272 Conn. 410 | Conn. | 2004
Opinion
The sole issue in this appeal is whether a physician who is not the initial reporter of suspected child abuse, but who performs a medical examination of a child at the request of the department of children and families (department) to determine whether reasonable cause exists to suspect child abuse, is entitled to the immunity from liability provided by General Statutes § 17a-101e (b).
The record reveals the following facts and procedural history. On April 21, 2001, an anonymous caller from the office of the plaintiffs’ pediatrician at the Norwich Pediatric Group contacted the department to report that Kathleen Welch, a speech therapist with the Birth to Three Program, had noticed numerous bruises on both Matthew and Kaylee, and a rash on Matthew while she was conducting a home based therapy session.
On April 24, 2001 Richard Days, a department social worker, made an unannounced visit to the plaintiffs’ home. Days informed the parents of the reason for the visit, and they consented to his examining the children. He noted that both children were dirty and had bruised foreheads, while Matthew also had extensive bruising on his entire back and a rash on the front and back of his torso. Upon questioning by Days, Manifold explained that he had not taken Matthew to the pediatrician because he thought the rash was from Matthew recently having eaten $50 worth of chocolate. Manifold explained to Days that his son bruised easily, and that he had sustained the bruises while roughhousing with his sister and playing with his new toy trucks and the family dog. Later that day, Days accompanied the plaintiffs to the office of their family pediatrician at the Norwich Pediatric Group.
Upon their arrival, Days asked whether Richard Geller, the family’s regular pediatrician, could examine the children to determine whether there was reasonable cause to suspect that they had been abused. Geller stated that he was unable to examine the children at that time and that they should not have been brought to his office; he advised Days to take the children to the emergency room at William Backus if an immediate examination was needed. Days then made an appointment with Geller for the following morning, but trans
At William Backus, Creutz examined both children, and ordered an X ray of Matthew. The X ray revealed no fractures, but Creutz stated in the notes of his examination that Matthew had a rash
Creutz explained the results of the examination to Days, who in turn discussed them with other department personnel. Shortly thereafter, Jorge Osorio, a department supervisor, authorized a ninety-six hour hold of the children pursuant to General Statutes § 17a-lOlg (d). The children then were taken into department custody with the assistance of local police, and were placed in a licensed foster home. The department subsequently applied for and obtained orders of temporary
On April 25, 2001, Days met the children and the foster mother at the office of the Norwich Pediatric Group. At that time, Nancy Cusmano, a pediatrician, examined both children. Cusmano ordered blood tests for Matthew, stating that a normal blood test would indicate a high probability of abuse. Upon receiving the results of the test, however, Cusmano informed Days that Matthew’s blood test showed some abnormalities, including a very low blood platelet count that generally causes clotting difficulties. She said that this condition could explain both the bruising and the rash. See also footnote 6 of this opinion. Cusmano referred Matthew to Joseph McNamara, a hematologist at Yale-New Haven Hospital (Yale), for further evaluation. Thereafter, McNamara diagnosed Matthew with idiopathic thrombocytopenic purpura, a blood disorder, and admitted him to Yale for treatment. The following day, April 26, 2001, McNamara advised Days that the marks and bruising were consistent with the blood disorder. Matthew subsequently was discharged from Yale. In light of this new information, the court granted the department’s motion to vacate the orders of temporary custody. The department returned the children to the parents’ custody later that same day, and Days relayed the Yale discharge instructions to them.
The neglect petitions that were filed with the court on April 25, 2001, however, remained active, although the department amended them to remove the initial allegations of physical abuse. The case was transferred to the department’s division of protective services for further monitoring and study. A social study subsequently was filed with the court, and the neglect petitions were withdrawn in October, 2001.
In April, 2002, the plaintiffs instituted this action. In count one of the complaint, the plaintiffs alleged
Subsequently, the medical defendants moved for summary judgment as to all of the counts against them. The trial court, Gordon, J., granted their motion, concluding that Creutz was entitled to immunity from liability pursuant to § 17a-101e (b) because, as a physician, he was a “mandated reporter” within the scope of that statute. The trial court determined that, as a matter of public policy, Creutz was entitled to the statutory immunity because “we want to protect doctors and other people who we rely on to protect our children to feel free to participate in this often highly charged and potentially legal minefield-like environment . . . .” The trial court noted that, “whether or not [the physician] is a ‘mandated reporter’ making a determination at the outset in this case or not, he is immune as somebody who is part of the evaluative process of detecting and hopefully averting the mistreatment of children.” The court then concluded that William Backus was immune because the claims against it were derivative of those against Creutz, and emphasized that there was no genuine issue of material fact present that would preclude the court from granting a motion for summary judgment in favor of the medical defendants. See Practice Book § 17-49. This appeal followed.
In response, the medical defendants argue that § 17a-lOle (b) applies to Creutz because, as a mandated reporter, he was obligated to report his reasonable suspicion of child abuse, regardless of the fact that he had examined the children at the request of the department. The medical defendants also rely on this court’s decision in Zamstein v. Marvasti, 240 Conn. 549, 692 A.2d 781 (1997), and contend that the public policy behind the child protection statutes requires the extension of immunity to physicians who act in good faith and perform independent medical examinations at the behest of the department to determine the existence of a reasonable suspicion of child abuse.
We begin our analysis with a review of the relevant statutory language. Section 17a-101 (a) is an express statement of public policy and legislative intent, and provides that: “The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for
In furtherance of this public policy goal of protecting children from abuse, the statute provides a comprehensive list of persons who are “mandated reporters,” many of whom are health care providers, including physicians either licensed in Connecticut or acting as interns or residents at our hospitals. See General Statutes § 17a-101 (b). Thus, the statute prescribes that a “mandated reporter . . . who in the ordinary course of [his or her] employment or profession has reasonable cause to suspect or believe that any child under the age of eighteen years (1) has been abused or neglected . . . (2) has had nonaccidental physical injury, or injury which is at variance with the history given of such injury, inflicted upon such child, or (3) is placed at imminent risk of serious harm, shall report or cause a report to be made [to the department] . . . .”
To encourage and facilitate compliance with the reporting statute, § 17a-101e provides several protections for persons or institutions who make reports to the department, among which is immunity from civil or criminal liability. Specifically, § 17a-101e (b) provides: “Any person, institution or agency which, in good faith, makes, or in good faith does not make, the report pursuant to sections 17a-101ato 17a-101d, inclusive, and 17a-103 shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed and shall have the same immunity with respect to any judicial proceeding which results from such report provided such person did not perpetrate or cause such abuse or neglect.”
Resolution of the issue on appeal turns, therefore, on whether Creutz was “making a report” of suspected child abuse or neglect as contemplated by the child protection statutes, despite the fact that it was a secondary determination of abuse. We conclude that Creutz’ act of describing the result of his examination of the children orally to Days, followed by his provision of a written account of that examination, clearly falls within the common usage of the term “report”; see American Heritage College Dictionary (4th Ed. 2002);
Indeed, our construction of § 17a-101e (b) as extending immunity to secondary reporters of abuse also is consistent with the legislature’s recognition of the important roles of medical professionals in the investigation of child abuse.
The plaintiffs contend, however, that our conclusion will have a deleterious effect because it will create “a loophole for medical malpractice committed against the state’s children” and always give “a physician in a similar circumstance ... a second chance to defeat a malpractice claim.” We disagree with the plaintiffs’ assessment of this holding’s effect on malpractice
The immunity afforded to a physician under § 17a-lOle (b) is limited to “damages [that] arise from the physician’s act of reporting and investigating child abuse,” not those that “arise from an independent act of medical negligence.” Doe v. Winny, 327 Ill. App. 3d 668, 678, 764 N.E.2d 143 (2002); id. (construing scope of Illinois immunity statute). The statutory immunity extends only to the determination of whether a child has been abused, not to the diagnosis and treatment of any underlying injuries. Put differently, if the department brings a child with a fractured leg to a physician, and asks the physician to: (1) treat the fracture; and (2) determine whether the child has been abused, the physician’s § 17a-101e (b) immunity would be limited to the abuse determination. See id., 680 (rejecting construction of immunity statute that would immunize physician “for his negligence in failing to observe a cancerous tumor on a child’s labia simply because the physician was examining the child as part of an investigation of a report of child abuse”). Accordingly, we conclude that, contrary to the plaintiffs’ concerns, the extension of immunity to physicians who participate in the investigation and reporting of child abuse does not give them carte blanche to commit malpractice with respect to the diagnosis and treatment of any underlying medical conditions.
We also note that our conclusion accords with our sister states that have considered this issue. Indeed, Lesley v. State ex rel. Dept. of Social & Health Services, 83 Wash. App. 263, 921 P.2d 1066 (1996), review denied, 131 Wash. 2d 1026,939 P.2d 216 (1997), is particularly on point.
In light of our conclusion that § 17a-101e (b) immunity is applicable to a physician who performs a medical examination of a child at the request of the department to determine whether reasonable cause exists to suspect child abuse, we turn to the facts in the present case. It is clear that Creutz, a mandated reporter under § 17a-101 (b), examined the children in the “ordinary course of [his] employment or profession” at the William Backus emergency room. General Statutes § 17a-101a. He then complied with § 17a-101awhen he relayed his findings, namely, that there was a reasonable suspicion of child abuse, to the department both orally and via written documentation. Inasmuch as the plaintiffs have not alleged that Creutz acted in bad faith during the examination and reporting process,
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes § 17a-101e (b) provides: “Any person, institution or agency which, in good faith, makes, or in good faith does not make, the report pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103 shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed and shall have the same immunity with respect to any judicial proceeding which results from such report provided such person did not perpetrate or cause such abuse or neglect.”
The following department employees were named as defendants both in their individual and official capacities: (1) Richard Days, a social worker; (2) Nancy Liebenson-Davis, a social work supervisor; (3) Antonio Donis, a program supervisor; and (4) Daphne Knight, a social worker.
The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
At her deposition, Welch testified that, on Friday, April 20, 2001, she had told the parents that she thought they should take Matthew to his pediatrician as soon as possible because she was worried that the bruising and rash might be signs of an underlying medical problem. She explained to them that she was a mandated reporter of suspected child abuse, and that it was imperative that Matthew be seen by a physician. Welch testified that, although the parents seemed agreeable to her suggestion, she contacted their pediatrician’s office the following morning to follow up on her concerns. Welch testified that she had attempted to contact the parents during the remainder of the weekend, but was unsuccessful. The next time Welch spoke with the pediatrician’s office was Tuesday, April 24, 2001, and the receptionist informed her at that time that the office already had made a report to the department.
Welch also reported that Manifold initially had expressed his desire to cancel or postpone the speech therapy appointment, but was dissuaded from doing so because there would be substantial delays in securing another appointment. At Manifold’s deposition, he stated that he realized that his son had the bruises and rash, and that he did not want his son’s appearance to be “misconstrued” because he had heard some “horror stories” about the department’s actions in similar circumstances.
Creutz testified at his deposition that the rash was actually petichiae, which are skin discolorations that may be caused either by trauma or platelet abnormalities. Creutz stated that they could have been caused by squeezing the child, but not from eating a lot of candy.
The parents stated similarly with respect to Kaylee.
We note that the trial court’s grant of the medical defendants’ motion for summary judgment is an appealable order. Although generally “[a] judgment that disposes of only a part of a complaint is not a final judgment”;
We also note that, in addition to appearing as coappellees in this appeal; see Practice Book § 60-4; the department defendants moved for summary judgment with respect to the claims against them on the ground that they were immune from liability pursuant to General Statutes § 4-165. The trial court denied their motion on August 27, 2004, and their appeal from that denial is pending in the Appellate Court.
We note that the plaintiffs appear to claim the existence of an issue of material fact with respect to whether Creutz was acting within the scope of § 17a-101e (b). We, however, disagree with their characterization of this inquiry as an issue of fact. Resolution of this case turns on a quintessential issue of law, namely, the application of an ambiguous statute to undisputed facts.
“Mandated reporters” must make an oral report to the department or a law enforcement agency within twelve hours of obtaining “reasonable cause to suspect or believe that a child has been abused or neglected or placed in imminent risk of serious harm . . . .” General Statutes § 17a-101b (a). The mandated reporter then must submit a written report to the department within forty-eight hours of the oral report. See General Statutes § 17a-101c. The required contents of the oral and written reports are prescribed specifically by General Statutes § 17a-101d, and include information necessary to identify and locate the child and the parents or other responsible parties, the age and gender of the child, and other details about the cause, nature and history of the suspected abuse, as well as any interventions taken to “treat, provide shelter or otherwise assist the child.”
Section 17a-101e (a) protects good faith reporters from discrimination or retaliation by their employers. Section 17a-101e (c), however, guards against intentional false reports of child abuse by providing fines or imprisonment for “[a]ny person who knowingly makes a false report of child abuse or neglect . . . .”
Although the legislature did not provide a definition for the statutory term “report,” the “word’s ordinary meaning,” as determined appropriately by review of its dictionary definition; Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 682, 849 A.2d 813 (2004); see also General Statutes § 1-1 (a); suggests that Creutz’ actions constituted a “report.” See American Heritage College Dictionary (4th Ed. 2002) (defining “report,” in relevant part, as noun: “1. An account presented usu[ally] in detail”; and as verb: “1. To malee or present an often official, formal, or regular account of. 2. To relate or tell about; present. 3. To write or provide an account or summation
We discuss the lads in Zamstein briefly to provide context for our discussion of the court’s reasoning in that case. During proceedings to dissolve their marriage, the plaintiffs wife accused him of sexually abusing their children; he was then arrested and prosecuted. Zamstein v. Marvasti, supra, 240 Conn. 551. At the same time, the plaintiffs wife brought the children to the defendant for a sexual abuse evaluation. Id. He met with the children and videotaped each session. Id. The plaintiffs complaint alleged that the defendant then provided copies of those videotapes for use in the criminal proceedings; the defendant, however, had deleted exculpatory material from the videotapes prior to providing them to the prosecutor. Id., 551-52. After a three month trial wherein the defendant testified for the state, the plaintiff was acquitted of the sexual abuse charges. Id., 552. The plaintiff “alleged that the state’s attorney’s prosecution of the plaintiff would not have continued but for the defendant’s provision of the edited videotapes.” Id.
The court acknowledged in Zamstein “that persons falsely charged with sexual abuse of children on the basis of incorrect evaluations may suffer great harm in both their social and personal relationships, and that such accusations have the potential of causing serious damage to a person’s reputation.” Zamstein v. Marvasti, supra, 240 Conn. 564. The court, however, nevertheless concluded that the greater social harm would be allowing the sexual abuse of children to go undetected. Id.
We note briefly that the legislative history of the immunity provision, while silent with respect to the precise issue in the present case, does, however, demonstrate the legislature’s awareness of the importance of the medical community’s role in the child abuse investigation and reporting process, and the health care professionals’ reluctance to be involved in the process in the absence of immunity from liability. Section 17a-101e (b) initially was enacted in 1965 as § 3 of Connecticut’s first mandatory reporting statute, Public Acts 1965, No. 580, and applied only to physicians and surgeons. Moving for passage of the bill that was enacted as Public Act 580,
General Statutes § 17a-101f provides: “Any physician examining a child with respect to whom abuse or neglect is suspected shall have the right to keep such child in the custody of a hospital for no longer than ninety-six hours in order to perform diagnostic tests and procedures necessary to the detection of child abuse or neglect and to provide necessary medical care with or without the consent of such child’s parents or guardian or other person responsible for the child’s care, provided the physician has made reasonable attempts to (1) advise such child’s parents or guardian or other person responsible for the child’s care that he suspects the child has been abused or neglected and (2) obtain consent of such child’s parents or guardian or other person responsible for the child’s care. In addition, such physician may taire or cause to be taken photographs of the area of trauma visible on a child who is the subject of such report without the consent of such child’s parents or guardian or other person responsible for the child’s care. All such photographs or copies thereof shall be sent to the local police department and the Department of Children and Families. The expenses for such care and such diagnostic tests and procedures, if not covered by insurance, shall be paid by the Commissioner of Children and Families, provided the state may recover such costs from the parent if the parent has been found by a court to have abused or neglected such child.”
Indeed, § 17a-101f evinces the legislature’s understanding that not all suspicions of child abuse will be determined correctly, as “[t]he expenses for such care and such diagnostic tests and procedures, if not covered by insurance, shall be paid by the Commissioner of Children and Families, provided the state may recover such costs from the parent if the parent has been found by a court to have abused or neglected such child.” (Emphasis added.)
See also Michaels v. Gordon, 211 Ga. App. 470,471,439 S.E.2d 722 (1993) (concluding that psychologist who interviewed two children at request of children’s services for investigation of possible sexual abuse was entitled to immunity from malpractice liability per statute providing that “[a]ny
Acknowledging that “[i]t is not that the doctor meant to do harm,” the plaintiffs argue for the first time in their reply brief responding to the arguments of the medical defendants that their allegations of medical malpractice substitute for or are evidence of bad faith. We decline to reach this argument because it is well settled that arguments may not be raised for