EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, January 3, 2010

Family Doctor: Supreme Court Of North Dakota Finds That Rule 803(4) Covers 3rd Party Statements To Medical Services Providers

Like its federal counterpartNorth Dakota Rule of Evidence 803(4) provides an exception to the rule against hearsay for: 

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Courts generally have reached two important conclusions with regard to Rule 803(4). First, most courts have found that statements identifying the general source of an injury or illness are admissible (e.g., "I was pushed down.") but statements identifying the person causing the injury or illness are inadmissible (e.g., "I was pushed down by Dan."), with a few key exceptions. Second, most courts have found that a statement does not have to come from the (prospective) patient himself (or be made directly to a medical services provider) to be admissible under Rule 803(4). The recent opinion of the Supreme Court of North Dakota in State v. Grant, 2009 WL 4800552 (N.D. 2009), reveals that North Dakota courts are in line with the majority of courts on the first conclusion and brings North Dakota courts in line with the majority of courts on the second conclusion.

In GrantRondale Grant was convicted of gross sexual imposition based upon acts that he allegedly committed against eight-year-old K.D.J. One of the key pieces of evidence used to convict Grant was a nurse practitioner's report which contained statements made by K.D.J. and her grandmother to a nurse practitioner accusing Grant of committing the acts at issue.

After he was convicted, Grant appealed, claiming, inter alia, that the trial court erred in admitting this report. The appeal eventually reached the Supreme Court of North Dakota, which found that it was faced with an issue of hearsay within hearsay. The first layer of hearsay was the report itself, which the court found was admissible as a business record under North Dakota Rule of Evidence 803(6).

That left the second layer of hearsay: the statements by K.D.J. and her grandmother. The first issue was whether there was a problem with the statements of K.D.J. and her grandmother because they identified Grant as the perpetrator of the crime. The North Dakota Supremes found that there was no such problem and that one of the exceptions to the general rule barring statements of identification applied because

when alleged victims of sexual assault seek medical treatment, health care providers must diagnose and treat both physical and psychological trauma....As a result, where an individual is alleged to be the victim of sexual assault, statements reasonably pertinent to medical diagnosis and treatment of both physical and psychological trauma are admissible under N.D.R.Ev. 803(4).

The second issue was whether there was a problem with some of the statements coming from the grandmother and not K.D.J. The North Dakota Supremes again found no such problem because

N.D.R.Ev. 803(4) does not limit its applicability to statements made by the person seeking medical treatment, nor does the rule otherwise identify the class of declarants to whom it applies. The rationale underlying N.D.R.Ev. 803(4) is that a person seeking medical treatment knows the effectiveness of the treatment relies in part upon the accuracy of the information provided....This knowledge motivates the person seeking medical diagnosis or treatment to speak truthfully and reduces concerns regarding the fabrication of hearsay....Importantly, the motivation to speak truthfully exists not simply when the declarant is seeking medical treatment, but also when the declarant is in a close relationship with the person seeking medical treatment....

Health care providers often rely upon the information provided by adults to properly diagnose and treat children. Nurse practitioner Clapp stated it is generally important to obtain a medical history from a custodial adult when examining a child "[b]ecause you get insight [from the custodial adult] on, one, their past medical history which a child doesn't always-isn't always able to give you. But also you get some insight on the child's behavior, any concerns that you have, any concerns that the custodial adult has for them."

The court thus cited to an impressive string of precedent from other courts in support of the conclusion that

courts may admit statements for the purpose of diagnosis or treatment under N.D.R.Ev. 803(4) made by the person seeking treatment or a third party, so long as the relationship between the person seeking treatment and third party is sufficiently close to ensure the guaranty of trustworthiness inherent in the rule applies under the circumstances.



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Unless I'm mistaken, the Supremes said 803(6) was *in*applicable in this case. Here are two quoted excerpts:

"The nurse practitioner's report does not meet the criteria set forth for admissibility of a business record under N.D.R.Ev. 803(6)."

"Nurse practitioner Clapp recorded K.D.J. and Beth Johnson's statements in the regular course of business. However, Beth Johnson and K.D.J. were not acting in the regular course of business when they made the statements. Therefore, because each participant in the creation of the nurse practitioner's report was not acting in the course of regularly conducted business, the district court erred by admitting the report under N.D.R.Ev. 803(6)."

Posted by: Ricardo Bunge | Jan 5, 2010 6:23:19 AM

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