D.L.C. v. Walsh
| Decision Date | 29 August 1995 |
| Docket Number | No. WD,WD |
| Citation | 908 S.W.2d 791 |
| Parties | D.L.C. and J.L.C., Appellants, v. Martha Irene WALSH, M.D., The Children's Mercy Hospital and Sheelagh Bull, Ph.D., Respondents. 49982. |
| Court | Missouri Court of Appeals |
Elizabeth Diane Baker, Kansas City, for appellants.
Kirk J. Goza and Roger P. Wright, Shughart Thomson & Kilroy, Kansas City, for Sheelagh Bull, Ph.D.
Thomas W. Wagstaff, Sally B. Surridge, M. Courtney Koger, Blackwell Sanders Matheny Weary & Lombardi, Kansas City, for The Children's Mercy Hospital.
Jane McQueeny, Wm. Dirk Vandever, The Popham Law Firm, Kansas City, for Martha Irene Walsh.
Before FENNER, C.J., and BRECKENRIDGE and HANNA, JJ.
Appellants, D.L.C. and J.L.C., appeal from an order by the trial court granting summary judgment in favor of Respondents, Martha Irene Walsh, M.D., Sheelagh Bull, Ph.D., and the Children's Mercy Hospital (the "Hospital"). Appellants claim that Dr. Walsh and Dr. Bull negligently misdiagnosed the existence of sexual abuse in J.L.C., and that the negligence of Dr. Walsh should be imputed to her employer, the Hospital. According to Appellants, Respondents should not be afforded statutory immunity for these acts. Appellants also claim that the Hospital did not promulgate adequate procedures regarding the diagnosis of sexual abuse, did not adequately train and supervise its personnel and did not provide suitable facilities.
Appellants raise five points on appeal, arguing the trial court erred in granting summary judgment to Respondents because (1) under a choice of law analysis it was improper to apply Kansas law, but even if Kansas law governs, health care providers do not enjoy immunity from professional negligence; (2)(A) Missouri law does not confer health care providers with immunity from the negligent diagnosis of child abuse; (2)(B) & (C) the Missouri Constitution guarantees Appellants the right of access to the courts and the right to trial by jury; (3) the trial court mistakenly found Appellants failed to state a valid claim; (4) Appellants were not collaterally estopped from asserting damages in this case; and (5) public policy dictates that health care providers should not be allowed to escape liability for negligent acts.
The trial court's order is affirmed.
This court considers the record in the light most favorable to the party against whom summary judgment was entered, and provides that party with all reasonable inferences which may be drawn from the evidence. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). "Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion." Id.
D.L.C. ("Father") and J.L.C.'s mother ("Mother") were divorced in 1985 while residents of Kansas. Pursuant to the terms of the divorce decree, they shared joint physical custody of their daughter, J.L.C., who was born on August 3, 1983.
In early December, 1986, J.L.C. spent three nights with Father. After J.L.C. returned, Mother noticed that J.L.C. was walking bow-legged and was claiming her "bottom hurt." Mother contacted Dr. Bull, a psychologist who had previously counseled Mother and Father. Mother expressed her concern that J.L.C. had been sexually molested. Dr. Bull suggested Mother take J.L.C. to the emergency room of the Hospital for an examination. Mother followed Dr. Bull's advice and went there with J.L.C.
When they arrived, Dr. Walsh was on duty. Mother told Dr. Walsh she was worried that J.L.C. had been sexually abused by Father. After taking J.L.C.'s history, Dr. Walsh performed a general physical examination, which included an inspection of J.L.C.'s genitalia and her anal area. At the conclusion of the examination, Dr. Walsh was unable to make a firm diagnosis of sexual abuse. She did conclude, however, there was reason to suspect sexual assault.
Statutes in Missouri and Kansas mandate physicians to report cases of suspected child abuse to the proper authorities. § 210.135 RSMo 1986; K.S.A.1986 Supp. 38-1522a. The Missouri Division of Family Services ("MDFS") had previously advised Dr. Walsh that it had no jurisdiction over abusive incidents involving Kansas residents. MDFS told Dr. Walsh to report to the Kansas Department of Social and Rehabilitation Services ("KDRS") or to the local Kansas police department. Because Dr. Walsh knew that J.L.C. and her parents were residents of Kansas, she reported the suspected abuse to the Prairie Village, Kansas Police Department (the "Police") rather than to MDFS. 1 An investigation by KDRS and the Police followed.
On approximately December 8, 1986, Dr. Bull telephoned Detective Richard P. Wilcox, who was investigating the alleged sexual abuse for the Police. She began therapy sessions with J.L.C. the next day. On December 12, 1986, Detective Wilcox asked Dr. Bull to provide the Police with a written report of her sessions with J.L.C. Dr. Bull forwarded typed copies of her notes, as well as a videotape of a session with J.L.C. Dr. Bull continued to counsel J.L.C. until April 16, 1987.
On December 31, 1986, KDRS determined that the allegations of abuse were unfounded. It closed the case file and ended all investigation activities.
The week before, Mother had filed motions with the District Court of Johnson County, Kansas, requesting an order suspending visitation and for a change of custody. Dr. Walsh and Dr. Bull testified about the suspected abuse in a hearing on the motions. At the conclusion of the proceeding, the trial judge stated, The judge then awarded sole custody to Mother, and limited Father to supervised visitation. Mother was granted permission to move to Pennsylvania with J.L.C.
Father filed a medical malpractice suit, individually and as next friend for J.L.C., against Respondents. 2 The court dismissed the petition, determining that § 210.135, RSMo 1986, 3 provided Dr. Walsh and the Hospital with immunity. On appeal, this court reversed the judgment and remanded the case, holding that the immunity of § 210.135 applies only to those who make reports to MDFS. Comstock v. Walsh, 848 S.W.2d 7, 9 (Mo.App.1992). Because Dr. Walsh reported the suspected child abuse to the Kansas Police rather than to MDFS, the immunity of § 210.135 was not available. Id.
On remand, the trial court granted Respondents' motions for summary judgment. The court gave several reasons for the dismissal, including that Kansas's reporting statute provided Respondents with immunity. This appeal followed.
Appellants' first point contends the trial court erred in granting summary judgment to Respondents, because a choice of law analysis mandates the selection of Missouri law.
"A fundamental principle of conflicts is that a forum state will always apply forum procedure, but it will choose the applicable substantive law according to its own conflicts of law doctrines." Ernst v. Ford Motor Co., 813 S.W.2d 910, 921 (Mo.App.1991). Beginning with Kennedy v. Dixon, 439 S.W.2d 173, 184 (Mo. banc 1969), Missouri has followed § 145 of the Restatement (Second) on Conflict of Laws to determine which state's substantive law to apply in a tort case. Section 145 reads:
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
Section 145 is framed in reference to § 6 of the Restatement (Second) on Conflict of Laws. Griggs v. Riley, 489 S.W.2d 469, 473 (Mo.App.1972). Section 6 provides:
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Although this court will apply both § 6 and § 145, Griggs, 489 S.W.2d at 473. This court therefore begins its analysis by addressing the concerns listed in § 6(2). 4
Missouri's reporting statute, § 210.135, provides immunity to complying health care providers and is designed to encourage the reporting of suspected child abuse. Voepel v. Cardinal Glennon Memorial Hospital, 743 S.W.2d 600, 601 (Mo.App.1988). Thus, the relevant policy of Missouri is to grant...
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