*2 FULLER, Before WOODARD and KOEHLER, JJ.
OPINION
WOODARD, Justice. appeal
This is an from summary judg- a ment Kelly. favor Dr. We affirm. 31, 1986,
On December the doctor exam- ined brought a minor female that had been Depart- to him a member of the Texas Services, ment of Human and concluded that the child had been abused various ways, including sexually. The doctor in- formed the social worker and forwarded his written to her. He also made successive accounts of the matter County Department. Ector Sheriff’s Dominguez Plaintiff sued the doctor for negligence intentional, malicious, diagnosing report- faith conduct in the ing alleged of his It conclusions. was these factors caused the law enforcement proceedings officials to institute criminal against Dominguez aggravated Mr. sexual assault.
The social worker stated an- nounced, examination, after his vaginally, rectally child had been abused syphilis. and had The doctor’s written re- child, port depicted unusually a an small dwarf, sexually deprivational abused who the classic of a chroni- exhibited behavior out, in cally crying child never abused otherwise, during pain or his examination special exception suggests filthy, had lice and without She prosecution. signs of recent of action for malicious showed sexual assault and bruises, beatings. Massey In It continued to describe deference to v. Armco Steel burns, (Tex.1983), It abrasions. described Company, tears and thighs, by large hands on proposition bruises made for the that a which stands attempting pull presumably made pleading while be resolved defect *3 apart sexually to them abuse the summary judgment, we shall consider alleged of light of an cause evidence in affidavit, made in his Mo- The doctor’s prosecution. for malicious The action Judgment, explained for his tion prosecution case plaintiff in a malicious syphilis suspicions former of and that sub- ele proving of seven essential the burden testing sequent negated this condition. (1) commencement of a criminal ments: the The stated all of his communications doctor him, (2) against was prosecution which agency to and the sheriff’s de- were the through defendant or his aid caused the partment. (3) in fa cooperation, or which terminated substantiating physical Photographs the (4) acquittal, the plaintiff by vor of the that bruises, the characterization of abrasions charge guilty the plaintiff of proffered along and also tears were him, (5) no brought against probable that mother an affidavit that stated the child’s charge, the filing existed for the of cause pled felony inju- nolo contendere to a third malice, (6) (7) it and that was done with charge, ry Appellant to a child and the plaintiff thereby damaged. that report plea made the same to a failure to Corporation, v. 580 Stewart Data Control charge. child abuse (Tex.Civ.App. 879 S.W.2d — Texarkana liability Traditional notions 1979, writ). no There is evidence that the require finding of negligence actions a a pled charges nolo contendere to Plaintiff a duty, duty, breach breach was reports given by to contributed injuries a and dam proximate cause any is final doctor. There no evidence ages McKinley Stripling, occurred. 763 Appellee to ne The failed determination. (Tex.1989). 407 It is a S.W.2d well estab gate this element of essential principle a is physician lished of law that action. malpractice negligence only or liable a physician-patient there is relation where immunity un The relies on contract, ship express as result of a a (Vernon der Ann. sec. 34.03 Tex.Fam.Code implied, pa that the doctor treat the will 1986), “[a]ny person to which proper professional tient with skill and chapter,” reporting to but pursuant this professional duty is a breach of to there any person reporting in bad denying it to Gamboa, S.W.2d patient. Salas v. 760 construing In stat or with malice. faith 1988, writ). (Tex.App. Antonio no 838 utes, phrase, courts not look to one will — San physician-patient where no In such cases look to the or sentence but will clause exists, only duty is relationship the doctor’s legislative in act determine the entire to in a manner not conduct the examination to City Corpus Christi v. Southern tent. being person exam cause harm to the 368 Company, S.W.2d Community Gas Sibley, 558 S.W.2d ined. Johnston 1963, writ (Tex.Civ.App. Antonio — San 1977, writ ref’d n.r. (Tex.Civ.App. Tyler given n.r.e.). provision A not be ref’d will — Therefore, e.). Appellant’s cause of action harmony provi meaning with other out fail the doctor had negligence must as purpose of with the sions and inconsistent duty him. no act, susceptible it though would be Black standing if alone. construction such alleged that the doctor Appellant further Compa Bankers Insurance v. American intentionally, maliciously and in knowingly, (Tex.1972). Tex.Fam. ny, were made his conclusions which faith report by a Ann. 34.01 mandates Code sec. officials local enforcement the basis for law is child having believe there cause to proceedings. This those criminal to institute Texas directs the Section 34.011 although incomplete, to us abuse. pleading, comes Department Ordinarily, probable of Human Resources cause. cause is a promulgate reporting question especially form. Tex.Fam. of law. This so when (Vernon Supp.1990) Ann. sec. 34.02 Code the facts are not contested and there is no reports nonaccusatory states the shall be conflict in the evidence directed to that reporter’s and reflect “the belief that Hunting issue. v. Dallas Parker requires (Tex.Civ. child has been” abused. It a doc Club, Fishing report forty- tor to make an oral within 1971, writ). case, App. In this — Dallas eight suspects hours he after abuse successfully demonstrated report days. make a written within five observations, by photographs, confirmed reports are to be made to state or local his conclusions and his actions such a enforcement, Depart law and to the Texas probable manner establish cause to be agency ment of Human Services or an des abuse, an incident of child lieve ignated by responsible the court to be and there is no evidence to conflict with protection of children. Section 34.05 though finding. initially this Even he mis *4 agency receiving report commands the the diagnosed syphilis, the disease of he had investigate seeking and includes the of a grounds set for such forth the medical physical, psychological psychiatric or exam diagnosis. This matter was contested proper ination in the case. by any other evidence. Whether he was or by reporting not actuated malice in was case, brought In this child to the the consequence of no in view of the fact that pursuant doctor to Section 34.05. Section probable he an had believe act privileged expressly 34.04 denies com- Appellee acts of child had occurred. abuse patient munication between doctor and in effectively negated has an essential ele any proceeding regarding child abuse. ment of the cause of action for malicious Appellant reports contends the were not Bertrand, prosecution. Gray 723 v. immunity report as the entitled written 957, (Tex.1987). explicit the form re- did not conform to 34.02, quirement namely there is Section Appellee We further hold that the no name and address of the child or the successfully has the affirma established person responsible for the child. He also immunity under 34.- tive defense of Section designation contends there is no stated person probable 03. If a cause to report required follow-up the written is the occurred, an act of child abuse has believe report. Imprecise compliance form reporting pursuant of that to the belief se, requirements, per will not vitiate an guidelines Chapter forth in 34 would set provision. immunity There was substantial regardless immunity, entitle him to compliance in this case. by any he actuated malice. whether Summary judgment should never be case, reported In this certain inherently the when issues are large by made hands on the bruises were judge, as in cases jury those for a or trial thighs, “presumably pulling apart to them care, intent, reliance, involving reasonable calls sexually abuse her.” Section 34.02 uncertainty the like. Dan & and Lawson purpose of nonaccusatory reports. The (Tex. Miller, 742 S.W.2d Associates protection for reporting the is to foster writ). 1987, Appel App. Worth — Fort penalty to children and not to cause abused alleges he the lant contends that because type impliedly others. The of accusation mal in faith or with was made by language the of Section 34.- condemned intent, ice, Appellee’s it concerns the person expression the of which 02 concerns therefore, summary subject to a cannot be The committed the act abuse. have judgment. underly and facts expression of the belief type abuse had ing that a that belief in said that a defendant It has been intent does not violate the been committed is not liable prosecution action a malicious merely en reporting statutes. It if he of the probable cause there was no where investiga proper malice, or, though probability hances the by he actuated was not of abuse malice, tion for and the ascertainment probable if he had was actuated Having all ele- . the authorities. established immunity the defense under ments of A 34.03, p is entitled to Section p summary judgment. v. Ken- Montgomery (Tex.1984). nedy, 669 S.W.2d .
Judgment of the is affirmed. trial court Appellant correctly pleads The also negligent infliction of action a cause OPINION ON MOTION FOR anguish Eliz as sanctioned St. of mental REHEARING Garrard, Hospital abeth Appellant reurges impro The (Tex.1987). However, in discount of even Plain priety reply of the Movant’s to the child, there is un- photographs response tiffs Motion for conflicting evidence of the observations Judgment proffered affidavit interpretations resulting of the doctor. The is as therewith. chronicle of events X-rays leg had indicated child’s follows: could condition which the doctor stated 28, February Defendant’s Mo- ... congenital syphilis. The affida have been Summary Judgment tion for filed. corresponds social vit worker setting March 1989 ... A order this, said that except she stated the doctor obtained March eat syphilis progressed so that it was ing left knee. up 1989 ... Plaintiff amends his the bone the child’s petition. suspicious bone The doctor’s observation of *5 appeared compatible condition which 23, setting A... second had a syphilis is uncontested. The child 10, April order is obtained for area, injured vaginal anus and an scarred 3, April Response 1989 ... Plaintiff’s bruises, burns, multiple as as other well Summary Defendant’s Motion matters were tears and abrasions. These Judgment is filed. challenged. give rise to The facts 12, April reply 1989 ... Defendant’s probable cause for a that an abuse belief response filed, Plaintiff’s is followed occurred, otherwise, sexual even had affidavit exhibits. diagnosis though part of the doctor’s 17, signed April judgment 1989 ... A X-rays tak proven subsequent incorrect on this date and recites the Motion radiologist laboratory blood en Summary Judgment this was heard on the au testing. The doctor informed then date. Again, syphilis. of the absence of thorities April Motion ... Plaintiff files a reasoning borrowing from estab Reply to Plain- Strike Defendant’s prosecution, law of lished in the malicious Response tiff’s to Defendant’s Motion immunity under the doctor has established Summary alleging that Judgment (Vernon Ann. Tex.Fam.Code sec. 34.03 10, 1989, judge had April on the trial 1986). already granted him he informed Judgment to the Defendant rehearing is over- Appellant’s motion for hearing. without re- judgment trial ruled and the court’s mains affirmed. hearing April had on Whether 17, 1989, April no conse Although quence. documents filed after con
summary judgment hearing be sidered, they specifically must be shown court. done with of the have been leave Leon, 705 Ossorio (
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