*1 608 resorting language purpose constructions for to subtle and forced without the the Burbridge limiting extending operation. its of either 5). Reading
Hensley, these Code compelled must, to find that the lower court we are sections as we special priority by finding entitled to a that these claims were erred of stating provision agreement payment. also do not find that We marketing Marketing paid” or the fees that FICA “will court-approved agreement incorporated into the fact that the rehabilitation category. give special plan this debt a is sufficient to supra, disposition appeals In of these Division view of our remaining are enumerations of error moot. the Commissioner’s they Accordingly, judgments, trial court’s insofar as are affected appeals, remanded to the trial these are reversed and the cases proceedings part liquidation as as court for further proceeding any, appellees. amount, if to determine what is now owed Judgment Eldridge, JJ, direction. reversed with Ruffin concur.
Decided December Attorney. Deputy Baker, General, Cole, H. Thurbert E. Brenda Attorney Manning General, Morris, Martin, Hassett, E. & Lewis Wil- Sheppard, appellant. liam J. for Pope, Carr, Sistrunk,
Carr, Jr., Tabb & W.Pitts Hezekiah Edwin Bailey, appellees. Schklar, J. S. Michael for Henry Campbell, Hicks, Sewell, Jr., & F. amicus curiae. Maloof A97A1586. VANCE et al. v. T. R. C. et al. BABY
A97A1587. BOY C. v. VANCE et al. 714) Judge. Beasley, brought against C., minor, Vance, T. R. an action Dr. Luther Jr. professional corporation damages arising and his from his failure to T. R. C. filed suit trial court T. R. C.’s as sexual abuse under OCGA 19-7-5.
subsequently pregnant baby boy, also became bore who
against stigma illegitimacy. Vance to recover for his
granted summary judgment baby’s claims, Vance on the summary judgment denied on T. R. All claims but C.’sclaims. were summary subject judgment.
Following incapacitating mother, an accident T.R. C. and her siblings placed care in were with Mr. and Mrs. Anderson for foster fondling began her, nine, T. turned Mr. 1985. When R. C. Anderson began having twelve, when she turned sexual intercourse Open appeared perineal Septem- area, with her. lesions in her and on (then age 14, 1993, ber Mrs. Anderson took T. R. C. to Vance for treatment. clinically diagnosed genital herpes,
Vance her ailment as a sexu- ally-transmitted Although testimony disease. conflicts as to what *2 during undisputed conversations occurred visit, this it is Vance asked sexually Mrs. Anderson whether T. R. C. was active. Mrs. Anderson responded activity. undisputed claims she she knew of no sexual It is that Dr. Vance informed T. R. C. she had contracted the disease through Despite sexual contact. his insistence that he knew she was having despite repeated inquiries sex, and his as to when she had adamantly any experiences. sex, last had T. R. C. denied sexual eventually She claims that she told the doctor she had had sex previous (just birthday), March before her thirteenth but she did identity age prescribed not disclose the of the male. Vance medica- herpes follow-up tion to treat and had his office schedule a appointment for the next Anderson, week. Mrs. who does not remem- appointment bring ber whether the second made, was ever did not any follow-up T. R. C. back for care, and Vance did not have his office appointment. call Mrs. Anderson to reschedule the missed The medi- cation cured the lesions within a week. report herpes any public agency, Vance did not nor did he
report any agencies. According sexual abuse to child welfare to his testimony, herpes he believed the arose from consensual sexual activity peers experience taught with because his him that a certain percentage 13-year-old population engages of the in consensual sex- activity. ual Also, he testified that when he asked Mrs. Anderson activity, responded about T. R. escap- C.’ssexual she T.R. C. had been ing through night. her bedroom at window Mrs. Anderson denies she suspect having Vance, told this to but she did T. R. C. of sex with her peers prior any activity to the visit to Vance. T. R. C. denies sexual outside of Mr. Anderson.
Eight pregnant months after Vance, the visit to T. R. C. became resulting Baby Boy Anderson, Mr. birth C. He has been adopted by family. another
Case No. A97A1586 alleges negligence against T. R. C. three for her claims of (1) statutory duty imposed Vance: he breached the on him in OCGA (2) report being § sexually 19-7-5 to she abused; he breached a (3) duty report prevent common law abuse; the sexual duty imposed by report § breached the OCGA 31-12-2 to department. injury alleged to the health is that had Vance made ceased and the preg- abuse would have reports, sexual nancy prevented. have been has reasonable cause who physician 19-7-5 OCGA § a child the abuse to wel- a child has been abused
to believe a minor to inducing coercing includes agency. Although fare abuse sex acts it does not include “consensual activity, in sexual engage when the sex acts are between sex involving persons opposite (b) (3.1). minors.” This became effective exception OCGA 19-7-5 § (a). 1993, 1695, 1; 1-3-4 A knowing L. July p. 1993. Ga. is a to make a mandated of abuse misde- and wilful failure (h). 19-7-5 meanor. OCGA §
(a) statute, if the court Cechman Even Vance violated (1) (1991), held this Travis, 202 of action in favor of the abused does not create a civil cause statute in favor of the summary judgment physi- child. Cechman affirmed cian. Cechman, that the rationale urges arguing
T. R. C. us to overrule to create civil causes of refusing criminal statutes interpret action is similar to the rationale for the doctrine. waning public doctrine, a cannot sued for the municipality negligent Under this at unless there is a public large, of its duties owed performance *3 the individual and the relationship municipality giv between special City rise to a owed to that individual. ing special duty particular of 861) (1) (426 (1993). Jordan, 26, Rome v. 263 Ga. 27-29 SE2d Georgia immunity the Court of clarified that this Recently, Supreme to the of See Hamilton v. applies only performance police protection. (1) (482 370) Cannon, 655, (1997); Dept. of Transp. 267 Ga. 656 SE2d (3) (471 Brown, 6, v. 8-9 SE2d of Brown and Hamilton “undermine” the
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Cechman Cox Ga. (I) (200 127) 60, (1973), 420 U. S. grounds, 61-62 SE2d rev’d on other 328) (95 1029, (1975), did not find in the penal 469 SC 43 LE2d any statutes there at the creation of civil cause of action for issue rationale, the doc- damages. independent public duty This which is of in trine, extant, by remains as illustrated the cases cited post-Cox Cechman. legislature provided report-
It is true that expressly liberally protec- statute be construed to effect its humane ing
611 (a). purposes. tion OCGA 19-7-5 It on an imposes extensive § who, list of of their persons practice professions, likely are discover of child faith reporting evidence abuse. Good of a belief that (or criminal) a child is is declared immune from liability, abused civil (f), OCGA 19-7-5 nothing but within the of the law provision pur- § create, ports create, or indicates an intention to cause of private action tort in favor of a child whose abuse is not detected or (2) (400 349) Huie, reported. 49, Cf. Rolleston v. 50 App. SE2d (same (1990) analysis regarding 16-8-16); Doyle Dickerson § 902) (1995) Durden, 426, Co. v. 218 App. Ga. 428 (nothing in criminal statute explicit provision makes for creation of private right; penal violation of statute does not automatically give rise to action). civil cause of The focus is on the act positive it is reporting; encouraged, nay compelled, pain criminal on the one penalty hand and on from immunity liability civil on the other hand. Nothing is said liability i.e., about civil for the failure to report, inaction.
The of the statute is “to purpose prevent abuses, further to pro- children, tect and enhance the welfare of these and to fam- preserve (a). ily life wherever possible.” not, therefore, OCGA 19-7-5 It is provide monetary damages injured from a care provider remotely who is not even the cause of the abuse. See Shaw v. Cook 326) (1976) County Assn., Fed. &c. 139 Ga. not (private right implied statute because not in further- action ance of statute’s purpose). question legislative intent must be instance, Arnold, resolved in Allen, as in Tingle Cate & (3) (199 (1973), by concluding that “the legislature did not intend to create a private cause of action by statute.”
The ramifications of creating tort must liability weighed be against of resultant consequences This potential over-reporting. is a legislative task which either has been fulfilled the choice for criminal instead, law liability yet has to be done if and when legislature determines to undertake it.
(b) Assuming OCGA 19-7-5 did create a cause of action private tort, no viable claim would exist this case. Cechman states that the “statute that notice given only by those physicians *4 ‘having reasonable cause to believe that a child has been abused’ and it penalizes only those physicians ‘who fail knowingly willfully’ to do so. It does not require that notice be given by physicians those ‘who should have had reasonable cause’ to suspect child abuse and it does not penalize those fail physicians ‘who to discover and report’ omitted.) suspected instances of child abuse.” (Emphases at App. 256.
In Cechman the physician found three red marks on the chest of the child. The to parent vague was as the cause of the injury. Experts X-rays, ordered which should have physician that
testified only “The con- indicating trauma child abuse. evidence of have shown conducted the examination doctor] if had [the tention is that reasonable requisite then have had differently, she would child to and would then have been child abuse suspect cause to does not clearly 19-7-5 regard. in that OCGA suspicion § her suspected discovery reportable to establish the actual purport omitted.) conduct.” (Emphases a standard of medical child abuse as Id. at 256-257. caused trauma by in Cechman could have been injury
Just as the abuse, could herpes reasonably child T. R. C.’s not associated with peers, sexual contact with which by caused consensual have been 19-7- reportable does not constitute abuse. OCGA § under the statute (3.1). (b) subjectively that Vance The evidence is uncontroverted if of her Even did herpes. herpes this was the cause believed abuse, grounds is insufficient to hold Vance violated result from such investigation. it further by discovering through the statute not mandates child merely reporting suspected “OCGA 19-7-5 § (the) cause to believe that by ‘having abuse a reasonable physician ” a . . .’ 202 Ga. at 257. law draws has been abused. and interference. line between intervention R. C. on hér affidavits the argues experts’ presence T. based in a child of 13 in itself reasonable to suspect in testimony Yet similar submitted Cechman relative to abuse. treated was insufficient to cre- by physician the three red marks It is that reasonable non-abusive duty. undisputed explanations ate child, existed for the in both T. R. C. and the Cechman symptoms to a experience delivering 13-year-old, that Vance’s twins previous among age group, as well as other evidence of consensual sex there was indi- gave him substantial reason not to conclude abuse cated here. He could not that abuse is occur- expected speculate being acting good and to it at the risk of accused of not ring (f). 19-7-5 We no impose higher faith. See OCGA have basis 19-7-5, than a violation reporting standard established OCGA § knowing physician of which wilful refusal on the denying summary judgment The court erred report. 19-7-5 claim. the claim for com- Summary was also warranted on judgment T. liability, mon medical To establish R. C. must malpractice. law med- non-negligent [her] “a to afford legal show Vance breached from a injury proximately resulting [her] ical treatment and an Cechman, 202 Ga. legal duty of that would be actionable.” breach at 257. treat his skills to professional Vance was called to exercise There is no contention lesions, successfully did. T. R. C.’s *5 subsequent pregnancy that her and abuse resulted from Vance’s particular physician condition, treatment of that responsible and the was not why patient keep follow-up to determine the failed to the appointment. County Health, See Ward v. Emanuel Bd. 218 Ga. (461 App. “[t]he only in Cechman, As [other] [Vance] report contention is that failed to and that discover the ultimate non-medical source of the child’s medical condition was suspected abuse, with the result that the child was not removed subsequently [impregnated] by from her home and was father. nancy] her abusive instrumentality [preg- Thus, the immediate of the child’s particular father, was her own abusive not the medical condi- [Vance] tion is, which had been called The treat. contention [Vance] only legal duty therefore, that a owed not common law non-negligent afford treatment of the child’s immediate medical con- legal duty dition, but also owed a common law to discover and pre- the non-medical source of the child’s medical condition so as to subsequent reinjury by (Emphases vent her her abusive father.” omitted.) Id. at 257-258. “ ‘[generally, person As stated in Cechman, a does not a have person, potential to control the conduct of another who is a prevent person harming person, tortfeasor, so as to that from a third “(a) special unless a relation exists between the actor and the third person imposes duty upon per- a the actor to control the third (b) special conduct, son’s a relation exists between the actor and ’” (Citations gives right protection.” the other which to the other a omitted.) punctuation Id. at 258. “special
There was no relation” of control between Vance and Mr. only physician-client relationship Anderson, whose connection was a (and year) even then Mr. Anderson had not seen Vance for over a independent relationship whereby and an contractor Mr. Anderson cleaned Vance’smedical office a twice week after hours. Neither rela-
tionship gave any Vance control over Mr. Anderson’s behavior toward Bradley T. R. C. See Wessner, Center v. 250 Ga. 201-202 (1982); Keppler Brunson, 306) (1992) (“physician patient”). must have control over the . . . special by Nor was there a relation between Vance T. R. C. acquired right protected by by which she to be Vance from harm Mr. physician-client relationship gives Anderson. Cechman held that the only right non-negligent one the treatment of the medical condi- impose “upon physician, merely tion and does not who failed to report suspected legal liability discover abuse, omitted.) (Emphases child for future acts of child abuse.” physician summary judgment at 258. The was entitled to ground as well. ground, 3. The foundation of the 31-12-2, third Department designated Human Resources to be diseases herpes reported. Uncontroverted one of the diseases. In was department testimony representative established from cases, not carried out these Health Intervention was “Public having herpes, suspected patient who had or was either for partners.” department patient’s suspected not sex said Family police, Department patient, or the & have contacted reporting Services, foster care. The Children which oversees purposes, purely and as of 1996 was removed for statistical under this statute failure to the disease from the list. Vance’s *6 Summary judgment any injury as to all to T. R. C. did not cause grounds is mandated. No. A97A1587
Case brought Baby Boy grandmother, Harris, claim C.’s Lucille on grandmother injuries arising friend, and next for his from his as his behalf rape being illegitimate child, born as an conceived the standing grandmother, child. As adopted she lacks because he has been legal relationship grandmother has and therefore her as (a) (1). any person appointed terminated. 19-8-19 But been recognized by may as next friend. Sanders v. or the court serve (2) (156 812) (1931). Hilton, SE cognizable Georgia
Standing no, the claim is not under law. parentage or circumstances of There is no cause action based conception. Group Related to this issue is Atlanta Obstetrics &c. v. Abelson, 711, 713 It held that an brought impaired alleging that, action of an but for on behalf negligent treatment, born, the child is an would never have been “wrongful for life” and does not claim. See v. action state a Gale (1) (445 366) Atlanta, 614, 213 615 Obstetrics &c. Ga. (1994). Supreme quoted Court Abelson: “Whether it is better gross never to have been born at all than to have been bom with even (impairments) mystery properly philosophers is a more left to the theologians. Surely competence the law can assert no to resolve particularly very nearly high issue, uniform view value placed life, and mankind has on human rather than its law Simply put, brought . . . a cause of action on behalf of an absence. recovery wrongful seeking infant life demands a calculation of damages dependent upon comparison choice between Hobson’s impaired comparison of life an state and nonexistence. This [Cit.]” equipped Abelson, 714, is not to make. 260 Ga. at fn. 4. law Boy distinguish “wrongful Baby C.’s efforts to his claim from a happy simply fail. He claims that he is alive but life” action be illegitimate unhappy societally-imposed act that with his status. The
615 him gave life him concomitantly made illegitimate. As conceded in the complaint, had Vance alerted authorities and had T. R. C. been removed from the Anderson home before Baby Boy C.’s conception, born, would not have been illegitimate otherwise. The jury be his life compare as an illegitimate to nonexis- tence. “An action brought by a child against the . . . physician on the theory that because of his . . . he illegitimacy would have been better not born has found almost no support law.” Fulton-DeKalb (1) (314 Graves, 653) Auth. Hosp. 441, 442 (1984); see (N.Y. State, Williams v. 223 NE2d born under (“Being one set of circumstance[s] rather than another or to one pair of par- ents rather than another is not a wrong”); suable Curlender v. Bio- Laboratories, 1980) (“a Science 165 Cal. Rptr. (App. cause of action based . . . illegitimacy contrasted with legitimacy[] law”). should not recognizable at To allow a cause of action to pro- ceed on the presented would belittle his worth as a person.
Mercifully, Baby C. Boy has been adopted into another family and enjoys “every right and privilege of a biological child” of his new (a) (2). parents. OCGA 19-8-19 He may never know the circum- stances of his birth. The trial court properly granted summary judg- ment on the claims asserted in his behalf. Judgment in Case No. A97A1587. Judgment reversed in affirmed Andrews, Case No. J., A97A1586. J., Smith, C. Birdsong, P. Ruffin JJ,
and Eldridge, J., concur. P. McMurray, dissents. *7 Presiding Judge, dissenting.
McMurray, I respectfully dissent because I cannot go along with the major- ity’s misplaced confidence on the factually distinguishable panel (414 decision in Travis, 282). Cechman v. The majority’s holding case judice sub legislates more than the Code section defines and undermines the legislature’s stated goal protect “children whose health and welfare are adversely affected and further threatened by the conduct of those responsible for their (a). care and protection.” OCGA 19-7-5 Because two expert physi- cians, Dr. Robert Carlton Cater and Dr. David Krugman, deposed (a that Dr. Vance’s relationship as T. R. C.’s physician charged doctor care) with 13-year-old the care of a child under foster imposed profes- sional responsibility and trust upon Dr. Vance inclusive and apart from prescribed those 19-7-5, and because these physi- opined cians that Dr. Vance breached duty by his failing to the sexual activity which resulted T. R. C.’s pregnancy Baby Boy birth, C.’s I believe genuine issues of remain, material fact for deter- mination and not jury Court, this as to Dr. liability Vance’s (whether failing to the sexual contact T. R. C. endured consen- not) sual or while the child was under State supervised care. foster
Decided December Alexander, Reeves, Jones, Miller, C. Sharon H. Cork & Thomas for appellants. Butler, III, MacDougald K. Daniel MacDougald, Larry
Butler & for appellees. AMERICA, OF INC. et al. v. ENGRAM.
A97A2532. TRUCKSTOPS Birdsong, Judge. Presiding discretionary to determine whether the granted appeal
We was void as it resulted compensation question workers’ award the court jurisdiction from a court order entered after lost superior matter. This concerns whether an amendment to a appeal over the statute can affect a workers’ award which was compensation year affirmed almost a before the effective date of the by operation amendment. as a Engram employed by Truckstops
Pinkie was waitress America, Inc., until she fired in 1994 for February allegedly her had received work- stealing money. During employment, Engram injuries, ers’ for work-related knee and after compensation benefits disability her termination she recommencement of total bene- sought change initially fits based condition. The ALJ awarded her benefits, but the Division reversed the award for total dis- Appellate ability benefits on the that had not satisfied her Engram proof, only temporary partial disability burden awarded benefits. court found that had superior Appellate imper- Division merely conducted a de novo review instead of
missibly determining aby whether the award was supported preponderance compe- evidence, tent the ALJ’s and credible reinstated award. On this Court Division appeal, agreed Appellate applied incorrect found that the court should superior standard review but remanded the matter Division with instruc- Appellate have standard. America v. apply proper Truckstops Engram, tions remand, 14, 1996, May Appellate Pursuant to that on Divi- sion denied claim for additional again Engram’s compensation, *8 not met her burden of ground proving change she had Farms, Maloney County condition as set forth in v. Gordon (1995). filed a notice of Engram timely appeal court, 3, 1996, from that denial on June and the which did superior 16,1996, in the matter until issued a deci- hearing August not hold a