Shannon and Danny NELSON, Individually, and on Behalf of E.N. f/k/a E.N., a Minor, Appellees, v. Lynn M. LINDAMAN, Lynn M. Lindaman, M.D., P.L.C. d/b/a Lindaman Orthopaedic, and Mercy Medical Center—Des Moines, Appellants.
No. 13-0719.
Supreme Court of Iowa.
April 24, 2015.
Rehearing Denied May 20, 2015.
Connie L. Diekema, Erik P. Bergeland, Kellen B. Bubach of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellant Mercy Medical Center—Des Moines.
Eric M. Updegraff of Stoltze & Updegraff, P.C., Des Moines, and Jeff Carter and Zachary C. Priebe of Jeff Carter Law Offices, P.C., Des Moines, for appellees.
WATERMAN, Justice.
In this appeal, we must address the immunity from civil liability afforded by
The infant‘s adoptive parents filed this medical malpractice action, alleging the physician‘s negligence and reckless or willful conduct was a proximate cause of the baby‘s subsequent injuries because the DHS relied on his assessment to initially decide to leave the baby with the baby‘s father. The defendants moved for summary judgment, asserting the physician participated in the DHS assessment in good faith and therefore is immune from liability under
For the reasons explained below, we hold the defendants are entitled to good-faith immunity under
I. Background Facts and Proceedings.
The parents of E.N., a three-week-old infant, brought him to the emergency room at Mercy Medical Center with a broken arm on June 18, 2009. His father, Jonas Neiderbach, claimed that he heard a snap as he set his baby down with his arm behind him. Dr. Scott Barron, a pediatric emergency room physician, did not believe
On June 19, Dr. Lindaman saw E.N. and successfully immobilized the arm. Dr. Lindaman noted in his treatment plan, “At this time the injury does fit with the mechanism described. I don‘t see any signs of any other skeletal trauma.” Meanwhile, Brown had already told the Polk County Attorney she would probably be requesting a no-contact order against the father. Brown phoned Dr. Lindaman to continue gathering information for her assessment. Her notes of their conversation state:
This worker spoke[] with Dr. Lindaman.... Dr. Lindaman indicated that if the father was holding baby by the chest and laying him down on the bed, placing him down with one side of his body coming into contact with the bed first, that it was plausible that the arm on that side of the body could get pinned under his body behind him.
This worker questioned whether a child, weighing only 8 lbs. 11 oz., would have enough force to create this injury. I also provided information that dad had provided a different explanation with how he laid [E.N.] down, with one hand under its head and the other under its butt. I also questioned whether a crying child‘s arm would go back behind him as he would more likely to be pulling his arms tight in front of him. Through this line of questioning, he stated on several occasions, “the mechanism they described fits the fracture seen.”
Dr. Lindaman also indicated that he did not see any other injuries. He also stated that the family appeared appropriate and they brought [E.N.] in immediately. Dr. Lindaman stated that he saw no evidence to indicate healing of the fracture, which would indicate it was consistent with the time frame provided by parents. All these factors lead to his assessment of the injury.
Following her conversation with Dr. Lindaman, Brown decided not to seek a no-contact order and allowed E.N. to go home with a family safety plan in place. E.N.‘s parents and paternal grandfather, with whom E.N. lived, agreed that E.N.‘s father would not be left alone with E.N. Due to her continuing concerns and what she saw as conflicting medical opinions, Brown spoke with her supervisor and scheduled a multidisciplinary team meeting for June 30 to discuss E.N.‘s case.
On June 26, Dr. Lindaman conducted a follow-up visit with E.N. at his office. Dr. Lindaman performed a physical examination while E.N. remained in his mother‘s arms. The arm bone was in good alignment and x-rays taken that day showed good early healing. Dr. Lindaman focused on the healing arm bone fracture without examining E.N. for signs of any other injuries. It is unknown whether a full body examination that day would have detected the rib fractures that were discovered twelve days later.
The court entered the no-contact order on Wednesday, July 8. Normally, such orders are served immediately. However, the DHS decided to serve the no-contact order on Friday, July 10 when the family returned from a nearby camping trip. In fact, the family was not camping. E.N.‘s grandfather (a DHS employee) took E.N. to DHS headquarters the afternoon of July 8 to meet his coworkers, and E.N. appeared to be in good health at that time. The DHS did not attempt to serve the order that afternoon. On the evening of July 8, E.N. was admitted to the hospital with massive brain injuries. E.N. also had seventeen rib fractures, some fresh and some older.
E.N.‘s mother and father were charged with child endangerment. The mother pled guilty and was sentenced to twenty years in prison. The father was found guilty by a Polk County jury and sentenced to fifty years in prison. See State v. Neiderbach, 837 N.W.2d 180, 189 (Iowa 2013).
In an affidavit executed January 10, 2013, Dr. Lindaman described his involvement with E.N. and the DHS. He described his impression of being called in for a limited consultation regarding the treatment of a fracture. He states that he was aware other physicians were already evaluating child abuse issues, and therefore he
made no effort to make my own evaluation of the credibility of the father with regard to the medical history.... The only opinion I developed was that ... the history could possibly be consistent with the type of spiral humeral fracture I observed in this child.
Dr. Lindaman also described his phone call with Brown as follows:
As the DHS investigator‘s notes of the call they had with me indicate, I refused to give them any opinion regarding the credibility of the father‘s story or regarding child abuse, even though they raised with me some issues that they thought undercut his credibility. The reason I refused to give them any opinion regarding credibility and child abuse is because I had not performed an investigation regarding child abuse. Therefore, each time the DHS raised an issue concerning that, I repeated the only opinion I could help them with for their assessment; namely, my opinion that, as a matter of biomechanics, the mechanism that the parents had described to me fit the fracture seen, by which I meant that the father‘s story about the arm being pinned and twisted behind the child‘s back, if true, could be consistent with a spiral humeral fracture occurring in that arm.
Defendants moved for summary judgment on several grounds: the immunity under
Based upon the record made the court concludes that the summary judgment motions should be denied. There are genuine issues of material fact as to whether the defendant doctor rendered an opinion or not for DHS, whether reliance on that opinion caused injury to the child, whether the doctor‘s communications to DHS were in good faith or not, whether the doctor‘s conduct provides immunity and whether the communication with DHS was actually aiding or assisting in a child abuse assessment.
We granted defendants’ application for interlocutory appeal and retained the appeal.
II. Standard of Review.
“We review a district court decision granting or denying a motion for summary judgment for correction of errors at law.” Wallace v. Des Moines Indep. Cmty. Sch. Dist. Bd. of Dirs., 754 N.W.2d 854, 857 (Iowa 2008). “A matter may be resolved on summary judgment if the record reveals only a conflict concerning the legal consequences of undisputed facts.” Id.; see also Garvis v. Scholten, 492 N.W.2d 402, 403 (Iowa 1992) (same). Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.”
III. Analysis.
We must decide whether the district court erred by denying defendants’ motion for summary judgment based on the statutory immunity in
We begin with the text of
A person participating in good faith in the making of a report, photographs, or X rays, or in the performance of a medically relevant test pursuant to this chapter, or aiding and assisting in an assessment of a child abuse report pursuant to section 232.71B, shall have immunity from any liability, civil or criminal, which might otherwise be incurred or imposed. The person shall have the same immunity with respect to participation in good faith in any judicial proceeding resulting from the report or relating to the subject matter of the report.
In Garvis, we specifically noted the purpose of immunity under
A. The Scope of Immunity Under Iowa Code Section 232.73.
“Good faith” under
“As good faith means only honesty in fact, negligence ordinarily has no significance. That is, the honesty in fact that constitutes good faith merely requires honesty of intent and it is not necessary to show that the person was diligent or non-negligent. Bad faith, then, is obviously something far more extreme than a failure to observe reasonable ... standards or the standards of a reasonably prudent [person]. It is irrelevant that the person in question was negligent in forming a particular belief. All that is required ... is the actual belief or satisfaction of the criterion of ‘the pure heart and empty head.‘”
Id. (quoting Jackson v. State Bank of Wapello, 488 N.W.2d 151, 156 (Iowa 1992)). Thus, persons aiding or assisting in a child abuse investigation are entitled to immunity under
We are mindful of the legislative directive that chapter 232 “shall be liberally construed to the end that each child under the jurisdiction of the court shall receive ... the care, guidance and control that will best serve the child‘s welfare.”
Children in this state are in urgent need of protection from abuse. It is the purpose and policy of this part 2 of division III to provide the greatest possible protection to victims or potential victims of abuse through encouraging the increased reporting of suspected cases of abuse, ensuring the thorough and prompt assessment of these reports, and providing rehabilitative services, where appropriate and whenever possible to abused children and their families which will stabilize the home environment so that the family can remain intact without further danger to the child.
In Maples, parents brought their four-month-old child to a hospital where Dr. Siddiqui diagnosed the baby with failure to thrive that she attributed to poor parenting skills. Maples, 450 N.W.2d at 529. The child was placed in temporary foster care, but further studies determined that malabsorption syndrome was responsible for his failure to gain weight. Id. at 530. After the child was returned to his parents, they sued Dr. Siddiqui for their loss of companionship and society while the child was in foster care. Id. Dr. Siddiqui moved for summary judgment based on
The case turned on the communication Dr. Siddiqui made to the juvenile authorities. Id. at 530. That communication caused the child‘s removal from the home. Id. The parents argued that the doctor‘s negligence in diagnosing his condition negated the good-faith element of
In Garvis, we elaborated on the good faith required to establish immunity. Garvis, 492 N.W.2d at 404. Laurene Garvis attended counseling sessions with Dr. Scholten, during which she discussed her relationship with her children. Id. at 403. An investigator for the DHS called Dr. Scholten, identified herself as a protective services investigator, and requested information from the counseling sessions. Id. Dr. Scholten provided that information, and the child abuse report ultimately proved founded. Id. Laurene brought suit for compensatory and punitive damages for disclosure of confidential medical information. Id. The parties disagreed whether a subjective or objective standard of good faith should be used to establish immunity under
These cases make clear that a physician responding in good faith to inquiries from a child abuse investigator is entitled to immunity from claims alleging not only negligence, but the willful, wanton, or reckless conduct required for punitive damages. See id. at 403-04. The legislature, when it chooses, knows how to limit immunity provisions to simple negligence claims because in other immunity statutes it has carved out exceptions to
B. The Record Supporting Summary Judgment on Immunity. Against this backdrop, we turn to the evidentiary record to determine if defendants were entitled to summary judgment under
Courts applying equivalent subjective good-faith immunity statutes have not hesitated to grant or affirm summary judgment when there was no evidence the defendant was dishonest in reporting to the child abuse investigator. See, e.g., Wolf v. Fauquier Cnty. Bd. of Supervisors, 555 F.3d 311, 319 (4th Cir. 2009); Watson v. County of Santa Clara, 468 F. Supp. 2d 1150, 1156-57 (N.D. Cal. 2007); O‘Heron v. Blaney, 276 Ga. 871, 583 S.E.2d 834, 836-37 (2003); Baldwin Cnty. Hosp. Auth. v. Trawick, 233 Ga. App. 539, 504 S.E.2d 708, 710 (1998); J.S. v. Berla, 456 S.W.3d 19, 24 (Ky. Ct. App. 2015); S.G. v. City of Monroe, 843 So. 2d 657, 661-64 (La. Ct. App. 2003); Rite Aid Corp. v. Hagley, 374 Md. 665, 824 A.2d 107, 121-23 (2003); Yuille v. State, 111 Wash. App. 527, 45 P.3d 1107, 1110-11 (2002); Whaley v. State, 90 Wash. App. 658, 956 P.2d 1100, 1106-07 (1998); Lesley v. Department of Social and Health Services, 83 Wash. App. 263, 921 P.2d 1066, 1075-76 (1996); Thomas v. Sumner, 341 P.3d 390, 400-01 (Wyo. 2015). As the U.S. Court of Appeals for the Fourth Circuit concluded:
In other words, the statute provides that immunity will dissolve only in those infrequent circumstances where someone used the reporting system for purposes other than that for which it was designed—namely, the protection of children. It is very clear what the General Assembly wished to do, and we will not make public policy of our own by pursuing a different course—specifically, that of discouraging the reporting of suspected child abuse by exposing either
mandatory or voluntary reporters to the significant risk of civil liability. Viewing the evidence in the light most favorable to plaintiffs suggests that Stephens was at worst negligent in making the report, and negligence is a far cry from “bad faith.”
Plaintiffs have not alleged or suggested any untoward animus, pre-existing bad blood, desire for revenge, or the like that would strip Stephens of immunity.
Wolf, 555 F.3d at 319. The Watson court required proof the defendant knowingly made a false report or recklessly disregarded its truth or falsity because permitting a lesser showing to avoid immunity
would discourage reporting and invite protracted litigation. Indeed, the protections of [California Penal Code] § 11172 would be meaningless if immunity applied only after defendants are able to assert and prove its application in litigation. Thus, plaintiffs’ claims fail unless they properly allege facts showing that defendants are not subject to § 11172 immunity. In addition, under § 11172, to the extent plaintiffs claim that defendants are not mandatory reporters, plaintiffs nevertheless must allege facts showing that § 11172 immunity does not apply because the report was false and the person making the report knew the report was false when made or made the report with reckless disregard of the truth or falsity. Plaintiffs have not done so.
Watson, 468 F. Supp. 2d at 1157 (citation omitted).
The Georgia Supreme Court declined to read an objective reasonableness standard into that state‘s immunity statute because to do so would make it more difficult to grant summary judgment and increase litigation risk, resulting in a chilling effect on reporting child abuse:
A subjective standard is even more appropriate under the child abuse reporting statute because it ... imposes criminal penalties. Thus, the relevant question is whether the reporter honestly believed she had a duty to report. A reporter acting in good faith will be immune even if she is negligent or exercises bad judgment.
... The court of appeals confused the two separate aspects of immunity under the statute, superimposing a requirement of reasonableness on the good faith standard. Under the court of appeals standard, even if a reporter has reasonable cause to believe that child abuse has occurred, a jury question could still exist on the issue of bad faith. This interpretation chills the reporting requirement and fails to honor the legislative goal of protecting children by encouraging the reporting of suspected child abuse.
O‘Heron, 583 S.E.2d at 836-37 (footnotes omitted). The Georgia Court of Appeals elaborated on the subjective good-faith standard and distinguished medical negligence in holding medical defendants were entitled to summary judgment:
Bad faith is the opposite of good faith, generally implying or involving actual or constructive fraud; or a design to mislead or deceive another; or a neglect or refusal to fulfill some duty, not prompted by an honest mistake as to one‘s rights or duties, but by some interested or sinister motive. Bad faith is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will. Standing alone, the failure of [the medical center‘s] personnel to take into consideration the effect
[the child‘s] prescription medicine might have had on the results of her urine test at most constitutes evidence that [the medical center] was negligent or guilty of exercising bad judgment in forming its professional opinion that [the child] might be the subject of child abuse. However, ... [evidence] of mere negligence or bad judgment is not [equivalent to evidence of a] refus[al] to fulfill [a] professional dut[y], out of some interested or sinister motive, [nor is it equivalent to evidence of a conscious act based on] some dishonest or improper purpose.
Baldwin Cnty. Hosp. Auth., 504 S.E.2d at 710 (citation omitted) (internal quotations marks omitted).
Washington appellate courts have discussed the proper role of summary judgment on the issue of subjective good-faith immunity in several child abuse reporting cases. In affirming summary judgment for a defendant physician and hospital, the Washington Court of Appeals stated:
Good faith flows from a “mind indicating honesty and lawfulness of purpose.” Good faith is wholly a question of fact. But if reasonable persons could reach but one conclusion, summary judgment is appropriate.
The Yuilles complain that Dr. Feldman and the Hospital reported the abuse here without properly verifying medically that any abuse occurred. Even assuming this is correct, it is insufficient. The statute does not require that the information giving rise to the suspicion of abuse be investigated or verified before it is reported. The duty to investigate lies with the authorities, not the individual making the report. So the failure to verify or investigate does not rule out immunity.
Yuille, 45 P.3d at 1111 (quoting Whaley, 956 P.2d at 1106). The same appellate court emphasized that evidence of dishonesty is required to avoid summary judgment on the good-faith immunity defense:
The standard definition of good faith is a state of mind indicating honesty and lawfulness of purpose. Nothing in the record suggests that Hupf was dishonest in reporting her suspicion of abuse or that she acted with any unlawful purpose. The fact that she, as a child care provider, was subject to criminal penalties if she reasonably suspected abuse and failed to report it is a compelling consideration on the side of concluding her purpose was lawful.
Whaley, 956 P.2d at 1106 (footnotes omitted). In yet another decision, the Washington Court of Appeals held a physician was entitled to summary judgment on the good-faith immunity defense when no evidence indicated he acted in bad faith. Lesley, 921 P.2d at 1076.
In Rite Aid Corp., Maryland‘s highest court surveyed cases from other jurisdictions, including our decision in Garvis, to hold a subjective good-faith standard applied for that state‘s statutory immunity defense and required proof of dishonesty to avoid summary judgment. 824 A.2d at 116-19. The Rite Aid Corp. court acknowledged “questions involving determinations of good faith which involve intent and motive ‘ordinarily are not resolvable on a motion for summary judgment.‘” Id. at 119. But, the high court went on to say “even in cases involving intent and motive, if the prerequisites for summary judgment are met—there [being] no material dispute of fact—summary judgment may be granted.” Id. (quoting Gross v. Sussex, Inc., 332 Md. 247, 630 A.2d 1156, 1161 (1993)). In holding the defendants were entitled to summary judgment, the Rite Aid Corp. court stated:
For the respondents to oppose the summary judgment motion successfully, they must have made a showing, sup-
ported by particular facts sufficient to allow a fact finder to conclude that Mr. Rosiak lacked good faith in making the report of suspected child abuse. They might have done so by producing specific facts showing that Mr. Rosiak knew, or had reason to know, that the photographs did not depict a form of child abuse and, in total disregard of that knowledge, filed a report anyway. What the respondents have produced are general allegations, that simply show that all of Mr. Rosiak‘s actions in making the report can be second guessed. Legitimizing this sort of Monday-morning quarterbacking would render the immunity conferred by [Maryland Code Annotated, Courts and Judicial Proceedings] § 5-620 and [Maryland Code Annotated, Family Law] § 5-708 essentially useless.
The Wyoming Supreme Court applied that state‘s subjective good-faith immunity statute to affirm summary judgment dismissing a father‘s lawsuit against his son‘s counselor. Thomas, 341 P.3d at 400. The court emphasized evidence of negligence was insufficient to defeat the immunity; to avoid summary judgment, plaintiff must have evidence defendant acted in bad faith, defined “as acting with a malicious motive or making deliberately false accusations.” Id. at 400-01 (citing Elmore v. Van Horn, 844 P.2d 1078, 1083 (Wyo. 1992)). The Kentucky Court of Appeals affirmed summary judgment dismissing a father‘s lawsuit against a psychologist who performed a custody evaluation. J.S., 456 S.W.3d at 23-24. The court noted that while good faith is a subjective “determination of the state of the mind of the actor,” id. at 23 (quoting Norton Hosps., Inc. v. Peyton, 381 S.W.3d 286, 292 (Ky. 2012)), summary judgment is appropriate when there is insufficient evidence of bad faith such as “acting with knowledge of the information‘s falsity.” Id.
Conversely, courts have denied summary judgment when there was evidence the defendant acted dishonestly reporting child abuse. See, e.g., Owen v. Watts, 307 Ga. App. 493, 705 S.E.2d 852, 855 (2010) (concluding that the defendant had ulterior motives for a report when the parties were long-standing adversaries in petitions to adopt a child); J.E.B. v. Danks, 785 N.W.2d 741, 750 (Minn. 2010) (concluding there was evidence of “personal spite” and exaggerated language in the child abuse report that supported a finding of actual malice).
The summary judgment record in this case is devoid of evidence from which a jury could find Dr. Lindaman acted dishonestly—that is, that he believed the statements he made to the DHS were untrue. To the contrary, one of the plaintiff‘s experts conceded that Dr. Lindaman “believed ... in his own mind” what he was saying to the DHS and the other expert said, repeatedly, that he had no opinion as to Dr. Lindaman‘s state of mind. Summary judgment therefore was appropriate on statutory immunity.
The Nelsons argue immunity should not apply because Dr. Lindaman failed to cooperate with the DHS. They rely on his affidavit stating, in part, that he “refused to give [the DHS] any opinion regarding the credibility of the father‘s story or regarding child abuse.” (Emphasis added.) But, a person does not need to give an opinion on the ultimate issue in order to be “aiding and assisting in an assessment of a child abuse report.” It is undisputed that Dr. Lindaman gave the DHS his biomechanical opinion that the fracture he observed could have been caused in the manner described by the father. The DHS relied on Dr. Lindaman in part in assessing whether the child was abused. He
To allow this lawsuit to proceed would unwind statutory immunity. Many people when dealing with the government are hesitant to offer views on whether individuals under investigation are or are not guilty or are or are not lying. To deny immunity to a doctor who offers his medical observations in good faith but declines to go this extra step would deter doctors from responding to DHS inquiries altogether out of fear of being sued.5
The Nelsons also criticize the scope of the examination that Dr. Lindaman performed on June 26. But, the criticism does not relate to Dr. Lindaman‘s medical treatment of E.N.‘s fracture. Rather, plaintiffs’ argument is that Dr. Lindaman should have done more to look for signs of child abuse, and if he had done more, he would have offered different opinions to the DHS. Again, there is no claim that Dr. Lindaman acted in bad faith; plaintiffs’ argument is merely that Dr. Lindaman was negligent in performing his role in E.N.‘s child abuse assessment.
Defendants moved for summary judgment on several other grounds—lack of evidence to prove causation or the willful and wanton misconduct required for punitive damages. Because we conclude the immunity defense is dispositive, we do not reach those alternative grounds for summary judgment.
IV. Disposition.
For those reasons, defendants were entitled to summary judgment on all claims based on the immunity in
REVERSED AND REMANDED WITH DIRECTIONS.
All justices concur except CADY, C.J., who concurs specially, and APPEL and HECHT, JJ., who dissent.
CADY, Chief Justice (concurring specially).
I concur in the result reached by the majority. It is a result that ultimately comes down to the reasonableness of the permissible inferences that would support a finding of the lack of good faith of Dr. Lindaman during the time he assisted in the assessment of child abuse. There is evidence in the record to show Dr. Lindaman participated in good faith, though mistaken in medical fact. On the other hand, the evidence in the record does not support a legitimate inference that Dr. Lindaman was seeking to avoid the assessment of child abuse or that he did not express an honest belief. The inferences raised by the Nelsons concerning Dr. Lindaman‘s lack of good faith were too speculative to raise a genuine issue of material fact. Accordingly, summary judgment based on
APPEL, Justice (dissenting).
I respectfully dissent.
I first review the factual record presented in the defendants’ motion for summary judgment, making all inferences favorable to the plaintiffs as the nonmoving party.6 Second, I review the relevant Iowa statutes. In particular, I note the distinction in the immunity provisions of
I. Overview of the Summary Judgment Record Viewed Most Favorably to the Plaintiffs.
E.N. was brought to the hospital by his parents on June 18, 2009, with a broken arm. His injury was a spiral fracture. A spiral fracture of the bone runs at an angle through the bone rather than evenly across it. Spiral fractures usually require a twisting force to occur.
When asked at the emergency room how the injury occurred, E.N.‘s father stated that he was putting E.N. on his bed, that the child put his arm behind his back, and that E.N.‘s weight caused the bone to snap. At the time, E.N. was a twenty-two-day-old infant, who weighed eight pounds, eleven ounces.
Dr. Scott Barron, the emergency room physician who first examined E.N., suspected nonaccidental injury. Dr. Barron told E.N.‘s father that he was required to report the fracture to DHS. E.N. was admitted to the hospital under the care of Dr. Douglas Selover, who also suspected nonaccidental injury.
Dr. Selover contacted Dr. Lynn Lindaman, a pediatric orthopedic surgeon, to provide consultation with respect to E.N.‘s fracture. When asked by a DHS child protective worker about E.N.‘s injuries the following day, Dr. Lindaman responded that the father‘s story of how the injury occurred was “plausible.” A contemporaneous DHS record describes the conversation as follows:
This worker questioned as to whether a child, weighing only 8 lbs 11 oz, would have enough force to create this injury. I also provided information that dad had provided a different explanation with how he laid [E.N.] down, with one hand under his head and the other under his butt. I also questioned as to whether a crying child‘s arm would go back behind him as he would more likely to be pulling his arms tight in front of him. Through this line of questioning, he stated on several occasions, “the mechanism they described fits the fracture seen.”
When informed of Dr. Lindaman‘s statement that the father‘s story of how the injury occurred was “plausible,” Dr. Selover exclaimed, “You got to be kidding.” Dr. Selover talked with Dr. Lindaman about the cause of the injury during E.N.‘s initial hospitalization. At that time, Dr. Selover expressed his view that it was a pretty clear-cut case of nonaccidental injury.
While DHS staff continued to be suspicious of the injury, Dr. Lindaman‘s repeated statements that the father‘s story was “plausible” and that “the mechanism” described by the father “fits the fracture,” caused them pause. Prior to talking to Dr. Lindaman, DHS planned to seek a no-contact order against E.N.‘s father. After talking with Dr. Lindaman, the DHS child protective worker consulted her supervisor. She was concerned the orthopedic specialist treating E.N. had repeatedly emphasized that the mechanism described by the father “fit the injury.” They interpreted his comments as an opinion not supporting the presence of child abuse. As a result, the decision was made not to seek a no-contact order at that time. DHS staff, however, informally urged the mother not to allow E.N. to be with his father alone, but no further immediate action was taken at the time of E.N.‘s discharge from the hospital.
DHS continued to have concerns about E.N., however, and the case was presented to a multidisciplinary team for review. The team included five physicians with experience in evaluating cases of child abuse. At a meeting on June 30, all agreed the injury could not have occurred as described by the father. One of the participants, Dr. Resmiye Oral, requested medical records for further review by orthopedic specialists to confirm the unanimous view of team members. Dr. McAuliff, another physician, was dispatched to confer with Dr. Lindaman.
On July 6, the evaluators at the University of Iowa sent an email advising that the injury could not have happened as indicated by E.N.‘s father. On July 7, DHS began working with the county attorney to file a no-contact order.
On July 8, Dr. McAuliff shared with the multidisciplinary team that he had spoken with Dr. Lindaman. Dr. Lindaman was more forthcoming with Dr. McAuliff than he had been with DHS staff earlier in the case. Dr. Lindaman told Dr. McAuliff that he had not seen many infants in his practice and had never seen this type of injury before. In light of his discussion with Dr. McAuliff, Dr. Lindaman agreed that the injury was suspicious.
Unfortunately, on July 8, before DHS served the no-contact order, E.N. arrived at the hospital with head trauma and other very serious injuries.
In June of 2011, the plaintiffs filed suit naming Dr. Lindaman, his professional corporation, and Mercy Medical Center—Des Moines as defendants. A deposition of Dr. Lindaman was part of the summary judgment record. At the deposition, Dr. Lindaman took a very narrow view of his
Dr. Lindaman took the position that his job was the management of the fracture and the concerns of Dr. Barron, that the trauma may have been nonaccidental, was not his concern because it did not impact his management of the fracture. Dr. Lindaman stated that he did not explore whether the injury was in fact consistent with the father‘s explanation because “that‘s an investigative function through DHS or to the police, not [] medical.” He further stated that “to investigate whether the mechanism happened the way dad explained, that‘s not a medical investigation. That‘s a legal or criminal investigation.” Dr. Lindaman testified that in his interaction with DHS, “[h]e was not providing information on the safety of the child. [He] was providing information only on the humerus fracture.” According to Dr. Lindaman, his statement to DHS was “merely on [his] orthopedic evaluation of [E.N.]. [He] was not speaking with them on judging what happened at [E.N.]‘s home.”
Dr. Lindaman also testified in his deposition that while the father‘s story “could be consistent” with the injury, it would not commonly occur when putting the child down and would be “a rare kind” of injury. He stated in his deposition that if he had been the emergency room physician on the day E.N. arrived, he too would have reported the injury to DHS the way Dr. Barron did.
Dr. Lindaman also filed an affidavit in connection with the “Motion for Summary Judgment as to the Lindaman Defendants.” In that affidavit, Dr. Lindaman stated that the only opinion he developed was that “if the history the father was providing to [him] was true, that history could possibly be consistent with the type of spiral humeral fracture [he] observed in this child.”
He further stated that he was aware of the opinions of Dr. Selover and Dr. Barron suspecting child abuse prior to his conversation with DHS. He stated he was not surprised that the child abuse investigators seemed to have concluded that E.N.‘s fracture was due to child abuse “since spiral humeral fractures in non-ambulatory children are rare.” He also asserted he would have reported the incident to DHS if the case had been reported to him in the first instance.
The records of Dr. Lindaman‘s conversations with DHS, however, do not indicate that he advised DHS that he took a very narrow view of his responsibilities and that he was not “judging [assessing?] what happened at E.N.‘s home.” He did not advise DHS that spiral humerus fractures in non-ambulatory children are rare, that he would have reported the incident had E.N. been presented to him in the first instance, or that his opinion was limited solely to the biomechanics of the possibility of a fracture occurring if the story told by E.N.‘s father were true. He simply repeatedly told DHS that the story was “plausible” and the “mechanism” described “fit the injury.”
The record in the proceedings related to the motion for summary judgment contained the report of one of the plaintiffs’ experts, Dr. Geoffrey Miller, an orthopedic surgeon. In reviewing the file, Dr. Miller stated that while it was possible Dr. Lindaman may have simply made an oversight in his initial opinion,
the orthopedic surgeon did not make the diagnosis of non-accidental trauma in his consult, even as a possibility even though he acknowledged an ongoing workup for that diagnosis. This could be an oversight, but his decisions afterwards make this explanation tenuous at best. It does not appear to have been an oversight with the repeated opportu-
nities to modify the diagnosis after meeting with DHS and other treaters, as well as his deposition testimony ... where he specifically disagreed with other doctors.
In a supplemental report, Dr. Miller characterized the failure of Dr. Lindaman to detect rib trauma in E.N. as “further evidence of this doctor‘s inexplicable and stunning disregard for the suspected child abuse diagnosis made by both of the other treaters.” Another of the plaintiffs’ medical experts opined that Dr. Lindaman “obtained a history that makes no sense as a reasonably certain medical explanation for a cause of a spiral fracture in a 22 day old infant.”
The district court held that there were genuine issues of material fact as to whether the defendant doctor rendered an opinion or not for DHS, whether reliance on that opinion caused injury to the child, whether the doctor‘s communications to DHS were in good faith or not, whether the doctor‘s conduct was actually aiding or assisting in a child abuse assessment, and whether the doctor‘s conduct was entitled to immunity for his conduct. We granted the defendants leave to file an interlocutory appeal.
II. Iowa‘s Child Protection Reporting and Immunity Regime.
A. History of Concern Regarding Failure to Report Suspected Child Abuse. For many years, underreporting of child abuse by medical professionals has been recognized as a significant problem. Concern about participation of medical professionals in the child abuse reporting system continues notwithstanding the passage of mandatory child abuse reporting statutes. As noted by one commentator, “fear of legal action is frequently a reason for not reporting.” Marjorie R. Freiman, Note, Unequal and Inadequate Protection Under the Law: State Child Abuse Statutes, 50 Geo. Wash. L. Rev. 243, 263 (1982). According to an article in the prestigious journal of the American Medical Association, physicians sometimes do not wish to get involved in child abuse reporting situations, despite the fact that statutes mandate such actions. See John M. Leventhal, The Challenges of Recognizing Child Abuse: Seeing is Believing, 281 J. Am. Med. Ass‘n 657, 658 (1999).
According to yet another commentator:
[R]ecent studies reveal that physicians admit that they do not report all suspected cases of child abuse and neglect. They offer several justifications for this noncompliance. The most common explanations are concerns about the way child protection agencies handle reported cases and beliefs that state involvement often does not help the child. Some physicians publically admit that they do not want to get involved with the legal system, a sentiment probably held privately by many physicians.
Ellen Wright Clayton, To Protect Children from Abuse and Neglect, Protect Physician Reporters, 1 Hous. J. Health L. & Pol‘y 133, 140-41 (2001) (footnotes omitted).
B. Overview of Iowa Statutory Framework. Part two of division III of Iowa Code chapter 232 addresses child abuse reporting, assessment, and rehabilitation. See
In order to achieve the legislative purpose, chapter 232 part two establishes a system of mandatory and permissive reporters of child abuse, a reporting procedure, and a structure for investigation of reports by DHS.
While the statute thus imposes affirmative obligations on mandatory reporters, it also contains an immunity provision which is at the heart of this appeal. The immunity provision in
[a] person participating in good faith in the making of a report ... or aiding and assisting in an assessment of a child abuse report ... shall have immunity from any liability, civil or criminal, which might otherwise be incurred or imposed.
The statute has two classifications for immunity. The first prong protects persons who “make a report” of child abuse under Iowa Code chapter 232.
C. Applicable Iowa Caselaw. We have had a few occasions to interpret the immunity provision of
We rejected the notion that the immunity statute did not apply because the action was a medical malpractice action. Id. at 530. Instead, we focused on “the causal theory of plaintiffs’ loss-of-companionship claim.” Id. We noted the claim was tied to the court-ordered placement “[i]rrespective of the other elements of damage which might have resulted from defendant‘s improper diagnosis.” Id. Clearly, Maples does not stand for the proposition that there can be no recovery in a medical negligence claim where a report of child abuse is involved. The immunity in
In Maples, we also considered whether alleged negligence is sufficient to defeat the good-faith requirement of the immunity statute. Id. We concluded that a showing of negligence does not defeat good faith. Id. If negligence alone was sufficient to defeat good-faith immunity, we reasoned, the immunity statute would be deprived of its bite. Id. We did not hold, of course, that immunity applies to all cases where negligence was involved, but only that a showing of negligence was not sufficient to deprive a defendant of an immunity defense if good faith under one of the prongs of the immunity statute could be established. See id.; cf. Whaley v. State, 90 Wash. App. 658, 956 P.2d 1100, 1106 (1998) (holding immunity in child abuse reporting statute extends only to damages caused by the making of a child abuse report).
Our second case dealing with the immunity provisions of
We held the standard for good faith was subjective. Id. We declared “[g]ood faith in
The takeaway points from Maples and Garvis are important but narrow. First, Maples establishes that the mere presence of negligence is plainly insufficient to defeat immunity. Maples, 450 N.W.2d at 530-31. Second, Maples stands for the proposition that immunity applies to damage claims causally related to the reporting or aiding and assisting in an assessment of a child abuse report or a child abuse investigation. Id. Third, Garvis held that the standard for evaluating the making of a report or aiding and assisting a child abuse investigation is “subjective honest belief” in making a report or in “aiding and assisting in the investigation of a child abuse report.” Garvis, 492 N.W.2d at 404. In neither of these cases did we address the question of the proper standards to be applied in a motion for summary judgment based on the immunity provision. To that I now turn.
III. Standards for Summary Judgment of Immunity Claims.
Courts considering immunity defenses in the context of motions for summary judgment have taken a variety of approaches. In some cases, courts have determined that immunity issues should be decided by the court in advance of trial in order to achieve the policy purposes that underlie immunity. See, e.g., May v. Se. Wyo. Mental Health Ctr., 866 P.2d 732, 738-39 (Wyo. 1993). At the other extreme, some courts have held that questions of subjective good faith always involve questions of fact. See, e.g., de Abadia v. Izquierdo Mora, 792 F.2d 1187, 1191 (1st Cir. 1986) (noting that on the “issue of subjective good faith, there might always be a question of fact [and that] it is difficult to think there could ever be summary judgment“); Sabia v. Neville, 165 Vt. 515, 687 A.2d 469, 473 (1996) (rejecting a subjective good-faith standard because “a material issue of fact would always be present, precluding summary judgment” (internal quotation marks omitted)). In between the two poles, some courts have employed a shifting burden of production approach where once a defendant makes a prima facie case for immunity, the burden shifts to the plaintiff to produce at least some evidence from which an inference of lack of good faith can be drawn. See, e.g., S.G. v. City of Monroe, 843 So. 2d 657, 662 (La. Ct. App. 2003).
In Iowa, we have not yet considered the proper approach to summary judgment when the plaintiffs contest the defendant‘s claim of good-faith immunity under
We have, however, applied our summary judgment framework in other immunity contexts when subjective good faith has been at issue. In Hlubek v. Pelecky, 701 N.W.2d 93, 94 (Iowa 2005), we considered whether area education agency (AEA) officials were entitled to summary judgment in a case in which the plaintiff charged they tortiously interfered with his contractual and prospective business relations and intentionally inflicted emotional distress by investigating charges of sexual abuse. The applicable statutes provided immunity for AEA personnel who participated in good faith and acted reasonably in such investigations. Id. at 96-97 (citing
If the approach in Hlubek and Green were applied under
The consequence of the Hlubek-Green type approach is that subjective good faith is determined through an examination of the circumstances in each particular case, and “proof of intent or state of mind is rarely established as fact by direct evidence, but may be inferred from the facts regarding the individual‘s actions or other circumstances.” S.G., 843 So. 2d at 662. In the summary judgment context, of course, all legitimate inferences are made in favor of the nonmoving party. Wallace v. Des Moines Indep. Cmty. Sch. Dist. Bd. of Dirs., 754 N.W.2d 854, 857 (Iowa 2008).
IV. Application of Principles.
I now turn to the application of the above principles to the facts of this case. There is no question under our caselaw, and under the majority of caselaw from other jurisdictions, that the mere fact that Dr. Lindaman may have been negligent in his evaluation of E.N. is not sufficient to escape the application of the immunity provided by
Turning to the specific language of the immunity statute, it is important to recognize that this case does not involve a situation in which a mandatory or permissive reporter triggers a DHS investigation by
Instead, this case involves the second or the aiding-and-assisting-in-an-assessment-of-a-child-abuse-report prong of
There is evidence in the record that Dr. Lindaman was in fact avoiding aiding and assisting in an assessment of a child abuse report. He testified that in his conversations with DHS, he was not “judging what happened at E.N.‘s home” and that he was “not providing information on the safety of the child.” This does not sound like aiding and assisting in an assessment of a child abuse report by any standard, objective or subjective. Further, if he were acting in subjective good faith, and aiding and assisting in an assessment of a child abuse report, surely he would have disclosed that spiral fractures in infants are “very rare” and that if he would have been the physician during intake, he would have filed a child abuse report too. He disclosed these views when defending a lawsuit against him, but he did not offer them to DHS when it was assessing the report of child abuse involving E.N. The fact he did not offer these views to DHS suggests he did not see his role as aiding and assisting in an assessment of the child abuse report. He was not judging, and he was not providing information relating to safety.
In addition, a jury could conclude that Dr. Lindaman‘s minimal and cramped response to DHS was designed to further his own interest in not getting drawn into a potentially controversial matter. Surely, a subjective desire of not wanting to get involved or to pass the buck to someone else would be an ulterior motive that would defeat subjective good faith under the statute. Indeed, the existence of such motivations among professionals was one of the reasons for the enactment of child abuse reporting statutes in the first place.
There is other evidence that supports inferences against Dr. Lindaman‘s claim of entitlement to immunity. According to the plaintiffs’ view of the evidence, the notion that a twenty-two-day-old baby, after placed in bed by his father, put his arm behind his back and then suffered a spiral fracture under his own weight is obviously suspect. Indeed, the plaintiffs’ point to Dr. Selover‘s contemporary reaction to Dr. Lindaman‘s position, namely the exclamation, “You got to be kidding.” Yet, Dr. Lindaman declared that the father‘s story was “plausible” and the mechanism “fit the injury.” He defended his responses in his deposition as technically correct as a theoretical matter. However, he further emphasized in his deposition that he viewed the assessment of whether child abuse occurred as someone else‘s responsibility as it did not relate to his management of the fracture. Is this “not-my-department” type of response consistent with subjective good faith in “aiding and assisting in an assessment of a child abuse report?” Could a reasonable jury conclude that Dr. Lindaman was attempting to avoid entan-
The lack of support in the record for his position from every other physician who reviewed the file as part of a child abuse assessment arguably tends to support the inference that Dr. Lindaman just did not want to get involved. The plaintiffs point to Dr. Selover‘s statement, “You got to be kidding,” as telling. And as stated by the plaintiffs’ expert, Dr. Lindaman held to his opinion long after it made any sense to do so. He arguably originally decided to give a brusque, incomplete, and even misleading answer to DHS in a verbal game designed to avoid getting drawn into a controversy and then decided to attempt to avoid professional embarrassment by defending it when challenged by Dr. Selover. His attitude toward the DHS assessment could be regarded as not a good faith “how can I help you?” but rather something else, a defensive posture akin to “don‘t ask me, I‘m just the bone guy, I‘m not responsible. Anything is possible. Don‘t confuse me with the facts or the opinions of others. I‘m busy. Good-bye.”10
Of course, a jury could well come to a much more favorable conclusion after assessing Dr. Lindaman‘s credibility and hearing all the evidence. There is no question that on the evidence presented a reasonable jury could conclude he was expressing his honest opinion and he was not very knowledgeable about infants. Perhaps, as the saying goes, a jury could conclude this is a case involving a defendant with “‘a pure heart and an empty head.‘” Garvis, 492 N.W.2d at 404 (quoting Jackson, 488 N.W.2d at 156). Alternatively, a reasonable jury could conclude the real problem in this case was that DHS investigators misconstrued Dr. Lindaman‘s statements and erroneously concluded that his observation that the mechanism described “fit the injury” was by implication a statement of opinion that child abuse did not occur, or at least was not substantiated, and not realize they were receiving a “don‘t-ask-me-that‘s-not-my-department” type answer. However, the question is whether, on its unique facts, the plaintiffs have enough evidence from which legitimate inferences may be drawn to proceed with the case. I conclude there was enough to do so.
In closing, I note the result today does not promote the policies of the child abuse reporting statutes. This case should not be confused with a reporting case in which a professional takes the sometimes difficult but legally required step of reporting suspected child abuse. In that setting, generous immunity may be appropriate. There, the statute demands the reporter receive the benefit of the doubt and may be deprived of immunity only if not acting in good faith.
The undisputed bottom line, however, is that the child abuse reporting system failed E.N. in this case, with tragic results.
HECHT, J., joins this dissent.