ILNews

Judges: no private cause allowed for not reporting abuse, neglect

Back to TopE-mailPrintBookmark and Share

Standing behind a decision made by appellate judges about 20 years ago, the Indiana Court of Appeals has again declined to interpret state statute in a way that allows for a private right of action for failing to report child abuse or neglect.

The unanimous decision comes today in C.T. v. Sherri Gammon and Dr. Ronald Beahm, M.D., 48A04-0911-CV-624, a Madison Circuit case involving a father who sued his minor son’s pediatrician for not reporting that the mother was smoking in the child’s presence to the point of constituting abuse or neglect. At issue in the case is the child referred to as T.T., born prematurely in December 1997 and cared for by Dr. Ronald Beahm from 1998 to 2006.

The parents never married and at some point separated. Father C.T. filed two reports with the IDCS because of mother’s subjecting the child to second-hand smoke. The state agency determined both reports were unsubstantiated, but in the meantime C.T. filed a suit in county court and obtained an order prohibiting her from smoking in the child’s presence. C.T. later received physical custody and filed a pro se negligence complaint against Beahm, seeking punitive damages. C.T. also filed a malpractice complaint in the state’s insurance agency, but a special judge later entered summary judgment in favor of the doctor on the grounds that he didn’t have a duty to protect the child from alleged exposure to environmental tobacco smoke.

On appeal, the Court of Appeals decided that this is a medical malpractice matter and not ordinary negligence, but that state statute allows a judge to preliminarily determine an issue of law before a medical review panel issues a decision.

While Indiana Code Article 31-33 encourages individuals to report suspected or known abuse or neglect by making a verbal report, the appellate panel determined that it doesn’t require one to do so and a person who doesn’t file one of those reports can’t be punished with a civil action.

The same issue came up in Borne ex. Rel. Borne v. Northwest Allen County School Corp., 532 N.E. 2d 1996 (Ind. Ct. App. 1989), trans. denied, and the three-judge panel at that time held that the legislature didn’t intend to confer a private right of action for any breach of the duty to report imposed by the statutes. The same rationale applies here, today’s panel wrote.

“However, like the majority of state legislatures, our legislature has declined to codify a civil cause of action against an adult who knowingly fails to report alleged child abuse… Absent codification, we are not convinced that extending a civil remedy to a victim of abuse or neglect against all persons who know of child abuse and fail to report child abuse is good public policy,” Judge Nancy Vaidik wrote. “Rather, we agree with the [Borne] majority. Thus, our reporting statutes do not create a civil cause of action for failure to report child abuse or neglect. The vast majority of states have reached the same conclusion under their reporting statutes.”

The decision affirms the summary judgment ruling in the doctor’s favor, and remands the case for consideration of damages and attorney fees relating to the pro se father’s trial court filings. But the appellate judges declined to award attorney fees and costs to the doctor’s lawyers relating to the appeal.


 

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Compromising precious constitutional rights in order to protect them? Rather like the military intelligence slogan that the town had to be destroyed in order to save it. Looks like Joseph, Mary and Baby Jesus will have quite the eventful Boxing Day this year. Wise men will arrive to find no one to accept their gifts? Oh well, wisdom not all that desired this xmas anyway. Maybe the ACLU and Christian attorneys can work out a "three days every third year" visitation compromise and all of this messy litigation stuff can just be boxed up as well? It is an art form, now isn't it? Thomas More, a man of manifold compromises is undoubtedly cheering on wildly.

  2. From the MCBA: “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer. HOPING that the MCBA will denouce the execution style killig of two NYC police officers this day, seemingly the act of one who likewise believes that the police are targeting blacks for murder and getting away with it. http://www.mediaite.com/online/two-nypd-cops-fatally-shot-in-ambush-in-brooklyn/ Pray this violence soon ends, and pray it stays far away from Indiana.

  3. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  4. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  5. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

ADVERTISEMENT