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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT