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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

  2. Don't we have bigger issues to concern ourselves with?

  3. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  4. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  5. Different rules for different folks....

ADVERTISEMENT