Esther BIRD and Kenneth Wetcher, M.D., P.A., and Associates, Petitioners, v. W.C.W., Respondent.
No. D-3302.
Supreme Court of Texas.
Jan. 5, 1994.
Clearly, if Milligan is good law, then the Court‘s majority opinion is not. If Milligan is overruled, the Court should say so. If traditional rules of legislative construction should be abandoned, then tell us what the new rules are. The bench and the bar are entitled to at least that.
As in Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489 (Tex.1992), not all of the delay which occurs at this Court is the product of neglect; some is very calculated. Such is the case here.
JoAnn Storey and J. Steven Houston, Houston, for respondent.
ENOCH, Justice.
In this case, a psychologist, Esther Bird, examined a child for signs of sexual abuse. After examining the child, the psychologist concluded that the child had been sexually abused and that the natural father, W.C.W., was the abuser. The psychologist then signed an affidavit reporting these conclusions. The affidavit was filed by the child‘s mother, B.W., in the family court in an effort to modify child custody and visitation orders. All matters, criminal and civil, predicаted upon the assertion that the natural father was a child abuser were eventually dropped. The natural father then sued the psychologist and her employer, Kenneth Wetcher, M.D., P.A. & Associates.1 The question presented is whether the psychologist owed a professional duty of care to the natural father to not negligently misdiagnose the condition of the child. In defense, the рsychologist asserts there is no professional duty running to third parties as a matter of law, and regardless, the affidavit asserting the natural father to be the abuser of the child was used as a part of the court litigation process, and consequently, the statement was privileged as a matter of law. The trial court
granted summary judgment in favor of Bird and Wetcher. The court of appeals reversed and remanded for trial on the merits. 840 S.W.2d 50 (Tex.App.—Houston [1st Dist.] 1992). We hold that as a matter of law there is no professional duty running from a psychologist to a third party to not negligently misdiagnose a condition of a patient. We further reaffirm that a statement in an affidavit filed as a part of a court proceeding is privileged. Consequently, we reverse the judgment of the court of appeals and render judgment that the plaintiff take nothing.
I.
In 1983 W.C.W. was appointed managing conservator of his son, Jarrad, following a divorce from B.W. W.C.W. moved to Florida in 1986 and temporarily left Jarrad with his maternal grandmother. Shortly before Jarrad was to leave for Florida, his mother reported to Child Protective Services (CPS) that he had indicated his “daddy” had sexually assaulted him. Thеre was an on-going criminal investigation of sexual abuse allegations when the mother was referred to the Wetcher Clinic, a crisis management service. There, Bird examined Jarrad and interviewed the mother and her common law husband, D.R. Bird suspected that Jarrad had been sexually abused. She later executed an affidavit stating that: “I have concluded that Jarrad has been the victim of sexual abuse by his father. . . .” The mother submitted this affidavit to the family district court and sought to change the existing custody order to gain managing conservatorship of Jarrad and terminate the father‘s custodial rights. The Houston Police Department also filed criminal charges against the father. After the father retained custody and the criminal charges were dismissed, he sued Bird and Wetcher. We note at the outset that while couched in terms of negligent misdiagnosis, the essence of the father‘s claim is that it was Bird‘s communication of her diagnosis that
II.
DUTY OF A MENTAL-HEALTH PROFESSIONAL
First we address whether a mental health professional owes a duty to a parent to not negligently misdiagnose a condition of the child. Liability in negligence is premised on a finding of a duty, a breach of that duty which proximately causes injuries, and damages resulting from that breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). Whether a legal duty exists under a set of facts is a question of law. Id. In determining whether to impose a duty, this Court must consider the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor‘s conduct, the magnitude of the burden of guarding against the injury and the consequences of placing that burden оn the actor. Id.; Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983).
We acknowledge that the harm to a parent accused of sexual abuse is foreseeable. However, foreseeability alone is not a sufficient basis for creating a new duty. Boyles v. Kerr, 855 S.W.2d 593, 599 (Tex.1993); Graff v. Beard, 858 S.W.2d 918 (Tex.1993). Psychology is an inexact science. There is an inherent risk that someone might be falsely accused of sexually abusing a child; in such cases, injury is almost certain to result. Thе magnitude of the burden of guarding against the injury is also uncertain. While mental health professionals may be able to conduct tests to determine whether there is indicia of sexual abuse, the quality of information they can acquire is limited. The child is often the main source of the information, and young children can have difficulty communicating abuse of that nature. Thus, while the risk of injury to an аccused parent is real, it is only part of the equation. Furthermore, the risk of an erroneous determination of abuse is ameliorated, in part, by the availability of criminal sanctions against a person who knowingly reports false information in a custody proceeding. See
A claimant‘s right to sue a mental health professional must be considered in light of countervailing concerns, including the social utility of eradicating sexual abuse. Evaluating children to determine whether sexual abuse has occurred is essential to that goal. See Vineyard v. Kraft, 828 S.W.2d 248, 251 (Tex.App.—Houston [14th Dist.] 1992, writ denied). Young children‘s difficulty in communicating sexual abuse heightens the need for experienced mental health professionals to evaluate the child. Because they are dealing with such a sensitive situation, mental health professionals should be allowed to exercise their professional judgment in diagnosing sexual abuse of a child without the judicial imposition of a countervailing duty to third parties.
Two prior cases have found no duty in similar situations. In Vineyard, 828 S.W.2d at 251, a father accused of sexually molesting his daughter sued the doctor and the psychotherapist for negligent misdiagnosis and for negligent infliction of emotional harm. The court considered whether a legal duty arises between a parent and a mental health professional who makes an evaluation of a child‘s condition when child abuse is suspected. Id. at 252. The court declined to find a legal duty because there was no physician-patient relationship. Id. at 253; see also, Wilson v. Winsett, 828 S.W.2d 231, 232-33 (Tex.App.—Amarillo 1992, writ denied) (noting that a physician is liable for malpractice or negligence only when there is a physician-patient relationship); Fought v. Solce, 821 S.W.2d 218 (Tex.App.—Houston [1st Dist.] 1991, writ denied) (holding a physician liable for negli-
The court of appeals in Dominguez v. Kelly, 786 S.W.2d 749 (Tex.App.—El Paso 1990, writ denied), reached a similar result. In that case, an employee of the Texas Department of Human Services requested that a minor female be examined by Doctor Kelly. Id. at 750. The doctor concluded that there had been sexual abuse.3 Id. The father, Mr. Dominguez, was charged with aggravated sexual abuse. After that charge was dismissed, Mr. Dominguez sued Dr. Kelly for negligence as well as for malicious prosecution.4 Id. at 751. Because thеre was no physician-patient relationship, the court declined to find a duty. Id.
However, one court has concluded that a doctor owed a duty to a third party without the requisite patient-doctor relationship. Gooden v. Tips, 651 S.W.2d 364 (Tex.App.—Tyler 1983, no writ). The Goodens were involved in automobile accident with Mrs. Goodpasture. They sued Mrs. Goodpasture‘s doctor, Dr. Tips, for negligence in failing to warn his patient not to drive while under the influence of the drug Quaalude. Gooden noted that “under proper facts, a physician can owe a duty to use reasonable care to protect the driving public where a physician‘s negligence in diagnosis or treatment of his patient contributes to plaintiff‘s injuries.” Id. at 369.
The Gooden court focused on the foreseeability of the resulting harm in reversing summary judgment in Dr. Tips’ favor. The court held that, under the facts alleged, Dr. Tips might have a duty to warn his patient not to drive. Id. at 369-70 (emphasis supplied). That limited duty does not, however, extend to this case. There is little social utility in failing to warn patients about known side-effects of a drug, but there is great social utility in encouraging mental health professionals to assist in the examination and diagnosis of sexual abusе. Furthermore, in Gooden the plaintiff was harmed by the resulting actions of the patient, not by the condition, treatment, or diagnosis of the patient.
We hold that summary judgment was proper in favor of Bird because she owed no professional duty to the father to not negligently misdiagnose the condition of the child.
III.
PRIVILEGE FOR STATEMENT IN AFFIDAVIT
Although we have concluded that there is no professional duty owed to one other than the patient to not negligently misdiagnose a condition, we must still address the defensive issue raised by Bird, whether the communication of her conclusion that the father was the abuser by way of affidavit to the family court was privileged. Bird has not asserted, and the record does not show, that identifying or communicating the identity of the perpetrator of the abuse was pаrt of Jarrad‘s diagnosis or treatment.
Bird‘s expertise was required to diagnose whether abuse had occurred and she had a duty to report any suspected abuse. See
Thus, while Bird owed no duty to the father for her diagnosis of Jarrad, the record does not support the contention that she was functioning within a treatment and diagnosis role when she communicated to the family court, via affidavit, her opinion that it was W.C.W. who abused Jarrad. To the contrary, from the record it appears that she acted no differently than any other lay person in identifying the alleged perpetrator in that the statement was based, not upon a scientific experiment, but upon the outcry of the child. Like аny other person, she thereby subjected herself to liability for defamation unless a privilege attaches to the form of the communication. Although two privileges potentially relieve Bird of liability for the communication made, she has asserted only a privilege for statements made in the course of judicial proceedings.5
Communications made during the course оf judicial proceedings are privileged. Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912-13 (Tex.1942). The privilege also extends to pre-trial proceedings, including affidavits filed with the court. James v. Brown, 637 S.W.2d 914, 916-17 (Tex.1982) (applying the privilege in a defamation action). Bird argues that because the essence of the father‘s allegations is libel in the context of judicial proceedings, the privilege should apply in this case. We agree.
The рrivilege afforded against defamation actions is founded on the “theory that the good it accomplishes in protecting the rights of the general public outweighs any wrong or injury which may result to a particular individual.” Reagan, 166 S.W.2d at 913; see also Leigh v. Parker, 740 S.W.2d 101, 103 (Tex.App.—Austin 1987, writ denied) (noting that an action is “‘privileged’ if it furthers a policy interest of such importance that one is entitled to protection even at the expense of dаmage to another“). However, James, 637 S.W.2d at 918, declined to expand the privilege beyond libel and slander. See also City of Brady v. Bennie, 735 S.W.2d 275, 279 (Tex.App.—Eastland 1987, no writ) (recognizing a “qualified privilege” in an action for tortious interference in connection with a letter written by an attorney during the course of a prior libel suit).
The court in James held that the “doctors’ communications to the court of their diagnosis of Mrs. James’ mental condition, rеgardless of how negligently made, cannot serve as the basis for a defamation action, . . . .” James, 637 S.W.2d at 917 (emphasis added). Although in James the plaintiff was the patient examined and here Jarrad was the patient examined, not his father, and although W.C.W. asserted a negligence rather than a defamation action, the James case and this case are virtually indistinguishable on the issue of privileged communications. The communication made by Bird in this case is privileged. This is especially true here,
Any injury caused to W.C.W. by denying him the ability to bring а negligence cause of action for his identification as a child abuser based upon an inaccurate diagnosis of child abuse which is communicated in a court proceeding is outweighed by the need to encourage the reporting of child abuse. The public has a strong interest in protecting children, especially protecting them against physical аnd sexual abuse. By extending the privilege of in court communication to mental health professionals engaged in examining and diagnosing abuse of children, we further the public‘s strong interest in helping to eradicate child abuse.8 Furthermore, the administration of justice requires “full and free disclosure from witnesses unhampered by fear of retaliatory lawsuits.” James, 637 S.W.2d at 917; Leigh, 740 S.W.2d at 103. We continue to afford a privilege to communications made in the context of a judicial proceeding. Thus, the affidavit Bird submitted to the family court is privileged and defeats the father‘s negligence claim.
We hold that a mental health professional owes no professional duty of care to a third party to not negligently misdiagnose a condition of a patient. We also hold that a privilege exists for communication of an alleged child abuser‘s identity in the course of a judicial proceeding whether the accusation was negligently made. Consequently, we reverse the judgment of the court of appeals and render judgment in favor of Bird and Wetcher.
PHILLIPS, C.J., and GONZALEZ, HIGHTOWER and HECHT, JJ. join.
GAMMAGE, Justice, joined by DOGGETT, J., concurring.
Though I concur, today‘s judgment should not be read as conferring a grant of absolute immunity upоn mental health professionals. The opinion concludes that “a privilege exists for communication of an alleged child abuser‘s identity in the course of a judicial proceeding whether [or not] the accusation was negligently made.” Every privilege carries with it a responsibility. If we are to grant mental health professionals the privilege of making such acсusations, even if they are not called upon to make them, we also should hold them to an appropriate standard of professional responsibility. Adhering to its duty to recognize changes in the common law, Texas courts have from time to time imposed standards on various occupations. See, e.g., El Chico Corp. v. Poole, 732 S.W.2d 306, 308 (Tex.1987); Otis Engineering Corp. v. Clark, 668 S.W.2d at 311; Gooden v. Tips, 651 S.W.2d at 369.
False accusations of child abuse can be devаstating: they destroy reputations, relationships, even lives. Our society faces no problem more serious than child abuse. Though we should give mental health workers in this field some latitude and protection
CORNYN, Justice, joined by SPECTOR, J., concurs with the judgment.
I join the Court‘s judgment solely for the reason that I agree that Bird‘s statement, made during the course of judicial proceedings, was privileged.