Kelli Sprunger v. John A. Egli, M.D. , 44 N.E.3d 690 ( 2015 )


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  •                                                                                          Sep 11 2015, 9:10 am
    ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
    Kevin L. Likes                                             Edward L. Murphy, Jr.
    Likes Law Office                                           Andrew L. Palmison
    Auburn, Indiana                                            Rothberg Logan & Warsco LLP
    Fort Wayne, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Kelli Sprunger                                             September 11, 2015
    (Mother of Alyssa B. Guernsey),                            Court of Appeals Case No.
    Appellant-Plaintiff,                                       44A04-1412-CT-567
    Appeal from the LaGrange Circuit
    v.                                                 Court
    The Honorable Robert C. Probst,
    John A. Egli, M.D.,                                        Special Judge
    Appellee-Defendant                                         Trial Court Cause No.
    44C01-1401-CT-2
    Robb, Judge.
    Case Summary and Issue
    [1]   In December 2008, thirteen-month-old Alissa Guernsey was placed in foster
    care with relative caregivers. She died just over three months later from injuries
    consistent with child abuse. During Guernsey’s placement in foster care, John
    Egli, M.D. (“Dr. Egli”), was Guernsey’s primary physician.
    Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015           Page 1 of 11
    [2]   Kelli Sprunger, Guernsey’s biological mother, subsequently filed a medical
    malpractice action against Dr. Egli alleging failure to diagnose and report child
    abuse. Concluding that Indiana does not recognize a private right of action for
    failure to report child abuse, the trial court granted summary judgment in favor
    of Dr. Egli on August 7, 2014.
    [3]   Sprunger now appeals, arguing that her claim is premised not on a failure to
    report, but rather a failure to make a correct diagnosis. We agree with the trial
    court’s conclusion that Sprunger essentially alleges a failure to report child
    abuse and hold that the characterization of the claim as medical malpractice
    does not escape the threshold question of whether the reporting statutes confer
    a private right of action. As we have already determined that there is no private
    right of action for failure to report child abuse in Indiana, C.T. v. Gammon, 
    928 N.E.2d 847
    , 853-54 (Ind. Ct. App. 2010), we affirm the trial court’s grant of
    summary judgment in favor of Dr. Egli.
    Facts and Procedural History
    [4]   Sprunger left her children in the care of her cousin, Christy Shaffer, in late
    November or early December 2008. At that time, Guernsey was just over a
    year old, and the Department of Child Services (“DCS”) “already had a case
    open.” Appellant’s Appendix at 37.
    [5]   On December 16, 2008, the Steuben Circuit Court held an initial hearing on a
    petition alleging that Guernsey was a Child in Need of Services (“CHINS”).
    Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015   Page 2 of 11
    Sprunger denied the allegations, but the juvenile court found that it was in the
    best interest of Guernsey to remain outside Sprunger’s home. Accordingly, the
    juvenile court ordered that Guernsey remain in the care of Shaffer under the
    supervision of the DCS.
    [6]   During Guernsey’s placement with Shaffer, Dr. Egli was Guernsey’s primary
    physician. Dr. Egli saw Guernsey several times between December 2008 and
    March 2009. During Guersney’s first appointment on December 10, 2008, Dr.
    Egli conducted a routine physical examination and determined that she was
    “within normal limits.” 
    Id. at 80.
    In the months to follow, Guernsey
    experienced lacerations, bruising, hair loss, and a fractured arm. Dr. Egli
    informed the DCS of her condition but also stated that “he did not suspect
    abuse.” 
    Id. at 85.
    Dr. Egli was concerned that there may have been a “medical
    reason” for the bruising. 
    Id. at 80.
    [7]   On March 3, 2009, Dr. Egli referred Guernsey to a pediatric oncologist at Riley
    Hospital for Children. She was seen at Riley on March 5, 2009. The oncologist
    ordered tests for coagulation disorders and leukemia, but all of the test results
    were normal. The oncologist noted Guernsey’s “complex social situation” and
    believed that the injuries were likely caused by “the banging of her head against
    the crib while she is asleep.” 
    Id. at 111.
    The oncologist had no
    recommendations for further testing or treatment and referred Guernsey back to
    Dr. Egli.
    Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015   Page 3 of 11
    [8]    On March 17, 2009, Sprunger admitted the allegations in the CHINS petition,
    and Guernsey was adjudicated a CHINS “due to mother’s substance abuse
    problem which adversely impacted her parenting history.” 
    Id. at 120.
    The
    court again found that it was in the best interest of Guernsey to remain in the
    care of Shaffer and entered an order to that effect. Less than two weeks later,
    on March 29, 2009, Guernsey was found dead in Shaffer’s home. Post-mortem
    pictures showed extensive facial bruising, and the autopsy revealed injuries
    consistent with blunt force trauma to the head. The coroner ruled the death a
    homicide.
    [9]    Sprunger subsequently filed a medical malpractice action against Dr. Egli for
    failure to diagnose and report child abuse. As required by the Medical
    Malpractice Act, Sprunger first filed a proposed complaint with the Department
    of Insurance. See Ind. Code § 34-18-8-4. The medical review panel issued its
    opinion on October 15, 2013, unanimously deciding that the evidence
    submitted did not support the conclusion that Dr. Egli failed to meet the
    appropriate standard of care.
    [10]   Notwithstanding the panel’s opinion, Sprunger filed a complaint for medical
    malpractice in the LaGrange Circuit Court on January 15, 2014. The
    complaint alleged in relevant part:
    4. During the time that defendant treated Alissa B. Guernsey
    there was [sic] clear indications that the child was being abused
    by other individuals.
    5. The defendant failed to report the abuse.
    Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015   Page 4 of 11
    6. The defendant provided information that may have been used
    by the [DCS] in deciding to leave the child in the care and
    custody of the individual who ultimately killed the child.
    7. The diagnosis’s [sic] and treatment provided by the defendant
    failed [sic] below the applicable standard of care.
    8. As a result of the defendant’s actions and inactions the child,
    Alissa B. Guernsey was not removed from the home of the
    individual who ultimately killed her.
    Appellant’s App. at 13-14.
    [11]   Dr. Egli moved for summary judgment on April 15, 2014. The motion asserted
    five arguments in favor of summary judgment, one of which is relevant to this
    appeal: “The Plaintiffs’ theory of liability against Dr. Egli is that Dr. Egli
    allegedly failed to report child abuse; Indiana does not recognize a private, civil
    action for failure to report child abuse.” 
    Id. at 15.1
    In response, Sprunger
    1
    In the alternative, Dr. Egli argues that Sprunger is barred from recovering because she was “contributorily
    negligent as a matter of law in a manner that contributed to [Guernsey]’s death.” Brief of Appellee at 20.
    Dr. Egli contends: “It is undisputed that Sprunger placed [Guernsey] in a position to be abused by Shaffer
    when she abandoned her resulting in the court finding that [Guernsey] was a CHINS.” 
    Id. We find
    this
    argument inappropriate and note that the purpose of a CHINS adjudication is to protect children, not
    establish parental culpability. In re N.E., 
    919 N.E.2d 102
    , 105 (Ind. 2010). Sprunger admitted that she was
    suffering from substance abuse and left her children in the care of a family member because she recognized
    that she herself was not capable of caring for them at that time. Thereafter the juvenile court approved
    Guernsey’s placement with Shaffer. Foster care is supposed to provide a safe, stable, and nurturing
    environment for children who can no longer remain in their homes. About Foster Care, INDIANA
    DEPARTMENT OF CHILD SERVICES, http://www.in.gov/dcs/2983.htm (last visited Aug. 12, 2015). The
    system failed Guernsey, and the suggestion that this failure was somehow Sprunger’s fault is tantamount to
    victim blaming.
    Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015                      Page 5 of 11
    argued that her claim was premised not on a failure to report but rather a failure
    to make a correct diagnosis. Sprunger insisted:
    [H]ad the defendant correctly diagnosed the abuse as required by
    the applicable standard of care additional actions would have
    been taken as required by State Law to remove the child from the
    foreseeable abusive situation. The failure of the defendant to
    meet the appropriate standard of care prevented those actions
    from occurring and subsequently led to the death of the child
    ....
    
    Id. at 129.
    [12]   The trial court concluded that Sprunger was essentially alleging a failure to
    report child abuse, a cause of action not recognized in Indiana. On this basis,
    the trial court granted summary judgment in favor of Dr. Egli on August 7,
    2014. This appeal followed.
    Discussion and Decision
    I. Standard of Review
    [13]   Sprunger challenges the trial court’s grant of summary judgment in favor of Dr.
    Egli. We review a trial court’s grant of summary judgment de novo. Miller v.
    Dobbs, 
    991 N.E.2d 562
    , 564 (Ind. 2013). We affirm if there is no genuine issue
    as to any material fact and the moving party is entitled to judgment as a matter
    of law. 
    Id. (citing Ind.
    Trial Rule 56(C)).
    Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015   Page 6 of 11
    II. No Private Right of Action for Failure to Report Child
    Abuse
    [14]   An individual who has “reason to believe” that a child is a victim of abuse or
    neglect has a statutory duty to make an immediate report to either the DCS or
    local law enforcement. Ind. Code §§ 31-33-5-1, -4. “Reason to believe,” for the
    purpose of the reporting statutes, “means evidence that, if presented to
    individuals of similar background and training, would cause the individuals to
    believe that a child was abused or neglected.” Ind. Code § 31-9-2-101. Actual
    knowledge is not required. Lebo v. State, 
    977 N.E.2d 1031
    , 1038-39 (Ind. Ct.
    App. 2012). Nor does “reason to believe” call for a high level of certainty.
    Smith v. State, 
    8 N.E.3d 668
    , 683 n.18 (Ind. 2014) (describing “reason to
    believe” as involving something less than probable cause). A person who is
    mistaken about the nature of a child’s injuries but had sufficient reason to
    believe that abuse was occurring violates the duty to report if no report is made.
    See 
    id. at 683.
    As our supreme court recently stated, the statutory scheme is
    designed to “err on the side of over reporting suspected child abuse or neglect.”
    
    Id. (emphasis in
    original).
    [15]   When a civil tort action is premised upon violation of a duty imposed by
    statute, the initial question is whether the statute confers a private right of
    action. Borne ex rel. Borne v. Nw. Allen Cnty. Sch. Corp., 
    532 N.E.2d 1196
    , 1203
    (Ind. Ct. App. 1989), trans. denied. Where a statute does not explicitly provide a
    private right of action to enforce its provisions, courts are frequently asked to
    find that the legislature intended that a private right of action be implied.
    Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015   Page 7 of 11
    Blanck v. Ind. Dep’t of Corr., 
    829 N.E.2d 505
    , 509 (Ind. 2005). Like the majority
    of states, Indiana does not recognize a private right of action for failure to
    report abuse. 
    C.T., 928 N.E.2d at 854
    . Our reporting statutes do not explicitly
    provide a private right of action, and we have previously held that the
    legislature did not intend that a private right of action be implied. 
    Id. at 853-54
    (citing 
    Borne, 532 N.E.2d at 1203
    ).2
    [16]   Sprunger agrees that Indiana does not recognize a private right of action for
    failure to report child abuse and argues that the trial court misconstrued the
    complaint. Sprunger contends:
    Egli’s conduct that gives rise to Sprunger’s claim is his failure to
    diagnosis [sic] the abuse not his failure to report the abuse. . . .
    [The] complaint is based on a claim of negligence under the
    Medical Malpractice Act and not a request to bring a private
    cause of action based on Egli’s failure to report the abuse.
    Appellant’s Brief at 11-12.
    [17]   First, we agree this case is one of medical malpractice, as it arises out of the
    special relationship between a doctor and his patient during the course of health
    care services that were provided by the doctor. See 
    C.T., 928 N.E.2d at 851
    .
    We disagree, however, that predicating the claim on medical malpractice
    necessarily transforms the claim into something other than an attempt to assert
    2
    The General Assembly has encouraged reporting by imposing criminal penalties for failing to report. An
    individual who knowingly fails to report child abuse commits a Class B misdemeanor. Ind. Code § 31-33-22-
    1.
    Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015                 Page 8 of 11
    a private right of action for failure to report abuse. See F.D. v. Ind. Dep’t of Child
    Servs., 
    1 N.E.3d 131
    , 143 (Ind. 2013) (Rush, C.J., concurring in part and
    dissenting in part) (“[N]o matter whether plaintiffs predicate their claim upon a
    negligence theory or a freestanding private right of action, a court must still
    determine the larger question of whether the Legislature intended to hold the
    defendant civilly liable.”).
    [18]   We addressed a similar claim in C.T., 
    928 N.E.2d 847
    . In C.T., Father filed a
    medical malpractice action against his son’s doctor for the doctor’s failure to
    report the son’s exposure to secondhand smoke while in Mother’s custody.
    Father alleged that the doctor was negligent and did not meet the standard of
    care, as the child had been born prematurely and suffered from respiratory
    illnesses. Medical records showed that the doctor had noted the child’s
    exposure, but the doctor disputed whether a child’s exposure to secondhand
    smoke constitutes child abuse triggering a duty to report. Father was essentially
    arguing that the doctor failed to classify the exposure as child abuse and that
    had the doctor reported the situation to the DCS, “more expedient removal
    from his mother’s home” would have resulted. 
    Id. at 852.
    We determined that
    the “dispositive question” in the case was whether Indiana recognizes a private
    right of action for failure to report child abuse. 
    Id. at 852
    n.4. We held that
    Indiana does not and affirmed the trial court’s entry of summary judgment in
    favor of the doctor.
    [19]   In the present case, we agree with the trial court’s conclusion that Sprunger is
    essentially alleging a failure to report child abuse. The duty to report is
    Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015   Page 9 of 11
    triggered by having “reason to believe” that a child is a victim of abuse. Ind.
    Code § 31-33-5-1. Dr. Egli had knowledge of Guernsey’s medical condition but
    did not attribute her injuries to abuse. Assuming Dr. Egli had sufficient reason
    to believe that Guernsey was a victim of abuse, as Sprunger contends,
    Sprunger’s claim rests on more than a misdiagnosis of the injuries. It
    inescapably rests on the additional premise that had the misdiagnosis not
    occurred, Dr. Egli would have reported the child abuse pursuant to the
    mandatory reporting statutes. Sprunger contends that “the claim [is] based on
    the sole allegation of medical malpractice by Egli for failing to diagnose the
    abuse,” Appellant’s Br. at 10, but Sprunger’s complaint, designation of
    evidence, and response in opposition to summary judgment allege both a failure
    to diagnose abuse and a failure to report. Sprunger’s brief on appeal concludes
    that “[h]ad Egli correctly diagnosed the child abuse, he would have reported the
    matter to [the DCS family case manager] who has a statutory duty to
    immediately remove the child from the dangerous situation and her subsequent
    fatal beating.” 
    Id. at 6.
    As Sprunger herself demonstrates, Dr. Egli’s alleged
    failure to report the abuse is logically inseparable from his alleged failure to
    diagnose it.
    Conclusion
    [20]   Because there is no private right of action for failure to report child abuse in
    Indiana, we must affirm the trial court’s grant of summary judgment in favor of
    Dr. Egli.
    Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015   Page 10 of 11
    [21]   Affirmed.
    May, J., and Mathias, J., concur.
    Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015   Page 11 of 11
    

Document Info

Docket Number: 44A04-1412-CT-567

Citation Numbers: 44 N.E.3d 690

Filed Date: 9/11/2015

Precedential Status: Precedential

Modified Date: 1/12/2023