467 P.3d 70
Or. Ct. App.2020Background:
- Defendant pleaded guilty to fourth-degree assault for stomping on and pushing the victim, causing a displaced fifth metatarsal fracture that required surgery.
- Victim’s insurer paid $18,507.41 and the victim paid $4,270.11 in copays, totaling $22,777.52; restitution was ordered for that full amount to the victim and insurer.
- At the restitution hearing the state introduced the victim’s emergency and specialty clinic records, pre-op notes, operative report, and billing for the surgery and related care.
- Treating surgeon and the victim’s primary care provider documented that the fracture was displaced and that reduction and fixation (surgery) were necessary.
- Defendant conceded the jury’s finding that his conduct caused the injury on appeal and only challenged whether the medical expenses were “necessarily incurred.”
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were the victim’s medical expenses “necessarily incurred” for restitution? | Medical records and treating clinicians’ notes showed the fracture was displaced and surgery was necessary; that evidence suffices. | State failed to prove necessity of treatment; expenses weren’t shown to be necessarily incurred. | Held: Sufficient evidence. Treating records and clinicians’ statements that surgery was needed met the “some evidence” standard. |
| Does a presumption of necessity arise once defendant’s conduct is shown to have caused the injury, shifting burden to defendant? | State argued causation implies a presumption that treatment was necessarily incurred, shifting burden to defendant to show gratuitous care. | Defendant disputed necessity; contended state must prove necessity without a presumption. | Held: Rejected. Causation and necessity are distinct; the state must present evidence of necessity (no automatic presumption). |
Key Cases Cited
- White v. Jubitz Corp., 347 Or 212 (2009) (medical expenses are “necessarily incurred” when they are for necessary medical treatment)
- State v. Campbell, 296 Or App 22 (2019) (distinguishes reasonableness from necessity and requires evidence to prove necessity)
- State v. Dickinson, 298 Or App 679 (2019) (insufficient restitution proof where only insurer ledger and counsel testimony were offered)
- State v. Jordan, 249 Or App 93 (2012) (restitution requires only “some evidence” to show necessity)
- State v. Dillon, 292 Or 172 (1981) (restitution prerequisites: criminal activity, damages, and causal relationship)