*1
temporary
disability
claimant's
total
ceased
Plaintiffs-Appellants, VII. Conclusion LASHLEY, Ph.D., Karen H. temporary disability T20 The benefits set Defendant-Appellee,
forth our compensa- schedule of tion designed replace injured are an work- Lynn Thomason, Rhonda Gilbert Medical partial er's wages total or loss of during the Center, Inc., An Oklahoma Professional healing period. injured An worker is enti- Corporation, Defendants. temporary tled to total disability compensa- 96,102. No. upon tion a showing physical incapacity and resultant inability to earn wages during Supreme Court of Oklahoma. healing period. Proof of capacity to do some sporadic occasional or during Feb. work healing period does not automatically destroy As Amended March injured right worker's temporary total disability compensation. judge's The trial finding that claim- temporary
ant's total disability ceased on
April 2, 1999, supported is not by competent
evidence. Accordingly, that finding is erro-
neous as a matter of law. Part -3-of the trial
judge's order on review is vacated and this
case is remanded to the judge trial with
instructions vacate the granted credit em- ployer temporary total disability paid to period
claimant for 2, 1999, April
through August
CERTIORARI PREVIOUSLY GRANT-
ED; OPINION OF THE COURT OF CIV- APPEALS,
IL 4, VACATED; DIVISION
WORKERS' COMPENSATION COURT PART;
ORDER IN VACATED CASE RE-
MANDED THE TO WORKERS' COM-
PENSATION COURT WITH INSTRUC-
TIONS.
1 22 ALL JUSTICES CONCUR. *3 Isaacs, Zerr, Naney
Garvin A. A. Garvin A. Isaacs, Inc., OK, City, Oklahoma Appel- for lants. Goolsby, Goolsby,
Robert T. Olson & Proc- tor, OK, City, Oklahoma Appellee. for McConnell, Laura Haag Hartzog, Conger, Neville, OK, Cason & City, Oklahoma for Guardian Ad Litem.1 OPALA,J. presented
1 The sole issue appeal this is whether evidentiary materials demon strate a nonactionable claim because the de fendant-psychologist's conduct contest range within the qualified of her privilege2 good-faith for reporting of child abuse? We answer in the affirmative. I THE ANATOMYOF LITIGATION appeal This is an summary judg- ment for the defendant Lashley, Karen H. Ph.D. Lashley], in an [Dr. action Steve Myers mother, Phyllis and his Myers [father] [grandmother] plaintiffs Myers [both named (in will plaintiffs be referred to as Myers ], plural) to recover for harm occasioned by allegedly substandard evaluative tech- niques in the treatment of Steve chil- (M.D.M. Myers, dren and Melanie who are parties appeal neither to this nor to the below), litigation Myers resulted in being wrongly identified as child abusers. 13 Steve and Rhonda Thomason May were married 7 1977. The three chil- Melissa, marriage dren born of the are Mela- nie and parents M.D.M. The divorced 11 custody December and the of their old- only Identified here are those counsel whose legisla- were carried from Title 21 to Title 10 appear names on the briefs in this court. (Oklahoma tion enacted in 1995 Child Abuse Act, Reporting 0.$.Supp.2001 and Prevention 2. The child abuse laws in force in § seq). 7101 et For the terms of the earlier January defendant-psychologist 1994 when the (pre-1995) statutory reporting privilege see 21 reported plaintiff's daugh- the sexual abuse of the ], 0.S.Supp.2000 § 0.8.1991 847 [now (Melanie) §§ ter were in 21 0.S.1991 843-848. note 21. infra change Without substantive these statutes reported Thomason Rhonda (then sexual abuse.5 years), went daughter, Melissa est departme police custody allegations to received same mother to the father. investigation, extensive After an (11 nt.6 daughters, Melanie younger the two charges against press police declined (6 During the years). and M.D.M. years) Myers. filing of the ten-year period between of this prosecution and the petition divorce brought January 1996 15 On have continued mother father and lawsuit Lashley, actions separate two domestic over various to do forensic battle Medical and the Gilbert Rhonda Thomason problems.3 (consolidated proceed joint Center, as Inc. plaintiffs purposes). The discovery ings took mother 1993 the November theo on three Medical their claims initially pressed to the Gilbert and M.D.M. Melanie *4 (a) Rhonda Thoma-s liability: ries of as Melanie diagnosed R. There Dr. Center. (b) against per se and for slander on7 fatigued. He referred and being depressed Thomason, Lashley the Dr. and Rhondo Lashley [Lash- Karen to Dr. and M.D.M. her infliction of negligent for center medical psychologist,4who clinical ley], a licensed (c) reckless as for as well distress emotional According to the clinic. practiced at then dis of emotional infliction intentional and/or notes, R his referral Dr. based Lashley's Dr. Dr. petitions name Myers amended tress. "anxiety, de about on concerns of Melanie allege and Lashley as the sole defendant8 Dr. possible abuse." pression and 9-professional Hability only two theories of January notes, a 30 during taken clinical infliction of emo and negligence intentional session, that Melanie therapy indicate 1994 ten Lashley's answer Dr. tional distress. sexual her father's about made allegations A defenses.10 affirmative several ders sexual abuse also revealed M.D.M. abuse. repre to appointed was ad litem guardian Myers. Phyllis grandmother, paternal her of the children. the interest sent Depart Lashley notified the Oklahoma Dr. damages for loss Myers sought January T6 Steve [DHS] Human Services ment of income, love and companionship, loss of of Melanie's receiving information 1994 about September materials, 1999. entered 9 prejudice order evidentiary According several to the modifications, 2000 orders, According court's 9 November to the trial custody protective victim order, Tho- Center and Rhonda Medical sought. Gilbert contempt were citations and by stipulation be to no declared mason were Licensing Psychologists Act see 59 O.S. Although 4. For action. longer parties defendant in this appeal, §§ 1991 1351-1376. it for is not in the record the latter order Lashley's 22 appendix to Dr. included in the was January Lashley's typed notes of 5. Dr. application for a writ of manda- November mus, fami- DHS and Melanie's she contacted state that as Dr. Karen H. styled court's docket on this allegations of sexual ly lawyer Melanie's about Coats, Nancy No. Lashley L. v. The Honorable of 30 *5 judgment stand, let Lashley the for Dr. we II need ground not examine it on the assigned by supported the trial court. by When the AND THEORIES CONTENTIONS record, legally prius correct nisi judgment THE OF PARTIES although must be affirmed it was anchored to A. theory different from that on which it comes appellate to be tested on review.12 Myers' Theories of Claim Which Stood under Consideration in the Appellate Controversy
The Mid-Trial
Summary Process
launching
18 In
her defense
Myers
below Dr.
T 9
argue that a mental health care
(or
professional
duty
Lashley
parent
perceived
impeded
owes
to a
had
herself
the
(a)
11. The trial court found that
as a matter of
requiring
denied her motion for order
limited
Lashley
(b)
law Dr.
owes no
to
psychologist-patient
and
privilege)
waiver of
and of
the claim is not actionable under state law
(overruling
when
compel
11 June 1998
motion to
Dr.
light
Sternlof,
measured in
of Paulson v.
Lashley
2000 OK
produce interrogatories
to
and docu-
128,
981;
Gammill,
ments,
CIV APP
15 P.3d
Zaharias v.
Judge
pre-
Amick reiterated his
149,
1992 OK
O.S.Supp.
P.2d 137 and 10
viously
position
psychologist
declared
that
§
waived).
patient privilege has not been
12. Akin v. Missouri
judge
Amick's orders of 26
trials;
this court Dr.
Maheras,
Melanie
nied,
provide
and records.
compel
order
40,
(of
6;
¶ 35,
Oklahoma Memorial
1994 OK
Wright
917 P.2d
M.D.M. and
977 P.2d
(1)
waiving
and/or
the trial
medical
Myers)
and
Lashley sought
37, ¶ 8,
to order Melanie
1995 OK
course of the
456, 465,
(2)
In the event her
Grove Sun
Lashley sought
1040, 1054;
(2) grant
Melanie's and
authorization;
former
court
873 P.2d
40, ¶ 7,
compel
Pacific
provide pertinent
Hosp.,
July
n. 40; Matter
to bifurcate the
an order that
original
Newspaper Corp.,
her relief from
guardian
R. Co.,
port Oklahoma's laws,15 upon negligent rather A. misdiagnosis children therapy-in them from harm to resultant Reporting Laws Abuse Child Oklahoma's suggestions of sexual abuse. duced reporting laws child abuse 1 Oklahoma's public interest strong express the State's B. policy children abuse protecting of Defense Under Theories and sus reporting of actual mandatory in the Consideration Nisi Prius appropriate neglect to pected child abuse *6 Summary Process statutory The agencies.17 authorities and pro care upon all health imposes third-party scheme in Lashley argues that 10 (teachers per other as well as all (those by pa fessionals brought are not suits sons) all good in faith obligation report tient) liability by the protected from she of child abuse suspected instances statutory through the afforded shield privi No her, Human Services.18 Department of According to reporting privilege.16 injury; physical mental or O.S.Supp. to nonaccidental §§ [row 10 843-848 15. 21 0.8.1991 seq.]. § ... et sexual 2000 7101 abuse, sexual exploitation, privilege O.$.Supp.1993 statutory reporting Dr. Lash- pertinent terms of 21 16. For the The 18. 0.S.Supp.2000 provisions ley O.S.Supp.2000 § of 10 were: § 7103] on the relies 10 [now (pre-1995) of the earlier § For the terms 7105. 1. A. Every: statute, § 21. note 21 O0.S.1991 see infra including surgeon, doctors of physician or a. osteopathic dentistry, licensed medicine and (now 0.S.Supp.1992 § 845 of 21 The terms examining, interns, and residents 7102) pertinent physicians, provided § O.S.Supp.2001 in age treating of attending child or under part: (18) years, eighteen provide policy of this state A. It is the attending examining, or registered nurse b. physi- have had protection children who of physi- treating the absence of such a child in who, in the injury upon them and inflicted cal surgeon, cian or concerning reports appropriate absence eigh- age any under the child c. teacher circumstances, may be fur- and their condition (18) years, and teen persons by re- the conduct of ther threatened person d. other protection such and sponsible for the care a child under having to believe that reason children. (18) physical years had age eighteen has of this 846 and 848 used in Sections B. As by injuries upon him other injury or inflicted title: injury appears where the accidental means than neglect" means harm or and 1. "Abuse physical caused as a result been have health or welfare harm to a child's threatened neglect, shall abuse, or abuse, sexual responsible child's health by person for the county the De- promptly to the matter welfare; office of or county partment a child's Services in harm to Human or threatened 2. "Harm injury suspected occurred. wherein the limited includes but is not or welfare" health any lege any person theory or contract will relieve from sional from one identified legally reporting requireme liability. mandated Rather, may it is the harm that knowing nt.19 The and willful failure to reporting flow from the which is made irre- (or report child making abuse of a false reporting dressable.24 The act of and the acting report) Any is a misdemeanor.20 one consequences of a psycholo licensed elinical good exercising faith due care gist's compliance lawful reporting with the reporting "immunity child abuse has very privilege statute lie at the base of the criminal, any liability, civil might or conferred. When constitutes otherwise be incurred." through instrument damage is in flicted, clearly case,25 as it does this it in, ambiguity 112 There is neither type matters not what of harm flows from between, nor conflict the various terms of the reporting or what theory common-law is in statutory reporting legislative laws. Their voked those recovery. who seek The easily intent can plain be divined from the statutory broad privilege extends all language across of the statutes.22 cognizable liability. protects theories of It every professional class B. any effort those who seek to recover Qualified Reporting The Statute-conferred for harm through occasioned the act of Privilege By Invoked reporting. short, the act itself as well {13 consequences as all the privilege compelled statute-conferred re shielding profes- is not aimed at porting stand privi- 23 shielded the law's * % o% Comm'n, 39, ¶ 7, Corp. homa B. person It shall be a Only misdemeanor for where the intent cannot be as knowingly willfully promptly fail to certained from a text, statute's as it would occur report any provided incident as (with statutes) in this sec- ambiguity when or conflict other exist, tion.... statutory was shown to rules of con (emphasis supplied). ¶ employed. Cooper, supra, struction be at at ¶ 468; TXO, at at 969. supra, 0.$.1991 § Supp.2000 19. 21 848 [now 10 O.S. (A)(3) § 7103 ]. For the then-effective see O0.S$.1991§ O.S.Supp.2000 [now (B) O.S.Supp.1993 20. 21 [row ], supra § 7105 note 21. *7 (C)(D)], O0.S.$upp.2000 § supra note 18. Shaw, 179, ¶ 9, Lynn 1980 OK 620 P.2d 0.$.1991 pertinent provisions 21. The of 21 eloquent example 901 affords an for this 0.$.Supp.2000 § [row 10 ] 7105 were: There, case. the court considered the continued actionability ques of criminal conversation. The Any person participating good in and exer- faith presented tion was whether that common-law cising making report pursu- due care in the aof statutory abrogation tort survived the of two oth provisions ant to the of 846 or Section 846.1 er torts-those of alienation of affection and of good title, of this or who, in faith any person According teaching Lynn, seduction. of care, exercising and due allows access to a necessary because criminal conversation is a in by persons investigate child authorized to a of, with, gredient and is intertwined both abol report concerning the child shall have immu- torts, abrogated by ished implication it stands criminal, nity any liability, from civil or that (although expressly it was not in mentioned might imposed. Any otherwise be incurred or name). by Similarly statute its here the statute participant immunity such shall have the same conferring privilege Dr. invoked does respect participation any judicial with to liability sweep theory, not limit its to on one proceeding resulting report. from such by but rather covers the harm occasioned her (emphasis supplied). duty. obedience to the upon 22. When the court is called to determine if scenario, applies given plaintiffs' analysis a statute All of the to a harm doubtless flows from its legislature. reporting. focuses on Cooper v. the intent of the defendant's act of This stands Record, H, Dep't Safety, State ex rel. Pub. uncontradicted. Plaintiffs' Exhibit of ¶ 10, 74-75, Deposition Phyllis law-making body Myers, pages Appen- 468. The of is presumed expressed only to have acceptable its intent in the dix at M62. Not does the infra language proof statute's support to have intended what the fail to the notion that substandard expresses. text Corp. TXO techniques produced Myers' Production v. Okla- evaluative alone in- nonpatients-for is the as harm themselves post-reporting of behalf lege.26 Whenever profes from sustained harm be it cannot recovery-and one's object of using sub allegedly negligence sional re bad-faith professional's ato connected discovery techniques for evaluative standard explicitly and falls both porting of abuse-it intra- improper patients' underage of con of the law's the ambit implicitly within submitting intimacy and then carnal familial privilege. ferred re statutorily-required a the authorities to not seek does this lawsuit Because T14 participants Myers revealed naming as port, children, but injury to for vindication with these physical contacts impermissible clear Myers which to that harm rather for themselves allege harm to Myers, who minors. consequence a direct ly as of flowed damages solely oc e,31 press for alon claim contest reporting, compelled by Dr. directly obliquely, casioned, from as one for detriment regarded must be short, report.32 In Lashley's child-abuse clinical licensed a reporting good-faith is the in contest gravamen the tort statutory reporting The psychologist.28 not reporting statute reporting. Had enough protect Dr. to privilege is broad the infor Lashley to submit commanded liability upon theories of all from would mation, scenario entire child-abuse harm reporting-occasioned recovery for pro private matter likely have remained aof the authorities to submission relat psychotherapist/patient tected report.29 child abuse lifted the report that ionship.33 It was and trans imposed that silence justice per concurring qualifiedly T 15 The public into private document purely formed of the ac characterization the court's ceives knowledge. ver of all excess Stripped flawed.30 tion as malprac- {16 Myers' claim is simplicity, articulate Whether to biage and reduced today's moment proper of no is doubt, recovery-in tice seek without a Myers, concurring justice for the calls qualifiedly legal 29. The militates jury, the law itself emphasis analysis greater with to recast its court conclusion. suggest or show negligence, does not requirement not insulate does The unpierced overcoming the method cognizable legally professionals from care health privilege. patients. It neither affects liability to their relationship nor physician-patient existence incorrectly concurring justice qualifiedly 30. The We that status. flow from duties that opinion flaw occa- the court's attributes not) (and here the actiona- address not do need recovery theory converting Myers' sioned flows to bility for harm a claim report- negligence to bad-faith professional children. today's pro- gist The ing child abuse. Myers' theo- what that no matter nouncement damages sought "loss of in- for 27. Steve they seek liability, for which ry the harm daugh- come," companionship of his "loss them, not from that which resulted recover is ters," distress at anguish and emotional "mental treatment, Lashley's diagnosis but from molester," "love and loss of being a child called to the authorities. abuse her child daughters" and "interference his affection of concurring premise, stat- justice's first qualifiedly Phyllis family relationship;" *8 with the writing, is paragraph his opening of ed in day care business" the ... from "lost income hence flawed. owned, expense," "medical and her son that she distress," "dam- anguish and emotional "mental supra 27. Myers' damages, note see For 31. enjoyment of reputation," and "loss of age to her granddaughter" M.D.M. of the consortium concurring justice calls on the qualifiedly 32. The response for sum- (joint to motion Tab # Rec. theory prius that rests its the nisi court to follow 19, 24). mary judgment pgs. at Lashley to a lack of judgment on her for Dr. that either of no rule nonpatient. We know as one for Myers their claim would describe to the appellate adherence a slavish mandates accurate characterization malpractice. more A analysis prius court or reasoning nisi of the or improper evalu- negligent might use be one for arguments requires follow counsel's this court to diagnosis that techniques child abuse ative sum, we dispositive the case. that are not The former required report to the authorities. advanced in theories either frozen to are not injury vindication would seek claim children, judge. prius by the nisi Myers. trial court utilized harm to is for while the latter attempting language used in is what No matter privilege, see psychotherapist/patient 33. For the hurdle contest, pigeonhole the tort note 58. liability the same. is infra analysis.34 dispositive The critical appellate issue is pronouncement.38 court's If the redressability whether assumed court were to reach very for decision the by unpierced statutory claim is defeated qualifiedly issue concurring which the jus privilege. unpierced Because privilege is settle, tice pronouncement seeks to its on here the insurmountable barrier to Dr. issue, clearly unnecessary that to the deci Lashley's liability, unnecessary it is for us to sion, would be an obiter dictum.39 malpractice theory test the actionability by nonpatients. It does not Myers matter if IV abstracto,
may,
nonpatient;
sue as a
they
THE
prevail
cannot
LEGAL
piercing
without first
SUFFICIENCY
THE
(avoiding
OF
or overcoming)
privilege.35
SUMMARY-PROCESS RECORD TO
THE
SUPPORT
NISI PRIUS JUDG-
17 The qualifiedly
jus
concurring
MENT
tice invites the
expand appellate
court
inquiry beyond
Summary process
the issues the case tenders.36
proce
is a
pretrial
dural
invitation,
device for
prompt
We must
decline the
and effi
mindful as we
disposition
cient
are of the
of an
principle
time-honored
action
that
sams forensic
courts
combat.
It
applied
is
where there is no
cannot
pronouncements
extend their
beyond
the strict
dispute
framework of matters that
as to the
must be
material
facts or as to
resolved.37 When issues decided
inferences
may
extend be
that
undisput
be drawn from
yond
presents,
facts,
those that the case
a cloud of
ed
the law favors the movant's
uncertainty
upon
is cast
the excess of
liability-defeating
claim or
defense.40 It is
significance,
It is of no
even if
bring
we were to
plaintiff
sufficient] to
within the orbit of
(which
not),
concede
privilege
we do
Id.,
that
lability."
defendant's
at
at 191. That
analyzed solely
asserted
must be
inquiry
theo-
would indeed
be in vain here. Dr.
ry
professional negligence.
The result would
clearly protected by
unpierced
is
statutory
an
privi-
of,
not,
be the same.
know not
and assert
lege.
injury
patient
but to themselves. More-
injury
over,
their own
wrong
stems not
Beall,
92, ¶ 4,
37. See Patterson v.
2000 OK
techniques,
evaluative
report's
but from the
reve-
J.,
(Opala,
P.3d
849-50
dissenting)
for a
injury may
lations. The children's
have been
warning
against
"hyperglobal"
sounded
pro
proximately
caused
substandard
evaluative
nouncements.
"Another
facet of the common
techniques
Myers' injury
whereas
would be from
law, one
Concept
legis
rooted in the Western
techniques'
based on those
results.
If
supremacy,
lative
precedent-issuing
is
that
consequences
harm
reporting-Dr.
from the
lawmaking
courts
power beyond
have no
alleged
act
protected
to be delictual-is
particular dispute
facts
being
entertained.
by privilege, what
theory
matters here is not the
legislature
A
can
captures,
issue a rule which
liability,
the outer reach of the
generality,
its
an infinite number of future situa
privilege.
tions,
extend,
holdings
but court
cannot
theoret
ically, beyond
precise
being
adju
situations
today
35. Because we conclude
that whatever lia-
Cappalli,
dicated." Richard B.
THs
bility
American
pressed
extinguished by
be
the in-
page
CommonLaw Merron
2.15 at
[1997].
voked
reporting,
statute-conferred
we
precisely
need not
define the essence of the tort
prosecute
Lashley.
seek to
technique
The common-law
abhors the notion
appellate pronouncement-one
of an excess
qualifiedly concurring justice's
36. The
call would
goes beyond the issues of the case and results in
change
not
victory
conclusion
withholds
principle
obiter dictum. This
coincides with the
Myers.
lawyer may
A
be liable in a mal
judicial economy.
demands of
Caselaw is con-
practice
brought by
suit
a nonclient. See Brad
fined to
binding
dimensions coextensive with its
Serv.,
Processing
Securities
Inc. v.
Bank
Plaza
ford
force.
(Opa-
Patterson,
note 37 at 849-50
supra
Trust,
&
190-91
la, J., dissenting).
(where
rejected
the court
*9
the then-decades-old
Cardozo, J.,
pronouncement
by
in Ultramares
separate writing
39.
Id. The
qualifiedly
of the
v. Touche,
not the
the
that
no doubt
There can be
silence.
jury,
by
for one
by affidavit
a trial
stitute
full measure
the
had received below
plaintiffs
summarily ter
of
a method
to afford
rather
is their con
process which
summary
of that
(or eliminating from trial
case
minating a
stands
Equally unassailable
due.
stitutional
or
of a claim
the merits
issues on
of its
some
privi
the
analysis of
pronouncement's
rem
this
of law
defense)
only questions
where
application
in its
outer reach
lege statute's
before
Summary relief issues stand
ain.41 -
defense.
liability-defeating
defendant's
the
scrutiny
court's
This
novo review.
us for de
of Dr.
put on notice
were
plaintiffs
Onee
accomplishedindepen
entire record
of the
44
the onus
privilege,
reliance on
Lashley's
trial
deference
dently and without
It
its effect.
to overcome
to them
shifted
resolution.42
court's
pierce,
or over
avoid
upon them to
called
{19
Lashley's
claimed substandard
Dr.
(either
all) by tender
privilege
or
come
of
her use
rests on
performance
professional
evidentiary materials
acceptable
ing
in
techniques
improper evaluative
allegedly
in con
conduct
psychologist's
show
would
two
the father's
with
therapy sessions
range
her
of
was outside
test
the sum
prevail
To
as
daughters.
minor
45
unaffected
claim to be
or their
protection
movant,
had
mary-judgment
liability.
immunity
Plaintiffs
by
from
her
(by proffered evi-
showing
initial burden
showing
by
pierced
privilege
have
could
material)
mate
one
of at least
dentiary
want
46of a
faith
bad
submission
clearly
Myers' claim.43 She
element
rial
to the authorities.
child-abuse
flawed
demonstrating
by
this
met
burden
to avoid
opportunity
They had the same
post-re
and all the
report of sexual abuse
by
invoked
legal incidence
from
shielded
harm to
stood
porting
pressed for
tort claim
showing that
their
qualified
conferred
by legislatively
liability
from
entirely disconnected
recovery of harm
privilege.
A
mandatory reporting.
consequences
ponder
summary
pause
who,
need not
confronted
120 One
when
party,
evidentiary material demonstra
rejecting
by
process
moment before
for a brief
even
statutory de
adversary's absolute
its
that the
tive of
suggestion
the delusive
out-of-hand
claim,
not act
does
pressed
against the
shortchanged
fense
legally
plaintiffs are somehow
complete
pierce,
abso
or overcome
avoid
today's affirmance.
by
456. A
¶ 24,
40 at
at
note
OK
45.
Comm'rs,
Manley,
1997
supra
v. Bd.
County
41. Russell
Holman,
summary process
492, 497;
80, ¶ 7,
Gray
confronts in
plaintiff
1995
who
v.
952 P.2d
776,
118, 11,
¶
cannot save
781.
absolute defense
909 P.2d
OK
demonstrated
legal
silence.
defeat mere
claim
8, ¶ 2,
America,
OK
1992
v. NTC
42. Mahan
C.J.,
805,
concurring)
(Opala,
808
832 P.2d
fact,
oppo
fides, is the
or mala
'Bad faith in
46.
utterly non-
(''The
review is
standard of
de novo
faith,
guilty knowl
good
consists in
site of
absolutely no
it ascribes
because
deferential
showing
vicious or
ignorance,
edge, or willful
findings.").
or An
weight
tribunal's
to a lower
Co.
& Investment
Burnham Loan
...."
evil mind
relief,
summary
in whole or
grants
der that
884,
189,
(1918)
Sethman,
887
171 P.
64 Colo.
v.
solely
questions.
It is hence
disposes
law
part,
Cas. Co. v.
supplied);
Mut.
(emphasis
National
Brown v.
standard.
a de novo
reviewable
1039,
159, ¶ 10,
Britt,
1041
P.2d
218
321;
319,
P.2d
32, 15,
OK
Nicholson,
85,
...");
Auth.,
good
("Bad
faith
Hosp.
OK
is the antithesis
faith
v.
Kluver Weatherford
1081,
("Issues
¶ 14,
are
of law
Commission,
Drug
v. State Tax
Stores,
Inc.
May's
appel
245,
(Iowa
319,
and an
a de novo standard
reviewable
45 N.W.2d
242 lowa
independent
plenary
for itself
court claims
late
opposite
good
1950)("Bona
faith is the
fides
authority
re-examine
faith...").
and non-deferential
Good faith is
or bad
mala fides
College
Regina
legal rulings."); Salve
trial court's
0.$.1991 §
intention
9 as "honest
defined
Russell,
S.Ct.
U.S.
taking
ad
unconscientious
to abstain
(1991).
1221,
pattern of utterly here. mary-process record. absent faith. It is good the "ex given mother had been €25 The B. care, control" of Melanie custody and clusive decree, of the By the terms and M.D.M.55 Alleged Harm That The Notion to the power to consent the sole hers was Eval- Substandard excluded Because the treatment.56 children's Disconnected Techniques Was uative privity with parent is not Mandatory noncustodial Consequences Of relationship,57 the psychotherapist/patient Support the Rec- Reporting Lacks 58 privilege statutory psychotherapist/patient ord except by Steve not be lifted could probative bur had the 124 inform health-related request for the upon his by responsive evidentia- to demonstrate den ation.59 by Dr. they harmed were ry material that Dr. showing here There is no 126 evaluative allegedly substandard report's re- of the the medical techniques in advance Lashley released 22; privilege 644, Although psychotherapist/patient 106, Eakin, 650 n. P.2d OK 914 1995 - (12 § 2503 O.S.1991 established statute is Corporation Mutual Dayton v. American Hudson (C)), creating psychothera- a the manner 193, OK 621 Insurance Company, Liability relationship persons under le- with pist/patient 272, Petition In re Initiative 1155, 1161; P.2d (infants incompetents) disability remains gal or P.2d 1963 OK. Question 409, State had at law. Parents steeped in the common power to treatment to consent common law the Hight, Guardianship In re for their children. The trial divorce decree. December 1992 55. 11 (parents are the P.2d OK authority provide medical for a minor's to court's and guardians minor children of their natural 0.$.1991(1) provisions of 43 out in the care is set custody, right control ordinarily to their have the provide: pertinent terms § 112. Its care); Note, Protect- Hawkins, D. and see Susan divorce, legal cross-petition Competent a petition for Mi- ing Rights A or and Interests Disputes, Litigated Treatment Medical REV.2075, whether nors annulment must state or separation, (sur- (1996) of the parties have minor children not the or FORDHAM L. legal marriage. history minor children of veying If there are children's legal custody infant is marriage, rights). of an the court: When sole guardianship, duty parent provision placed on that given parent, is 1. Shall make one care, concerning care and support and education its custody, make all decisions medical to children; give to People power to consent with control. of the power generally to have supplied). for infants {(emphasis treatment of its and be informed the treatment monitor ordinarily parent no bears recognition progress. custo- A custodial legislature's 56. For the any parent of noncustodial right treat- to advise the parent's to consent to exclusive dial O.$.1991 had procedure which consent ment, § or to 170.1. treatment see the terms of strang- Myers was a given. Steve authority Because power to been is the with that Coextensive status, privy to the he was not the custodial er to informed of its and be monitor the treatment Phyllis relationship. psychotherapist/patient _ perti- provide progress. terms of 170.1 The grandmother, stood in an Myers, paternal nent part: legal even more remote position. legal parents custo- parent, have if both Either having legal person custo- dy, parent or or the (C) 0.$.1991 (Physi- § 2503 of 12 58. The terms may au- dy legal guardian a minor or Privilege) pro- Psychotherapist-Patient and cian thorize, person writing, adult into pertinent part: vide in been entrusted care the minor has whose pa- claimed be anesthetic, C. The examination, consent any x-ray tient, surgical diagnosis per- and guardian or treatment medical or or conservator or his patient. to said minor hospital representative to be rendered a deceased care sonal special supervision physician psycho- general or person or was the under The who surgeon physician upon therapist of the communication the advice of at the time privi- authority of Okla- to claim the presumed laws of the State to have licensed under the examination, homa, x-ray patient. to an only or to consent lege behalf of the surgical diagnosis or dental anesthetic, 0.$.1991 § 5.2 allow provisions hospital rendered to care to be treatment and under the laws access a dentist licensed said minor noncustodial upon request, parent, * * * that is available medical information minor's the State of Oklahoma. parent: the custodial (emphasis supplied). *12 through the commanded submission to the father before its submission to offic DHS only alleged by Myers ials.60 harm authorities child-abuse information. In by and shown this record to them short, occurred plaintiffs' the elaim to for recover report's after the submission.61 Had the by harm Lashley's allegedly occasioned Dr. compelled statute not submission substandard evaluative techniques must reports, of child-abuse medical by stand defeated statutory reporting likely private records would have remained she invoked below.62 protected matter Myers' probing eyes evidentiary 129 The materials fail to dem- by psychotherapist/patient relationship. onstrate actionable claim summary-process 1 27 The totally record is record, Lashley. On this clearly conduct probative devoid of any documents that show falls short good of demonstrated lack faith. by damages occasioned harm disconnected {30 The trial summary judgment court's is consequences from the mandatory report- affirmed. short, ing. Myers In have failed to meet probative their by proffer burden of evi- HARGRAVE,C.J., HODGES,
dentiary materials that psy- would show the LAVENDER, chologist's conduct in SUMMERS contest was outside the range legislatively of her qualified WINCHESTER, JJ., conferred concur.
reporting privilege. BOUDREATU, J., concurs result. y KAUGER, J., part concurs in part. dissents in
SUMMARY Liability will not attach to a lHiecensed WATT,V.C.J., T34 dissents. psychologist protected clinical by the statuto- ry reporting legislation alleged post- for her 1 35 APPENDIX A reporting harm that legiti- flows from the consequences providing mate information DR. LASHLEY'S SUMMARY PROCESS by coerced Reporting privilege law. shields EVIDENTIARY MATERIALS professional against all theories of re- covery (1989 suit) information-occasioned harm I 36 A-Petition divorce Exhibit Any any relating information or contrary record ato at "I62. No statement is found in infra the minor child evidentiary which is available to the custodial materials. child, parent upor request, of the shall also be Record, H, Deposition Plaintiffs' Exhibit provided parent the noncustodial of the child. 74-75, Phyllis Myers, pages Appendix at however, right Provided, may that this be re- infra court, by upon application, stricted if such necessary action is deemed in the best interests 62. Even if we were to answer in the affirmative section, purpose of the child. For the of this question posed by qualifiedly concurring include, "information" and "record" shall but justice-ie., Lashley whether Dr. does owe a to, not be limited information and records duty of due care to "who were never her school, kept physician and medical fa- patients'"-upon concluding that this is indeed cility of the minor child. lawsuit, quintessence we could not added). (emphasis because, hold in This is so assum- favor. refused, request parent If the is the noncustodial ing a breach of to the children and of the judicial proceedings resort to to secure the duty Myers, gist same the harm requested but undelivered information. There is underage assert is not in detriment to the statutory duty no to release a child's medical themselves, patients damage all of parent information to a noncustodial before a report. which stems child-abuse request request has been made. Even when a sum, no concrete benefit would be derived from made, history may access to a child's medical be confining analysis appellate reexamining restricted the court. Myers' theory judge's lawsuit on and the trial According plaintiffs' probative response. qualifiedly substi- Were we to follow the con- record, Phyllis Myers call, tutes in the curring justice's knew of no one our conclusion would still who had been informed evidentiary about the remain the same-the materials do allegations of pierce, child sexual abuse in statutory privi- advance of not avoid or overcome the report's lege submission to DHS officials. by any Rec- either demonstrated mala fides ord, H, 74-75, pages Appendix Plaintiffs' Exhibit other means. peti- Myers' original Q-Phyllis Exhibit di- 1 52 for 1989 B-Docket sheet
T37 Exhibit 1996) (dated January (submitted tion that several suit to show voree contempt sought) were citations Myers' original peti- 153 Exhibit R-Steve 1996) (dated January *13 (entered tion [38 11 Exhibit C-Divorce decree 1989) _ December "[54 APPENDIX B 8 December €39 Exhibit D-Father's PROCESS MYERS' SUMMARY rights modify visitation motion to MATERIALS EVIDENTIARY application for con- E-Father's Exhibit (12 of Dr. tempt citation Exhibit A--Affidavit Smith 2000)(submitted {41 to show that Lashley January F-Deposition of Dr. Exhibit unacceptable interview tech- Lashley used (15 1999) October psychia- psychology field of niques (9 billing R's statement 42 Exhibit G-Dr. of ac- the standard try which were below 1993) (submitted Mela- to show November providers ceptable care for mental health fatigued). depressed and diagnosis as nie's professional negli- gross and constituted chart H-Dr. medical 1 43 Exhibit gence). (submitted R that Dr. to show for Melanie Myers Melanie Exhibit B-Affidavit of 1 56 on concerns of based his referral Melanie 2000) (submitted (7 January to show that possible anxiety, depression and about (a) Lashley put and ideas words abuse) (b) head, therapy; used recall Melanie's notes Mela- I 44 Exhibit I-Handwritten (c) relationship unprofessional and had an (submitted to show that she believed nie with Melanie). by her fa- sexually abused she had been Richard C-Deposition Exhibit of Dr. T57 ther). (sub- (7 1995) Swink, psychologist June F. (19 Lashley's typed note « 45 Exhibit J-Dr. counseling sessions to show that the mitted 1993) November Myers to make and Melanie led M.D.M. Myers K-Deposition Phyllis abuse) Exhibit of « 46 allegations false of sexual (19 1997)(submitted September to show (20 *14 ing. N-Copy 1 68 Exhibit of Peterson v. Walen- tiny, (unpublished January opinion 1995 seeking judgment In by summary pro T4 cess, moving party the of U.S. Dist. Court for the Northern Dis- has the initial burden Oklahoma, trict of 1995 U.S. Dist. LEXIS showing of that there is no substantial con 4290)(submitted factually in to show that a troversy any as to material fact. Bowers v. 14, 933 federal court Wimberly, 312, case, unpublished 1997 OK P.2d similar ¶ opinion duty held that a defendant owes a 315. The "Statement of Material Facts As the chil- To Which No Material Issue Exists" submit party examining ato third when psychologist ted the defendant does not possibility dren to assess of sexual abuse). origin address the nature or of the harm by plaintiffs. suffered Because the defen BOUDREAU, J., in result. concurring any dant does not set forth material facts [1 Although agree I with the result relating origin plaintiffs' damages, of my majority, reached in view this case plaintiffs have no burden under Rule 13 to fairly deciding, cannot be determined without any evidentiary relating submit materials to did, origin damages. By deciding of their as the trial court whether the defendant psychologist duty plain- a of care to the owed presented this issue before it was as an majority duty fact, tiffs. The avoids the issue of undisputed majority deprived has by converting plaintiffs' plaintiffs from one for opportunity accept to submit claim negligence reporting evidentiary to one for bad faith of able materials to establish that child abuse. their harm "disconnected from the con was sequences mandatory reporting." of theory legal recovery Plaintiffs' of fairly 15 This case cannot be decided i.e., clearly professional negligence, the use treating it as one for bad faith of allegedly substandard evaluative tech- Rather, compels child abuse. the case us to niques plaintiffs being resulted in plaintiffs decide whether can maintain an wrongly identified as child abusers. Plain- professional negligence against action for appellate in tiffs concede their brief that the psychologist. specifically, requires More it psychologist is immunized from harm following us to question: answer When suspected occasioned child examining to possibility children assess the they attempt pierce abuse and make no to abuse, profes- of sexual does a mental health statutory reporting privilege. They point duty suspected sional owe a of care to the out, however, psychologist's that the conduct abusers? making in this case was not limited to the report. They they contend suffered harm T any negligence 6 The first in prerequisite psychologistnegligently misdiag- proceeding because the must be to establish the existence planted nosed the children and legally cognizable duty. and rein- of a v. Wofford Hosp., forced false memories of sexual abuse the Eastern State They argue Duty question minds of the children. to is a of law and damages the extent their expression flow this con- be viewed as an total the sum duct, psychologist policy cannot benefit from of those considerations of which lead first instance. Simi- not be discovered to plaintiff is entitled say that the
the law to such consider- chil- diagnosis, Id. at 519. "Of protection. larly, evaluation without not re- establishing would important have been abused most dren who ations the Accordingly, treatment. However, ceive needed fore- foreseeability." Id. duty is encouraging mental health utility social not a sufficient basis seeability alone is determining wheth- duty. diagnosis creating a new in the professionals to assist weighs sexually abused children consider the impose duty, treatment of we must er injury risk, foreseeability and likelihood suspected imposing duty of care against utility the ac- weighed against the social abusers. conduct, of the burden magnitude tor's imposing a consequences injury and the conse- guarding professionals health duty care on mental on the actor. placing that burden quences of patient would be beyond that owed to the Johnston, OK See Smith has the Imposing such significant. 2; & see also Prosser 1262 n. P.2d pro- health discouraging mental potential of (5th at 359 and n. Torts Keeton on abuse performing sexual fessionals ed.1984). per- liability to out of fear of evaluations professional in- health T7 a mental When profes- they implicate. Even those sons having as been correctly diagnoses a child willing perform evaluations sionals abused, persons sexually the risk of harm cases, that no in close conclude might, *15 clearly fore- falsely accused of that abuse of labili- occurred based on fear abuse has of child falsely accused Persons seeable. judgment. I professional ty rather than undoubtedly exposed to a are sexual abuse Supreme Pennsylvania agree with They harm. significant risk of substantial imposing it said that such when Court their likely great harm in both are to suffer necessarily change very duty "would relationships and professional personal and therapeutic treatment in that nature damage invariably to their suffer serious will constantly eval- therapist have to would foreseeability of reputations. The risk to determine conflicting duties of care uate would, countervailing harms absent these treatment appropriate manner duty factors, imposition legal for the call Cohen, 562 proceed." Althaus v. should professionals toward health of care on mental (2000). 547, 1166, 1171 756 A.2d Pa. evaluating chil- suspected when abusers [ factors, I am con Weighing all these possible abuse. dren for sexual encourag the societal interest vinced that However, professionals mental health T8 evaluation, discovery, reporting and ing the possible children for sexual evaluate who outweighs of child sexual abuse treatment societal perform a valuable and useful abuse falsely ac public persons benefit poli- strong public function. has Oklahoma they permitted might if were cused derive cy protect children who have been abused negligence against a men proceed in a action further threat- neglected and who be Accordingly, I professional.1 tal health persons responsible ened the conduct examining children to hold that when would health, safety of such children. or welfare abuse, possibility a men of sexual assess § 10 0.8.2001 [now 21 00.98.1991 duty professional does not owe tal health (A)(1) end, statutes this Oklahoma Toward ]. suspected abusers. care to investigation of reporting and require the §§ 21 0.8.1991 8483- suspected child abuse. seq.]. §§ 7101 et 10 0.8.2001
848 [now diag- effective evaluation and
T9 Without
nosis, would of child sexual abuse instances (2000); hen, 756 A.2d jurisdictions 562 Pa. have held that mental
1. Four other
W.C.W.,
(Tex.1994). The
Notes
D-Dr. notes Jan- 58 Exhibit molesta- allegations made of M.D.M. had 1994) (submitted that she uary to show Myers, were re- against Phyllis tion reported allegations of sexual abuse to resulted in an ported to the authorities and family lawyer). DHS and to Melanie's allegations) investigation about those (15 Lashley's deposition E-Dr. 1 59 Exhibit L-Deposition Exhibit of Steve 1999)(submitted clini- show her October (13 1997) November occur, opinion abuse did cal that sexual sup- that there is no concrete evidence M-History physical of and 148 Exhibit view). port her Bethany at the Health Melanie conducted 1994) (20 February Center F-Bethany Department Exhibit Police 1 60 reports allegations investigative of (1 N-Dr. letter June Gude's Exhibit Phyllis Myers of sexual abuse. against 1995) (submitted Melanie had to show that had been sexu- told another doctor she Doug G-Deposition of Huchte- 1 61 Exhibit father) (16 1998) ally by her man, abused police July Bethany officer { VPOs, O-Copies protective Phyllis Myers H-Deposition Exhibit of 62 Exhibit (submit- (submitted orders, (9 1997) police reports eriminal September and to show the mother and father had accusation ted to show that devastated she was distress, disputes during period emotional various domestic child abuse and suffered 1995) income, expenses 1988 to medical loss of enjoyment grandehild). of her loss of {51 appointment Exhibit P-Court Lashley's progress re- Exhibit I-Dr. minor children T63 Ad Litem for Guardian 2001) (20 (8-18-95) (Melissa M.D.M.) February port provided immunity statutory re- porting privilege. transcript applica- J-Partial Exhibit majority acknowledges plaintiffs' T3 The (28 emergency February order tion 1994) negligence plaintiffs claim is one for and that attempt pierce make no priv- Danner, Kelly 65 Exhibit K-Affidavit Nevertheless, ilege. majority goes on to current husband former wife of Rhonda's redefine the case as one in which all of (18 2000). January , plaintiffs' harm psychologist's flows from the L-Myers' separate petitions 166 Exhibit summary process rec- reporting. act (4 January 1996) support ord below does not the assertion of mojority M-Deposition plaintiffs' that all T67 Exhibit of Steve harm (13 1997) November psychologist's report- act fAowedfrom