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Indiana Supreme Court: Court Addresses "Attempting To Disseminate," Hearsay By Treating Physicians
Posted in Litigation

In King v. State, the Indiana Supreme Court unanimously held that “the offense of Attempted Dissemination of Matter Harmful to Minors can be committed when a defendant attempts to transmit proscribed matter by the Internet to an adult police detective posing as a minor,” thereby resolving a conflict among Indiana Court of Appeals decisions.  The Court observed that the State’s general "attempt" statute “‘focuses on the substantial step that the defendant has completed, not on what was left undone.’”  The Court further observed that the defendant in King had “disseminated matter harmful to minors to a person he believed or intended to be a child less than eighteen years of age.”  The Court held that it “matters not that his intended recipient was an adult; the Attempt statue makes clear that such ‘a misapprehension of the circumstances’ is no defense.”  To the extent the Court of Appeals opinions in Gibbs v. State, 898 N.E.2d 1240 (Ind. Ct. App. 2008), and Aplin v. State, 889 N.E.2d 882 (Ind. Ct. App. 2008), may be read to prohibit convictions “where the supposed minor is in fact an adult,” the opinions were “disapproved and overruled.”

In Sibbing v. Cave, the Indiana Supreme Court reviewed a trial court’s admission of testimony by the plaintiff regarding “what she was told by her treating physician and her own beliefs about the cause of her pain.”  The Court observed that Indiana Evidence Rule 803(4) creates a hearsay exception for statements made to a medical professional for purposes of receiving a diagnosis or treatment.  The Court stated that the “rationale for the 803(4) hearsay exception is that a declarant has a personal interest in obtaining a medical diagnosis and treatment, and this interest motivates the patient to provide truthful information.”  But, “[d]eclarations made by a physician or other health care provider to a patient do not share this enhanced indicia of reliability.” 

The Court further observed the “substantial likelihood that a typical patient may fail to fully or accurately comprehend or understand” a physician’s report.  The Court held that Evidence Rule 803(4) applies “only to statements made by persons who are seeking medical diagnosis or treatment.”  However, the Court found that “substantially all of this evidence was also presented to the jury through other exhibits,” so the admission of plaintiff’s testimony was harmless error.  The Court further found that the plaintiff was properly permitted to answer the question, “What did you believe was causing your pain?”  The resulting answer, as noted by the Court, merely stated “her own personal belief about the source of her pain” and was permissible lay witness testimony pursuant to Indiana Evidence Rule 701.

The Court further clarified what is meant by the “reasonable and necessary” qualifier for damages recoverable by an injured party.  The expense must be “reasonable,” and the “nature and extent of the treatment claimed must be necessary in the sense that it proximately resulted from the wrongful conduct of another.”  An injured party is not precluded from recovery for “injuries caused by a misdiagnosis or performance of an arguably unnecessary procedure.”  The Court stated that while a defendant’s evidence as to the “scope of liability” component of proximate cause is restricted, a defendant is not precluded from challenging the “causation-in-fact” component.  “A future defendant may thus present evidence to counter a plaintiff’s claim that but for the defendant’s alleged negligence, the disputed medical treatment would not have occurred” and “a defendant may properly challenge whether a plaintiff’s medical treatment was not at all necessitated by the alleged tortious conduct but by a non-aggravated, pre-existing condition.”

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