*1
314
a loss of
controlling
parent’s
example,
whether
consortium
policy
deriva-
damages
for
exists
other
claim
relation-
injury.
a
Indeed
tive claim for
child’s
is
ships.
most obvious
these
that
Supreme Court made that
the [Ohio]
recently recognized in
most
Ueland v.
recovery for
analogy
it denied
loss
when
131,
Co.,
Metals
103 Wash.2d
691
Reynolds
society
wrongful
a
death
child’s
(1984),
amendment,
minor
190
that of
children for
P.2d
before
1982
actions
[ci-
Nor do
to their father.
we
severe
rely on
tation
Defendants
that
omitted].
whether the cause
action which
decide
language
right
no
to show that there is
recognize,
do
the loss
the Rebens’
we
an injured
to recover for loss of
child’s
Frank,
beyond
extends
a
consortium with
‘society, companionship and comfort.’
reaching
age majority.
Al-
child’s
wrongful death act has
Now that
though
present
may
in the
case
award
changed
recovery
for such
been
allow
(the
age
beyond that
well have extended
losses,
opposite
analogy compels the
expectan-
jury was instructed as to
life
115.
conclusion.”
N.E.2d at
was not an
cy
parents)
that
issue
Similarly
Supreme
the Wisconsin
Court
presented
appeal.
in this
injured
for
adopted the cause of action
in-
loss
consortium claim the
negligent
a
tort
minor children
jury by
to the
stant case was submitted
394,
Prier,
Shockley
Wis.2d
v.
feasor
judge
trial
separate verdict because the
said,
responsive.
law is fluid and
The common
1064,
Fla.
“In
Wilkie
Roberts [91
real loss
case illustrate a
The facts of this
held
], this Court
able either parents together, two ...” original] 279 846.
[emphasis in
So.2d
states have amended their
Three other
of this
off Dr. porch. Buford testified that not believe injuries she did were she observed consistent a fall porch. from Dr. a Buford referred the Jeryl Dansky child to Dr. the University Hospital for treatment and consultation. He examined the Dansky also child. Dr. testified that were not consist- porch. ent with fall from the Over appel- Dr. objection, Dansky lant’s was allowed to testify her, the child told “Daddy my arm.” twisted child and his mother were not avail- able for trial. There showing was no as to what efforts were made to locate them. only testimony came from the doctors and a detective appel- interviewed lant.
Appellant contends the trial court erred allowing Dansky testify Dr. to as to the fact the child stated that his father twisted his arm. The state contends that the statement was excep- admissible as an 803(4), tion to the rule provides Arizona Rules for: purposes “Statements made for of medi- diagnosis cal or and describing treatment Corbin, Atty. history, present Robert K. past Gen. William medical or symp- or Schafer, III, Akers, toms, J. Linda A. Phoe- sensations, pain inception or or nix, appellee. general character of cause or ex- ternal source thereof insofar reason- Dardis, County Frederic Public J. Pima ably pertinent diagnosis or treat- Case, Tucson, by Regula ap- Defender ment.” pellant. agree. rule was We do dis- OPINION Jeffers, cussed in case of (1983) 661 P.2d Ariz. where the HOWARD, Judge. court stated: Appellant of a jury was convicted important “Two factors derive from abuse, non-danger- single count of child (1) rationale: whether the de rule’s ous, non-repetitive felony, class 4 clarant’s motive consistent receiv placed probation period on for a four care; ing whether it is 31, 1983, years. appellant On March rely for the reasonable Jr., brought four-year-old son Allen diagnosis or treat the information Center, Urgent the Northwest Medical Shell, 633 ment. United States v. Iron Care for the Center Tucson (8th Cir.1980). Thus Iron F.2d 77 boy a broken was examined arm. Shell, court admitted an assault vic Buford, Margaret who also observed stating: her tim’s doctor statements appeared slap be a mark on the important to note that state ‘It is Ap- mark on his child’s face and a chest. rather happened concern what slapped ments pellant that he had told Dr. Buford The former in assaulted her. his child the child had then fallen than who and that right to pertinent deciding most cases is sidered when whether seldom, treatment while latter would im- has confrontation been satisfied is ever, sufficiently if related.’ Id. Here, hear- portance of the evidence. Accord, Nick, United States 604 say major Its admission was the evidence. (9th Cir.1979). The Advisory F.2d 1199 *3 devastating The the defendant. to 803(4) Note to rule Committee’s also right is at heart and to confrontation illustrating point makes a that state- judicial system soul of our criminal ordinarily ments as to fault not would jealously guarded. must We note that be qualify exception.” 135 under the Ariz. Wyoming court in the case relied 420-21, at P.2d 1121-22. 661 at dissent, decision, by not even 3-2 did Here, the fault statement to was not problem. the confrontation address reasonably to pertinent diagnosis or treat- dissent the state in would allow child ment. court erred when it allowed any by the cases to avoid cross-examination testimony into evidence. error was simple expedient having of not the child not harmless here because that statement having testify. not him Con- available and the only from the child was statement di- premise, trary major to the dissent’s appellant rectly connecting to the person identification twisted arm, boy’s injury. his most We serious necessary is not for the doctor child’s arm with con- note astonishment the dissent’s his medical determination as to make appellant’s right to tention that confronta- injury. nature of the tion is not a child’s violated because state- Appellant has other issues which raised to a in a ment doctor child abuse situation disposi- in view of our we need not discuss Support inherently trustworthy. for this tion. statement consists two articles contained magazines by professional authors Reversed. expertise
whose
is unknown. Dutton v.
74,
Evans,
210, 27
400 U.S.
91 S.Ct.
BIRDSALL, P.J., concurs.
(1970),teaches that the
L.Ed.2d 213
out-of-
person
of a
not called as a
court statements
HATHAWAY, Judge, dissenting.
previously
witness and never
avail-
Jeffers,
majority relies on State v.
for cross-examination are admissible
able
(1983),
404,
in con-
661
1105
135 Ariz.
P.2d
least when three conditions are satisfied:
at
state-
cluding
out-of-court
that the child’s
(1)
reliability’
‘indiciaof
surround-
there are
relayed
treating physician, as
to the
ment
(2)
evidence;
‘pe-
ing the
the evidence is
court,
reason-
was “not
than ‘crucial’ or
ripheral’ rather
‘devastat-
ably
treatment”
pertinent
(3)
equally
ing’, and
the witness is
available
inadmissi-
[majority opinion at
and thus
3]
400
prosecution
the defense.
803(4), Rules of
ble under
19,
219,
n.
74 at
&
91 S.Ct. at
U.S.
89
be
conclusion to
I believe this
17A A.R.S.
agree
if we
n.
Even
were to
220 & 19.
for several reasons:
error
(1)
here,
existed
the other two
condition
Furthermore,
clearly did not.
record
analysis
(1) misapplies
It
Jeffers.
good faith
not
that a
effort
does
disclose
that,
(2)
in contrast
recognize
fails to
It
and child.
locate
mother
was made to
medical condition
virtually
other
with
Yates,
fenses children as evidenced statement, response The child’s elicited in carving offense, out as a of a question open-ended to an from the consult- 13-3623, a caretaker in A.R.S. § room, ing pediatrician examining sug- in an abuse,” by imposing upon “Child medi- gests no motive other than a desire to personnel having cal and other occasion to cooperate get well. injury duty of abusive report know all “Q. Now, you did do after the injuries. non-accidental A.R.S. 13-3620. § your child came to attention there at the Preliminarily, I hospital? would note that the role of this court must be one of restraint with spoke A. I with the mother and the
respect
trial
court. “We are
child, and examined the child.
*4
reverse where we find that the admission
Q. Okay.
you spoke
And
with the child
testimony
of this
constituted an
first?
Shell,
discretion.” United
v. Iron
States
A. Yes.
(8th Cir.1980).
F.2d
Q.
then the
And
mother?
A. That’s correct.
THE JEFFERS ANALYSIS
Q.
setting
And then in what kind of
did
Jeffers, supra, quoted
perti-
you speak with the child?
part by majority,
nent
breaks down the
examining
A.
In one of our
rooms
diagnosis
rationale of the medical
and
pediatric
clinic.
parts:
into
two
wheth-
Q.
you
your
And can
tell us about
con-
er the declarant’s motive is consistent with
versation with the child?
receiving medical care and whether the
initially approached
A.
I
the child and
reasonably
physician
relies on the informa-
happened,
asked what had
and after ini-
tion
treatment. 135 Ariz. at
tially
saying anything,
not
the child told
420-1,
1121-22.
respect
at
With
playing
one of
me that he had been
motive,
to declarant’s
while it is conceiva-
his father’s record[s].
the victim in this
ble that
case had devel-
object
MR.
Excuse me. I’ll
HANTMAN:
lie,
oped a motive to
once his mother inter-
being part
as
of the basis for the
transported
vened and
him to the second
treatment,
Honor.
Your
questioned
statement
doctor where
Objection is
THE
overruled.
COURT:
made,
nothing in
there is
the record to
may
She
answer.
suggest any
developed.
motive to lie had
Q.
Jorgenson)
may
You
an-
(By Ms.
contrary, the detail of
the child’s
On
swer.
Dansky,
that his father
statement
playing with one
A. The child was
got
his arm when he
into the
had twisted
got
dirty,
and
it
records
collection, is
record
consistent with
father’s
father’s
(Em-
his
twisted his arm.
admitted
the defendant1
what was
father
added)
phasis
the circumstances
about
Now,
Q.
you speak with the child
did
findings
physicians.
two
In
regarding
the mother first
what
first or
case,
prong
requires
the first
Jeffers
happened?
patient
only
have a motive consist-
care, surely
spoke
A.
I
with the child first.
receiving medical
ent with
1. The
cerning
Buford,
error
though objected
"Q.
about
on
admission of
And
what had
what had
the first
[******]
appeal.
what did Mr. Reidhead
happened
happened?
appellant's
trial,
to see the
was not
to the child to Dr.
statement
argued
child,
tell
con-
you
al-
as
left and
or chest
Q.
A. It had occurred within
you
then the
THE WITNESS:
had come
(By
how
across the
his—on the
Ms.
child fell off the
recently
in.”
Jorgenson) Okay.
He said he had
right
this
porch.
ground,
had
side of the
occurred?
porch
hour before he
right
slapped
striking
Did he tell
face,
anteri-
his
Practitioner,
Q.
you
Injury,
And
Vol.
then
conversation
dental
228 at
with the mother?
April
1984. It can
be considered
Dansky
A.
reasonable for Dr.
to have
That’s correct.
relied
statement,
child's
when the
Q.
twist
you actually
And then did
examine
Reidhead, Jr.,
fracture suffered
Allen
the child?
abnormality "pathog-
been termed an
has
A. Yes.
Britton,
for
supra,
nomonic
child abuse.”
Q.
you
jury
you
Can
tell
ob-
Thus,
op-
injury,
at 319.
child abuse
served?
posed
drug
problem
adult
overdose
A.
appeared frightened,
He
and was
presented
Jeffers,
the two-
would meet
crying, as I mentioned before.
part
admitting
rationale
He seemed to be well nourished. Nor-
perpetrator
statement
identifies
year
mal size for a five
old.
of the
in the medical treatment set-
significant
His
bruises on
exam was
face,
ting.
temporal
both
areas on
a bruise
side,
right
upper
on his
chest on the
jurisdictions
very recently
Other
have
be-
swelling
upper part of his
some
of the
abuse,
gun
recognize
including
that child
left arm.”
abuse,
presents
sexual
kind of
analysis,
prong
second
Jeffers
problem
which makes statements
physician,
reliance
also
reasonable
go
appearing to
to “fault” admissible.
*5
The child’s statement contribut-
satisfied.
Shell, supra;
v. Iron
United States
Gol-
diagnosis
making
the
of a twist frac-
ed
State,
(Wyo.1984);
721
dade v.
upper
the
left arm as well as the
ture of
Garza,
(S.D.1983).
Abuse and
abuser,
by
person-
a child to medical
XLI:5,
(1984).
Medicine,
nel,
in
under the
admissible
evidence
are
(also termed “battered child
Child abuse
rule articulated in
injury”) is
“non-accidental
syndrome” and
803(4).
State, supra.
Goldade
in-
in
the individual who
terms of
defined
this the court is
“In an instance such as
diagnostic term ‘bat-
injury:
flicts
“[t]he
unique
with a
and
confronted
Kempe in the
by
baby’ was coined
tered
concerned with
problem, and we must be
the child
in 1962 to describe
States
United
im-
responsibility which
an additional
par-
deliberately inflicted
injuries
Carne,4
physician. Child abuse
posed
(or guardians).”
Non-Acci-
ents
Professor,
Britton, M.D.,
De-
help-
Assistant
3. Helen
journals
I
found
which have
medical
2. The
Pediatrics, University of Arizona
partment of
problem
legal
of child
interpreting the
ful in
Tucson,
Center,
Arizona
University
Sciences
Arizona
Health
part
are
of the
collection,
Library
all
Sciences Center
Health
MB, FRCGP, DCH,
Carne, OBE,
primari-
Senior
or social scientists
medical
4. Stuart
authored
scientists,
Practice,
"magazine
Postgraduate
Royal
and are
ly
other
Tutor in General
School,
Hospital,
Maga-
type
Parade
Lon-
be found in
Hammersmith
Medical
articles”
don, England.
Popular Mechanics.
zine
burns;
“phenomenon
it is a
than
ture or
recognized
encompassing
as
more
Smith,5
injury.
thild maltreatment.”
physical
parental
mere
They also must decide whether the child
physicians and others who
mination is
propriety
may be
suspected child abuse cases of whether
utes,
incorporated
}Jt
policy
makes vital the determination
in
[*]
imminent
necessary
temporary protective
were inflicted
in the child
this state as it is found
Jjt
danger,
[*]
determining
protection
are
which deter-
deliberately.
[*]
treating
custo-
[*]
stat-
Review Behavioral
Non-Accidental
plan is
nosis and
vioral Research
as well
she
ton,
and
emotional
inquired
following good
supra, at 318.
“recognition
as the
prescribing
Essential to
signs
ability
Therapy, Vol. No.
Injury to
of a
of the
Reidhead
Clearly,
Interventions, Beha-
concerning history
making
proper
identify physical
problem.”
Children-I, A
practice
boy
Dansky
how
when
Brit-
diag-
he
gotten hurt. His statement
that his
dy. In the
as to
absence of information
identity
impor-
assailant
had twisted his arm was an
father
child this latter decision cannot be
piece
focusing
of information in
tant
way.” (Emphasis
exam,
made in
rational
helping
doctor’s
her to decide
added)
without an certainly, ARIZONA PUBLIC POLICY the rules of evidence may be revised legislature, recognizing this defense- from time to time necessarily without segment population, less singled of our has violating the confrontation clause. The *8 out child protec- abuse victims for exception to the confrontation clause is by making physicians, among others, tion based, rather, upon recog- the view that specially exceptions protection nized accountable for their have sufficient reliability' ‘indicia of so their use harm supposedly from those re- though does not offend the clause even sponsible for their care. See A.R.S. 13- § produced the witness is not for confron- 3623 and 13-3620. physician Indeed a § tation.” subject failing to a class misdemeanor for report immediately suspected A fact sufficient for a rely 3620(F). trustworthy treatment is abuse. A.R.S. Compare § 13— with, State, (“The supra, Goldade v. at 726 it is
policy incorporat- this state as found statutes, protection
ed in the child makes physicians
vital determination treating suspected
others are cases were of whether the deliberately.”)
inflicted The admission
the child victim’s the cir- statements under requires
cumstances this case no new Rather,
hearsay exception. an it demands adopted courant
au construction of
rule, 803(4), Rules of 17A I, therefore, respectfully
A.R.S. dissent.
Charles wife, Philips, husband and
U.
Plaintiffs/Appellants,
CIENEGA, LTD., corporation an Arizona Company of Stewart Title & Trust
Tucson, corporation, an Arizona
Trustee Trust No. Defend- Appellees.
ants/
2No. CA-CIV 5295. Arizona, Appeals of
Court of 2, Department B.
Division
9,May 1985. Sept. 4, Denied
Review