                                                                                         Sep 11 2015, 9:10 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Kevin L. Likes                                             Edward L. Murphy, Jr.
      Likes Law Office                                           Andrew L. Palmison
      Auburn, Indiana                                            Rothberg Logan & Warsco LLP
                                                                 Fort Wayne, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kelli Sprunger                                             September 11, 2015
      (Mother of Alyssa B. Guernsey),                            Court of Appeals Case No.
      Appellant-Plaintiff,                                       44A04-1412-CT-567
                                                                 Appeal from the LaGrange Circuit
              v.                                                 Court
                                                                 The Honorable Robert C. Probst,
      John A. Egli, M.D.,                                        Special Judge
      Appellee-Defendant                                         Trial Court Cause No.
                                                                 44C01-1401-CT-2



      Robb, Judge.



                                 Case Summary and Issue
[1]   In December 2008, thirteen-month-old Alissa Guernsey was placed in foster

      care with relative caregivers. She died just over three months later from injuries

      consistent with child abuse. During Guernsey’s placement in foster care, John

      Egli, M.D. (“Dr. Egli”), was Guernsey’s primary physician.



      Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015           Page 1 of 11
[2]   Kelli Sprunger, Guernsey’s biological mother, subsequently filed a medical

      malpractice action against Dr. Egli alleging failure to diagnose and report child

      abuse. Concluding that Indiana does not recognize a private right of action for

      failure to report child abuse, the trial court granted summary judgment in favor

      of Dr. Egli on August 7, 2014.


[3]   Sprunger now appeals, arguing that her claim is premised not on a failure to

      report, but rather a failure to make a correct diagnosis. We agree with the trial

      court’s conclusion that Sprunger essentially alleges a failure to report child

      abuse and hold that the characterization of the claim as medical malpractice

      does not escape the threshold question of whether the reporting statutes confer

      a private right of action. As we have already determined that there is no private

      right of action for failure to report child abuse in Indiana, C.T. v. Gammon, 928

      N.E.2d 847, 853-54 (Ind. Ct. App. 2010), we affirm the trial court’s grant of

      summary judgment in favor of Dr. Egli.



                             Facts and Procedural History
[4]   Sprunger left her children in the care of her cousin, Christy Shaffer, in late

      November or early December 2008. At that time, Guernsey was just over a

      year old, and the Department of Child Services (“DCS”) “already had a case

      open.” Appellant’s Appendix at 37.


[5]   On December 16, 2008, the Steuben Circuit Court held an initial hearing on a

      petition alleging that Guernsey was a Child in Need of Services (“CHINS”).


      Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015   Page 2 of 11
      Sprunger denied the allegations, but the juvenile court found that it was in the

      best interest of Guernsey to remain outside Sprunger’s home. Accordingly, the

      juvenile court ordered that Guernsey remain in the care of Shaffer under the

      supervision of the DCS.


[6]   During Guernsey’s placement with Shaffer, Dr. Egli was Guernsey’s primary

      physician. Dr. Egli saw Guernsey several times between December 2008 and

      March 2009. During Guersney’s first appointment on December 10, 2008, Dr.

      Egli conducted a routine physical examination and determined that she was

      “within normal limits.” Id. at 80. In the months to follow, Guernsey

      experienced lacerations, bruising, hair loss, and a fractured arm. Dr. Egli

      informed the DCS of her condition but also stated that “he did not suspect

      abuse.” Id. at 85. Dr. Egli was concerned that there may have been a “medical

      reason” for the bruising. Id. at 80.


[7]   On March 3, 2009, Dr. Egli referred Guernsey to a pediatric oncologist at Riley

      Hospital for Children. She was seen at Riley on March 5, 2009. The oncologist

      ordered tests for coagulation disorders and leukemia, but all of the test results

      were normal. The oncologist noted Guernsey’s “complex social situation” and

      believed that the injuries were likely caused by “the banging of her head against

      the crib while she is asleep.” Id. at 111. The oncologist had no

      recommendations for further testing or treatment and referred Guernsey back to

      Dr. Egli.




      Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015   Page 3 of 11
[8]    On March 17, 2009, Sprunger admitted the allegations in the CHINS petition,

       and Guernsey was adjudicated a CHINS “due to mother’s substance abuse

       problem which adversely impacted her parenting history.” Id. at 120. The

       court again found that it was in the best interest of Guernsey to remain in the

       care of Shaffer and entered an order to that effect. Less than two weeks later,

       on March 29, 2009, Guernsey was found dead in Shaffer’s home. Post-mortem

       pictures showed extensive facial bruising, and the autopsy revealed injuries

       consistent with blunt force trauma to the head. The coroner ruled the death a

       homicide.


[9]    Sprunger subsequently filed a medical malpractice action against Dr. Egli for

       failure to diagnose and report child abuse. As required by the Medical

       Malpractice Act, Sprunger first filed a proposed complaint with the Department

       of Insurance. See Ind. Code § 34-18-8-4. The medical review panel issued its

       opinion on October 15, 2013, unanimously deciding that the evidence

       submitted did not support the conclusion that Dr. Egli failed to meet the

       appropriate standard of care.


[10]   Notwithstanding the panel’s opinion, Sprunger filed a complaint for medical

       malpractice in the LaGrange Circuit Court on January 15, 2014. The

       complaint alleged in relevant part:


               4. During the time that defendant treated Alissa B. Guernsey
               there was [sic] clear indications that the child was being abused
               by other individuals.

               5. The defendant failed to report the abuse.

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                6. The defendant provided information that may have been used
                by the [DCS] in deciding to leave the child in the care and
                custody of the individual who ultimately killed the child.

                7. The diagnosis’s [sic] and treatment provided by the defendant
                failed [sic] below the applicable standard of care.

                8. As a result of the defendant’s actions and inactions the child,
                Alissa B. Guernsey was not removed from the home of the
                individual who ultimately killed her.


       Appellant’s App. at 13-14.


[11]   Dr. Egli moved for summary judgment on April 15, 2014. The motion asserted

       five arguments in favor of summary judgment, one of which is relevant to this

       appeal: “The Plaintiffs’ theory of liability against Dr. Egli is that Dr. Egli

       allegedly failed to report child abuse; Indiana does not recognize a private, civil

       action for failure to report child abuse.” Id. at 15.1 In response, Sprunger




       1
         In the alternative, Dr. Egli argues that Sprunger is barred from recovering because she was “contributorily
       negligent as a matter of law in a manner that contributed to [Guernsey]’s death.” Brief of Appellee at 20.
       Dr. Egli contends: “It is undisputed that Sprunger placed [Guernsey] in a position to be abused by Shaffer
       when she abandoned her resulting in the court finding that [Guernsey] was a CHINS.” Id. We find this
       argument inappropriate and note that the purpose of a CHINS adjudication is to protect children, not
       establish parental culpability. In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). Sprunger admitted that she was
       suffering from substance abuse and left her children in the care of a family member because she recognized
       that she herself was not capable of caring for them at that time. Thereafter the juvenile court approved
       Guernsey’s placement with Shaffer. Foster care is supposed to provide a safe, stable, and nurturing
       environment for children who can no longer remain in their homes. About Foster Care, INDIANA
       DEPARTMENT OF CHILD SERVICES, http://www.in.gov/dcs/2983.htm (last visited Aug. 12, 2015). The
       system failed Guernsey, and the suggestion that this failure was somehow Sprunger’s fault is tantamount to
       victim blaming.

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       argued that her claim was premised not on a failure to report but rather a failure

       to make a correct diagnosis. Sprunger insisted:


               [H]ad the defendant correctly diagnosed the abuse as required by
               the applicable standard of care additional actions would have
               been taken as required by State Law to remove the child from the
               foreseeable abusive situation. The failure of the defendant to
               meet the appropriate standard of care prevented those actions
               from occurring and subsequently led to the death of the child
               ....


       Id. at 129.


[12]   The trial court concluded that Sprunger was essentially alleging a failure to

       report child abuse, a cause of action not recognized in Indiana. On this basis,

       the trial court granted summary judgment in favor of Dr. Egli on August 7,

       2014. This appeal followed.



                                  Discussion and Decision
                                        I. Standard of Review
[13]   Sprunger challenges the trial court’s grant of summary judgment in favor of Dr.

       Egli. We review a trial court’s grant of summary judgment de novo. Miller v.

       Dobbs, 991 N.E.2d 562, 564 (Ind. 2013). We affirm if there is no genuine issue

       as to any material fact and the moving party is entitled to judgment as a matter

       of law. Id. (citing Ind. Trial Rule 56(C)).




       Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015   Page 6 of 11
       II. No Private Right of Action for Failure to Report Child
                                 Abuse
[14]   An individual who has “reason to believe” that a child is a victim of abuse or

       neglect has a statutory duty to make an immediate report to either the DCS or

       local law enforcement. Ind. Code §§ 31-33-5-1, -4. “Reason to believe,” for the

       purpose of the reporting statutes, “means evidence that, if presented to

       individuals of similar background and training, would cause the individuals to

       believe that a child was abused or neglected.” Ind. Code § 31-9-2-101. Actual

       knowledge is not required. Lebo v. State, 977 N.E.2d 1031, 1038-39 (Ind. Ct.

       App. 2012). Nor does “reason to believe” call for a high level of certainty.

       Smith v. State, 8 N.E.3d 668, 683 n.18 (Ind. 2014) (describing “reason to

       believe” as involving something less than probable cause). A person who is

       mistaken about the nature of a child’s injuries but had sufficient reason to

       believe that abuse was occurring violates the duty to report if no report is made.

       See id. at 683. As our supreme court recently stated, the statutory scheme is

       designed to “err on the side of over reporting suspected child abuse or neglect.”

       Id. (emphasis in original).


[15]   When a civil tort action is premised upon violation of a duty imposed by

       statute, the initial question is whether the statute confers a private right of

       action. Borne ex rel. Borne v. Nw. Allen Cnty. Sch. Corp., 532 N.E.2d 1196, 1203

       (Ind. Ct. App. 1989), trans. denied. Where a statute does not explicitly provide a

       private right of action to enforce its provisions, courts are frequently asked to

       find that the legislature intended that a private right of action be implied.

       Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015   Page 7 of 11
       Blanck v. Ind. Dep’t of Corr., 829 N.E.2d 505, 509 (Ind. 2005). Like the majority

       of states, Indiana does not recognize a private right of action for failure to

       report abuse. C.T., 928 N.E.2d at 854. Our reporting statutes do not explicitly

       provide a private right of action, and we have previously held that the

       legislature did not intend that a private right of action be implied. Id. at 853-54

       (citing Borne, 532 N.E.2d at 1203).2


[16]   Sprunger agrees that Indiana does not recognize a private right of action for

       failure to report child abuse and argues that the trial court misconstrued the

       complaint. Sprunger contends:

               Egli’s conduct that gives rise to Sprunger’s claim is his failure to
               diagnosis [sic] the abuse not his failure to report the abuse. . . .
               [The] complaint is based on a claim of negligence under the
               Medical Malpractice Act and not a request to bring a private
               cause of action based on Egli’s failure to report the abuse.


       Appellant’s Brief at 11-12.


[17]   First, we agree this case is one of medical malpractice, as it arises out of the

       special relationship between a doctor and his patient during the course of health

       care services that were provided by the doctor. See C.T., 928 N.E.2d at 851.

       We disagree, however, that predicating the claim on medical malpractice

       necessarily transforms the claim into something other than an attempt to assert



       2
         The General Assembly has encouraged reporting by imposing criminal penalties for failing to report. An
       individual who knowingly fails to report child abuse commits a Class B misdemeanor. Ind. Code § 31-33-22-
       1.

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       a private right of action for failure to report abuse. See F.D. v. Ind. Dep’t of Child

       Servs., 1 N.E.3d 131, 143 (Ind. 2013) (Rush, C.J., concurring in part and

       dissenting in part) (“[N]o matter whether plaintiffs predicate their claim upon a

       negligence theory or a freestanding private right of action, a court must still

       determine the larger question of whether the Legislature intended to hold the

       defendant civilly liable.”).


[18]   We addressed a similar claim in C.T., 928 N.E.2d 847. In C.T., Father filed a

       medical malpractice action against his son’s doctor for the doctor’s failure to

       report the son’s exposure to secondhand smoke while in Mother’s custody.

       Father alleged that the doctor was negligent and did not meet the standard of

       care, as the child had been born prematurely and suffered from respiratory

       illnesses. Medical records showed that the doctor had noted the child’s

       exposure, but the doctor disputed whether a child’s exposure to secondhand

       smoke constitutes child abuse triggering a duty to report. Father was essentially

       arguing that the doctor failed to classify the exposure as child abuse and that

       had the doctor reported the situation to the DCS, “more expedient removal

       from his mother’s home” would have resulted. Id. at 852. We determined that

       the “dispositive question” in the case was whether Indiana recognizes a private

       right of action for failure to report child abuse. Id. at 852 n.4. We held that

       Indiana does not and affirmed the trial court’s entry of summary judgment in

       favor of the doctor.


[19]   In the present case, we agree with the trial court’s conclusion that Sprunger is

       essentially alleging a failure to report child abuse. The duty to report is

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       triggered by having “reason to believe” that a child is a victim of abuse. Ind.

       Code § 31-33-5-1. Dr. Egli had knowledge of Guernsey’s medical condition but

       did not attribute her injuries to abuse. Assuming Dr. Egli had sufficient reason

       to believe that Guernsey was a victim of abuse, as Sprunger contends,

       Sprunger’s claim rests on more than a misdiagnosis of the injuries. It

       inescapably rests on the additional premise that had the misdiagnosis not

       occurred, Dr. Egli would have reported the child abuse pursuant to the

       mandatory reporting statutes. Sprunger contends that “the claim [is] based on

       the sole allegation of medical malpractice by Egli for failing to diagnose the

       abuse,” Appellant’s Br. at 10, but Sprunger’s complaint, designation of

       evidence, and response in opposition to summary judgment allege both a failure

       to diagnose abuse and a failure to report. Sprunger’s brief on appeal concludes

       that “[h]ad Egli correctly diagnosed the child abuse, he would have reported the

       matter to [the DCS family case manager] who has a statutory duty to

       immediately remove the child from the dangerous situation and her subsequent

       fatal beating.” Id. at 6. As Sprunger herself demonstrates, Dr. Egli’s alleged

       failure to report the abuse is logically inseparable from his alleged failure to

       diagnose it.



                                                Conclusion
[20]   Because there is no private right of action for failure to report child abuse in

       Indiana, we must affirm the trial court’s grant of summary judgment in favor of

       Dr. Egli.


       Court of Appeals of Indiana | Opinion 44A04-1412-CT-567 | September 11, 2015   Page 10 of 11
[21]   Affirmed.


       May, J., and Mathias, J., concur.




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