Kelly on Malpractice

In Draper v. Westerfield, 2004 WL 1698232, (Tenn.Ct.App.), a three-month old infant died on June 2, 2000, after being abused by her father. Plaintiff mother filed suit against Dr. Westerfield alleging that Bryanna had been admitted to the hospital in May 2000, that x-rays were taken which showed numerous injuries, but that Dr. Westerfield who read the x-rays failed to report the injuries. Plaintiff further alleged that on May 16, 2000, Dr. Westerfield represented to law enforcement authorities that an x-ray taken on May 12 should have been read as abnormal, but that the abnormality was not of great concern, and inferred that it did not indicate abuse. Dr. Westerfield asserted that he was immune from liability pursuant to TENN.CODE ANN. § 37-1-410 because his alleged wrongful conduct took place while he was participating in a child abuse investigation and that he was acting in good faith. The issue was whether the Trial Court properly found Dr. Westerfield to be immune from liability pursuant to TENN.CODE ANN. § 37-1-401 for his alleged good faith participation in the child abuse investigation.

TENN.CODE ANN. § 37-1-401 is entitled “Mandatory Child Abuse Reports”, and the stated purpose behind its enactment is to “protect children whose physical or mental health and welfare are adversely affected by brutality, abuse or neglect by requiring reporting of suspected cases by any person having cause to believe that such case exists.” § 403 requires that “any person who has knowledge of or is called upon to render aid to any child who is suffering from or has sustained any wound, injury, disability, or physical or mental condition shall report such harm immediately if the harm is of such a nature as to reasonably indicate that it has been caused by brutality, abuse or neglect or that, on the basis of the available information, reasonably appears to have been caused by brutality, abuse or neglect.” Thus, if Dr. Westerfield suspected child abuse, which he admits he did, he had a duty pursuant to this section to report his suspicions to investigators. § 410 states that any person who makes a report of harm required by § 403 is presumed to have acted in good faith, and will not be liable in any civil or criminal action “that is based solely upon” that person’s decision to report what he believed to be harm, that person’s belief that such a report was required by law, or the fact that a report was made.

The immunity provided in the statute only attaches when a person actually reports his suspicions, not when he fails to do so. In this case, Dr. Westerfield was not being sued because he made a report of abuse. In fact, the plaintiff’s claim is just the opposite. She claimed that Dr. Westerfield failed to report his suspicions of abuse to the investigators, and that this failure resulted in harm to the child. The Court of Appeals adopted Ham v. Hospital of Morristown, Inc., 917 F.Supp. 531 (E.D.Tenn.1995), in which the District Court decided that TENN.CODE ANN. § 37-1-401 gives rise to a claim of negligence for the failure of a physician to report suspected abuse. Since there was a dispute as to whether Dr. Westerfield reported the abuse to investigators, the summary judgment was reversed. This is a good decision to protect children.