concurring.
Under AS 11.41.220(2)(1)(C)@), a person commits the crime of third-degree assault (a class C felony) if they recklessly cause physical injury to a child under the age of 10, and if this injury "reasonably requires medical treatment". Our task in this appeal is to determine what the legislature meant by the phrase "medical treatment".
The legislative history of AS 11.41.220(a)(1)(C)
AS 11.41.220(a)(1)(C) began life as House Bill 396 in the Seventeenth Legislature (1991-92). As originally proposed, Section 4 of HB 396 would have added a provision to the third-degree assault statute to make a person guilty of that felony if they "violate[d] AS 11.41.280(a)(1) or [(a) ](2)"-4ie., if they committed fourth-degree assault by recklessly causing physical injury to another person, or by negligently causing physical injury to another person by means of a dangerous instrument-and if "the victim of the offense [was] under the age of 10".
This proposed change was criticized by the Alaska Action Trust (the lobbying arm of the Alaska Association of Trial Lawyers).1 In a "position paper" on House Bill 396, the Trust argued that the proposed change to the third-degree assault statute was "too broad and should not be adopted". The Trust wrote:
Apparently, the Legislature's [purpose] is to make it a felony rather than a misde-meganor to repeatedly or severely beat a child. While we agree that it may well be appropriate to make repeated or severe beatings of a child a felony, the proposed amendment would make it a felony even to cause pain to a child without actual injury[,] or to bruise a child. That lesser conduct should not be punishable by a felony conviction.
[The] proposed amendment ... would make a ... felon of a person who one time "recklessly cause[d] physical injury" to a child under the age of 10. ... The difficulty with the proposed revision is that physical injury is very broadly defined as "a physical pain or [any] impairment of a physical condition." AS 11.81.900(b)[ (45) ]. Therefore, if this amendment becomes law, any person can be ... convicted [of al felon{y] for recklessly causing pain to a child, even when the child suffers no actual injury whatsoever[,] or [for] negligen[tly] causing] pain to a child by means of a dangerous instrument.
Even the most caring and loving person who is around a child might sometimes recklessly cause ... pain to that child. A person who angrily briefly touches a child[,] causing pain but no actual injury[,] would become a ... felon. [Moreover,] under Alaska law, an automobile is a dangerous instrument. Even the most caring and loving person ... might negligently cause pain to a child by causing an automobile accident{[, even though] there was no . injury whatsoever to the child because the child was buckled in a seat belt.... A person who slammed a child's finger in a car door would become a ... felon under this law. A relatively minor lapse by an ordinarily caring parent or other person should not cause the person to suffer a felony conviction.
Accordingly, the Trust proposed that the new offense be limited to "physical injury that requires medical treatment".
Apparently responding to the Trust's ree-ommendation, the House Judiciary Committee re-wrote Section 4 of House Bill 896 to make the proposed offense "recklessly ... *978caus[ing] physical injury to a child under 10 years of age [if] the injury reasonably requires medical treatment". CSHB 396(Jud), § 4.
In its "Sectional Analysis" of the bill, the Judiciary Committee described the purpose of Section 4:
[This] section elevates what is currently classified as fourth[-ldegree assault to third[-]degree assault if an offender is 18 years of age or older and [either] repeatedly assaults a child under the age of 10, or assaults a child under 10 and the assault requires medical treatment. This amendment is in response to several recent Anchorage cases[,] including one in which an infant had 56 different bruises on its body caused by a series of beatings committed over a three[-Jweek time period[,] and one in which a 5[-Jyear[-Jold child was intentionally burned by being placed in a bath of scalding water. Because there was not a substantial risk that either child would die[,] and [because] neither child was permanently disfigured, [neither injury qualified as "serious physical injury" as defined in AS 11.81.900(b)(55), and thus] the offenders could only be charged with misdemeanors [ie, fourth-degree assault]. [This section makes such conduct] third[-]degree assault[,] a class C felony.
But neither the bill itself nor the Judiciary Committee's accompanying analysis offered a definition of "medical treatment".
The problem presented in this appeal: ascertaining the meaning of "treatment" in AS 11.41.220(a)(1)(C)
The State prosecuted Wells under this new provision of the third-degree assault statute, alleging that Wells had recklessly caused head injuries to a nine-month-old infant and that these injuries had "reasonably required medical treatment".
Viewing the evidence in the light most favorable to the State, Wells inflicted multiple injuries on a nine-month-old infant over a period of two weeks, resulting in numerous bruises to the infant's face, scalp, and ears. When the child's mother brought him to the hospital, doctors were concerned that the child might have significant internal injuries, so they performed blood tests and a CAT scan as diagnostic measures. Fortunately, the child had no significant injuries; the doctors concluded that the child was medically stable and that the child's bruises would heal on their own.
The State and Wells disagree as to whether this medical examination and diagnostic testing constituted "treatment".
The State argues that, because the legislature failed to provide a definition of "treatment", we should interpret the statute using the common definition of that term. The State relies on the first sentence of AS 01.10.040(a), which states: "Words and phrases [in statutes] shall be construed ... according to their common and approved usage." 2
According to the State, the "common" or dictionary meaning of "treatment" includes medical examinations and diagnostic testing. But as can be seen from the four dictionary definitions quoted by the State in its brief, various dictionaries have differing definitions of "treatment". Some dictionaries define the word broadly enough to include diagnostic efforts, but other dictionaries appear to limit the word to actions taken to treat or cure a medical condition after it has been diagnosed.3
In short, the State's brief overstates the matter when it declares, "These definitions *979make clear that treatment includes not only . remedial care, but also diagnostic care." Rather, these definitions are ambiguous concerning the issue raised in this appeal.
Moreover, AS 01.10.040(a) does not direct us to always adopt the "common" usage of words or phrases. The statute has a second sentence: "Technical words and phrases[,] and those which have acquired a peculiar and appropriate meaning, whether by legislative definition or otherwise, shall be construed according to [that] peculiar and appropriate meaning."
Medical literature draws a distinction between, on the one hand, examination and testing for purposes of "diagnosis" and, on the other, "treatment". By searching the internet, one can find literally thousands of books and articles whose titles refer to "diagnosis and treatment"-thus indicating a distinction between "diagnosis" (efforts to determine the nature and extent of a medical condition) and "treatment" (efforts to cure or ameliorate a medical condition).
Our own supreme court appears to have used the terms "diagnosis" and "treatment" in this same way. For example, in Bradbury v. Chugach Electric Ass'n, 71 P.3d 901, 905 (Alaska 2003), the court stated: "Two physicians, Dr. Kenneth Flora and Dr. David Nelson, testified on behalf of Chugach Electric. Dr. Flora is a hepatologist whose subspecialty is the diagnosis and treatment of chronic liver disease."
Moreover, the Alaska Legislature has enacted statutes that use the word "treatment" as meaning something distinct from "diagnosis". See AS 18.20.1308), which defines the word "hospital" as "an institution or establishment, public or private, devoted primarily to providing diagnosis, treatment, or care". (Emphasis added) And AS 25.20.025(a)(4) declares that all minors (even those who are unemancipated and who are still living with a parent or guardian) have the legal authority to consent to a broad range of medical services and treatments associated with sexual activity (except abortion}, including "diagnosis, prevention or treatment of pregnancy, and ... diagnosis and treatment of venereal disease." (Emphasis added)
This same distinction is found in Alaska Evidence Rule 504(b), which states that "[al patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental or emotional conditions. ..." (Emphasis added)
Finally, this Court's decision in S.R.D. v. State, 820 P.2d 1088 (Alaska App.1991), hinges on the distinction between diagnostic efforts and "treatment". In S.R.D., a mother was convicted of criminal non-support, AS 11.51.120(a), for failing to provide her children with "necessary medical attention" after the children were injured by acts of physical abuse perpetrated by her husband. In each instance, "[medical] examinations revealed injuries resulting from [the] abuse, but the injuries did not require actual treatment." 4
On appeal, the mother claimed that the evidence did not establish her guilt of criminal non-support "because neither child was found to require any medical treatment".5 This Court rejected the mother's argument because the criminal non-support statute does not speak of a parent's failure to obtain "treatment" for their child, but rather a parent's failure to obtain "necessary ... medical attention'". See AS 11.51.120(b). We held that "medical attention" was a broader concept than "treatment" because it also included medical examinations for diagnostic purposes:
We agree with the state that "attention" must be construed more broadly than "treatment." It is conceivable that children may suffer injuries sufficiently threatening to require a medical examination, even if that examination ultimately discloses no need for treatment.
In the present case, evidence concerning [the children's] injuries and the manner in which those injuries were inflicted was sufficient, when viewed in the light most favorable to the state, to permit a reasonable juror to infer that, even though no treat*980ment was required, medical attention was actually necessary to rule out the possibility of life-threatening or potentially disabling conditions. The trial court did not err in declining to enter a judgment of aequit-tal as to these two counts.
S.R.D., 820 P.2d at 1090-91.
Based on the foregoing, I conclude that we must reject the State's proposed definition of "treatment" and instead adopt the narrower definition reflected in these statutes, court rules, and court decisions.
First, because the third-degree assault statute uses the phrase "medical treatment", we are searching for the meaning of "treatment" not in its general context, but rather in its medical context. And in that medical context, both the Alaska Legislature (in statutes) and the Alaska judiciary (in court rules and in court decisions) have used "treatment" in a narrow sense-as meaning something distinct from diagnostic efforts When a word or phrase has previously been legislatively defined or judicially ' construed in a particular way, we are to presume (in the absence of evidence to the contrary) that later-enacted statutes carry forward the existing meaning of that word or phrase.6
Second, to the extent that the meaning of "treatment" remains ambiguous, we must interpret it in favor of the defendant and against the State. When the scope of a criminal statute remains unclear or ambiguous after it has been subjected to legal analysis, we are bound to construe the statute against the government-that is, construe it so as to limit the seope of eriminal liability.7
At Wells's trial, the judge gave the jury no instruction concerning the meaning of "treatment", and the prosecutor argued to the jury that "treatment" included the examination and diagnostic testing in this case. This argument, as a matter of law, was incorrect. I therefore agree with my colleagues that Wells's conviction for third-degree assault must be reversed.
. See www.alaskatriallawyers.org/ak/in-dex.cfm?event=showPage & pg=About for a brief history of the organization.
. See Lynch v. McCann, 478 P.2d 835, 837 (Alaska 1970); Lambert v. State, 694 P.2d 791, 793 (Alaska App.1985) (when the legislature uses a word or phrase without defining it, a court should normally assume that the legislature intended the word or phrase to have its common, ordinary meaning).
. Compare Merriam-Webster Collegiate Dictionary (lith ed.2003), p. 1333 ("car[ing] for or deal[ing] with [a health problem] medically or surgically"); Webster's New World College Dictionary (4th ed.2000), p. 1525 ("medical, surgical, or cosmetic care, esp{ecially] a systematic course of this"); Oxford American Dictionary (2003), p. 1626 ("application of medical care or attention to a patient"); American Heritage Dictionary of the English Language (Ath ed.2000), p. 1838 ("administration or application of remedies to a patient for a disease or injury; medicinal or surgical management; therapy').
. S.R.D., 820 P.2d at 1090.
. Id.
. Gillispie v. Beta Construction Co., 842 P.2d 1272, 1273 (Alaska 1992); see City of Fairbanks v. Schaible, 375 P.2d 201, 207-08 (Alaska 1962); Patterson v. State, 708 P.2d 712, 716 (Alaska App.1985); and see Hart v. State, 702 P.2d 651, 659 (Alaska App.1985).
. See Brookins v. State, 600 P.2d 12, 17 (Alaska 1979); State v. ABC Towing, 954 P.2d 575, 579 (Alaska App.1998); Magnuson v. State, 843 P.2d 1251, 1253 (Alaska App.1992).