Immunity Applies To ‘Non-Immediate’ Reporting Of Suspected Child Abuse

In this case involving the mandatory reporting of suspected child abuse, the trial court properly dismissed tort claims against a doctor and a hospital because immunity under the Child Protection Law applies even though the reporting was not “immediate,” the Michigan Court of Appeals has ruled.

The plaintiff-mother in Minor Doe v Trinity Health-Michigan (Docket No. 371449) sued the defendant-doctor and defendant-hospital, alleging defamation, intentional infliction of emotional distress and negligent infliction of emotional distress. She also sued the defendants under a theory of respondeat superior. The defendants filed a motion to dismiss the plaintiff’s lawsuit, claiming they were immune from liability for mandatorily reporting acts of suspected child abuse under the Child Protection Law (CPL), MCL 722.621, et seq.

The trial court dismissed the plaintiff’s claims. The plaintiff appealed, arguing the defendants were not entitled to immunity because the defendant-doctor waited nine days before making her report of alleged abuse, which was not “immediate” reporting, as required by MCL 722.623(1)(a).

The Court of Appeals affirmed the dismissal of the plaintiff’s claims.

The defendant-doctor “engaged in an act that was required by the CPL – reporting suspected abuse – and while the CPL may also require that such reporting be ‘immediate,’ it does not purport to prohibit non-immediate reporting,” the Court of Appeals said.

The plaintiff relied on Lavey v Mills, 248 Mich App 244 (2001), to support her argument that immediate reporting is required by the CPL. The plaintiff, however, “overread that decision,” the Court of Appeals said. “Unlike [the plaintiff], we do not read Lavey so broadly as to strip mandatory reporters of immunity whenever they report in a manner that is not ‘immediate.’”

Judge Kirsten Frank Kelly, Judge Philip P. Mariani and Judge Matthew S. Ackerman were on the Court of Appeals panel that issued the unpublished opinion.

Background

“Doe” is the plaintiff’s child, who was 14 years old when this lawsuit was filed. During the proceedings, it was uncontested that Doe “has a complicated mental health history” and that the plaintiff took steps to obtain care for Doe, including remote treatment by an out-of-state specialist.

Doe spent several months in a residential treatment program in early 2023. When discharged, the care providers recommended that Doe enter a partial hospitalization program (PHP) and a dialectical behavioral therapy (DBT) program. The plaintiff chose the defendant, Trinity Health-Michigan, to provide the PHP services. She told hospital staff that she wanted Doe to continue with the medication management program that had been established by the previous care providers.

In May 2023, the defendant-doctor oversaw an intake meeting for Doe and she reportedly had “immediate concerns about Doe’s medication regimen.” The defendant-doctor recommended a DBT group for Doe and, days later, she spoke to the plaintiff by telephone, notifying her that Doe was “being disruptive” during those sessions. The defendant-doctor also informed the plaintiff that, based on her observations, she disagreed with Doe’s prior diagnosis and treatment plan. The plaintiff rejected the defendant-doctor’s recommendations, alleging that she “argued” with the defendant-doctor on the phone “for 30 minutes.”

In a May 12, 2023 therapy session, the plaintiff relayed this telephone incident to the defendant-doctor’s coworker and indicated that she planned to file an internal complaint about the defendant-doctor. One day later, on May 13, 2023, a Child Protective Services (CPS) worker visited the plaintiff and Doe at their home to conduct an investigation prompted by a report the defendant-doctor had made to CPS. It was undisputed the defendant-doctor reported that she was worried the plaintiff had “factitious disorder imposed on another” and “did not believe that Doe experienced the mental health disorders that [the plaintiff] represented, including bipolar disorder and psychosis” and “was concerned about the dangers to Doe from the total number, and dosages, of Doe’s prescribed medications.”

The plaintiff subsequently sued the defendants, individually and as the “Next Friend of Doe,” in Washtenaw County Circuit Court. The plaintiff filed claims for defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, and also sued under a theory of respondeat superior. Specifically, the plaintiff alleged the defendant-doctor’s report “was false, retaliatory, and in bad faith, and as a result of it, Doe had to witness [the plaintiff] being questioned about abuse and neglect.” The plaintiff also asserted the report caused her “to suffer severe distress and emotional anxiety that Doe’s previously effective treatment plan was now in jeopardy, and caused Doe to suffer extreme emotional distress, extreme distrust of doctors, and increased anxiety in seeking out medical care – as evidenced by the fact that Doe became anxious and very hesitant with respect to a subsequent dental procedure, and also does not want to be alone with her therapist.”

The defendants sought to dismiss the plaintiff’s claims under MCR 2.116(C)(7) (dismissal because of immunity under the law) and MCR 2.116(C)(8) (failure to state a claim on which relief can be granted). The defendants maintained they were immune from civil liability for mandatorily reporting acts of suspected child abuse pursuant to the CPL.

The trial court conducted a hearing and granted summary disposition for the defendants.

The plaintiff appealed.

Retaliation Rejected

In its decision, the Court of Appeals first addressed the plaintiff’s claim that the defendant-doctor acted “in bad faith” when making the report to CPS because the defendant-doctor was motivated by “personal animosity toward” the plaintiff. According to the plaintiff, the defendant-doctor filed the CPS report “not due to any reasonable suspicion of child abuse, but in retaliation for [the plaintiff’s] threat to report [the defendant-doctor’s] conduct to [her] supervisor, and because [the plaintiff] generally refused to follow [the defendant-doctor’s] medical advice.”

The Court of Appeals disagreed.

“Even accepting [the plaintiff’s] version of events as true, they do not show that [the defendant-doctor] acted in bad faith such that she would not be entitled to immunity under the CPL for her report,” the Court of Appeals wrote. “[A] person making a report under the CPL is presumed to have acted in good faith. … And as this Court has previously held, ‘”good faith” pertains to the existence of a reasonable suspicion, not the motive behind the decision to report,’ and so a ‘defendant’s alleged animosity toward [the] plaintiffs d[oes] not render [the] defendant’s reporting one of bad faith.’” Therefore, if the defendant-doctor “had reasonable suspicion to make a report in this case, she would be entitled to immunity even if she also had, as [the plaintiff] alleged, a retaliatory motive for doing so.”

Moreover, although the plaintiff alleged the defendant-doctor’s “concerns were wrong and impugn her judgment as to them, those criticisms go beyond what reasonable suspicion requires or entails, and do not themselves betray a lack of good faith in [the defendant-doctor’s] reporting,” the Court of Appeals observed.

As a result, the plaintiff “ha[s] not shown, through … allegations or otherwise, a viable basis to conclude that [the defendant-doctor] lacked even a reasonable suspicion for her concerns of abuse under the circumstances presented by this case, such that the presumption of her good faith in reporting those concerns would be overcome and her immunity for doing so would be stripped,” the Court of Appeals said. “Nor do we see a question of fact whose further development could provide that basis. … We thus find no cause for reversal on these grounds.”

‘Immediate’ Reporting & Immunity

Next, the Court of Appeals turned to the plaintiff’s claim that the defendants were not entitled to immunity because the defendant-doctor “failed to make her report ‘immediate[ly],’ as required by MCL 722.623(1)(a).”

The plaintiff contended that, to the extent the defendant-doctor “could be deemed to have had reasonable cause to suspect that Doe was being abused,” this arose at Doe’s initial intake session, “which means that [the defendant-doctor] waited nine days to make the report – an interval that was … plainly not ‘immediate.’” Therefore, the plaintiff argued, absent compliance with the timing requirement, the defendants’ claim of immunity under the CPL “cannot attach.” The plaintiff maintained that a report cannot be made “according to” the CPL “if it is not made in compliance with the other requirements set forth in the CPL, including MCL 722.623(1)(a)’s timing requirement.”

To support her argument, the plaintiff relied on the Court of Appeals 2001 decision in Lavey. However, the plaintiff “overread that decision,” the Court of Appeals observed. “Relevant here, the trial court in Lavey concluded that all defendants were entitled to immunity under the CPL. … This Court affirmed that determination as to the school-staff defendants, but reversed as to the trooper and the CPS worker. … This Court explained that the school-staff defendants had acted in good faith in reporting the suspected abuse and had thereafter ‘simply cooperated with the investigation,’ also acting in good faith in transporting the minor to the doctor’s office at the trooper’s direction and without the parents’ consent.”

Unlike the plaintiff in the present case, “we do not read Lavey so broadly as to strip mandatory reporters of immunity whenever they report in a manner that is not ‘immediate,’” the Court of Appeals stated. “The trooper and CPS worker in Lavey (unlike the school-staff defendants in that case) engaged in an act that the CPL clearly and expressly prohibited; under the statute, the gynecological examination of the minor could not occur unless certain requirements were met, and they undisputedly (and even knowingly) were not. Here, by contrast, [the defendant-doctor] engaged in an act that was required by the CPL – reporting suspected abuse – and while the CPL may also require that such reporting be ‘immediate,’ it does not purport to prohibit non-immediate reporting. To the contrary, it leaves mandatory reporters potentially liable, civilly and criminally, for failing to report – immediately or otherwise.”

In addition, “stripping immunity from mandatory reporters for nothing more than failing to report immediately would run contrary to the purpose of that immunity and the CPL in general, which is ‘to encourage reporting of suspected child abuse,’” the Court of Appeals explained. “The same cannot be said for the ‘clear violation’ of the CPL at issue in Lavey, and we do not read the absence of immunity there to support [the plaintiff’s] position here. Nor do we find any other legal support, in the CPL or otherwise, for that position.”

Therefore, “even assuming [the defendant-doctor] did not report ‘immediate[ly]’ as required by MCL 722.623(1)(a), that did not render immunity under MCL 722.625 inapplicable in this case,” the Court of Appeals concluded. “We thus see no cause for reversal on these grounds, either.”