stating that one way to defeat the statutory immunity was to show the “tort claim pressed for recovery of harm entirely disconnected from the consequences of mandatory reporting”
How later courts described this case
- stating that one way to defeat the statutory immunity was to show the “tort claim pressed for recovery of harm entirely disconnected from the consequences of mandatory reporting”
- Oklahoma’s child abuse reporting laws express state’s strong public interest in protecting children from abuse by policy of mandatory reporting of actual and suspected child abuse or neglect to appropriate authorities and agencies, and with protection of children being priority, person who in good faith reports suspected child abuse or neglect shall have immunity from any liability, civil or criminal
- “In civil law the element of prior knowledge’ is not always tantamount to willfulness of conduct. Willfulness stems from 'guilty knowledge’ which is synonymous with ‘culpable knowledge’ or ‘scienter.’ ”
- “The element of scienter ... — that of guilty knowledge — is an indispensable ingredient in the pattern of proof required to show lack of good faith”
Written by the judges who cited it.
The opinion
BOUDREAU, J.,
concurring in result.
[1 Although I agree with the result reached by the majority, in my view this case cannot be fairly determined without deciding, as the trial court did, whether the defendant psychologist owed a duty of care to the plaintiffs. The majority avoids the issue of duty by converting plaintiffs' claim from one for negligence to one for bad faith reporting of child abuse.
12 Plaintiffs' legal theory of recovery is clearly professional negligence, i.e., the use of allegedly substandard evaluative techniques that resulted in plaintiffs being wrongly identified as child abusers. Plaintiffs concede in their appellate brief that the psychologist is immunized from any harm occasioned by her report of suspected child abuse and they make no attempt to pierce the statutory reporting privilege. They point out, however, that the psychologist's conduct in this case was not limited to the making of a report. They contend they suffered harm because the psychologist negligently misdiagnosed the children and planted and reinforced false memories of sexual abuse in the minds of the children. They argue that to the extent their damages flow from this conduct, the psychologist cannot benefit from the immunity provided by the statutory reporting privilege.
T3 The majority acknowledges plaintiffs' claim is one for negligence and that plaintiffs make no attempt to pierce the statutory privilege. Nevertheless, the majority goes on to redefine the case as one in which all of plaintiffs' harm flows from the psychologist's act of reporting. The summary process record below does not support the assertion of the mojority that all of plaintiffs' harm fAowed from the psychologist's act of reporting.
T4 In seeking judgment by summary process, the moving party has the initial burden of showing that there is no substantial controversy as to any material fact. Bowers v. Wimberly, 1997 OK 24 ¶ 14 , 933 P.2d 312, 315 . The "Statement of Material Facts As To Which No Material Issue Exists" submitted by the defendant psychologist does not address the nature or origin of the harm suffered by plaintiffs. Because the defendant does not set forth any material facts relating to the origin of plaintiffs' damages, plaintiffs have no burden under Rule 13 to submit any evidentiary materials relating to the origin of their damages. By deciding this issue before it was presented as an undisputed fact, the majority has deprived plaintiffs of the opportunity to submit acceptable evidentiary materials to establish that their harm was "disconnected from the consequences of mandatory reporting."
15 This case cannot be fairly decided by treating it as one for bad faith reporting of child abuse. Rather, the case compels us to decide whether plaintiffs can maintain an action for professional negligence against the psychologist. More specifically, it requires us to answer the following question: When examining children to assess the possibility of sexual abuse, does a mental health professional owe a duty of care to the suspected abusers?
T 6 The first prerequisite in any negligence proceeding must be to establish the existence of a legally cognizable duty. Wofford v. Eastern State Hosp., 1990 OK 77 , 795 P.2d 516, 518 . Duty is a question of law and may be viewed as an expression of the sum total of those considerations of policy which lead *568 the law to say that the plaintiff is entitled to protection. Id. at 519. "Of such considerations the most important in establishing duty is foreseeability." Id. However, foreseeability alone is not a sufficient basis for creating a new duty. In determining whether to impose a duty, we must consider the risk, foreseeability and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury and the consequences of placing that burden on the actor. See Smith v. Johnston, 1978 OK 142 , 591 P.2d 1260 , 1262 n. 2; see also Prosser & Keeton on Torts § 58 at 359 and n. 24 (5th ed.1984).
T7 When a mental health professional incorrectly diagnoses a child as having been sexually abused, the risk of harm to persons falsely accused of that abuse is clearly foreseeable. Persons falsely accused of child sexual abuse are undoubtedly exposed to a significant risk of substantial harm. They are likely to suffer great harm in both their personal and professional relationships and will invariably suffer serious damage to their reputations. The risk and foreseeability of these harms would, absent countervailing factors, call for the imposition of a legal duty of care on mental health professionals toward the suspected abusers when evaluating children for possible sexual abuse.
T8 However, mental health professionals who evaluate children for possible sexual abuse perform a valuable and useful societal function. Oklahoma has a strong public policy to protect children who have been abused or neglected and who may be further threatened by the conduct of persons responsible for health, safety or welfare of such children. 21 00.98.1991 § 845 [now 10 0.8.2001 § 7102 (A)(1) ]. Toward this end, Oklahoma statutes require the reporting and investigation of suspected child abuse. 21 0.8.1991 §§ 8483-848 [now 10 0.8.2001 §§ 7101 et seq.].
T9 Without effective evaluation and diagnosis, instances of child sexual abuse would not be discovered in the first instance. Similarly, without evaluation and diagnosis, children who have been abused would not receive needed treatment. Accordingly, the social utility in encouraging mental health professionals to assist in the diagnosis and treatment of sexually abused children weighs against imposing a duty of care to suspected abusers.
110 The consequences of imposing a duty of care on mental health professionals beyond that owed to the patient would be significant. Imposing such a duty has the potential of discouraging mental health professionals from performing sexual abuse evaluations out of fear of liability to persons they implicate. Even those professionals willing to perform - evaluations might, in close cases, conclude that no abuse has occurred based on fear of lability rather than on professional judgment. I agree with the Pennsylvania Supreme Court when it said that imposing such a duty "would necessarily change the very nature of the therapeutic treatment in that the therapist would have to constantly evaluate conflicting duties of care to determine the appropriate manner in which treatment should proceed." Althaus v. Cohen, 562 Pa. 547 , 756 A.2d 1166, 1171 (2000).
[ 11 Weighing all these factors, I am convinced that the societal interest in encouraging the evaluation, discovery, reporting and treatment of child sexual abuse outweighs the public benefit that persons falsely accused might derive if they were permitted to proceed in a negligence action against a mental health professional. 1 - Accordingly, I would hold that when examining children to assess the possibility of sexual abuse, a mental health professional does not owe a duty of care to the suspected abusers.
. Four other jurisdictions have held that mental health professionals do not owe a duty of care to non-patient suspected child sexual abusers. See Trear v. Sills, 69 Cal.App.4th 1341 , 82 Cal.Rptr.2d 281 (1999); Zamstein v. Marvasti, 240 Conn. 549 , 692 A.2d 781 (1997); Althaus v. Cohen, 562 Pa. 547 , 756 A.2d 1166, 1171 (2000); Bird v. W.C.W., 868 S.W.2d 767 (Tex.1994). The Colorado Court of Appeals has held mental health professionals do owe such a duty. See Montoya v. Bebensee, 761 P.2d 285 (Colo.Ct.App.1988).