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

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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.


 

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  1. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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