*1 malpractice medical in a action more fa- position patient than a
vorable claimant. DAYMUDE, William holding subscribe the cases Defendant-Appellant, above, concluding cited that all claims against providers health care for mal-
practice go through Indiana, must first the Medi- STATE of Plaintiff-Appellee. Malpractice procedure, regard- cal Act No. 28A01-8902-CR-38. patient less of whether the claimant ais non-patient." or a 501 So.2d at Indiana, Court of Appeals of 1077. First District. Similarly, the Estate's claims should be subject the Act since the claim is one alleged malpractice on On Rehearing Sept.
based to a Jackson. against
The Act should cover all claims providers
health care whether the claimant patient nonpatient.
is a regard- This is patient
less of whether the will derive some nonpatient from the
benefit claim. The
essential element is that the claim is based malpractice
on medical as in this
case. Malpractice
The Medical Act covers not alleged malpractice in the treat Jackson,
ment but also the mal
practice failing to warn Gahl of the
potential danger coming into contact recognition po
with Jackson. This dangerousness patient
tential of a is also a physician's diagnosis pa of his A necessary
tient. failure to take the steps protect diagnosis victim after the
patient professional can result negli-
genee. Superior Hedlund v. Court Or ange Cty. 34 Cal.3d 194 Cal. Rptr. 669 P.2d 45-46.
The Estate's claim is derived from the diagnosis
medical given pa- and care to a
tient, Jackson, and should be covered Malpractice
the Medical Act. The defen-
dants' motion to dismiss should have been
granted by the trial court.
1264 division. adolescent child and for a treat- scheduled developed and Walker alleged victim in which program ment in a participate family were to and her therapy ses- and individual series of counseling During the course sions. re- information session, Daymude disclosed Cook, Harmon, Trueblood, & Rob- Carter sexual abuse. instances of lating to Haute, defen- Hellmann, Terre F. ert formally the State On dant-appellant. molesting and with child charged Daymude in violation deviate conduct criminal IND.CODE with the Gen., Danielle Pearsbn, Atty. Linley E. 85-42-4-8, and and 85-42-4-2 Gen., Indianapolis, Atty. Sheff, Deputy in incest violation offense of plaintiff-appellee. 35-26-1-8. IND.CODE State regarding depose Walker sought to Judge. BAKER, communications between the content in the diselosed Walker therapy. Daymude family of the course THE CASE STATEMENT OF inquiry, insofar as it objected to the State's com- privileged and related to and Walker himself Day- between munications defendant-appellant, William hospital's interlocutory any member other brings this (Daymude), mude certi- question was ruling team. treatment the trial challenging appeal January court and on the trial provider care fied to health his requires which defen- trial court overruled other- proceeding, disclose, criminal in a to an- Walker and ordered objection made sub- dant's privileged wise by the asked questions as were services need of swer such State child in to a sequent with to his communication pertaining participation his requiring (CHINS) order counseling. during the course counseling and treatment. family instant inter- from this order It is taken. locutory appeal is reverse. ISSUE FACTS THE OF STATEMENT finding erred Whether com- privileged right to Daymude's that County Division The Greene provider his health munication of Public Wel- Department Indiana State 81-6-11-8 by IND.CODE was when taken in the petition filed a (Department) fare under- was communication Docket, pur- Court, Juvenile Circuit Greene involve- the State's subsequent 31-6-4-10, alleging to IND.CODE suant sexual abuse of child allegations inment daughter was 13-year-old Daymude's commu- when Daymude, against nication by defined in need of services" "child a IND.CODE course undertaken by the provided As 31-6-4-8. recom- rehabilitation treatment mended pursuant statute, Department, CHINS Depart- through its order, provided services to court Welfare. Public ment daughter was family. The her Hospi- at Charter in-patient as an admitted (the hospital). In addi- Haute of Terre tal Daymude, tion, juvenile AND DECISION DISCUSSION victim, mother to un- and her physi between Communications counseling. family dergo nature, of a confidential cian and referred director hospital's clinical are Walker priv case to James daughter's a waiver without physician v. Johnson health patient. Williams clinical mental ilege by the (Walker), certified con- independent 872; working as an 13 N.E. counselor Ind. (1887), 112 832; worked hospital Walker N.E.2d for the (1987), Ind.App., tractor Jaggers Mary Anne Ind.App. of Dr. supervision (1962), 133 v. Whittaker Baker Johnson, psychiatrist hospital's physician-pa chief This N.E.2d tient privilege is codified in mation is dential IND.CODE 34- received in the course of confi provides, 1-14-5 which pertinent part: communications See IND.CODE 31-6-11-3 34-1-14-5 following (Duty Report); shall not be com IND.CODE > petent (Physician-Patient witnesses: Privilege); *3 IND.CODE 31-6-11-8 (Abrogation of Privi lege). However, Daymude argues that the Physicians, Ath. as to matter communi privilege is abrogated only in reporting them, such, cated to by as patients, in the abuse, child and that abrogation the does course professional of their business, or not extend to communications during given advice cases, in such except as counseling the court as a result provided in IND.CODE 9-4-4.5-7.1 of CHINS proceedings. The privilege applies to those communica Because of special the cireumstances of tions undertaken in of, the course and nee- case, this appeal this presents an issue of essary to treatment. Corder v. State first impression for this court. However, (1984),Ind., 467 N.E.2d 409.2 we believe that the purpose of the report- However, in Indiana "ony individual ing statutes and decisions from courts fac- who has reason to believe that a child is a ing similar issues clearly support Day- victim of child abuse neglect or shall make mude's contentions here. report" required as (emphasis statute added). IND.CODE Thus, 31-6-11-3. this purpose The of the Indiana reporting language and the physician-patient privi statute is: lege place conflicting upon duties physi- [Tjo clan who encourage learns of child abuse during effective reporting the of suspected course of a or physician-patient known relationship. incidents of child abuse neglect, or Consequently, the to provide legislature Indiana in each coun- ty an adopted gates effective IND.CODE protection child 31-6-11-8 which abro service to quickly investigate the physician-patient reports of when child abuse neglect, or reporting provide to child protection abuse.3 abrogation for such a child from further abuse or neglect, statute states: and to provide rehabilitative services for such a child parent, his guardian, communication between or custodian. wife, a husband and between a health provider and that provid- health care IND.CODE Thus, 31-6-11-1. the report- er's or between a school counsel- ing statute attempts promote to report- or and a student ground not a for: ing of child cases, and thereafter, to (1) excluding evidence in any judicial provide a mechanism for the investigation proceeding resulting from report of the abuse in order protect to the child child who be a victim of child provide rehabilitative services for the neglect, abuse or relating child parents, guardian, or custodian. subject matter of report; such a or The abrogation statute as set forth in IND.
(2) failing report to required CODE by this 31-6-11-8 must be read light of the purpose of the entire act. chapter. Id. Clearly, confidential communications be- Daymude acknowledges provider pa- tween a health care tient are Walk his er, as a mental professional health to the extent that the had a duty under 8$1-6-11-8 IND.CODE provider report health care must all sus- suspected or known pected instances of or known instances of child abuse. child
abuse or neglect even though However, abrogation to extend the statute such infor 9-11-4-6, 9-4-4.5-7, formerly pro- providing 1. IND.CODE enact immunity laws prosecution abrogation from vides for the of inci- dents abuse. 42 U.S.C.A. involving certain cases chemical 5103(b)(2)(A) (1984); purposes Investiga- tests for of Title Criminal 45 CFR 1340.1-1. Pre- sumably, abrogation tions. the state statutes similar to respond Indiana's were enacted to to the federal 2. party Neither questions the fact privi- requirements. (im- See IND.CODE 31-6-11-7 lege exists in the case. munity); (abrogation). IND.CODE 31-6-11-8 3. In order to receive federal funds for child prevention programs, states have been ©1266 refused 134. at Id. treatment." during Daymude's
to information
so
statute
abrogation
beyond the
to construe
counseling goes
defendant's
require
broadly as
makes
statute
the statute.
turned
therapy sessions
from
abusers,
record
prosecuting
mention
no
Id.
prosecutors.4
entirety to
its
over
facili-
means
discusses
instead
Furthermore,
as to
children
at
identification
tate
therapy,
one-on-one
issue
ruling on
wel-
of child
attention
immediate
need
fare
stated
professionals.
case
issue
iden
report-
aware
Indiana
authorities
interpretation
county
Our
support
children.
finds
abused
allegedly
statutes
tity
ing and
held
facing similar
courts
by other
in decisions
*4
discovery
Minn.,
denied
properly
(1984),
court
Andring
trial
"'the
In State
issues.
during
meet-
made ...
during one-on-one
statements
defendant's
N.W.2d
of
342
Id.
therapy
sessions...."
within
and
staff
one-on-one
medical
the
ings with
Court's
Supreme
Minnesota
dis-
the
sessions,
defendant
with
the
agree
therapy
group
young
two
with
reasoning.5
conduct
his sexual
closed
girls.
subsequent-
of Minnesota
The State
sought
and
disclosures
the
of
learned
ly
through
child
of
case,
reporting
the
present
In the
defendant's
the
discovery to obtain
alleged abuse
issue.
not an
is
abuse
to
made
statements
and
records
medical
made
long before
reported
denied
court
The trial
staff.
medical
the
the State's
In fact
to Walker.
statements
confidential
informa-
discovery of
motion
arose
the
sessions,
therapy
one-on-one
the
from
tion
during which
proceedings
the CHINS
after
the
participate
to
as
discovery motion
the
granted
but
and
attend
to
court
therapy ses-
during group
made
disclosures
family counsel
and
individual
in
the su-
to
certified
court
trial
sions.
the
ing sessions.
the
whether
of
question
the
preme
re-
the
reported,
already had been
abuse
therapy ses-
during group
made
disclosures
served
had been
statute's
porting
privileged.
sions
not
need
privilege
physician-patient
the
further.
abrogated
be
the
reversed
family ther-
the
question
physi
is no
the
There
scope of
the
"that
held
necessary
integral and
an
are
apy
to include
sessions
extends
privilege
cian-patient
treat-
diagnosis
patient's
sessions
of
part
psychotherapy
confidential
where
is
privilege
If the
integral and
ment.
are
sessions
such
in
involved
family members
diagnosis and
to those
denied
patient's
necessary part of
Odenbreit,
considered
the court
Andring.
In
interpreted
statute
4. The
Report
Child Abuse
the Minnesota
provision of
Supreme Court reads:
Minnesota
provider to
required a health
ing
which
Act
relating
neglect
or abuse
evidence
No
to
in
information
certain
disclose
neglect
any prior
or to
incidents
of a child
relied
agency. The
welfare
child
local
involving any of the same
or abuse
stating
Andring,
holding in
upon its
neglect
shall be excluded
accused of
or abuse
statutory
"abrogate[d]
medical
reporting act
arising
any proceeding
out
in
evidentiary
is
use
extent
privilege to
neglect
physical
abuse on the
or
or sexual
be contained
of information
made
grounds
forth in section 595.-
set
(citing
report."
at 268
Id.
the maltreatment
in
(d),
(a),
(g).
paragraph
subdivision
132).
at
Andring,
N.W.2d
342
626.556,
(West Supp.
subd. 8
Minn.Stat.Ann.
Indiana
where
a situation
not face
We do
statute,
1989).
analyzing the above
the court
In
infor-
the disclosure
reporting act mandates
of section 626.-
narrow construction
stated "[a]
gained
the course
in
mation
purposes
achieve the
which would
subd.
Instead,
disclo-
seeks
now
counseling.
destroying
reporting
the bene-
act without
ordinary communications
sure of
maltreat chil-
when those who
fits that result
Thus, the
counseling session.
therapeutic
programs,
therapy
dren
seek confidential
general statements
more
courts
Minnesota
is,
be,
Andring
hereby
adopted."
should
underlying
child
policies
omitted).
(footnote
analysis
than
rather
guide our
must
statutes
assertions,
Contrary
holding
the Minne
to the State's
Odenmbrett.
specific
fact
more
pronouncements
Supreme
Court's later
sota
Minn.,
(1984),
N.W.2d
State v. Odenbrett
underlying policies of
affect
do not
counseling,
alleged child
not apply
then the
CHINS
case,7
agree
we
openly
discouraged from
with the
will be
holding
abusers
court's
physician-
communicating
their
honestly
and
counselors. Without
patient
not
in crimi
com-
open and honest
nal proceedings
involving
abuse,
physician
and the
munications between
family
where the privileged communications re
members,
process
the rehabilitative
sulted from counseling
child,
Consequently, the
whom court during
will fail.
the statute is
is denied an
a CHINS proceeding.
protect,
designed
help
opportunity
complete reha-
We must also consider our
own
Andring
As the
court stated:
bilitation.
ruling
in Baggett v.
discovered, however,
Once the abuse is
Ind.,
been TRUCKS, and National INC. MACK To allow fulfilled. had been statute abrogation Seating Company, communication Defendants-Appellees. goes beyond facts specific these the statute. 37A03-8806-CV-184. No. case, we facts specific the hold not Indiana, Appeals of Court District. Third regard to abrogated with by a defendant July19,1989. counseling sessions participating while to a re- pursuant molesting. port of child reasons, reverse we For the above ruling. Judgment reversed. REHEARING FOR PETITION
ON rehearing claim petitions The State opinion ing that in our (1989), Ind.App., 540 v. State finding that erred we N.E.2d *6 undergo Daymude to counseling.1 or- court never the trial true that It is participate per se dered counseling. however, sign a did Daymude, adjustment which informal
petition for Judge, Court Juvenile Greene approved As K. Johnson. David The Honorable treatment, court-approved of Channon's wife Daymude, his petition family counsel- participate Channon and ing. if Further, provided petition the treatment to follow failed referred to may be "matter program, or the Welfare of Public Department proceedings." formal Court Prosecutor technically Thus, although the participate Daymude to did not order participate counseling, Daymude did set The issue court action. threat of correctly characterized opinion in our forth Accordingly, our decision facts. the above same. remains the Rehearing Denied.
Petition J., ROBERTSON, C.J., and
RATLIFF,
concur. supplemented parties. affidavits The record was from both