State v. Morgan , 86 Wash. App. 74 ( 1997 )

Schultheis, A.C.J.

(concurring) — I concur in the judgment affirming Stuart E. Morgan’s conviction for first degree manslaughter because I agree he breached a duty of care to his wife, and that this breach caused her death. I write separately, however, because I disagree that the basis for this duty may be found in the family nonsupport statute, RCW 26.20.035.

The family nonsupport statute was enacted in 1984 as one of many sections adopted to address the "urgent need for vigorous enforcement of child support obligations . . . .” Laws op 1984, ch. 260, § 1, at 1408. While RCW 26.20.035 and its precursor, former RCW 26.20.030,¹ have served as the basis for the duty to provide medical care to children, the breach of which supported a verdict of manslaughter,² they have never served as anything but support statutes for spouses.³ do not believe the Legislature intended this statute to impose a generalized duty to seek medical attention for a spouse.

Although at common law one person is not under a legal compulsion to aid another, most states recognize a parent’s or a guardian’s duty to provide medical care to his or her children or dependents. See In re Welfare of Hudson, 13 Wn.2d 673, 693, 126 P.2d 765 (1942); State v. Williams, 4 Wn. App. 908, 915, 484 P.2d 1167 (1971); Commonwealth v. Konz, 498 Pa. 639, 450 A.2d 638, 641 (1982). In Washington, this duty is codified in such statutes as RCW 9A.42.030(1), which makes it a crime to recklessly withhold medical care from a child or dependent person over whom the defendant has physical custody. State v. Bartlett, 74 Wn. App. 580, 589, 875 P.2d 651 (1994), aff'd, 128 Wn.2d 323, 907 P.2d 1196 (1995).

Ordinarily, a spouse is a competent person with the capacity to understand his or her medical condition and to seek or reject medical attention. Under certain circumstances, however, a spouse may become incapacitated and so helpless as to assume the condition of a newborn. State v. Mally, 139 Mont. 599, 609, 366 P.2d 868 (1961). In those cases where the spouse is unconscious or otherwise helpless to summon or reject medical aid, the other spouse takes on the cloak of custodian, and has a duty to provide medical treatment. See Konz, 450 A.2d at 642; People v. Robbins, 83 A.D.2d 271, 274, 443 N.Y.S.2d 1016 (1981) and cases cited therein.

Here, the evidence shows that Mr. Morgan’s wife was unconscious at the time he observed her first seizure and yet he only called for medical aid 10 or 15 minutes later. Further, he impeded medical treatment after the paramedics arrived when he neglected to tell them she had used cocaine. His actions and omissions sufficiently exhibit a breach of his duty to provide medical assistance to his helpless wife, and the breach constitutes a reckless deviation from reasonable conduct. See State v. Dunbar, 117 Wn.2d 587, 594, 817 P.2d 1360 (1991); Williams, 4 Wn. App. at 912.

On this basis and joining in the majority opinion on the other issues, I concur.

Review denied at 133 Wn.2d 1011 (1997).

1 former RCW 26.20.030 once prohibited willful omission, without lawful excuse, of necessary food, clothing, shelter or medical assistance to a child, stepchild, ward or spouse. It was amended by Laws op 1984, ch. 260, § 26, at 1420.

2 State v. Parmenter, 74 Wn.2d 343, 344, 444 P.2d 680 (1968); State v. Williams, 4 Wn. App. 908, 912, 484 P.2d 1167 (1971).

3 See, e.g., State v. Clark, 88 Wn.2d 533, 540, 563 P.2d 1253 (1977); State v. Arndt, 87 Wn.2d 374, 380, 553 P.2d 1328 (1976).