EvidenceProf Blog

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

Wednesday, December 12, 2012

I Need A Doctor: Mississippi Case Reveals That Rule 803(4) Can Cover Statements By Non-Patients

Similar to its federal counterpart, Mississippi 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, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term "medical" refers to emotional and mental health as well as physical health.

So, for Rule 803(4) to apply, does the declarant need to be the doctor's patient or even the one seeking diagnosis or treatment? According to the recent opinion of the Court of Appeals of Mississippi in Webb v. State, 2012 WL 6118919 (Miss.App. 2012), the answer is "no."

In Webb

One morning at school choir practice, Pierre found fellow high-school freshman Hope crying. When Pierre asked her what was wrong, Hope revealed she had been raped by her mother's boyfriend, Jeffrey Webb, the day before. Hope had previously confided in Pierre that Webb had been sexually abusing her but begged Pierre not to tell anyone. This time Pierre informed the school counselor, Heather Norton. Norton contacted the Department of Human Services (DHS) and Hope's mother, Tashanda.

A forensic interviewer with the Mississippi Child Advocacy Center (MCAC) interviewed Hope. Her taped interview revealed that, starting when Hope was eleven, Webb—who was the father of Hope's three younger siblings and lived with Hope's family—began sneaking into Hope's room at night and rubbing, kissing, and licking her in inappropriate places. Wanting to protect her mother and siblings, Hope kept the sexual abuse from her family. However, she confided in her friend Amber soon after the abuse began. The abuse continued, and when she was thirteen, Hope mentioned it to two other friends, Morgan and Alaya. By the end of the investigation, Hope, who was then fourteen, had described Webb's three years of sexual abuse to eleven people—including her doctor, a social worker, and the police officer investigating her allegations.

Thereafter, Webb was charged in a three-count indictment with sexual battery, statutory rape, and gratification of lust by fondling a child, and statements made to Webb's doctor formed part of the basis for his appeal after he was convicted.

But it wasn't Hope's statements to the doctor that formed the basis for Webb's appeal. Dr. Darden North testified at trial that both Hope and her mother Tashanda told him that Webb had forced intercourse with Hope. Webb conceded that Hope's statements to the doctor were admissible under Rule 803(4) but maintained that Tashanda's statements to the doctor were inadmissible under the Rule. Specifically, Webb "insist[ed] Tashanda's statements to Dr. North were outside the scope of Rule 803(4) because Tashanda was not Dr. North's patient."

The Court of Appeals of Mississippi disagreed, concluding that

The Mississippi Supreme Court rejected this argument in Valmain v. State, 5 So.3d 1079, 1083–84 (13–17) (Miss.2009). In Valmain, the supreme court found that, because "Rule 803(4) 'casts its net wider than the patient-physician relationship,'" the trial judge had discretion to admit statements made by the child's mother for purposes of medical diagnosis....We likewise find no abuse of discretion in the trial court's admitting Tashanda's hearsay statements through Dr. North. Though she was not in a patient-physician relationship with Dr. North, Tashanda told Dr. North about Webb's sexual abuse for purposes of Hope's medical diagnosis. Thus, her statements fall within the exception found in Rule 803(4)



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