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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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