IN THE SUPREME COURT OF IOWA
No. 13–0719
Filed April 24, 2015
SHANNON and DANNY NELSON, Individually, and on Behalf of E.N.
f/k/a E.N., a Minor,
Appellees,
vs.
LYNN M. LINDAMAN, LYNN M. LINDAMAN, M.D., P.L.C. d/b/a
LINDAMAN ORTHOPAEDIC, and MERCY MEDICAL CENTER –
DES MOINES,
Appellants.
Appeal from the Iowa District Court for Polk County, Robert J.
Blink, Judge.
Medical defendants, sued for malpractice for failing to detect child
abuse, appeal district court’s order denying their motion for summary
judgment based on immunity under Iowa Code section 232.73 for
assisting the investigation by the Iowa Department of Human Services.
REVERSED AND REMANDED WITH DIRECTIONS.
John T. Clendenin, Hayward L. Draper, Ryan G. Koopmans, and
Jess W. Vilsack of Nyemaster Goode, P.C., Des Moines, for appellants
Lynn M. Lindaman and Lynn M. Lindaman, M.D., P.L.C.
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.
2
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.
3
WATERMAN, Justice.
In this appeal, we must address the immunity from civil liability
afforded by Iowa Code section 232.73 (2009) for a physician participating
in a child abuse assessment. The physician treated the infant victim’s
broken arm and told the investigator for the Iowa Department of Human
Services (DHS) the father’s version of how the injury occurred was
plausible. The baby was left in his parents’ care and three weeks later
suffered a severe brain injury while with his father.
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 section 232.73. The district
court ruled that questions of fact precluded summary judgment, and we
allowed the defendants’ interlocutory appeal.
For the reasons explained below, we hold the defendants are
entitled to good-faith immunity under section 232.73. Undisputed facts
establish the physician participated in good faith in the DHS assessment.
We therefore reverse the order denying summary judgment and remand
the case for the entry of summary judgment in favor of the defendants.
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 the father’s story.
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Dr. Barron believed the spiral fracture could not have been caused by
E.N.’s body weight, especially because the baby’s bones were pliable.
Dr. Barron reported his concerns to the DHS, which began a child abuse
investigation under Iowa Code section 232.70. DHS caseworker Darla
Brown came to the hospital, spoke with Dr. Barron and E.N.’s parents,
and reviewed E.N.’s medical records. Meanwhile, Dr. Barron referred
E.N. to Dr. Selover, who agreed the injury was consistent with abuse.
Dr. Selover questioned the father’s story because at E.N.’s age infants
typically extend their arms forward rather than backwards. Dr. Selover
contacted Dr. Lindaman for assistance in treating the fracture.
Dr. Lindaman lacked significant experience evaluating claims of child
abuse in infants, but as a pediatric orthopedic surgeon was well qualified
to treat the fracture.
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
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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 multidisciplinary team meeting on June 30 involved
representatives of the Polk County Attorney’s Office, the DHS,
Des Moines police, and medical professionals. Every medical
professional present agreed that E.N.’s injuries could not have occurred
as the father described them. Dr. Oral reviewed the radiographs with
two additional colleagues including another pediatric orthopedic
specialist to confirm that the story the father told was inconsistent with
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the type of injury. After receiving an email from Dr. Oral, Brown
prepared the paperwork requesting a no-contact order for E.N.’s father
on July 6. Meanwhile, Dr. McAuliff explained the reasons for the
multidisciplinary team’s conclusions to Dr. Lindaman, including the fact
that infant flexor tone at one month does not allow an infant’s arms to
easily fall behind its body. After that discussion, Dr. Lindaman did not
change his original opinion regarding biomechanics, but acknowledged
the flexor tone information made the father’s story very unlikely.
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
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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.
E.N. was subsequently adopted by Shannon and Danny Nelson.
On June 10, 2011, they filed this action individually and on behalf of
E.N. They alleged Dr. Lindaman negligently failed to detect and report
the child abuse and that Mercy Medical Center – Des Moines was
vicariously liable for Dr. Lindaman’s negligence. 1 The Nelsons further
alleged Dr. Lindaman’s conduct was “reckless and/or willful” and sought
punitive damages against him and Mercy. The Nelsons never alleged
Dr. Lindaman believed the statements he made to DHS were untrue. The
Nelsons do not claim Dr. Lindaman mistreated the arm fracture itself.
Defendants moved for summary judgment on several grounds: the
immunity under Iowa Code section 232.73 and the lack of evidence to
prove causation or the willful and wanton misconduct required for
1The Nelsons sued Dr. Lindaman personally as well as “Lynn M. Lindaman,
M.D., P.L.C. d/b/a Lindaman Orthopaedic.” We will refer to both as “Dr. Lindaman.”
8
punitive damages. The Nelsons resisted and submitted expert medical
testimony that Dr. Lindaman breached the standard of care. The
Nelsons also argued defendants waived the immunity defense by failing
to plead it. Defendants filed motions to amend their answers to plead
immunity, and the district court allowed the amendments. 2 On April 1,
2013, the court denied the summary judgment motions, stating:
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
2The Nelsons do not specifically argue on appeal that the district court abused
its discretion by allowing the amendments. The Nelsons’ appellate brief argues the
amendments were untimely, but articulates no unfair prejudice resulting from the delay
in pleading the immunity defense. We conclude the district court acted within its
discretion by allowing the amendments and, therefore, reject the Nelsons’ waiver
argument.
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to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). “The moving
party has the burden of showing the nonexistence of a material fact.”
Hlubek v. Pelecky, 701 N.W.2d 93, 95 (Iowa 2005). “An issue of fact is
‘material’ only when the dispute involves facts which might affect the
outcome of the suit, given the applicable governing law.” Wallace, 754
N.W.2d at 857. An issue is “genuine” if the evidence in the record “is
such that a reasonable jury could return a verdict for the non-moving
party.” Id. We view the evidence in the light most favorable to the
nonmoving party, who is entitled to every legitimate inference that we
may draw from the record. Id. “Speculation is not sufficient to generate
a genuine issue of fact.” Hlubek, 701 N.W.2d at 96.
III. Analysis.
We must decide whether the district court erred by denying
defendants’ motion for summary judgment based on the statutory
immunity in Iowa Code section 232.73. We will discuss the scope of
immunity under that statute and then address whether the defendants
were entitled to summary judgment on the record in this case.
We begin with the text of section 232.73, which in relevant part
provides:
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.
Iowa Code § 232.73(1).
Section 232.73 provides a form of qualified immunity. See Hlubek,
701 N.W.2d at 96 (noting statutes immunizing conduct performed in
10
good faith provide qualified, not absolute, immunity). “Qualified
immunity is a question of law for the court and the issue may be decided
by summary judgment.” Dickerson v. Mertz, 547 N.W.2d 208, 215 (Iowa
1996); see also Garvis, 492 N.W.2d at 404 (affirming summary judgment
based on section 232.73 immunity); Maples v. Siddiqui, 450 N.W.2d 529,
531 (Iowa 1990) (same). Summary judgment is an important procedure
in statutory immunity cases because a key purpose of the immunity is to
avoid costly litigation, and that legislative goal is thwarted when claims
subject to immunity proceed to trial. See Plumhoff v. Rickard, ___ U.S.
___, ___, 134 S. Ct. 2012, 2019, 188 L. Ed. 2d 1056, 1064 (2014) (“[T]his
[immunity] question could not be effectively reviewed on appeal from a
final judgment because by that time the immunity from standing trial
will have been irretrievably lost.”); Hlubek, 701 N.W.2d at 98 (noting
statutory immunity removes the “ ‘fear of being sued’ ” and affirming
summary judgment (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814,
102 S. Ct. 2727, 2736, 73 L. Ed. 2d 396, 408 (1982))). Indeed, in
Hlubek, we recognized the defendants’ observation that “statutory
immunity, like common-law immunity, provides more than protection
from liability; it provides protection from even having to go to trial in
some circumstances.” 701 N.W.2d at 96. Qualified immunity is “an
entitlement not to stand trial or face the other burdens of litigation.”
Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86
L. Ed. 2d 411, 425 (1985).
In Garvis, we specifically noted the purpose of immunity under
section 232.73 is to remove “the fear of litigation” for those assisting
child abuse investigations. 492 N.W.2d at 404; see also Ellen Wright
Clayton, To Protect Children from Abuse and Neglect, Protect Physician
Reporters, 1 Hous. J. Health L. & Pol’y 133, 146 (2001) (calling for
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absolute immunity for physicians reporting child abuse or assisting
investigations into suspected child abuse because “[r]elieving the fear of
litigation will promote appropriate reporting”). Defendants argue that to
allow the claims in this case to proceed to trial would have a chilling
effect on the willingness of the medical community to communicate with
child abuse investigators. We share that concern and apply the
immunity statute as written to effectuate its purpose.
A. The Scope of Immunity Under Iowa Code Section 232.73.
Section 232.73 applies in medical malpractice actions brought
against private physicians who provide information to child abuse
investigators. Maples, 450 N.W.2d at 530–31. The purpose of the
statute is “to encourage those who suspect child abuse to freely report it
to authorities without fear of reprisal if their factual information proves
to be faulty.” Id. at 530. “An additional purpose is to encourage those
having information about child abuse to come forward when asked to do
so, without the fear of litigation should it later be shown that the
information was improperly released.” Garvis, 492 N.W.2d at 404. These
legislative purposes, in our view, apply equally to both physicians who
initiate reports to the DHS, and to those, such as Dr. Lindaman, who
respond to inquiries from child abuse investigators. The statute applies
the same good-faith immunity to both those who report suspected abuse
and those who assist in investigations initiated by others.
“Good faith” under section 232.73 is determined under a subjective
standard. Id. “Reasonableness and the objective (reasonable person)
standard are the hallmarks of negligence. Because immunity under
section 232.73 extends to negligent acts, reasonableness and the
objective standard play no part in determining good faith.” Id.
Therefore, good faith “rests on a defendant’s subjective honest belief that
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the defendant is aiding and assisting in the investigation of a child abuse
report.” Id. We further observed:
“[a]s 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 section 232.73 if they act in good faith as
we described in Garvis. To avoid summary judgment, the plaintiff must
have evidence the defendant acted dishonestly, not merely carelessly, in
assisting the DHS. Id.
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.” Iowa Code § 232.1. The legislature elaborated
on the purpose of the child abuse reporting provisions:
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.
Id. § 232.67 (emphasis added). We have observed that “the forceful
language of the statute articulates a well-recognized and defined public
13
policy of Iowa.” Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296,
301 (Iowa 1998). We therefore construe the immunity provision in
section 232.73 liberally to encourage communications between
physicians and DHS child abuse investigators. This is consistent with
our general approach to construe statutory immunity provisions broadly.
See Cubit v. Mahaska County, 677 N.W.2d 777, 784 (Iowa 2004)
(surveying cases construing Iowa statutory immunity provisions broadly
and exceptions to immunity narrowly).
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. 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
section 232.73 immunity. Id. The district court granted summary
judgment, and we affirmed. Id. at 530–31.
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
section 232.73. Id. We disagreed because the parents’ interpretation
“would thwart the apparent purpose of section 232.73, which is to
encourage those who suspect child abuse to freely report it to the
authorities without fear of reprisal.” Id. Indeed, we noted that no
statutory immunity would be needed unless liability would otherwise
exist for a negligent act or breach of duty. Id. We observed that our
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interpretation “accords with the decisions of courts in other
jurisdictions.” Id. at 531.
In Garvis, we elaborated on the good faith required to establish
immunity. 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 section 232.73. Id. at 403–
04. We adopted the subjective standard. Id. at 404. This followed from
Maples because we had already decided in that case that the immunity
covered negligent acts. Id. We affirmed summary judgment dismissing
the claims for both compensatory and punitive damages. Id.
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 allow claims alleging gross negligence or other
heightened misconduct to proceed. 3 By contrast, section 232.73
3A look at the current Code illustrates this point. See, e.g., Iowa Code § 85.20(2)
(2015) (providing coemployees immunity from a workers’ compensation or negligence
claim, but allowing claims against coemployees alleging “gross negligence amounting to
15
expressly provides immunity from “any liability, civil or criminal, which
might otherwise be incurred or imposed.” (Emphasis added.) “This court
has no power to read a limitation into the statute that is not supported
by the words chosen by the general assembly.” Cubit, 677 N.W.2d at
782. If the legislature wanted to exclude from section 232.73 claims
alleging reckless or willful misconduct, it would have said so, as it has in
other statutes providing immunity for persons acting in good faith. 4
_______________________
such lack of care as to amount to wanton neglect for the safety of another”); id.
§ 669.14(8)–(9) (immunizing the state for negligent design or construction, but allowing
claims based on gross negligence); id. § 670.4(1)(g)–(h) (granting the same immunity as
section 669.14(8)–(9), but for government subdivisions). Other statutes exclude from
immunity provisions claims of intentional or knowing breach of duty. See, e.g., id.
§ 28H.4(2) (immunizing directors and officers of a council of governments “except for
acts or omissions which involve intentional misconduct or knowing violation of the law,
or for a transaction for which the person derives an improper personal benefit”); id.
§ 497.33 (immunizing a director, officer, member, or volunteer of a cooperative
association except for improper benefit, intentional infliction of harm to the cooperative,
or intentional violation of law); id. § 504.901 (immunizing a director, officer, employee,
member, or volunteer of a nonprofit corporation except for financial benefit, intentional
harm, or an intentional violation of law); id. § 613.19 (granting the same level of
immunity to directors, officers, employees, members, trustees, or volunteers of any
nonprofit organization); id. § 669.24 (immunizing state volunteers from personal liability
“except for acts or omissions which involve intentional misconduct or knowing violation
of the law or for a transaction from which the person derives an improper personal
benefit”). Yet, another set of immunities protects conduct short of actual malice or a
criminal offense. See, e.g., id. § 461C.6 (recreational immunity exception allowing
claims for “willful or malicious failure to guard or warn”); id. § 669.14(13) (allowing
claims based on an “act or omission [that] constitutes actual malice or a criminal
offense”); id. § 669.21 (requiring indemnification for tort claims against state employee
unless the claim was based on “a willful and wanton act or omission or malfeasance in
office”).
4Again, a look at the current Code illustrates this point. See, e.g., Iowa Code
§ 91B.2 (immunizing employers who provide work-related information about a current
or former employee “in good faith,” but not if the employer acted with malice or the
information “knowingly is provided to a person who has no legitimate and common
interest”); id. § 135.147 (granting immunity to a person who “in good faith and at the
request of . . . the department of public defense renders emergency care or assistance to
a victim of the public health disaster . . . unless such acts or omissions constitute
recklessness”); id. § 613.17 (giving immunity to any person who “in good faith renders
emergency care or assistance without compensation . . . unless such acts or omissions
constitute recklessness or willful and wanton misconduct”); id. § 915.3 (immunizing
“[a]ny person who, in good faith and without remuneration, renders reasonable aid or
16
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 section 232.73
(2009). The issue is not whether Dr. Lindaman was negligent or even
reckless in failing to detect child abuse. Rather, the question is whether
he “participat[ed] in good faith . . . in . . . aiding and assisting in an
assessment of a child abuse report” within the meaning of section
232.73. We conclude that undisputed facts establish his immunity
defense as a matter of law.
Dr. Lindaman was one of E.N.’s treating physicians. It is
undisputed the DHS investigator, Brown, elicited Dr. Lindaman’s input
to help determine whether the baby’s fracture resulted from child abuse.
Dr. Lindaman responded to the DHS inquiries. He gave his opinion to
Brown that the father’s version of how the baby’s arm was injured was
“plausible.” As he put it to Brown, the “mechanism described fits the
injury seen.” That is, he communicated to the DHS that the spiral
fracture suffered by E.N. could have happened the way the father
described. Other doctors disagreed. But, again, the issue is not whether
Dr. Lindaman was wrong, reckless, or negligent in forming or
communicating his opinion to the DHS. Rather, the question for
summary judgment is whether he acted in good faith in participating in
the DHS investigation. To avoid summary judgment, the Nelsons needed
evidence generating a genuine issue of material fact that Dr. Lindaman
acted dishonestly in communicating with Brown. See Garvis, 492
N.W.2d at 404; see also Hammel v. Eau Galle Cheese Factory, 407 F.3d
_______________________
assistance to another against whom a crime is being committed . . .” without any
additional qualifying words).
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852, 859 (7th Cir. 2005) (“Summary judgment is not a dress rehearsal or
practice run, it is the put up or shut up moment in a lawsuit, when a
[nonmoving] party must show what evidence it has that would convince a
trier of fact to accept its version of the events.” (Internal quotation marks
omitted.)); Green v. Racing Ass’n of Cent. Iowa, 713 N.W.2d 234, 245
(Iowa 2006) (affirming summary judgment when nonmoving party failed
to “identify specific facts that reveal the alleged underlying motive”);
Hlubek, 701 N.W.2d at 98 (concluding after review of deposition
testimony that nonmoving party resisting summary judgment on good-
faith immunity defenses failed to “ ‘set forth specific facts showing there
is a genuine issue for trial’ ” under [Iowa Rule of Civil Procedure]
1.981(5)); Hoefer v. Wis. Educ. Ass’n Ins. Trust, 470 N.W.2d 336, 338–39
(Iowa 1991) (“While intentional torts . . . are generally poor candidates for
summary judgment because of the subjective nature of motive and
intent, the rule is not absolute and . . . there is no genuine issue of fact if
there is no evidence.” (Citation omitted.) (Internal quotation marks
omitted.)).
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, 583
S.E.2d 834, 836–37 (Ga. 2003); Baldwin Cnty. Hosp. Auth. v. Trawick,
504 S.E.2d 708, 710 (Ga. Ct. App. 1998); J.S. v. Berla, No. 2013–CA–
001792–MR, 2015 WL 507414, at *3 (Ky. Ct. App. Feb. 6, 2015); S.G. v.
City of Monroe, 843 So. 2d 657, 661–64 (La. Ct. App. 2003); Rite Aid
Corp. v. Hagley, 824 A.2d 107, 121–23 (Md. 2003); Yuille v. State, 45
18
P.3d 1107, 1110–11 (Wash. Ct. App. 2002); Whaley v. State, 956 P.2d
1100, 1106–07 (Wash. Ct. App. 1998); Lesley v. State, 921 P.2d 1066,
1075–76 (Wash. Ct. App. 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).
19
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
20
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
21
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., 630 A.2d 1156, 1161 (Md. 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,
supported 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.
Id. at 121.
The Wyoming Supreme Court applied that state’s subjective good-
faith immunity statute to affirm summary judgment dismissing a father’s
22
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., 2015
WL 507414, at *2–3. The court noted that while good faith is a
subjective “ ‘determination of the state of the mind of the actor,’ ” id. at
*3 (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, 705 S.E.2d 852, 855 (Ga. Ct. App. 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 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.
23
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
thereby aided in its assessment. That brings him within the scope of the
statutory immunity. That he declined to say more does not defeat the
immunity. There is no evidence Dr. Lindaman had a definitive opinion
he intentionally withheld from Brown about the father’s credibility or
child abuse.
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
5Notably, plaintiff’s counsel conceded at oral argument that if Dr. Lindaman had
said nothing to the DHS he could not have been sued. Moreover, the very opinion that
Dr. Lindaman declined to give to the DHS, i.e., whether the father was credible or not,
is one that normally would not be allowed to be given in a courtroom. See State v.
Dudley, 856 N.W.2d 668, 677 (Iowa 2014) (reaffirming our commitment “to the legal
principle that an expert witness cannot give testimony that directly or indirectly
24
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 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 Iowa Code section 232.73. We
therefore reverse the district court’s order denying their motion for
summary judgment and remand the case for entry of an order granting
summary judgment in favor of defendants.
REVERSED AND REMANDED WITH DIRECTIONS.
All justices concur except Cady, C.J., who concurs specially, and
Appel and Hecht, JJ., who dissent.
_______________________
comments” on the credibility of a witness); State v. Myers, 382 N.W.2d 91, 97 (Iowa
1986) (stating “most courts reject expert testimony that either directly or indirectly
renders an opinion on the credibility or truthfulness of a witness”).
25
#13–0719, Nelson v. Lindaman
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 immunity granted under Iowa Code section
232.73 (2009) is appropriate.
26
#13–0719, Nelson v. Lindaman
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 Iowa Code
section 232.73 (2009) between the first prong of the statute, involving
mandatory reporting, and the second prong of the statute, which extends
immunity to those “aiding and assisting in an assessment of a child
abuse report” made to the Iowa Department of Human Services (DHS).
Third, I examine the manner in which Iowa courts and other
jurisdictions have handled motions for summary judgment involving
immunity statutes. Finally, I apply principles gleaned from the previous
discussion to the unique facts of this case. As will be seen below, I
conclude the trial court correctly denied summary judgment in this case.
6As a preliminary matter, I note the plaintiffs’ claim that the defendants’
amendment to their answer asserting the affirmative defense of immunity under Iowa
Code section 232.73 (2009) should have been denied. The majority notes, in a footnote,
that the plaintiffs did not specifically use the term “abuse of discretion” to describe the
appropriate standard of review for a district court’s decision to allow an amendment to
the pleadings in their appellate brief before this court. I would not find the argument
waived for failure to state the magic words of the undisputed standard of review. See
Rife v. D.T. Corner, Inc., 641 N.W.2d 761, 766, 768 (Iowa 2002) (allowing amendment
subject to abuse of discretion). On the merits, however, the motion to amend came four
months prior to the discovery and pleading deadlines and five months before the
scheduled trial. Further, from the beginning of the litigation, the nature of
Dr. Lindaman’s participation in the Iowa Department of Human Services investigation
was identified as a factual issue. The plaintiffs did not seek an extension of time in the
summary judgment proceedings to conduct further discovery with respect to the
immunity issue. Under these circumstances, I agree the district court did not abuse its
discretion in allowing the amendment in this case.
27
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.”
28
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.
29
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 professional responsibilities and the nature of his discussions
with DHS.
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
30
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.].
[H]e 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.
31
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 nonambulatory 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
opportunities 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.”
32
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
33
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 Iowa Code §§ 232.67–.77. Iowa
Code section 232.67 provides explicit legislative findings. Under this
Code provision, the legislature declared “[c]hildren in this state are in
urgent need of protection from abuse.” Id. § 232.67. The legislature
further stated the purpose of the statutory provisions was “to provide the
greatest possible protection to victims or potential victims of abuse
through encouraging the increased reporting of suspected cases of
abuse, [and] ensuring the thorough and prompt assessment of these
reports.” Id.
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. Id. §§ 232.69–.77. Knowing and willful violations of reporting
obligations are a simple misdemeanor, id. § 232.75(1), as is the
knowingly false reporting of child abuse, id. § 232.75(3). A person who
knowingly fails to report or interferes with mandatory reporting is civilly
liable for damages proximately caused by such failure or interference. Id.
§ 232.75(2).
While the statute thus imposes affirmative obligations on
mandatory reporters, it also contains an immunity provision which is at
34
the heart of this appeal. The immunity provision in Iowa Code section
232.73(1) provides that
[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. Id. § 232.73(1). Dr. Lindaman plainly does not fall in this
category. The statute also provides, however, that immunity extends to
persons who in good faith are “aiding and assisting in an assessment of a
child abuse report” by DHS. Id. It is the second prong of the statute that
is implicated in this case.
C. Applicable Iowa Caselaw. We have had a few occasions to
interpret the immunity provision of Iowa Code section 232.73. The first
case is Maples v. Siddiqui, 450 N.W.2d 529 (Iowa 1990). In that case, the
plaintiffs filed a medical malpractice action against the defendant,
Dr. Siddiqui, claiming their son was placed in foster care because of an
improper diagnosis of the cause of the child’s malnutrition. Id. at 529.
The plaintiffs sought to recover for their loss of companionship as a
result of the removal of their son from their home. Id. In this case, we
held that Dr. Siddiqui, on the facts presented, was entitled to immunity.
Id. at 530–31.
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,
35
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 Iowa Code section 232.73 where a good-faith report has
been made extends only to the extent that the plaintiff’s claim for
damages is causally tied to the report itself. See id.
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, 956 P.2d 1100, 1106 (Wash. Ct. App. 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 Iowa
Code section 232.73 is Garvis v. Scholten, 492 N.W.2d 402 (Iowa 1992).
In Garvis, the plaintiff asserted the defendants improperly disclosed
certain confidential medical information in the course of a child abuse
investigation. Id. at 402. The fighting issue in the case was whether the
good-faith standard in the statute was objective or subjective. Id. at
403–04.
We held the standard for good faith was subjective. Id. We
declared “[g]ood faith in section 232.73 rests on a defendant’s subjective
honest belief that the defendant is aiding and assisting in the
investigation of a child abuse report.” Id. at 404. We quoted a case from
36
the commercial context noting that good faith means only honesty in
fact, colorfully described as including situations involving “ ‘the pure
heart and empty head.’ ” Id. (quoting Jackson v. State Bank of Wapello,
488 N.W.2d 151, 156 (Iowa 1992)). Because the “subjective good faith in
aiding and assisting the investigation went unchallenged,” we declined to
disturb the district court’s ruling sustaining the defendants motion for
summary judgment. Id.
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. 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.” 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
37
fact. See, e.g., de Abadia v. Izquierdo Mora, 792 F.2d 1187, 1191 (lst 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, 687 A.2d 469, 473 (Vt.
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).
Even when summary judgment for the defendant is not precluded
in subjective good-faith immunity cases, however, the courts recognize
there is rarely direct evidence of subjective good faith, and as a result,
reasonable inferences that can be drawn from circumstantial evidence
are sufficient to generate a fact question on the issue. See United States
v. Sullivan, 406 F.2d 180, 186 (2d Cir. 1969) (noting intent is rarely
susceptible of direct proof and must be established by legitimate
inferences from circumstantial evidence); Van Nattan v. United States,
357 F.2d 161, 162 (10th Cir. 1966) (intent is seldom shown by direct
evidence and “in most cases must be proved by inference from the facts
and circumstances of the particular case”); 7 Synthon IP, Inc. v. Pfizer Inc.,
7The holdings in these cases, of course, provided the impetus for the United
States Supreme Court to adopt an objective good-faith test in immunity cases involving
alleged government official misconduct. See generally Harlow v. Fitzgerald, 457 U.S.
800, 818–19, 102 S. Ct. 2727, 2738–39, 73 L. Ed. 2d 396, 410–11 (1982).
38
472 F. Supp. 2d 760, 779 (E.D. Va. 2007) (noting that intent rarely can
be proven by direct evidence).
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 Iowa Code section 232.73. In Maples, the
issue was not how to approach the question of subjective good faith in
the context of summary judgment, but only whether the presence of
negligence defeated immunity under the statute. 450 N.W.2d at 530. In
Garvis, although summary judgment was granted, no one contested the
subjective good faith of the defendants and thus the result in the case
does not help us in this particular situation when subjective good faith is
contested. 492 N.W.2d 404.
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 Iowa Code sections 280.27 and
613.21 (2001)). We held the evidence showed the defendants had acted
in good faith and the plaintiff “ha[d] presented no contrary evidence on
the issue.” Id. We applied a similar approach in Green v. Racing
Association of Central Iowa, 713 N.W.2d 234, 245–46 (Iowa 2006).
If the approach in Hlubek and Green were applied under Iowa Code
section 232.73, a declaration of subjective good faith by a defendant
39
might ordinarily be sufficient to require the plaintiff to produce evidence
from which legitimate inferences of lack of good faith could be shown.
Yet, even under this type of approach, as observed in a case cited by the
majority, questions of subjective good faith are “ordinarily” not resolvable
upon summary judgment. 8 Rite Aid Corp. v. Hagley, 824 A.2d 107, 119
(Md. 2003) (internal quotation marks omitted); 9 see also Miller v. Dep’t of
Corr., 115 P.3d 77, 97 (Cal. 2005) (noting “issue of a plaintiff’s subjective,
good faith belief involves questions of credibility and ordinarily cannot be
resolved on summary judgment”); Hoefer v. Wis. Educ. Ass’n Ins. Trust,
470 N.W.2d 336, 340 (Iowa 1991) (en banc) (whether statements were
8The caselaw repeatedly emphasizes the difference between “objective good
faith,” which is more amenable to summary judgment, than “subjective good faith,”
which turns on credibility issues. The leading case is Harlow, in which the Court
rejected a subjective good-faith standard in the context of immunity in favor of objective
good faith because subjective good faith “rarely can be decided by summary judgment.”
457 U.S. at 816–18, 102 S. Ct. at 2737–38, 73 L. Ed. 2d at 409–10; see also Maestas v.
Lujan, 351 F.3d 1001, 1011 (10th Cir. 2003) (noting that in order “to encourage courts
to resolve qualified immunity questions on summary judgment, the Court removed the
subjective-good-faith factor”); Rowan County v. Sloas, 201 S.W.3d 469, 474–84 (Ky.
2006) (contrasting availability of summary judgment when immunity is objective good
faith with lack of availability of summary judgment when a subjective good-faith
standard is employed); Sabia, 687 A.2d at 473 (rejecting subjective good-faith standard
in immunity context because summary judgment would not be available).
9The majority cites a number of child abuse statutory immunity cases in which
summary judgment was granted. Many are distinguishable from the present case in
that they do not involve an alleged failure to aid and assist a child abuse investigation,
but instead involve a challenge to a report of child abuse. See Wolf v. Fauquier Cnty.
Bd. of Supervisors, 555 F.3d 311, 318 (4th Cir. 2009) (noting immunity asserted based
upon affirmative report of child abuse); Watson v. County of Santa Clara, 468 F. Supp.
2d 1150, 1156 (N.D. Cal. 2007) (noting that California statute grants immunity with
respect to mandated or authorized reporting, but not aiding and assisting); S.G. v. City
of Monroe, 843 So. 2d 657, 659–60, 661 (La. Ct. App. 2003) (noting physician moved for
summary judgment on ground that she was immune from liability based upon
affirmative report of child abuse). In addition, some of the cases cited by the majority
involve a different substantive standard than that applicable under Iowa law. See Wolf,
555 F.3d at 318 (noting Virginia statute employs a strong presumption of immunity and
places the burden on person who would overcome immunity); O’Heron v. Blaney, 583
S.E.2d 834, 836–37 (Ga. 2003) (noting that immunity sustained based on “objective”
reasonable cause to suspect child abuse has occurred, unlike under the Iowa statute).
40
expressions of insincere opinion intended to deceive or mislead was
“ordinarily a jury question” (internal quotation marks omitted)).
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 Iowa
Code section 232.73. See Garvis, 492 N.W.2d at 404. And, while it is
true the immunity provision applies only with respect to damages caused
by a report or by a bad faith failure to aid and assist, Maples, 450
N.W.2d at 530, the plaintiffs make no suggestion on appeal that damage
to E.N. was caused by anything other than the failure of the state to
intervene under chapter 232.
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 making a report protected by the immunity provision of Iowa Code
section 232.73. Dr. Lindaman filed no report with DHS. While the
41
legislature plainly desired to encourage reports of suspected child abuse
when it enacted the child protection provisions of the Code, id. § 232.67,
these policy reasons are not at work in this case. This case does not
involve protecting a mandatory reporter who stepped forward to report
suspected child abuse and is entitled to immunity in order to encourage
others to do the same.
Instead, this case involves the second or the aiding-and-assisting
in-an-assessment-of-a-child-abuse-report prong of Iowa Code section
232.73. And, this case involves a claim of failure to aid and assist in
good faith, not an arguably overzealous report of suspected child abuse.
The question is not whether Dr. Lindaman did too much, but whether he
did too little. Specifically, the question raised in this case is whether
Dr. Lindaman was in “good faith” engaged in “aiding and assisting” DHS
“in an assessment of a child abuse report.” Id. § 232.73.
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
42
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 entanglement in a sticky situation rather than aid
and assist DHS in its investigation? Instead of cooperating with DHS
43
investigators and others in the medical team in a collaborative fashion,
could a reasonable jury conclude that Dr. Lindaman preferred to head for
the exit and allow others to take responsibility rather than get involved?
Could a reasonable jury conclude that his evasive responses were not
aiding and assisting in an assessment of a child abuse report, but really
an act of stone walling and hand washing? If so, then Dr. Lindaman was
not aiding and assisting in an assessment of a child abuse report in
subjective good faith under Iowa Code section 232.73.
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
10It is apparent from the record that Dr. Lindaman sought to restrict his
exposure to a claim of negligence by limiting his role in the treatment of E.N. to the
management of the fracture. While this strategy may be an effective defense with
respect to limiting the scope of his duty in the underlying negligence claim, it tends to
undercut his claim of statutory immunity because he was not aiding and assisting in an
assessment of a child abuse report, but was instead focused solely on management of
the fracture.
44
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.
Here, however, the question is whether Dr. Lindaman’s minimal
and narrow participation in the assessment of the child abuse report was
sufficient to entitle him to statutory immunity that requires good faith in
the aiding and assisting in an assessment of a child abuse report. The
45
policies underlying immunity can certainly be offended by making it too
difficult to obtain, but the policies of the statute are also undermined by
extending immunity too far. One must ask whether stretching immunity
in Iowa Code section 232.73 to cover the unique circumstances of this
case “ ‘provide[s] the greatest possible protection to victims or potential
victims of abuse through encouraging the increased reporting of
suspected cases of such abuse [and] insuring the thorough and prompt
investigation of these reports.’ ” State v. King, 434 N.W.2d 627, 629
(Iowa 1989) (quoting Iowa Code § 232.67 (1987)). I doubt it. By granting
summary judgment on the immunity question in this setting, when the
plaintiffs’ claim of lack of subjective good faith in aiding and assisting in
an assessment of a child abuse report is at least plausible, to use
Dr. Lindaman’s unfortunate term, I fear the purposes of the mandatory
reporting statute will not be promoted, but will be undermined. I fear the
takeaway from this case will be that evasive and uncooperative responses
to DHS child abuse investigators will be regarded as legally protected
conduct. If so, our child protection system has lost some of its teeth. I
hope I am wrong in that regard.
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.