State v. White

439 P.3d 569, 296 Or. App. 445
CourtCourt of Appeals of Oregon
DecidedMarch 6, 2019
DocketA164188
StatusPublished
Cited by7 cases

This text of 439 P.3d 569 (State v. White) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. White, 439 P.3d 569, 296 Or. App. 445 (Or. Ct. App. 2019).

Opinion

JAMES, J.

*446The primary issue in this case is whether Child Abuse Response and Evaluation Services (CARES) Northwest-a group formed by Kaiser Permanente, OHSU Doernbecher Children's Hospital, Providence Children's Health, and Randall Children's Hospital at Legacy Emanuel that pairs physicians and nurse practitioners with forensic child interviewers to provide child abuse evaluations in law enforcement investigations-was a victim for purposes of criminal restitution under ORS 137.103(4)(b), which defines "victim" as someone who "has suffered economic damages as a result of the defendant's criminal activities." Based on this record, we hold that CARES, as a provider of services in this case did not suffer economic damages by providing those services, and accordingly reverse the trial court's award of $1,343.85 in restitution to CARES on Count 1. On the remaining assignments of error, each of which challenges the award of restitution to insurance providers, we affirm.

The facts underlying this appeal are undisputed. Defendant pleaded guilty to two counts of first-degree sodomy; two counts of first-degree unlawful sexual penetration; and one count of first-degree sexual abuse, against three foster children who were in the care of defendant's grandparents. Defendant, at the time of the crimes, was between 15 and 18 years old. At some point, there was a disclosure by the children that resulted in a Department of Human Services (DHS) employee, Van Rees, referring the three children to CARES. The three children received medical evaluations at a CARES facility. Van Rees, who was at the time working as the "out of home care assessor," testified that DHS "typically will refer kids to CARES when we have * * * concerns of abuse or neglect." Van Rees testified that a referral to CARES under those circumstances was indicative of one of the "broader purposes" for DHS's use of CARES, as opposed to a referral to CARES being made only when DHS has a belief that there could be prosecution or police involvement. Another caseworker for two of the victims, Coomes, testified that CARES helps to "clarify what happened if something happened, a lot of times there's questions when an allegation is made, * * * they conduct interviews, they do the physical *447exam, and they make recommendations as to whether those allegations are true or not. And then help [DHS] kind of drive where the case goes from there." Coomes then clarified that by "case" she meant that a criminal case is part of what she was referencing but also case management in terms of how to "help the children and the family cope after what's happened."

The Medical Director of CARES averred that "CARES is a specialized child abuse medical clinic ***." As he testified, when a child is seen for a medical evaluation, the standard of care consists of a medical exam of the child's body, and a recorded forensic interview. The exam and the forensic interview are provided to children at CARES

"without regard for ability to pay. When a child patient is insured, CARES will bill the insurer for the cost of the medical evaluation. While some insurers will cover the full cost of a medical evaluation, others will cover less than the full cost. When an insurer covers less than the full cost, CARES suffers an economic loss."

CARES does not bill or request payment from the child patient's family if insurance will not cover the total costs. The Medical Director of CARES also averred that he *571believes that "the medical evaluation [of the child victims] resulted, in whole or in part, from the criminal activity of this defendant."

At the close of the restitution hearing, defendant argued that CARES was not a "victim" that was eligible to receive restitution. The state argued that CARES was a "victim" under ORS 137.103(4)(a) or ORS 137.103(4)(b). The trial court ordered $1,343.85 in restitution to CARES on Count 1.1 Implicit in that order was the conclusion that CARES was a "victim." The trial court then explained its application of our decision in *448State v. Herfurth , 283 Or. App. 149, 388 P.3d 1104 (2016), rev. den. , 361 Or. 350, 393 P.3d 1176 (2017), to defendant's case:

"So in terms of the evidence in this case, I'm drawing some inferences. I read the affidavit from the CARES Northwest Director, and what he says is that CARES doesn't bill the families, and that they provide the services without regard to the ability of the family to pay, unless they have an insurer, and if they have insurance then they do bill the insurer. And I think that that record, along with the documents that have been submitted established sufficiently for me to draw the inference that under civil law *** that's sufficient for these costs to have been incurred under the civil statute that's referenced in the restitution statute.
"* * * * *
"The fact that CARES only bills people who have insurance and doesn't seek recovery from the patient, in this case the victim, and the fact that there are no agreements between the person who comes to CARES for reimbursement, someone could argue, eliminates that link that the State normally has to prove. That is, some responsibility on the part of the victim for the bill. But the reason why I don't come to that conclusion is because in this case, they did bill the insurance company, and I think that's sufficient for purposes of that analysis."

At trial, the arguments of the parties and the focus of the trial court was on whether CARES met the definition of ORS 137.103(4)(b). The state had sought restitution for CARES as a victim because it "takes a financial loss from the difference between the actual cost of treatment and the amount reimbursed through insurance," which "qualifies as economic damages." In defendant's briefing on appeal, that core question remained the same, but the arguments shifted to whether CARES provided medical or criminal investigatory services. However, at oral argument, this court brought the parties' focus back on the issue of where in the statutory scheme CARES would fit. The arguments thus framed, we turn to our analysis.

"Whether a trial court complied with the requirements for imposing restitution is a question of law, which we review for errors of law." Herfurth , 283 Or.

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Cite This Page — Counsel Stack

Bluebook (online)
439 P.3d 569, 296 Or. App. 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-white-orctapp-2019.