hymen. Judge Tamilia joins the majority opinion and joins Judge Wieand’s concurring opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9699303. Public record. Not legal advice.