Doe v. Marion

• Decision Date: 07 May 2007
• Docket Number: No. 26323.,26323.
• Citation: 645 S.E.2d 245
• Court: South Carolina Supreme Court
• Parties: John DOE, individually and as Guardian and next friend for his minor child, James Doe, Petitioners, v. Robert Francis MARION, Jr., M.D., Individually, Parkwood Pediatrics Group, Carolina Family Care, Inc., Walton L. Ector, M.D., Individually, William Gamble, M.D., Individually, Malcolm Rhodes, M.D., Individually, William Fred O'Dell, M.D., Individually, Carol Graf, M.D., Individually, Carol Graf, M.D. & Associates, P.A., and Pit Marion, Individually, of Whom Carol Graf, M.D., and Carol Graf, M.D. & Associates, P.A., are, Respondents.

645 S.E.2d 245

John DOE, individually and as Guardian and next friend for his minor child, James Doe, Petitioners, v. Robert Francis MARION, Jr., M.D., Individually, Parkwood Pediatrics Group, Carolina Family Care, Inc., Walton L. Ector, M.D., Individually, William Gamble, M.D., Individually, Malcolm Rhodes, M.D., Individually, William Fred O'Dell, M.D., Individually, Carol Graf, M.D., Individually, Carol Graf, M.D. & Associates, P.A., and Pit Marion, Individually, of Whom Carol Graf, M.D., and Carol Graf, M.D. & Associates, P.A., are, Respondents.

No. 26323.

Supreme Court of South Carolina.

Heard March 20, 2007.

Decided May 7, 2007.

J. Graham Sturgis, Jr., of Charleston; Gary B. Blasingame and Henry G. Garrard, III, of Blasingame, Burch, Garrard & Ashley, P.C., and Michael O. Crain, of Oliver and Crain, all of Athens, GA, for Petitioners.

Carol B. Ervin and Stephen L. Brown, of Young, Clement, & Rivers, LLP, of Charleston, for Respondents.

Justice BURNETT.

John Doe (Petitioner) brought an action on behalf of his minor son, James Doe, to recover damages arising from the sexual abuse of James Doe by Robert Francis Marion, Jr., M.D. Petitioner also alleged Carol Graf, M.D. and Carol Graf, M.D. & Associates (Respondents) were negligent in failing to report to authorities or warn future victims of Dr. Marion's predilection for child molestation. The trial court disagreed and dismissed the case. The Court of Appeals affirmed. Doe v. Marion, 361 S.C. 463, 605 S.E.2d 556 (Ct.App.2004). We granted Petitioner's request for a writ of certiorari to review the decision of the Court of Appeals, and we affirm.

FACTUAL/PROCEDURAL BACKGROUND

James Doe was a patient of Parkwood Pediatrics Group (Parkwood) from 1990 to 1998. Dr. Marion was a member of Parkwood until 1985 when he was asked to leave due to complaints of sexual abuse and molestation against him. Dr. Marion established a solo practice and began treating James Doe in 1999 after James Doe's mother transferred him from Parkwood to Dr. Marion. James Doe was allegedly sexually abused by Dr. Marion for a period of several years beginning in 1999.

Dr. Marion received psychiatric treatment from Dr. Graf beginning in 1984 for his predilection for child molestation. Dr. Graf also treated a victim of Dr. Marion who informed Dr. Graf of the molestation. Petitioner alleges Dr. Graf was negligent per se in her failure to notify the appropriate authorities of Dr. Marion's child molestation and abuse and in breaching her duty to report suspected sexual abuse of a child pursuant to S.C.Code Ann. § 20-7-510 (Supp. 2002). Petitioner also alleges Dr. Graf was negligent under common law principles for her failure to warn "reasonably foreseeable" future minor patients of Dr. Marion. Finally, Petitioner alleges Carol Graf, M.D. & Associates, P.A., is vicariously liable for Dr. Graf's negligence.

Respondents were dismissed from the initial suit after the trial court granted their motions to dismiss under Rule 12(b)(6), SCRCP. The trial court found: (1) no common law duty to warn existed because there was not a specific threat to a specific individual; and (2) § 20-7-510 did not create a private right of action for failing to report, and if it did, it would only apply to threats to a specific child, not any possible future victims.

The Court of Appeals affirmed the dismissal in Doe v. Marion, 361 S.C. 463, 605 S.E.2d 556 (Ct.App.2004). The Court of Appeals found Petitioner failed to allege a specific threat necessary to compel a duty to warn and, therefore, the trial court correctly determined no legal duty existed under the common law. The Court of Appeals also found § 20-7-510 does not create a private cause of action and, consequently, the trial court correctly determined Dr. Graf was not negligent per se.

ISSUES

I. Did the Court of Appeals err in finding S.C.Code Ann. § 20-7-510 (Supp.2002) does not give rise to a private cause of action for negligence per se?

II. Did the Court of Appeals err in finding a physician/psychiatrist is not liable under common law negligence principles for failing to report to authorities or warn future victims about the predilection for child molestation of her patient?

STANDARD OF REVIEW

In reviewing the dismissal of an action pursuant to Rule 12(b)(6), SCRCP, the appellate court applies the same standard of review as the trial court. Williams v. Condon, 347 S.C. 227, 553 S.E.2d 496 (Ct.App. 2001). In considering a motion to dismiss a complaint based on a failure to state facts sufficient to constitute a cause of action, the trial court must base its ruling solely on allegations set forth in the complaint. Spence v. Spence, 368 S.C. 106, 116, 628 S.E.2d 869, 874 (2006). If the facts alleged and inferences reasonably deducible therefrom, viewed in the light most favorable to the plaintiff, would entitle the plaintiff to relief on any theory, then dismissal under Rule 12(b)(6) is improper. Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999); Stiles v. Onorato, 318 S.C. 297, 457 S.E.2d 601 (1995). "The question is whether, in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief." Gentry v. Yonce, 337 S.C. 1, 5, 522 S.E.2d 137, 139 (1999). The complaint should not be dismissed merely because the court doubts the plaintiff will prevail in the action. Toussaint v. Ham, 292 S.C. 415, 357 S.E.2d 8 (1987).

LAW/ANALYSIS

I. Negligence Per Se

Petitioner argues the Court of Appeals erred in affirming the trial court's dismissal of Petitioner's claims for negligence against Dr. Graf. Specifically, Petitioner contends S.C.Code Ann. § 20-7-510 creates a private cause of action for negligence per se. We disagree.

Section 20-7-510 provides, in pertinent part:

(A) A physician . . . shall report in accordance with this section when in the person's professional capacity the person has received information which gives the person reason to believe that a child's physical and mental health or welfare has been or may be adversely affected by abuse or neglect.

...

(D) Reports of child abuse or neglect may be made orally by telephone or otherwise to the county department of social services or to a law enforcement agency in the county where the child resides or is found.¹

Petitioner argues the statute imposes a duty on Dr. Graf to report Dr. Marion's predilection for sexual abuse and/or molestation of children to the appropriate authorities. Petitioner argues the purpose of the Children's Code², and specifically of the reporting statute, is to protect children from the type of harm James Doe suffered.

In determining whether a statute creates a private cause of action, the main factor is legislative intent:

The legislative intent to grant or withhold a private right of action for violation of a statute or the failure to perform a statutory duty, is determined primarily from the language of the statute.... In this respect, the general rule is that a statute which does not purport to establish a civil liability, but merely makes provision to secure the safety or welfare of the public as an entity is not subject to a construction establishing a civil liability.

Dorman v. Aiken Communications, Inc., 303 S.C. 63, 67, 398 S.E.2d 687, 689 (1990) (quoting Whitworth v. Fast Fare Markets of South Carolina, Inc., 289 S.C. 418, 420, 338 S.E.2d 155, 156 (1985)). When a statute does not specifically create a private cause of action, one can be implied only if the legislation was enacted for the special benefit of a private party. Citizens of Lee County v. Lee County, 308 S.C. 23, 416 S.E.2d 641 (1992).

While § 20-7-510 is silent as to civil liability, §§ 20-7-567 & -570 (Supp.2005)³ do impose liability for making a false report. Sections 20-7-567 & -570 indicate the legislature intended to impose civil liability and establish private causes of action in certain instances. The fact that such language is missing from § 20-7-510 indicates the legislative intent was for the reporting statute not to create civil liability. See Byrd v. Irmo High Sch., 321 S.C. 426, 433-34, 468 S.E.2d 861, 865 (1996) (finding when one provision does not include a right that is included in a related provision, legislative intent is that a right will not be implied where it does not exist); State v. Hood, 181 S.C. 488, 188 S.E. 134 (1936) ("It is presumed that the Legislature was familiar with prior legislation, and that if it intended to repeal existing laws it would have expressly done so."). Further, in Rayfield v. South Carolina Department of Corrections, 297 S.C. 95, 374 S.E.2d 910 (1988), this Court stated:

[W]e are able to derive a test for determining when a duty created by statute will support an action for negligence. In order to show that the defendant owes him a duty of care arising from a statute, the plaintiff must show two things: (1) that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and (2) that he is a member of the class of persons the statute is intended to protect.

In determining Dr. Graf had no duty to report, we look to the purpose of the Children's Code and determine the statute in question is concerned with the protection of the public and not with the protection of an individual's private right⁴. Section 20-7-480⁵ states the purpose of the Children's Code and focuses entirely, although not explicitly, on the duties of the Department of Social Services (DSS). See, e.g., S.C. Dep't of Social Servs. v. Pritcher, 329 S.C. 242, 246, 495 S.E.2d 242, 244 (Ct.App.1997) ("SCDSS has been designated as the state agency primarily responsible for implementing the child welfare scheme for the protection of children in South Carolina.").

Petitioner cites Jensen v. Anderson County Department of Social Services, 304 S.C. 195, 403 S.E.2d 615 (1991), to support his contention § 20-7-510 creates a private cause of action. In Jenson, this...