*1 1146 jurisdic court of another should defer to a application of by the is not denied
credit
govern
branch of
v. How
tion or to a coordinate
law. See Bacon
procedural
local
for the
25,
is a matter
that calls
ard,
How.) 22,
811 ment and
(20
15 L.Ed.
61 U.S.
gener
discretion. See
Cohen,
(13
judicial
exercise of
v.
38 U.S.
McElmoyle
(1857);
Angeles Dep’t Water
v. Los
ally
Jackett
(1839);
Restatement
Pet.) 312, 10
177
L.Ed.
of
1074,
(Utah
Power,
(1971).
Ct.
&
771 P.2d
(Second)
of Law
of Conflicts
§
Here,
Legislature
re
has
App.1989).
though the forum state’s
true even
This is
comity
this issue from the realm
moved
allows enforcement
of limitations
statute
by directing that for
judicial discretion
by the ren
is
judgment
which
barred
treated the same
eign judgments shall be
of limitations. See
dering state’s statute
they
been
(1969);
judgments once
An
as local
Judgments
47 Am.Jur.2d
§
state. See
in this
Utah Code
Laws as to Time
filed
notation,
Conflict
78-22a-2(2) (1987).
this ex
Action on For
Governing
Limitations
inappropriate to
567,
pressed policy, it would be
eign Judgment,
36 A.L.R.2d
McDonald,
differently than a
foreign judgment
treat a
But see Roche v.
(1954).
(1928).5
judgment.
local
Thus, full faith and may, under the a state pro- remanded for further Reversed and clause, limi apply its own statute of credit ceedings. foreign of a to the enforcement tations Furthermore, in this case the judgment.6 HOWE, C.J., HALL, C.J., Associate judgment filed Utah be ZIMMERMAN, JJ., Oklahoma and DURHAM and dormant, creating a becoming thereby fore concur. judgment purposes of en new Utah subject to the judgment This is forcement. of limitations for the enforce
Utah statute not affected judgments and is
ment dormancy statute.
the Oklahoma sum, faith and credit clause the full Utah, Plaintiff and STATE apply a require Utah courts to does not Petitioner, dormancy foreign of limitations or statute properly filed under judgment to a statute WARDEN, R. Defendant David Judgment Act.7 Foreign the Utah Respondent.
V. COMITY No. 900087. argument final Martin’s Supreme Court of Utah. up should be district court’s decision 4, 1991. June comity, although the on the basis of held comity ruling on did not its
court base principle that a Comity is the
principles.
court, public policy, for considerations exception on the notion that if to this tinction seems to based an Some courts have found 5. state, rendering running rendering judgment general if the is dormant rule in ex- has resulted obligated statute of limitations judgment state's to first revive holder is tinguishing judgment holder’s substantive rendering judgment in the state before seek- extinguishing remedy. rights opposed to as judgment ing in a different state. to enforce the Annotation, Laws as to Time See However, Conflict of a dor- because under Oklahoma law Judg- Foreign Governing Action on Limitations revived, judgment may not be the Okla- mant (1954). ment, 586-87 36 A.L.R.2d dormancy operates in a manner homa statute of limitations. similar to a statute Although not allowed an a few courts have judg- upon a dormant to be maintained action ment, by enforcing judg- 7.Arguably, an Oklahoma upon judgment which the opposed Oklahoma, run, ment which is unenforceable rendering has state’s statute of limitations receiving 587-88, distinction, judgment than more faith and credit even A.L.R.2d at see 36 valid, received in Oklahoma. here. The dis- not be relevant *2 Namba, Farmington, and Melvin
Brian J. Wilson, Clearfield, peti- plaintiff for C. tioner. Hansen, City, Lake
Darwin C. Salt respondent. defendant and TO THE UTAH ON CERTIORARI APPEALS OF COURT HALL, Chief Justice: challenges decision The State a month ear- conception may have occurred Appeals1 overturned which Utah Court reported. Warden previously lier than ground that there was a conviction on daughter Ivy told to find Dr. for a insufficient *3 instructed her worry. to He labor and not negligent homi- guilty of David R. Warden Ivy Young called p.m. call back at to cide, class A misdemeanor.2 told that it was again p.m. at 1 and was appealed on the reviewing In a case daughter necessary bring to her evidence, re insufficiency of we ground of p.m. and told again called clinic. She to in most favorable cite the facts having con- daughter was that her Warden is a licensed jury’s Warden verdict.3 “losing clots.” She tractions and blood been physician who has board-certified call “stop fussing” and then told to was Kaysville, family in practicing medicine were three when the contractions back provides Utah, He also obstet since 1968. p.m., Ivy At 10:15 apart. minutes five that he has attend and estimates rical care to tell him that Young phoned Dr. Warden births, 2,500 of which approximately ed stage of labor. daughter was in the last her However, at home deliveries. have been interval, did during this Warden At no time to this Warden all times relevant premature if Young to determine examine He there malpractice insurance. lacked and, so, precau- likely what birth was hospital privileges and did not have fore minimize the likeli- should be taken to tions settings. in home only delivered babies premature hood of a birth. 1986, Warden was visited September In Youngs’ house at arrived at the Warden eighteen-year-old who Young, an by Joanne Shortly there- p.m. 10:30 approximately with her pregnant. connection was infant. after, Young gave birth to a male Dr. previously seen pregnancy, she had Warden, was attended The birth complete ob- Bitner, given her a who Young’s parents, and John Shaw. Sharron the date of de- exam and estimated stetric sister, Johnson, Young’s older arrived soon Bitner 1986. Dr. livery to December weighed on infant was the birth. The after Young for an ultrasound had scheduled weight estimat- scale. His was a bathroom firmly establish the in order to examination pounds. approximately four Soon ed to be examination, Prior to the delivery date. birth, began experi- the newborn after the however, changed doctors because Young encing respiratory problems, as evidenced delivery. a home she wished to have infant periodic grunting sound the by a Warden, his examination of on based purplish-blue breathing and his made while medical records received Young and infant recognized that the color. Warden Bitner, delivery the date of estimated showing symptoms of premature and was However, he did to be December disease syndrome respiratory distress —a this to confirm perform an ultrasound linked progressive, knew was that Warden Young also decided date. Warden births, and could result premature delivery due for home a suitable candidate however, Warden, inform did not death. Young’s fact that health and the to her baby’s Youngs of the condition mother, pro- Ivy Young, was available way infant in a that would positioned the after the birth. vide care would not affect mask the but Johnson, 7, 1986, Sharron who morning of November the condition itself. theOn grunting periodic her deliv- was concerned about six weeks before approximately sounds, whether the cramps and asked Warden date, Young developed ery hospitalized. Warden told her needed to be Ivy Young phoned bleeding. vaginal hospitalization was not indicated daugh- him of and informed Warden breathing exhibited was type that the him that John also told ter’s condition. She Young Ivy premature babies. baby, thought that normal Shaw, the father of (Utah Verde, Warden, (Utah Ct.App. 770 P.2d 3. See State P.2d 1204 1. State v. 1989). 1989), and cases cited therein. 76-5-206. 2. See Utah Code nevertheless, following morning; the infant and he made about also concerned attempt patients contact his Warden whether the no until
repeatedly asked
when,
first
any
day,
other atten-
noon that
for the
“to
checked or
needed
was,
Youngs
only reply
phoned the
and was informed of
tion.” Warden’s
“[N]o
baby.”
infant’s
you
death.
grandma
watch
trial,
11:40,
forty
expert
minutes
At
called
approximately
At
the State
several
birth,
Warden left the home.
witnesses who testified that
infant died
after
instructing
baby,
respiratory
syndrome
distress
Ivy
to watch
due
anyone
prematurity, weighed
approximately
did not tell her or
else
four
*4
the
specifically
pounds,
gestational age
what to watch
and was
of
the household
weeks,
for,
anyone
baby
approximately
that
38-34
be-
nor did he tell
the
weeks
suffering
ing
expert testimony
from a
that could
full term. The
also
was
condition
doctor,
by
simply
in
established that a
observ-
result
death.
ing
measuring
size
the
and
the dimensions
During
night,
infant’s
the
the
condition
infant,
very
could
of the
tell that
was
virtually unchanged.
remain
appeared to
premature.
only
that
perceivable
The
difference was
Youngs
the
deeper
feet
turned a
It was also
that
his hands and
established
responded by
if the
Ivy Young
position
were not in a
to determine
shade
blue.
baby’s
In-
attempting
Throughout
deteriorating.
warm him.
the
condition was
to
deed,
his
and
the
at
the
night,
coloring
the
face
evidence
trial established
bluish
a.m.,
following:
Youngs
change.
to
The
were told that an
torso did not seem
At 8
however,
period
breathing
symptom
be-
of the disease
nor-
the
silent
obvious
was
color,
despite
and
and
the
episodes
grunting respiration
the
mal
his size
tween
attention;
increased,
Ivy Young
con-
did not need medical
and
became
infant
changes
symptoms
in
the
stopped
the
disease
cerned that he
breath-
subtle;
positive
extremely
small-
ing. Although
progresses
she
not
can be
was
er,
not
breathing, she
weaker
often do
exhibit
longer
was no
babies
the
baby’s
for
attempted
by many symptoms;
possible
revive him
a
nonetheless
to
relatively stable for a
rubbing
breathing
his
and
into condition to remain
gently
chest
time,
drastically
period
infant
of time and then
deterio-
period
his face. After a
the
members,
rate;
began grunting respira-
family
and
who are emo-
cry
let out a
and
tionally
baby,
to
are often
Ivy Young was
he had
attached
the
tion.
relieved that
objective judgments.
to
to the condition he had unable make
apparently returned
very
birth. She was still
been
since
presented concerning the
Evidence was
the
“had taken a
concerned that
infant
of care used
doctors Utah
attempted
call
immediately
She
turn.”
It
delivery
the
and care of newborns.
for
office,
home
later at his
his
that, given the information
established
was
succeeded, however,
success. She
without
at the
the standard
Warden had
clergyman,
her
who came to
contacting
Young
require him to examine
care would
pediatrician,
accompanied by
home
If it
birth
imminent.
prior
time
was
appeared to Dr.
The infant
Dr. Kramer.
going into
was
was established
The
near
newborn
Kramer to be
death.
prematurely and the labor could
labor
nearby
immediately transferred
was
standard of
stopped,
proper
then the
shortly
pronounced dead
hospital but was
placed in an
require
care would
that she be
Ivy Young did not take
arrival.
after
delivery.
unit for the
With
intensive care
ex-
hospital
to a
herself because she
newborn,
regard to the care of the
evidence
any
to arrive at
time
pected Warden
gesta-
an
of the
presented that
infant
was
the seriousness of
realize
hospi-
age
33-34 weeks should be
tional
baby’s condition.
talized, regardless
infant’s condition.
of the
of the
care for a newborn
and The standard of
five blocks
Warden’s house
infant
age
eight
gestational
from
only six
blocks
his office was
require placement in an
up
in this case would
Youngs’
at 6:00
home. He
proper
The
standard of review
Monitors would
intensive care unit.
concerning
sufficiency
of evi
appeals
oxygen
infant to establish the
placed on the
making
dence is well established.
concentration
carbon dioxide
there is suffi
as to whether
determination
taken,
x-rays should also be
Chest
blood.
conviction, an
uphold
cient evidence
analyzed
baby’s
should be
and the
blood
not sit as a second fact
appellate court does
levels,
sug-
gases, and blood
for PH
blood
of a review
finder.
It is not the function
showed that
If
measurements
ar.
these
guilt or innocence or
ing court to determine
deteriorating, the
baby’s
condition was
judge
credibility
of witnesses.5
to one of the
transferred
infant should be
evidence,
conflicting
mere existence of
highest
hospitals in the state with
three
therefore, does not warrant
reversal.6
care.
intensive
level of neonatal
Rather,
reviewing
the function of a
court
presented that
was also
Evidence
insuring
there is sufficient
limited to
vary
in obstetrics does not
standard of care
competent
regarding
each element
settings and
to home-birth
find,
charge
of the
to enable
“absolutely
actions were
that Warden’s
doubt,
beyond
that the defen
a reasonable
*5
Indeed,
of care.
not” within the standard
Therefore,
the crime.7
dant committed
Branch,
obstetrician/gynecologist
an
Dr.
reviewing
insufficiency
a claim of
of
when
University of Utah
teaches at
who
evidence,
and all reason
the evidence
School,
that if a resident
Medical
testified
there
inferences that
be drawn
able
patients in the same manner
ever treated
in the
most favorable
from are viewed
did,
tell the resident
he would
as Warden
It is
when the
jury
verdict.8
ever,
ever do that
better
“[h]e
evidence,
light,
is so incon
viewed
this
he’s
again or
will see to it that
Branch]
[Dr.
improbable
jury
that a
inherently
clusive or
Finally, it
on the street.”
was established must have entertained a reasonable doubt
in an in-
treatment resulted
that Warden’s
proper
guilt
the defendant’s
that it is
as to
mortality
up
twenty
creased risk of
Although
the conviction.9
to overturn
had received
and that
the infant
times
proper
appeals
stated the
stand
court
care,
proper
he would have had a better
ard,10 a review of the record reveals that
percent chance of survival.
than 99
fact,
applied.
standard was not
recounting the facts of the
the court
22, 1988,
February
jury convicted
On
that are
appeals
set out several facts
negligent
homicide. On No-
Dr. Warden
by
support
of the
contradicted
evidence
22, 1989,
Ap-
the Utah Court of
vember
therefore,
necessary,
jury verdict.
It is
ground
on the
peals reversed the conviction
of re
properly apply the correct standard
evidence to es-
that there was insufficient
con
view to determine whether Warden’s
conduct deviated
tablish that Warden’s
should have been overturned.
viction
standard
significantly
applicable
from the
was convicted of the crime of
petitioned
this court Warden
of care.4
State
negligent homicide.
Ann.
grounds that the court
Utah Code
certiorari on the
76-5-206(1) (Supp.1988) establishes that
inappropriate
an
standard
appeals
used
§
negligent
is committed when a
sufficient
homicide
review and that
there was
“acting
negligence,
guilt.
person
with criminal
Dr. Warden’s
evidence of
Warden,
1204,
(Utah
76-1-501(1)
generally
§
7. See
Utah Code Ann.
v.
784 P.2d
1209
4. State
(each
proven
a crime must be
be-
element of
Ct.App.1989).
doubt).
yond
reasonable
475,
(Utah
Hopkins,
P.2d
477
5. State v.
782
See,
Verde,
124;
e.g.,
P.2d at
8.
State v.
770
State
566,
Watts,
(Utah
1989);
675 P.2d
568
State v.
1214,
1985);
(Utah
Bolsinger,
1218
v.
699 P.2d
443,
Petree,
1983);
659 P.2d
444
see State v.
Booker,
(Utah 1985).
State v.
709 P.2d
Nebeker,
(Utah 1983);
v.
657 P.2d
State
Verde,
124;
See, e.g., State v.
770 P.2d at
State
(Utah 1983).
Booker,
345;
Watts,
P.2d at
State v.
v.
P.2d at 568.
477;
Hopkins,
v.
782 P.2d at
State
6. State v.
(Utah 1985).
Lovato,
702 P.2d
Warden,
ment evidence for the There is also sufficient contrast, a be held care.12 In doctor by the risk created Ward- jury to find that only the evidence criminally liable when was of such a nature en’s treatment that beyond a reasonable doubt establishes perceived have it and degree that he should created a substan the doctor’s treatment perceive the risk consti- his failure to patient risk that the unjustifiable tial appropri- from the gross a deviation tutes die, should have but that the doctor reviewing the standard of care. When ate risk, the perceive this and that failed to trial, important it is presented evidence degree that the of such a nature and risk is must the circumstances to note that gross a perceive it constitutes failure 13 standpoint.” the actor’s “viewed [from] Given the standard of care. deviation from occurred in the con- negligence the Since negligent high showing required the treatment, necessary to it is text of medical homicide, negligence in the treat doctors’ viewpoint from the the circumstances view rarely precipitate patients will ment of profession. of the medical of a member true, however, liability. It is also criminal Warden, testimony Expert established negligence, act with criminal that if doctors time examining Young prior to the by not liability escape they should hospitalizing and not was imminent birth negligence the occurred merely because birth, devi- immediately after the the infant setting. professional physi- of care which ated from the standard in the therefore, using ordinary care exercise Ward cians instant In the newborns. delivery and care of upheld if there is should be en’s conviction (elements (Utah 1990) malpractice (Utah civil Standiford, P.2d 11. State claim). 1988). Surgeons, Physicians, Etc. 12. Am.Jur.2d 76-2-103. Code 13.Utah generally Dailey v. Utah Val- (1981). See § 329 Center, ley Regional Medical 791 P.2d hospitalize baby. Finally, the it was established was estab- Specifically, treatment, early in the not examine lished that due to Warden’s the twenty her and therefore did not stages likely labor infant was times more to die labor, premature take mea- diagnose the than would have been the case the infant labor, hospitalize stop the or sures to proper treated had been with standard premature birth. It was anticipation of a of care. that Warden was aware also established summary, there was evidence of re- premature infant was and should that the peated from the deviations very that the child was have been aware care, divergence appro- wide between testimony es- premature. Warden’s own actually priate level of care and the care baby was show- tablished that knew received, significant chance of death that respiratory syndrome. distress ing signs of by hospitalizing could have been alleviated testimony given Expert established infant, other evidence of the as well as condition, the infant’s he should have been degree negligence and that in- evidence placed immediately care after intensive appropriate factors could have influenced and, deteriorated, the birth if the condition evidence, Warden’s decisions. Given this the most transferred to with believed, jury beyond could have well sophisticated level of neonatal intensive doubt, should reasonable that Warden However, placing care. instead of perceived treatment the risk created his hospital, in the Warden left the infant perceive the and that his failure to risk Youngs, had no medical train-
with
who
gross
ap-
constituted a
deviation from
Youngs
ing. He then told the
that an
propriate standard of care.
symptom of the disease was a nor-
obvious
condition,
mal
stated that the
did not Warden claims that not
was there
attention,
positioned the
negli-
need medical
insufficient evidence of criminal
symp-
gence,
infant in a manner which masked
there
insufficient evi-
but also
Indeed,
toms of the disorder.
dence that his
was a
cause
reasonably
However,
could have
inferred that with-
again looking at the
of death.
reassurances,
Youngs
out
Warden’s
most favorable to the
*7
sought
additional medical at-
verdict,
would
jury
it is clear that there is suffi-
baby
The
tention after the
was born.
evi-
of a causal connection
cient evidence
be-
therefore,
dence,
gulf
a wide
establishes
actions and the infant’s
tween Warden’s
the standard of care the infant
between
responsibility
death. Warden assumed
he,
and the care
in
should have received
well-being by agreeing
the infant’s
to deliv-
fact,
The infant was in need of
received.
any
to
baby
er the
at home. He failed
take
available,
sophisticated treatment
the most
possibili-
measures to deal with the obvious
reassurances, he re-
but due to Warden’s
ty
Young
prematurely.
that
labor
the
ceived a level of care below that which
diagnosed
baby
premature
He
the
and
Youngs,
training,
no medical
who have
showing
symptoms
respiratory
the
dis-
provided.
would have otherwise
syndrome,
tress
but left the newborn at
home when an infant with such
Furthermore,
negligence did
Warden’s
placed
should have been
in an intensive
Youngs’
stop when he left the
house.
Youngs
the
care unit. He did not tell
what
Warden,
leaving
baby
in such a
after
for, nor did he tell them that the
to watch
situation,
dangerous
fit
check
did not see
infant’s condition could result
death.
baby’s
until noon the next
on the
condition
fact,
Youngs
he told the
that the infant’s
noted that due to
day.
It should also be
breathing
normal and that
malpractice
lacked
the fact that Warden
any
did not need
further medical observa-
insurance,
had
call anoth-
he would have
Youngs
they
tion. The
testified that
hospi-
infant into the
er doctor to admit the
baby’s
not realize the seriousness of the
reasonably in-
jury
tal. The
could have
condition nor sense that his condition was
ferred that this could cause Warden embar-
deteriorating throughout
night.
Ex-
this
rassment and that
embarrassment
pert testimony
Youngs,
influenced his decision not to
revealed that the
could have
them,
respect
had told
were
with
to circumstances surround-
given what Warden
ing his conduct or the result of his con-
in-
position
judge whether the
in a
ought to
duct when he
be aware of
deteriorating. Ward-
condition was
fant’s
unjustifiable
that the
substantial and
risk
Youngs’
five
from the
lived
blocks
en
circumstances exist or the result will oc-
home,
eight
only six to
his office was
The
cur.
risk must be
such a nature
home,
Youngs’
and he was
blocks
degree
perceive
the failure to
and
following morning;
6:00 the
never-
up at
a gross
constitutes
deviation from the
theless,
Youngs
he did not contact the
until
ordinary person
care that an
day.
Youngs
observed
noon
When
exercise in all the circumstances
turn,” they
the infant “had taken
standpoint.
as viewed from the actor’s
Warden,
success, and then
phoned
without
provisions defining
The Code
help
physician.
of another
obtained
negligence
negligent
and
homicide are tak
Youngs
The
did not take
infant
directly
Model
en
from the
Penal Code.
they
themselves because
assumed
commentary
the Model Penal Code
The
any
due to
Warden would visit at
primary
that a
factor in criminal
states
them, they
Warden
told
did not
what
negligence is the actor’s lack of awareness
the baby’s
condi-
realize
seriousness
person
negli
creation of a risk. “A
acts
respiratory
The
died of
distress
tion.
gently under
subsection when he inad
this
syndrome.
unjusti
vertently creates a substantial and
clear-
We conclude that the evidence was
ought to
risk of which he
be aware.”
fiable
the treatment
ly sufficient
show
4,
240
Model Penal Code 2.02 comment
baby,
and her
of Joanne
(Official Draft
Revised
Comments
con-
acted with criminal
which
1985).
has
“The
One commentator
stated:
stituted
cause
death.
between intention
most obvious difference
reversed,
appeals
The court of
decision is
negligent
is that
[criminally]
al and
conduct
upheld.
and the
verdict
former
actor chooses to do
in the
latter,
harm,
he is unaware
while
1 Fletcher,
HOWE,
C.J.,
causing
harm.”
Associate
DURHAM that he
ZIMMERMAN, JJ.,
Negligence: A
Theory
Criminal
Com
concur.
Analysis, 119 U.Pa.L.Rev.
parative
STEWART,
(dissenting):
Justice
(1971).
Standiford,
v.
See also State
view,
my
I
dissent.
Warden's
(Utah 1988);
P.2d
State
satisfy
statutory
re-
did not
(Utah 1980).
actions
Hallett,
P.2d
support
necessary to
a convic-
quirements
conduct
The risk created
the inadvertent
*8
negligent
Code
unjustifiable
tion of
under Utah
risk
homicide
a substantial and
must be
(1990). According to
perceive
76-5-206
the risk
that the failure
such
§
76-2-103(4) (1990), per-
gross
a
from the stan
Code Ann.
constitutes
deviation
Utah
§
person
ordinary
would
negligent
dard of care that an
criminally
is
son
upon
compared
negligence
to risk is thus the basis
is most often
Inadvertence
1. Criminal
recklessness,
required
negligence proceeds,
rea
for one
the mens
with
type
which condemnation for
manslaughter.
commentary
The
to the
of
judgment
coupled with
the actor’s
on the distinction
Model Penal Code elaborates
"gross
perceive
the risk involves a
failure
the two:
between
standard of care that a
deviation from the
[required
culpability
for crimi-
level of
[The]
person
ac-
would
reasonable
observe
negligence]
distinguished from
nal
recklessness,
should
tor’s situation.”
of
suffices for conviction
which
1,
Penal
comment
at 80-81
§
Model
Code 210.4
manslaughter
The es-
Section 210.3.
under
1980).
(Official Draft
Revised Comments
and
recklessness
sence of
difference between
stated,
Summarily
requires
recklessness
aware-
negligence
defined in
those terms are
and
unjustifiable
and
risk and
ness of a substantial
Model
is that the
2.02 of the
Code
Section
risk,
disregard
while criminal
conscious
‘‘consciously disregard” a
actor must
reckless
requires
negligence
a substan-
unawareness of
unjustifiable
risk
homicidal
substantial and
unjustifiable
of which the actor
tial and
risk
conduct,
negligent
his
whereas the
created
ought to have been aware.
disregard
only
risk of which
actor need
"should
aware.”
view,
testimony
my
commen
when the
of credible
The Model Penal Code
exercise.
appropriate con-
experts differs as to what
“Considering the nature and
tary states:
is,
duct
not because of some inherent issue
the circum
purpose of his conduct and
him,
credibility
they
but
because
assess
question
is
stances known
differently,
the risk factors
as was the case
perceive
failure to
whether the defendant’s
here,
great
we should exercise
care to as-
gross
a risk
deviation
involves
what,
least,
negligence
at
is civil
sure
person
care that a reasonable
negligence.
is not held to be criminal
situation.”
would observe
the actor’s
view,
my
majority
fails to make that
4,
Model Penal Code 2.02 comment
at
§
is, most,
distinction and holds that what
at
(Official Draft and Revised Comments
negligence is a crime.
civil
1985)
added).
(emphasis
Ordinary negli
gence,
for
which
serve as the basis
majority
that Dr.
The
rules
Warden
action,
damages in a civil
is “not sufficient
breached the standard of care
at least
negligence.”
criminal
to constitute
Stan
instances.
I
that a careful
two
believe
diford,
Criminal standard of care in fact estab- vagueness issues as to and the fundamen- example, majority lished. For asserts basing tal fairness of a conviction on a “given the information Warden had at subjective standard as to what kind of con- [prior birth], the standard of time O’Hearn, prohibited. duct is See Criminal him require care would to examine Negligence: Analysis Depth, An Young prior to the time birth was (1964-65). Crim.L.Q. [Joanne] The Model Pe- However, prosecu- imminent.” one of the commentary nal Code states: Branch, experts, tion’s own Dr. an obstetri- quite impossible tautologi- to avoid [I]t cian/gynecologist who teaches at the Uni- question. cal articulation of the final Utah, versity given stated that what Dr. The must evaluate the actor’s tribunal knew at the his decision to perception determine failure Ivy Young simply daugh- observe whether, circumstances, under all the prior phone ter to the birth and between enough was serious to be condemned. calls to him did not fall outside the stan- 2.02 Model Penal Code comment dard of care. Annotation, also Homicide Pred- See rules, majority also “The standard of Improper Disease icated on Treatment of gestational age care for a newborn of the (1972). Injury, or 45 A.L.R.3d of the infant in this case dual nature of the deter- Because require placement in an intensive by jury negli- mination made in criminal prose- care unit.” It is true that one of the cases, gence a different standard of review Chan, experts, cution’s own testified necessary appropriate since it is to deter- hospitalizing one reasons sufficiency mine of the evidence both the infant because it “would be outside propriety and the of the normative stan- lay family the standard care to have ... implicitly with the dard that is intertwined watching observing ... members pertaining facts to the nature of the risk *9 conceded, monitoring baby.” a He also gives liability. In the that rise to criminal however, competent that there “other were ordinary jury criminal the is informed physicians practice that would ... crime, the elements of the and if disagree” with his assessment. the fits the jury the finds that elements, has commit- I that a conviction based on evi- then an offense been submit cases, jury the dence that establishes such nor- ted. In criminal uncertain facts, prosecution’s decides not but also the mative standards own simply unjustifiable. kind of that is This is legal standard for the conduct witnesses Accordingly, far removed from the situation in which warrants criminal sanctions. per carefully review the nature of someone runs a red at 60 miles we should hour, violating jury clearly found to be criminal. standards of the the conduct the Hallett, testimony on cross-ex- Dr. Warden’s own law. See State that he (Utah 1980). amination demonstrated was aware P.2d judg- risk and made a calculated of the Furthermore, prosecution’s none of ment: deliveries. practiced witnesses home expert Q. (by prosecutor) We risk have a Dr. produced expert, its own The defense here, obviously who is exhibit- child White, performed had over Gregory who ing respiratory dis- 1,000 He that home deliveries. testified syndrome; right? tress is that de- existed between home differences some A. Correct. deliveries, gener- hospital that liveries Q. You’re of that Dr. actions did not violate aware risk? ally Warden’s care, particular, and in that standard of A. Yes. infant not neces- hospitalization of the was could, if Q. You’re that this child aware sarily indicated. worsens, that, you not? die are A. That’s correct. short, as to the standards the evidence charged Dr. was with vio- Q. of care Warden You’re aware of all those factors? any spe- lating does clear and not establish A. Yes. care sufficient to meet cific standard of Q. that grandmother You have a here law, irre- process requirements due in to her you confidence relative is for a spective of whether it sufficient child, right? care of that Furthermore, ap- malpractice to civil case. Yes. A. test to both the ply a substantial evidence Q. your in own mind have you And also standard and facts concern- normative expen- that this consideration breach, make the ing to allow to hospital, to this child sive take law, put physicians deal with all who right? in life and death situations an untenable Yes. A. position. Now, Q. point you at in elect that addition, the evidence does not estab- mind, judg- your own exercise that Dr. took lish that the risk which Warden you elect not recommend ment unjustifiable. The evidence demon- the child taken to the that that Dr. was well aware strates Warden time; right? that is that reasoned, involved, the risk but exercised A. Yes. forego judgment deciding professional aware, not, Now, Q. you’re you also are judgment hospitalization of the infant. His Doctor, progressive nature of factors. He drew on based on several this disease? 300 home years experience with over Yes, I A. am. the home- He testified deliveries. aware, not, Q. you’re you And also are infants, premature, had been delivered ten exercising caution these circum- ten, eight experienced those had and of importance utmost stances of the syndrome. Of those respiratory distress the life of that child? hospitalized had three. eight, Dr. Warden A. That’s correct. other who testified that the five He Now, your Q. feel in own mind you syndrome respiratory distress experienced by placing that child in the care with hospitalization and improved without lay person that indeed was exer- testi- further only home care. respect? cising in this caution night, he left the infant that fied that when Wilson, judgment. I exercised A. Mr. decision that made a conscious he had to that infant was similar of the condition *10 judgment professional required hospital- Dr. Warden’s had not the five who at home infant would survive left fact, Dr. Warden testified
ization. grandmother, the observation of more under seen infants who had been he had instructions, gave was con- Young infant and had recov- to whom sick than competent by physicians. curred other hospitalization. without ered view, my the criminal law should own testimony from the State’s Other physician for a death punish used to that the risk which be demonstrated witnesses makes a decision that turns unjustifiable when he or she not an took was Dr. Warden simply consequence, to have a fatal expert medi- out example, the State’s risk. For acting in physician, some other because although the testified that cal witnesses circumstances, would have more favorable do in a “would better” mother differently. done of the hospital, Dr. evaluation Warden’s they signs indicated that were infant’s vital sta- testified that
“acceptable.” Dr. Chan die from
tistically only percent of babies syndrome. respiratory distress
untreated guess message “I is it’s
He also stated: rare to lose a at this
very unusual and weight hya-
gestation and this birth Furthermore, Dr. line disease.” membrane ROLLINS, personal representa Melinda family that the Warden had been informed Schopf, and of the Estate of Marcel tive expense to minimize the of the birth wished Royal Company, Insurance Plaintiffs go to a be- and did not want Appellants, expense. of the cause support Finally, the evidence does not that Dr. Warden’s actions
the conclusion PETERSEN, Brown, Dale R. Michael Jon death. He left the child caused the child’s Utah, Brown, A. State Susette grandmother, who was in the care of Appel Hospital, Defendants and State him if the child’s condition instructed to call lees. experts The State’s testified
worsened. No. 880280. recog- layperson would be unable to changes Supreme of the Court of Utah. nize the condition subtle but, progressed child as the disease June hours, manifestly early morning obvious a.m., child change occurred. At 8 breathing. grandmother re-
stopped The the child and then called
suscitated did not disclose her
doctor’s office but emergen- an
name or that the situation was Although Dr. Warden was not at his
cy. at the he was available
office responded if the nature of the
could
emergency communicated to his had been then called a grandmother
office. child, of the
friend and discussed birth stopped that it had she did not mention
but Later, clergy-
breathing. she called
man, again him of the but advise a.m., clergyman
emergency. At 10:30 home, doctor arrived at the
and another Any kind hospitalized.
and the child was grand- reasonably prompt action the child’s life.
mother well have saved intervening unreasonable of her
Because office of the to inform Dr. Warden’s
failure was not the
emergency, Dr. Warden child’s death.
cause of the