Portenier Ex Rel. E.P. v. United States ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
April 3, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
THEA PORTENIER, Mother and next
friend of minor E.P.,
Plaintiff-Appellant,
No. 11-3371
v. (D.C. No. 5:09-CV-04163-JAR)
(D. Kan.)
UNITED STATES OF AMERICA,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ, MURPHY, and HOLMES, Circuit Judges.
Plaintiff-Appellant Thea Portenier, mother and next friend of minor E.P.
(“EP”), 1 appeals from the district court’s grant of summary judgment to the
government on her medical malpractice claim brought on behalf of EP pursuant to
the Federal Tort Claims Act (“FTCA”) and governed by Kansas tort law. Ms.
Portenier asserts that certain healthcare professionals did not properly diagnose
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
1
According to the complaint, Ms. Portenier legally adopted EP after
the events at issue in this appeal had transpired.
and treat EP’s child abuse and that this failure caused EP to suffer severe injuries
from a subsequent episode of abuse. This appeal requires us to decide whether
Kansas law imposes a legal duty on healthcare professionals—as part of their duty
to diagnose and treat patients who have suffered child abuse—to report that child
abuse to authorities or take measures to prevent a subsequent episode of child
abuse from occurring. Because we conclude that Kansas law does not recognize
such a duty, Ms. Portenier’s medical malpractice claim cannot succeed.
Accordingly, we affirm the district court’s grant of summary judgment to the
government.
I
A
We briefly set forth the very limited factual background necessary to the
disposition of this appeal. EP was born on December 29, 2003, at Irwin Army
Community Hospital (“IACH”) in Fort Riley, Kansas. Shortly after giving birth
to EP, his biological mother, Shirlynne Craddock, placed him in the care of her
neighbor, Holly Bellinger.
On January 15, 2004, EP was taken to IACH for a scheduled visit. He was
examined by several persons, most notably Captain Wayne Darsow, a family
nurse practitioner, and Dr. Thomas Talbot; both noticed that EP had bruising in
multiple locations. Although Captain Darsow and Dr. Talbot had some suspicions
that the bruising was evidence of abuse, Dr. Talbot eventually concluded that the
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bruising was most likely caused by a blood disorder. Dr. Talbot requested a
follow-up examination, and EP was discharged at that time from the hospital.
However, a follow-up examination never occurred.
According to the complaint, on January 29, 2004, Ms. Bellinger brought EP
to Geary County Community Hospital where he was found to have, among other
injuries, multiple fractures to his skull and permanent brain damage. The
complaint alleges—and the parties do not dispute—that these injuries were caused
by Ms. Bellinger’s abuse.
B
Ms. Portenier brought this suit on behalf of EP against the
government—i.e., the employer of Dr. Talbot and Captain Darsow—to recover
damages for the severe injuries EP sustained from Ms. Bellinger’s abuse
following his January 15 examination at IACH. In her initial complaint, Ms.
Portenier alleged two claims: medical malpractice and failure to report child
abuse. She subsequently abandoned her failure to report child abuse claim and
went forward solely with her medical malpractice claim. This claim was
predicated on the legal duty that the healthcare professionals owed to EP to
properly diagnose and treat his child abuse during the January 15 examination.
Ms. Portenier asserted that had the healthcare professionals complied with this
duty, EP would not have sustained the injuries caused by Ms. Bellinger’s
subsequent abuse.
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The government moved for summary judgment on Ms. Portenier’s medical
malpractice claim, and the district court granted the motion. The district court
rejected Ms. Portenier’s contention that her medical malpractice claim involve
only the duty to diagnose and treat EP’s injuries and in no way relied on a duty to
report child abuse. Because Ms. Portenier “claim[ed] that the healthcare
professionals not only had the duty to diagnose and treat [EP’s] immediate
medical condition but also had a duty to diagnose the nonmedical cause of the
injuries and report the injuries so that further abuse by Ms. Bellinger could be
prevented,” the district court concluded that “whether Dr. Talbot and Captain
Darsow had a duty to report child abuse [was] necessarily at issue in this case.”
Aplt. App., Vol. I, at 131 (Dist. Ct. Mem. & Order, filed Dec. 7, 2011).
In the end, the district court concluded that Kansas law does not impose on
healthcare professionals a duty to report child abuse as part of their duty to
diagnose and treat their patients. The district court noted that, although
healthcare professionals have a statutory duty to report child abuse, the Kansas
Supreme Court in Kansas State Bank & Trust Co. v. Specialized Transportation
Services, Inc., 819 P.2d 587, 604 (Kan. 1991), held that the child abuse reporting
statute does not create individual liability for noncompliance.
Moreover, the district court concluded that Kansas has not recognized a
duty to report child abuse at common law and reasoned that it would not likely do
so for three reasons: first, several other jurisdictions have found that healthcare
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professionals do not have a common law duty to report child abuse; second,
Kansas common law does not impose a duty to prevent a third party from injuring
another unless there exists a special relationship between the actor and the third
party or injured person, which the district court concluded was not present here;
and third, the court in Kansas State Bank & Trust, while not directly reaching the
issue, intimated that there is no common law duty to report child abuse.
Because Ms. Portenier’s medical malpractice claim necessarily relied on a
duty to report child abuse, and Kansas law does not recognize such a duty, the
district court concluded that her claim failed as a matter of law. Summary
judgment was entered for the government, and this appeal followed.
II
We must decide whether the district court properly granted summary
judgment to the government on Ms. Portenier’s medical malpractice claim. To do
so, we review the district court’s grant of summary judgment de novo, applying
the same standards as the district court. See e.g., Kan. Penn Gaming, LLC v. HV
Props. of Kan., LLC, 662 F.3d 1275, 1284 (10th Cir. 2011). Additionally, “[w]e
review the district court’s determinations of state law de novo.” Ayala v. United
States, 49 F.3d 607, 611 (10th Cir. 1995).
Ultimately, we conclude that the district court correctly ruled that Ms.
Portenier’s claim necessarily relies on the existence of a duty for healthcare
professionals to report child abuse or to take measures to prevent future episodes
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of abuse caused by third parties. Because we find that no such duty exists under
Kansas law, Ms. Portenier’s FTCA claim must fail. Accordingly, we affirm the
district court’s grant of summary judgment to the government.
A
We begin with a brief overview of the FTCA. Generally, “[t]he United
States can be sued only to the extent that it has waived its immunity [from suit].”
Harvey v. United States, 685 F.3d 939, 946 (10th Cir. 2012) (quoting United
States v. Orleans, 425 U.S. 807, 814 (1976)) (internal quotation marks omitted).
“The FTCA . . . was designed primarily to remove the sovereign immunity of the
United States from suits in tort.” Levin v. United States, 568 U.S. ----, 133 S. Ct.
1224, 1228 (2013) (quoting Richards v. United States, 369 U.S. 1, 6 (1962))
(internal quotation marks omitted). “[It] gives federal district courts exclusive
jurisdiction over claims against the United States for ‘injury or loss of property,
or personal injury or death caused by the negligent or wrongful act or omission’
of federal employees acting within the scope of their employment.” 2 Id. (quoting
28 U.S.C. § 1346(b)(1)).
“[T]he FTCA makes the United States liable ‘to the same extent as a
private individual under like circumstances.’” Id. (quoting 28 U.S.C. § 2674); see
2
The parties do not dispute that suit against the United States is proper
because Dr. Talbot and Captain Darsow are federal employees who were working
within the scope of their employment at all relevant times. See Levin, 133 S. Ct.
at 1228.
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Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1117 (10th Cir. 2004) (“The
FTCA provides that the United States shall be liable under state tort law only in
the same manner and to the same extent as a private individual under like
circumstances.” (quoting Nationwide Mut. Ins. Co. v. United States, 3 F.3d 1392,
1396 (10th Cir. 1993)) (internal quotation marks omitted)). “State substantive
law applies to suits brought against the United States under the FTCA.” Hill, 393
F.3d at 1117. The governing state law is “the law of the place where the act or
omission occurred.” Esposito v. United States, 368 F.3d 1271, 1274 (10th Cir.
2004) (quoting 28 U.S.C. § 1346(b)(1)) (internal quotation marks omitted); see
Levin, 133 S. Ct. at 1228. “Even if specific behavior is statutorily required of a
federal employee, the government is not liable under the FTCA unless state law
recognizes a comparable liability for private persons.” Ayala, 49 F.3d at 610; see
Klepper v. City of Milford, 825 F.2d 1440, 1448 (10th Cir. 1987) (“It is well
established that where a negligence claim is based on a violation of a federal
statute or regulation, no claim will lie under the FTCA in the absence of some
other duty under the applicable state law.”).
Here, the acts at issue all occurred in Kansas; consequently, Kansas
supplies the controlling law for Ms. Portenier’s medical malpractice claim. Under
Kansas law, “[m]edical malpractice is negligence of a healthcare professional in
the diagnosis, care, and treatment of a patient.” Munoz v. Clark, 199 P.3d 1283,
1288 (Kan. Ct. App. 2009) (quoting Perkins v. Susan B. Allen Mem’l Hosp., 146
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P.3d 1102, 1105 (Kan. Ct. App. 2006)) (internal quotation marks omitted). A
medical malpractice claim requires proof of the following:
(1) the health care provider owed the patient a duty of care,
which required that the provider meet or exceed a certain
standard of care to protect the patient from injury; (2) the
provider breached that duty or deviated from the standard of
care; (3) the patient was injured; and (4) the injury proximately
resulted from the health care provider’s breach of the standard of
care.
Foster ex rel. Foster v. Klaumann, 294 P.3d 223, 229 (Kan. 2013); accord Puckett
v. Mt. Carmel Reg’l Med. Ctr., 228 P.3d 1048, 1060 (Kan. 2010) (setting forth the
same four elements); see also Hale v. Brown, 197 P.3d 438, 440 (Kan. 2008) (“In
order to establish a negligence claim, the plaintiff must establish the existence of
a duty, a breach of that duty, an injury, and proximate cause . . . .”).
“Whether a physician owes a legal duty to a patient under a particular
circumstance is a question of law.” Irvin v. Smith, 31 P.3d 934, 942 (Kan. 2001);
see Woodruff v. City of Ottawa, 951 P.2d 953, 956 (Kan. 1997) (“Whether a duty
. . . exists is a question of law.”); Calwell v. Hassan, 925 P.2d 422, 428 (Kan.
1996) (“Whether a duty exists is a question of law.”). “[T]he fact that a plaintiff
produces an expert witness who will testify that a particular act or omission
constitutes ‘a departure from the standard of care’ [does not] establish that a duty
exists as a matter of law.” Irvin, 31 P.3d at 942.
Kansas law imposes a statutory duty on healthcare professionals who have
reason to suspect that a child has been abused to report the suspected abuse to the
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State. See Kan. Stat. Ann. § 38-2223 (2012). However, as noted by the district
court, the Supreme Court of Kansas held that this statute does not create a private
right of action against those who fail to comply. 3 See Kan. State Bank & Trust,
819 P.2d at 604 (“There is no express indication of legislative intent to impose
any liability for failure to report.”); see also Adams v. Bd. of Sedgwick Cnty.
Comm’rs, 214 P.3d 1173, 1188 (Kan. 2009) (“[In Kansas State Bank & Trust,]
this court rejected the argument that the child abuse reporting statute created a
duty owed to a subsequently abused child.”). Notably, Ms. Portenier recognizes
that Kansas law is postured in this manner and that the district court was correct
in finding that healthcare professionals do not have a statutory duty to report
child abuse that is actionable under Kansas tort law.
Further, under Kansas common law, the “prevailing rule . . . is that in the
absence of a ‘special relationship,’ there is no duty of an actor . . . to control the
conduct of a third person . . . to prevent harm to another.” D.W. v. Bliss, 112
P.3d 232, 239 (Kan. 2005); see Calwell, 925 P.2d at 428–29. “A special
relationship may exist between parent and child, master and servant, the possessor
of land and licensees, persons in charge of one with dangerous propensities, and
persons with custody of another.” Calwell, 925 P.2d at 428–29 (quoting C.J.W. v.
3
At issue in Kansas State Bank & Trust was an earlier codification of
the child abuse reporting statute, Kan. Stat. Ann. § 38-1522 (1990). See 819 P.2d
at 602–03. The statute was later recodified as Kan. Stat. Ann. § 38-2223.
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State, 853 P.2d 4, 9 (Kan. 1993)) (internal quotation marks omitted); see Bliss,
112 P.3d at 239 (listing the same types of special relationships). Once again, Ms.
Portenier recognizes that this is the law in Kansas and does not contend that a
special relationship exists in this case.
B
We begin our analysis by reiterating for clarity what is not disputed by the
parties. Next, we set forth the contours of Ms. Portenier’s argument, concluding
that her claim necessarily relies on healthcare professionals having a duty to
report child abuse or take measures to prevent their patients from being harmed
by third parties as part of their duty to treat their patients. Finally, we conclude
that because Kansas law has not recognized such a duty, nor would it, Ms.
Portenier’s claim must fail.
Beginning with what the parties do not dispute, the district court held that
Kansas common law “does not recognize a cause of action for medical negligence
based on failure to report child abuse.” Aplt. App., Vol. I, at 134. On appeal,
Ms. Portenier made clear that she “does not dispute that the District Court was
correct in that statement of law.” Aplt. Opening Br. at 31. Similarly, Ms.
Portenier does not contest that the healthcare professionals here cannot face
liability in a private action under Kansas’s child abuse reporting statute for failing
to report abuse. The district court also held that, under Kansas law, “an actor has
no duty to control the conduct of a third party to prevent that person from causing
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harm to others unless there is a special relationship between the actor and the
third party or the actor and the injured party.” Aplt. App., Vol. I, at 134 (quoting
Bliss, 112 P.3d at 238) (internal quotation marks omitted). This too is undisputed
by Ms. Portenier.
Ms. Portenier’s position, however, is that these legal determinations are
irrelevant because her claim is not that healthcare professionals have a duty to
report child abuse or a duty to protect their patients from harm caused by third
parties. Instead, says Ms. Portenier, her claim is one of medical malpractice, and
if EP’s healthcare professionals had properly diagnosed and treated his
condition—traumatic child abuse 4—he would not have sustained the injuries
subsequently caused by Ms. Bellinger. According to Ms. Portenier, she can prove
her medical malpractice claim by showing that the healthcare professionals
misdiagnosed EP’s child abuse as a blood condition. Had they not done so, Ms.
Portenier continues, the standard of care for the treatment of child abuse—as
testified to by her experts and established in the Department of Army’s Protocol
for Child Abuse and Neglect (“PCAN”)—would have required the healthcare
professionals to report the child abuse or take preventative measures to ensure
that no further abuse occurred.
4
Because the parties both proceed under the assumption that child
abuse is a medical condition that healthcare professionals have a duty to non-
negligently diagnose and treat, we accept that premise (without definitively
opining on it) for purposes of this appeal.
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Despite her protestations to the contrary, however, Ms. Portenier’s claim
rests on more than an alleged misdiagnosis of EP’s injuries during the January 15
examination; it rests on the additional premise that had the alleged misdiagnosis
not occurred, the healthcare professionals would have had a duty to report the
child abuse or take measures to prevent further abuse from occurring as part of
their duty to treat the abuse. The language of Ms. Portenier’s own arguments
demonstrate that this is true. For example, she argues:
[A] diagnosis [of child abuse] triggers two protocols. The first
is the duty to complete a thorough evaluation of the baby’s
condition to determine not only the injuries but also their cause.
The second is a duty to alert authorities, but this follows only
after the healthcare evaluation is completed. If the medical
evaluation required by the infant’s condition is not made, injuries
are not treated and the protective protocols cannot be
implemented. The purpose of the duty—of the standard of
care—is to prevent future injury to the baby.
Aplt. Opening Br. at 30 (emphases added); see id. at 34 (“[Ms. Portenier’s]
complaint alleges negligence in the failure to make an accurate and timely
diagnosis and institute treatment, which would have included hospitalization and
removal from the abusive custodian.” (emphases added)). 5 Put differently, Ms.
5
Ms. Portenier made nearly identical arguments before the district
court. See, e.g., Aplt. App., Vol. I, at 68 (Pl.’s Resp. to Def.’s Mot. to Dismiss or
in the Alternative, Mot. for Summ. J., filed July 5, 2011) (“In addition to showing
. . . that E.P.’s health care providers had a duty to properly diagnose suspected
child abuse, [Ms. Portenier] will show . . . that [they] had a duty to timely treat
the suspected child abuse, which includes taking the necessary steps to safeguard
the victim to prevent further immediate abuse.” (second emphasis added)); id. at
(continued...)
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Portenier argues that the duty to diagnose and treat “include[s]” removing the
patient “from the abusive custodian,” id., and that the “purpose of the duty” is to
prevent further abuse by the third-party abuser, 6 id. at 30. These arguments make
it clear that Ms. Portenier’s claim necessarily relies on the existence of a duty of
healthcare professionals to report child abuse or take steps to prevent a third party
from subsequently abusing their patient as part of their duty to treat child abuse. 7
5
(...continued)
89 (“[I]f Captain Darsow and Dr. Talbot had followed the accepted standard of
medical care, they would have made the proper diagnosis . . . [of] child abuse.
They then would have followed the accepted standard of medical care in
reporting their diagnosis of child abuse . . . .” (emphasis added)).
6
That Ms. Portenier seeks to impose a duty on healthcare
professionals to prevent subsequent injuries to their patients caused by third
parties is further bolstered by considering the injuries for which she seeks to hold
the healthcare professionals liable—viz., injuries caused by Ms. Bellinger after
EP’s January 15 visit to IACH.
7
Ms. Portenier argues that the failure to diagnose child abuse, which
could lead to further abuse of the child, is no different than the failure to diagnose
any other healthcare condition that could lead to further injuries on account of the
undiagnosed condition. To demonstrate this, she relies on two hypothetical
situations that she contends are analogous to her claim. But these hypothetical
situations only serve to demonstrate that her claim is legally distinct from medical
malpractice claims recognized by Kansas. First, she states:
When an emergency room physician fails to do cardiac enzymes
and misses an impending myocardial infarction, the physician
does not actually cause the fatal injury—a glob of fatty plaque
does that—but physicians are routinely held accountable for the
failure to diagnose the impending myocardial infarction because
with timely treatment the injury is avoided; no different rule
should apply here.
(continued...)
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7
(...continued)
Aplt. Opening Br. at 40 n.9. But unlike the cause of the eventual injuries in a
typical medical malpractice claim—or, more specifically, the hypothetical glob of
fatty plaque in Ms. Portenier’s hypothetical—the cause of EP’s eventual injuries
was the conduct of a third party, i.e., Ms. Bellinger, not an untreated medical
condition running its course. In other words, Ms. Portenier does not contend that
the injuries themselves present at the January 15 examination, if left untreated,
would have caused EP’s subsequent injuries. She acknowledges that Ms.
Bellinger inflicted these injuries, and Kansas law clearly distinguishes between
injuries caused by third parties and those that are not. See Bliss, 112 P.3d at 239
(“[The] prevailing rule in Kansas is that in the absence of a ‘special relationship,’
there is no duty of an actor . . . to control the conduct of a third person . . . to
prevent harm to another . . . .”).
Her second hypothetical further demonstrates why the duty she seeks to
impose on healthcare professionals is unique:
When a patient comes to the Emergency Room after automobile
trauma, he presents with a medical condition—trauma—that has
a non-medical cause. If the patient has a ruptured aorta, and that
is missed in the diagnosis, and the patient later exsanguinates as
a result, the “non-medical cause” of the patient’s injuries will not
prevent the physician from being liable for the patient’s death
....
Aplt. Reply Br. at 4–5. It is true that a patient injured in a car accident and a
patient injured due to child abuse both suffered injuries having, in Ms. Portenier’s
words, a “non-medical cause.” And it is further true that healthcare professionals
have a duty to non-negligently diagnose and treat patients presenting these types
of injuries. See, e.g., Monoz, 199 P.3d at 1288. But Ms. Portenier’s second
hypothetical departs from the instant case in that the duty to diagnose and treat
does not require healthcare professionals to take measures to prevent the “non-
medical cause” from recurring. Put differently, absent a special relationship,
Kansas law does not place a duty on healthcare professionals to take steps to
prevent a subsequent car accident any more than it requires them to take steps to
prevent a subsequent episode of child abuse, as healthcare professionals have no
duty to control the conduct of third parties. See Bliss, 112 P.3d at 239. Thus Ms.
Portenier’s attempt to equate her claim to that of an ordinary medical malpractice
(continued...)
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Ms. Portenier seeks to avoid this conclusion at least in part through an
argument that misguidedly conflates the distinct—but related—concepts of duty
and standard of care. See, e.g., Aplt. Opening Br. at 30 (“The purpose of the
duty—of the standard of care—is to prevent future injury to the baby.”). Having
already purportedly established the existence of the requisite legal duty for
purposes of prosecuting her claim—viz., the overarching duty to diagnose and
treat traumatic child abuse—Ms. Portenier reasons that she may direct the
analysis to the question of whether the healthcare professionals violated the
standard of care, which includes reporting child abuse or otherwise taking steps to
protect child patients from further abuse of third parties. See, e.g., id. (noting that
part of the “standard of care” “triggers two protocols,” one of which is “a duty to
alert authorities” to the suspected child abuse).
However, the standard of care establishes “[w]hat the defendant must do, or
must not do . . . to satisfy the duty”—it is not conceptually conterminous with the
duty itself. Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and
Keeton on Torts § 53, at 356 (5th ed. 1984) [hereinafter Prosser]; see Ingram v.
Howard-Needles-Tammen & Bergendoff, 672 P.2d 1083, 1088 (Kan. 1983)
(having concluded that the defendant had a legal duty “to the traveling public to
exercise reasonable care in making annual bridge inspections,” next asking
7
(...continued)
claim in this manner is wholly unpersuasive.
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“[w]hat was the standard of care required of [defendant] in order to fulfill its
duty”).
Whether the law imposes a given duty is a purely legal determination. See,
e.g., Irvin, 31 P.3d at 942; Woodruff, 951 P.2d at 956; Nero v. Kan. State Univ.,
861 P.2d 768, 772 (Kan. 1993); see also Black’s Law Dictionary 580 (9th ed.
2009) (specifying that a “duty” is “[a] legal obligation that is owed or due to
another and that needs to be satisfied”). This proposition naturally follows from
the well-established premise that a duty is “an expression of the sum total of
those considerations of policy which lead the law to say that the particular
plaintiff is entitled to protection.” Wicina v. Strecker, 747 P.2d 167, 173 (Kan.
1987) (quoting Prosser, Law of Torts § 53, at 325–26 (4th ed. 1971)) (internal
quotation marks omitted).
Consistent with this Kansas law, distinguished commentators have
discussed the conceptual distinction that exists between duty and the set of
actions constituting the standard of care: “It is better to reserve ‘duty’ for the
problem of the relation between individuals which imposes upon one a legal
obligation for the benefit of the other, and to deal with particular conduct in terms
of a legal standard of what is required to meet the obligation.” Prosser, supra,
§ 53 at 356; see, e.g., Black’s Law Dictionary 1535 (defining “standard of care”
as “[i]n the law of negligence, the degree of care that a reasonable person should
exercise”).
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The upshot is that a defendant may engage in careless or negligent conduct
without subjecting himself to tort liability; such conduct only gives rise to tort
liability when the defendant owes a legal duty to the plaintiff to refrain from
acting carelessly. See Prosser, supra, at 356–57 (noting that “[i]n the early
English law” “[t]he defendant’s obligation to behave properly apparently was
owed to all the world . . . [b]ut when negligence began to take form as a separate
basis of tort liability, the courts developed the idea of duty, as a matter of some
specific relation between the plaintiff and the defendant, without which there
could be no liability”); see also Bryan A. Garner, A Dictionary of Modern Legal
Usage 301 (2d ed. 1995) (noting “writers use duty [in tort law] only to mean that
there could be liability”). Kansas law reflects these fundamental principles. See
Irvin, 31 P.3d at 942 (“Without a legal duty, there can be no compensable
negligence.” (emphasis added)); id. (“Actionable negligence must be based upon
breach of duty.” (emphasis added)); Wicina, 747 P.2d at 174 (“It is fundamental
that before there can be any recovery in tort there must be a violation of a duty
owed by one party to the person seeking recovery.”).
Consequently, notwithstanding Ms. Portenier’s efforts to couch them as
part and parcel of a standard of care, in order for the healthcare professionals in
the instant case to be found liable for a failure to report child abuse or otherwise
take steps to protect child patients from further abuse of third parties, they must
have had a legal duty to do so. Thus, Ms. Portenier’s argument premised on a
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standard of care is misguided.
Similarly, Ms. Portenier’s reliance on evidence—notably, expert testimony
and the PCAN—to demonstrate that the standard of care requires the reporting of
traumatic child abuse or the implementation of other measures to protect against
further child abuse from third parties misses the mark. As noted, the standard of
care relates to the requisite conduct to satisfy a legal duty; it is not conterminous
with the duty itself. In order to impose tort liability upon them, the healthcare
professionals at issue must have had a legal duty to report child abuse or to take
steps to protect the child patient from further abuse by third parties. And Ms.
Portenier’s marshalling of evidence cannot create such a legal duty. This is
because, as noted above, whether the law imposes a given duty is a purely legal
determination. 8 See Irvin, 31 P.3d at 942 (“[T]he fact that a plaintiff produces an
expert witness who will testify that a particular act or omission constitutes ‘a
departure from the standard of care’ [does not] establish that a duty exists as a
matter of law.”); cf. Nold ex rel. Nold v. Binyon, 31 P.3d 274, 281–84 (Kan. 2001)
8
Indeed, Ms. Portenier’s reliance on the PCAN is particularly
misguided. For there to be a viable claim under the FTCA, the liability must flow
from a violation of an obligation imposed by state law. See Ayala, 49 F.3d at 611
(“Even if specific behavior is statutorily required of a federal employee, the
government is not liable under the FTCA unless state law recognizes a
comparable liability for private persons.”). The PCAN is the United States
Army’s protocol for handling cases of child abuse and neglect—i.e., it is not a
state law obligation.
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(holding that the trial court erred in excluding proffered testimony of plaintiff’s
expert medical witness on the breach of the standard of care of defendant
hospital’s nurses). Thus, Ms. Portenier’s evidence-based arguments are
unavailing.
Although there is no dispute that Kansas law does not hold healthcare
professionals liable for failing to report child abuse or preventing third parties
from injuring their patients, our final task is to predict whether the Supreme Court
of Kansas would recognize such a duty as part of the overall duty to diagnose and
treat traumatic child abuse. We conclude that it would not.
The two most relevant indications of whether the Supreme Court of Kansas
would recognize such a duty persuasively demonstrate that it would not. First,
the Supreme Court of Kansas recognized in Kansas State Bank & Trust that the
child abuse reporting statute does not create a private right of action against
individuals who fail to comply with the reporting requirements. 9 See 819 P.2d at
604. Second, Kansas tort principles belie the notion that such a duty would be
9
Although not determinative of the question, it is noteworthy that in
declining to recognize that the child abuse reporting statute created individual
liability, the Supreme Court of Kansas relied in part on another jurisdiction’s
recognition that “such an action is not authorized at common law” and, further,
cast doubt on whether recognition of such a claim would be a sound policy. See
Kan. State Bank & Trust, 819 P.2d at 604 (quoting Borne by Borne v. Nw. Allen
Cnty. Sch. Corp., 532 N.E.2d 1196, 1203 (Ind. App. 1989)) (internal quotation
marks omitted); see also Adams, 214 P.3d at 1188 (highlighting the Kansas State
Bank & Trust court’s reliance on this reasoning in Borne and citing it again with
approval).
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found to exist. As recognized by both parties and the district court, absent a
“special relationship,” which Ms. Portenier does not contend existed between EP
and the healthcare professionals, there was no duty of the actors (the healthcare
professionals) to control the conduct of a third person (Ms. Bellinger) to prevent
harm to another (EP). See Bliss, 112 P.3d at 239; see Calwell, 925 P.2d at
428–29. And the harm for which Ms. Portenier seeks recompense derives entirely
from injuries inflicted on EP after the January 15 examination by Ms. Bellinger.
Notably, Ms. Portenier offers no justifications—and we could not identify any
persuasive ones—for why Kansas would recognize such a duty. The only Kansas
authorities relied on by Ms. Portenier do not involve, let alone discuss, the duty to
diagnose and treat in such broad terms. See, e.g., Puckett, 228 P.3d at 1054–57
(involving allegations that the failure to properly diagnose and treat a patient’s
urinary tract infection led to sepsis and contributed to the patient’s death);
Lashure v. Felts, 197 P.3d 885, 887–88 (Kan. Ct. App. 2008) (involving
allegations that the failure to properly diagnose osteomyelitis caused unnecessary
pain, suffering, and healthcare bills); George v. Pauly, 45 P.3d 1, 2–3 (Kan. Ct.
App. 2001) (alleging that the failure to properly diagnose Hirschsprung’s Disease
led to the patient’s death).
In sum, we hold that Ms. Portenier’s claim relies on a duty that Kansas law
does not (and would not) recognize—viz., a duty for healthcare professionals to
report child abuse or take measures to prevent one of their patients from being
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subject to future episodes of child abuse at the hands of a third party, as part of
their duty to diagnose and treat their patients for traumatic child abuse. “In the
absence of a duty, there can be no breach of a duty and no basis for a negligence
cause of action.” See Bliss, 112 P.3d at 243. And if the government cannot be
held liable under Kansas law, it cannot be liable under the FTCA. See Hill, 393
F.3d at 1117.
III
For the foregoing reasons, we AFFIRM the district court’s grant of summary
judgment to the government on Ms. Portenier’s FTCA claim.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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