State v. Lopez-Cruz

An expert’s diagnosis of “abuse”, in the absence of physical evidence to corroborate that diagnosis, amounts to an impermissible comment on the credibility of the patient.

Defendant was convicted of first-degree sex abuse. On appeal, he argued that the trial court committed plain error in admitting a medical doctor’s diagnosis of “abusive contact of an adult with a patient, no penetration or genital contact." A 10-year-old reported to her mother that, while spending the night at a friend’s house, Defendant simulated intercourse with her while she was clothed and pretending to sleep. The mother took the girl to the emergency room for an examination that revealed no physical evidence of abuse. At trial, however, the doctor testified that, based on the girl’s personal account, the girl sustained “abusive contact.” The doctor also testified that the contact did not involve “penetration or genital contact.” Defendant did not object to the doctor’s testimony. The Oregon Court of Appeals held the admission of the doctor’s “abusive contact” diagnosis, in the absence of corresponding physical evidence to support that diagnosis, amounted to plain error in light of State v. Southard. The Court reasoned that a diagnosis of “abuse” is different than other medical diagnoses because unlike most medical diagnoses, a diagnosis of abuse identifies conduct inflicted on the victim from another person. Therefore, due to Southard and State v. Lupoli, an expert’s diagnosis of “abuse,” in the absence of physical evidence to corroborate that diagnosis, amounts to an impermissible comment on the credibility of the patient. Reversed and remanded.