Bird v. W.C.W.

• Decision Date: 05 January 1994
• Docket Number: No. D-3302,D-3302
• Citation: 868 S.W.2d 767
• Parties: Esther BIRD and Kenneth Wetcher, M.D., P.A., and Associates, Petitioners, v. W.C.W., Respondent.
• Court: Texas Supreme Court

Page 767

868 S.W.2d 767

62 USLW 2515

Esther BIRD and Kenneth Wetcher, M.D., P.A., and Associates Petitioners, v. W.C.W., Respondent.

No. D-3302.

Supreme Court of Texas.

Jan. 5, 1994.

Kathleen Walsh Beirne, Annelie Menke, Alice M. Giessel, Claude B. Masters, M. Karinne McCullough and Gary Don Parish, Houston, for petitioners.

JoAnn Storey and J. Steven Houston, Houston, for respondent.

ENOCH, Justice.

In this case, a psychologist, Esther Bird, examined a child for signs of sexual abuse. After examining the child, the psychologist concluded that the child had been sexually abused and that the natural father, W.C.W., was the abuser. The psychologist then signed an affidavit reporting these conclusions. The affidavit was filed by the child's mother, B.W., in the family court in an effort to modify child custody and visitation orders. All matters, criminal and civil, predicated upon the assertion that the natural father was a child abuser were eventually dropped. The natural father then sued the psychologist and her employer, Kenneth Wetcher, M.D., P.A. & Associates. ¹ The question presented is whether the psychologist owed a professional duty of care to the natural father to not negligently misdiagnose the condition of the child. In defense, the psychologist asserts there is no professional duty running to third parties as a matter of law, and regardless, the affidavit asserting the natural father to be the abuser of the child was used as a part of the court litigation process, and consequently, the statement was privileged as a matter of law. The trial court granted summary judgment in favor of Bird and Wetcher. The court of appeals reversed and remanded for trial on the merits. 840 S.W.2d 50 (Tex.App.--Houston [1st Dist.] 1992). We hold that as a matter of law there is no professional duty running from a psychologist to a third party to not negligently misdiagnose a condition of a patient. We further reaffirm that a statement in an affidavit filed as a part of a court proceeding is privileged. Consequently, we reverse the judgment of the court of appeals and render judgment that the plaintiff take nothing.

I.

In 1983 W.C.W. was appointed managing conservator of his son, Jarrad, following a divorce from B.W. W.C.W. moved to Florida in 1986 and temporarily left Jarrad with his maternal grandmother. Shortly before Jarrad was to leave for Florida, his mother reported to Child Protective Services (CPS) that he had indicated his "daddy" had sexually assaulted him. There was an on-going criminal investigation of sexual abuse allegations when the mother was referred to the Wetcher Clinic, a crisis management service. There, Bird examined Jarrad and interviewed the mother and her common law husband, D.R. Bird suspected that Jarrad had been sexually abused. She later executed an affidavit stating that: "I have concluded that Jarrad has been the victim of sexual abuse by his father...." The mother submitted this affidavit to the family district court and sought to change the existing custody order to gain managing conservatorship of Jarrad and terminate the father's custodial rights. The Houston Police Department also filed criminal charges against the father. After the father retained custody and the criminal charges were dismissed, he sued Bird and Wetcher. We note at the outset that while couched in terms of negligent misdiagnosis, the essence of the father's claim is that it was Bird's communication of her diagnosis that caused him emotional harm and related financial damages. ²

II. DUTY OF A MENTAL-HEALTH PROFESSIONAL

First we address whether a mental health professional owes a duty to a parent to not negligently misdiagnose a condition of the child. Liability in negligence is premised on a finding of a duty, a breach of that duty which proximately causes injuries, and damages resulting from that breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). Whether a legal duty exists under a set of facts is a question of law. Id. In determining whether to impose a duty, this Court 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. Id.; Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983).

We acknowledge that the harm to a parent accused of sexual abuse is foreseeable. However, foreseeability alone is not a sufficient basis for creating a new duty. Boyles v. Kerr, 855 S.W.2d 593, 599 (Tex.1993); Graff v. Beard, 858 S.W.2d 918 (Tex.1993). Psychology is an inexact science. There is an inherent risk that someone might be falsely accused of sexually abusing a child; in such cases, injury is almost certain to result. The magnitude of the burden of guarding against the injury is also uncertain. While mental health professionals may be able to conduct tests to determine whether there is indicia of sexual abuse, the quality of information they can acquire is limited. The child is often the main source of the information, and young children can have difficulty communicating abuse of that nature. Thus, while the risk of injury to an accused parent is real, it is only part of the equation. Furthermore, the risk of an erroneous determination of abuse is ameliorated, in part, by the availability of criminal sanctions against a person who knowingly reports false information in a custody proceeding. See TEX.FAM.CODE ANN. § 34.031.

A claimant's right to sue a mental health professional must be considered in light of countervailing concerns, including the social utility of eradicating sexual abuse. Evaluating children to determine whether sexual abuse has occurred is essential to that goal. See Vineyard v. Kraft, 828 S.W.2d 248, 251 (Tex.App.--Houston [14th Dist.] 1992, writ denied). Young children's difficulty in communicating sexual abuse heightens the need for experienced mental health professionals to evaluate the child. Because they are dealing with such a sensitive situation, mental health professionals should be allowed to exercise their professional judgment in diagnosing sexual abuse of a child without the judicial imposition of a countervailing duty to third parties.

Two prior cases have found no duty in similar situations. In Vineyard, 828 S.W.2d at 251, a father accused of sexually molesting his daughter sued the doctor and the psychotherapist for negligent misdiagnosis and for negligent infliction of emotional harm. The court considered whether a legal duty arises between a parent and a mental health professional who makes an evaluation of a child's condition when child abuse is suspected. Id. at 252. The court declined to find a legal duty because there was no physician-patient relationship. Id. at 253; see also, Wilson v. Winsett, 828 S.W.2d 231, 232-33 (Tex.App.--Amarillo 1992, writ denied) (noting that a physician is liable for malpractice or negligence only when there is a physician-patient relationship); Fought v. Solce, 821 S.W.2d 218 (Tex.App.--Houston [1st Dist.] 1991, writ denied) (holding a physician liable for negligence only where there is a physician-patient relationship); Armstrong v. Morgan, 545 S.W.2d 45 (Tex.App.--Texarkana 1986, no writ) (finding fact questions existed regarding duty not to injure person being examined). Here, the father had no physician-patient relationship with Bird or with the Wetcher Clinic. Fought, 821 S.W.2d at 220.

The court of appeals in Dominguez v. Kelly, 786 S.W.2d 749 (Tex.App.--El Paso 1990, writ denied), reached a similar result. In that case, an employee of the Texas Department of Human Services requested that a minor female be examined by Doctor Kelly. Id. at 750. The doctor concluded that there had been sexual abuse. ³ Id. The father, Mr. Dominguez, was charged with aggravated sexual abuse. After that charge was dismissed, Mr. Dominguez sued Dr. Kelly for negligence as well as for malicious prosecution. ⁴ Id. at 751. Because there was no physician-patient relationship, the court declined to find a duty. Id.

However, one court has concluded that a doctor owed a duty to a third party without the requisite patient-doctor relationship. Gooden v. Tips, 651 S.W.2d 364 (Tex.App.--Tyler 1983, no writ). The Goodens were involved in automobile accident with Mrs. Goodpastures. They sued Mrs. Goodpastures' doctor, Dr. Tips, for negligence in failing to warn his patient not to drive while under the influence of the drug Quaalude. Gooden noted that "under proper facts, a physician can owe a duty to use reasonable care to protect the driving public where a physician's negligence in diagnosis or treatment of his patient contributes to plaintiff's injuries." Id. at 369.

The Gooden court focused on the foreseeability of the resulting harm in reversing summary judgment in Dr. Tips' favor. The court held that, under the facts alleged, Dr. Tips might have a duty to warn his patient not to drive. Id. at 369-70 (emphasis supplied). That limited duty does not, however, extend to this case. There is little social utility in failing to warn patients about known side-effects of a drug, but there is great social utility in encouraging mental health professionals to assist in the examination and diagnosis of sexual abuse. Furthermore, in Gooden the plaintiff was harmed by the resulting actions of the patient, not by the condition, treatment, or diagnosis of the patient.

We hold that summary judgment was proper in favor of Bird because she owed no professional duty to the father to not negligently misdiagnose the condition of the child.

III. PRIVILEGE FOR STATEMENT IN AFFIDAVIT

Although we have concluded that there is no professional duty owed to one other than the patient to not negligently misdiagnose a condition, we must still address the defensive issue raised by Bird, whether the communication of her conclusion that the father was the abuser by way of...