A Contrast In Private Rights Of Action In Indiana
By: David J. Cutshaw, Attorney
The Indiana Court of Appeals recently issued a decision in the case of Sprunger v. Egli, 44 N.E. 3d 690 (Ind. App. 2105), a medical malpractice case where the plaintiff alleged that her 13-month old daughter died of child abuse that should have been reported by the child’s pediatrician. The plaintiff in the case alleged that Dr. Egli had a duty to report suspected abuse as required by an Indiana statute, I.C. 31-33-5-1, but his failure to do so was the cause of the child’s death from abuse.
This Indiana statute requires an individual who has reason to believe that a child is a victim of abuse or neglect has a duty to make an immediate report to either the Department of Child Services (“DCS”) or local law enforcement. The statute goes on to provide that if a person has sufficient reason to believe that abuse was occurring violates the duty to report if no report is made. This aspect of Indiana law has garnered some attention in the press of late with respect to a Park Tudor coach who has alleged to have had inappropriate contact with a minor student which may not have been reported timely by school officials.
In ruling against the plaintiff and in favor of the doctor, the Indiana Court of Appeals in Sprunger held that because there is no private right of action for the violation of the duty to report, the child’s mother could not sue the doctor for such a violation. Some statutes in Indiana do permit a private citizen to sue for certain violations of the law—this statute does not contain such a right.
Contrast the Sprunger decision with the earlier decision of the Indiana Supreme Court in Kho v. Pennington, 875 N.E. 2d 208 (Ind. 2007) in which a doctor was allowed to sue a lawyer for naming the doctor in a complaint filed in court before the case had gone through a medical review panel. An Indiana statute permits the filing of a lawsuit in court before the case is presented to a medical review panel if the physician’s name is not included in the complaint—and the doctor must be sued anonymously. To do so, though, the lawyer must place the actual name of the doctor on a summons issued to the doctor; and the summons is filed in open court as well. Thus, it is not difficult to find out the name of the doctor by just looking at the court’s file.
The statute that permits a suit to be filed against a doctor anonymously also does not contain a private right of action. In other words, the statute does not say that a doctor can sue a lawyer for damages if the lawyer names him in a complaint filed in open court before the case is presented to a medical review panel. But the Supreme Court held that if the statute was “intended to protect the class of persons in which the plaintiff is included and [designed] to protect against the risk of the type of harm which has occurred as a result of its violation,” the statute can be used as a basis for suit by a doctor for damage to his reputation even if his name was inadvertently included in a complaint.
It is not known if the Court in Sprunger (addressing the failure of a doctor to report suspected child abuse) considered the Supreme Court’s ruling in Kho, but it would seem that an innocent child who is being abused would be in the class of persons the abuse-reporting statute was designed to protect. Why the reputation of a doctor is more important than the health and safety of a thirteen-month old child under Indiana law is also not known; but the stark contrast of these two cases and their holdings is certainly interesting.
