Jennifer Crissman, Attorney, Woodruff Family Law Group
In part 10 of our practical series for family law attorneys practicing in the Piedmont Triad, we will review the case Matter of Lucas which provides guidance on hearsay statements made to physicians regarding sexual abuse. In our scenario in part 1 of the series, the two children told their grandmother about the incident, which in turn led to the children being seen by a doctor. In the visit with the doctor, the children made statements about the abuse. One of the grounds opposing counsel may bring up is that a physician did not treat the children, but merely examined them to gather evidence for any criminal investigation stemming from the abuse allegations. The case of Matter of Lucas is directly relevant. Matter of Lucas, 380 S.E.2d 563 (N.C. App. 1989).
In the case of Lucas, the young child victim was sexually assaulted by a juvenile. The child victim told the mother about the assault within several days, and within fourteen days of the incident, at the suggestion of a Sergeant working on the case, the mother took the child victim to the local hospital, and later for a follow-up appointment with another physician. The juvenile argued that the child victim’s statements to the physician were not made for the purpose of receiving medical treatment, but were made for the purpose of preparing for prosecution, based on the fact that the doctor never treated the child victim.
It is worth noting that although the Confrontation Clause comes up frequently in the criminal context with the hearsay exceptions, the Confrontation Clause applies only in criminal cases, and does not extend to civil cases. See In re G.D.H., No. COA 07-390 (N.C. App. 2007). Although the Confrontation Clause does not apply to a civil proceeding, it is possible that an opposing counsel will try to argue that a statement made to a medical professional is not for medical treatment or diagnosis. They may argue the statement was made as a way to build a criminal investigation and that there are ulterior motives for the statement. However, the court’s language in the Lucas case provides guidance in a civil setting when the issue of a treating physician versus an examining physician is at issue.
The court in Lucas was not persuaded by the fact that the doctor who saw the child victim did not treat the child. The court affirmed that there is no distinction between a treating physician and an examining physician as it relates to whether a conversation qualifies under the Rule 803(4) hearsay exception, statements made for medical diagnosis and treatment. The case is also helpful as the two-week time gap between when the mother learned of the incident and when the child saw the physician was not determinative of whether the statement was for the purpose of medical diagnosis. The Court instead looked to the ultimate result that the statements to the mother and doctor elicited, not just the timing.
In Part 11 of our series, we will review the case of State v. Burgess and the hearsay exception of excited utterances by the child victim.