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Nelson v. Lindaman

Supreme Court of Iowa

April 24, 2015

SHANNON and DANNY NELSON, Individually, and on Behalf of E.N. f/k/a E.N., a Minor, Appellees,

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Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge. Medical defendants, sued for malpractice for failing to detect child abuse, appeal district court's order denying their motion for summary judgment based on immunity under Iowa Code section 232.73 for assisting the investigation by the Iowa Department of Human Services.


John T. Clendenin, Hayward L. Draper, Ryan G. Koopmans, and Jess W. Vilsack of Nyemaster Goode, P.C., Des Moines, for appellants Lynn M. Lindaman and Lynn M. Lindaman, M.D., P.L.C.

Connie L. Diekema, Erik P. Bergeland, Kellen B. Bubach of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellant Mercy Medical Center -- Des Moines.

Eric M. Updegraff of Stoltze & Updegraff, P.C., Des Moines, and Jeff Carter and Zachary C. Priebe of Jeff Carter Law Offices, P.C., Des Moines, for appellees.

WATERMAN, Justice. All justices concur except Cady, C.J., who concurs specially, and Appel and Hecht, JJ., who dissent. APPEL, Justice (dissenting).


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WATERMAN, Justice.

In this appeal, we must address the immunity from civil liability afforded by Iowa Code section 232.73 (2009) for a physician participating in a child abuse assessment. The physician treated the infant victim's broken arm and told the investigator for the Iowa Department of Human Services (DHS) the father's version of how the injury occurred was plausible. The baby was left in his parents' care and three weeks later suffered a severe brain injury while with his father.

The infant's adoptive parents filed this medical malpractice action, alleging the physician's negligence and reckless or willful conduct was a proximate cause of the baby's subsequent injuries because the DHS relied on his assessment to initially decide to leave the baby with the baby's father. The defendants moved for summary judgment, asserting the physician participated in the DHS assessment in good faith and therefore is immune from liability under section 232.73. The district court ruled that questions of fact precluded summary judgment, and we allowed the defendants' interlocutory appeal.

For the reasons explained below, we hold the defendants are entitled to good-faith immunity under section 232.73. Undisputed facts establish the physician participated in good faith in the DHS assessment. We therefore reverse the order denying summary judgment and remand the case for the entry of summary judgment in favor of the defendants.

I. Background Facts and Proceedings.

The parents of E.N., a three-week-old infant, brought him to the emergency room at Mercy Medical Center with a broken arm on June 18, 2009. His father, Jonas Neiderbach, claimed that he heard a snap as he set his baby down with his arm behind him. Dr. Scott Barron, a pediatric emergency room physician, did not believe

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the father's story. Dr. Barron believed the spiral fracture could not have been caused by E.N.'s body weight, especially because the baby's bones were pliable. Dr. Barron reported his concerns to the DHS, which began a child abuse investigation under Iowa Code section 232.70. DHS caseworker Darla Brown came to the hospital, spoke with Dr. Barron and E.N.'s parents, and reviewed E.N.'s medical records. Meanwhile, Dr. Barron referred E.N. to Dr. Selover, who agreed the injury was consistent with abuse. Dr. Selover questioned the father's story because at E.N.'s age infants typically extend their arms forward rather than backwards. Dr. Selover contacted Dr. Lindaman for assistance in treating the fracture. Dr. Lindaman lacked significant experience evaluating claims of child abuse in infants, but as a pediatric orthopedic surgeon was well qualified to treat the fracture.

On June 19, Dr. Lindaman saw E.N. and successfully immobilized the arm. Dr. Lindaman noted in his treatment plan, " At this time the injury does fit with the mechanism described. I don't see any signs of any other skeletal trauma." Meanwhile, Brown had already told the Polk County Attorney she would probably be requesting a no-contact order against the father. Brown phoned Dr. Lindaman to continue gathering information for her assessment. Her notes of their conversation state:

This worker spoke[] with Dr. Lindaman . . . . Dr. Lindaman indicated that if the father was holding baby by the chest and laying him down on the bed, placing him down with one side of his body coming into contact with the bed first, that it was plausible that the arm on that side of the body could get pinned under his body behind him.
This worker questioned whether a child, weighing only 8 lbs. 11 oz., would have enough force to create this injury. I also provided information that dad had provided a different explanation with how he laid [E.N.] down, with one hand under its head and the other under its butt. I also questioned whether a crying child's arm would go back behind him as he would more likely to be pulling his arms tight in front of him. Through this line of questioning, he stated on several occasions, " the mechanism they described fits the fracture seen."
Dr. Lindaman also indicated that he did not see any other injuries. He also stated that the family appeared appropriate and they brought [E.N.] in immediately. Dr. Lindaman stated that he saw no evidence to indicate healing of the fracture, which would indicate it was consistent with the time frame provided by parents. All these factors lead to his assessment of the injury.

Following her conversation with Dr. Lindaman, Brown decided not to seek a no-contact order and allowed E.N. to go home with a family safety plan in place. E.N.'s parents and paternal grandfather, with whom E.N. lived, agreed that E.N.'s father would not be left alone with E.N. Due to her continuing concerns and what she saw as conflicting medical opinions, Brown spoke with her supervisor and scheduled a multidisciplinary team meeting for June 30 to discuss E.N.'s case.

On June 26, Dr. Lindaman conducted a follow-up visit with E.N. at his office. Dr. Lindaman performed a physical examination while E.N. remained in his mother's arms. The arm bone was in good alignment and x-rays taken that day showed good early healing. Dr. Lindaman focused on the healing arm bone fracture without examining E.N. for signs of any other injuries. It is unknown whether a full body examination that day would have detected the rib fractures that were discovered twelve days later.

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The multidisciplinary team meeting on June 30 involved representatives of the Polk County Attorney's Office, the DHS, Des Moines police, and medical professionals. Every medical professional present agreed that E.N.'s injuries could not have occurred as the father described them. Dr. Oral reviewed the radiographs with two additional colleagues including another pediatric orthopedic specialist to confirm that the story the father told was inconsistent with the type of injury. After receiving an email from Dr. Oral, Brown prepared the paperwork requesting a no-contact order for E.N.'s father on July 6. Meanwhile, Dr. McAuliff explained the reasons for the multidisciplinary team's conclusions to Dr. Lindaman, including the fact that infant flexor tone at one month does not allow an infant's arms to easily fall behind its body. After that discussion, Dr. Lindaman did not change his original opinion regarding biomechanics, but acknowledged the flexor tone information made the father's story very unlikely.

The court entered the no-contact order on Wednesday, July 8. Normally, such orders are served immediately. However, the DHS decided to serve the no-contact order on Friday, July 10 when the family returned from a nearby camping trip. In fact, the family was not camping. E.N.'s grandfather (a DHS employee) took E.N. to DHS headquarters the afternoon of July 8 to meet his coworkers, and E.N. appeared to be in good health at that time. The DHS did not attempt to serve the order that afternoon. On the evening of July 8, E.N. was admitted to the hospital with massive brain injuries. E.N. also had seventeen rib fractures, some fresh and some older.

E.N.'s mother and father were charged with child endangerment. The mother pled guilty and was sentenced to twenty years in prison. The father was found guilty by a Polk County jury and sentenced to fifty years in prison. See State v. Neiderbach, 837 N.W.2d 180, 189 (Iowa 2013).

In an affidavit executed January 10, 2013, Dr. Lindaman described his involvement with E.N. and the DHS. He described his impression of being called in for a limited consultation regarding the treatment of a fracture. He states that he was aware other physicians were already evaluating child abuse issues, and therefore he

made no effort to make my own evaluation of the credibility of the father with regard to the medical history . . . . The only opinion I developed was that . . . the history could possibly be consistent with the type of spiral humeral fracture I observed in this child.

Dr. Lindaman also described his phone call with Brown as follows:

As the DHS investigator's notes of the call they had with me indicate, I refused to give them any opinion regarding the credibility of the father's story or regarding child abuse, even though they raised with me some issues that they thought undercut his credibility. The reason I refused to give them any opinion regarding credibility and child abuse is because I had not performed an investigation regarding child abuse. Therefore, each time the DHS raised an issue concerning that, I repeated the only opinion I could help them with for their assessment; namely, my opinion that, as a matter of biomechanics, the mechanism that the parents had described to me fit the fracture seen, by which I meant that the father's story about the arm being pinned and twisted behind the child's back, if true, could be consistent with a spiral humeral fracture occurring in that arm.

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E.N. was subsequently adopted by Shannon and Danny Nelson. On June 10, 2011, they filed this action individually and on behalf of E.N. They alleged Dr. Lindaman negligently failed to detect and report the child abuse and that Mercy Medical Center -- Des Moines was vicariously liable for Dr. Lindaman's negligence.[1] The Nelsons further alleged Dr. Lindaman's conduct was " reckless and/or willful" and sought punitive damages against him and Mercy. The Nelsons never alleged Dr. Lindaman believed the statements he made to DHS were untrue. The Nelsons do not claim Dr. Lindaman mistreated the arm fracture itself.

Defendants moved for summary judgment on several grounds: the immunity under Iowa Code section 232.73 and the lack of evidence to prove causation or the willful and wanton misconduct required for punitive damages. The Nelsons resisted and submitted expert medical testimony that Dr. Lindaman breached the standard of care. The Nelsons also argued defendants waived the immunity defense by failing to plead it. Defendants filed motions to amend their answers to plead immunity, and the district court allowed the amendments.[2] On April 1, 2013, the court denied the summary judgment motions, stating:

Based upon the record made the court concludes that the summary judgment motions should be denied. There are genuine issues of material fact as to whether the defendant doctor rendered an opinion or not for DHS, whether reliance on that opinion caused injury to the child, whether the doctor's communications to DHS were in good faith or not, whether the doctor's conduct provides immunity and whether the communication with DHS was actually aiding or assisting in a child abuse assessment.

We granted defendants' application for interlocutory appeal and retained the appeal.

II. Standard of Review.

" We review a district court decision granting or denying a motion for summary judgment for correction of errors at law." Wallace v. Des Moines Indep. Cmty. Sch. Dist. Bd. of Dirs., 754 N.W.2d 854, 857 (Iowa 2008). " A matter may be resolved on summary judgment if the record reveals only a conflict concerning the legal consequences of undisputed facts." Id.; see also Garvis v. Scholten, 492 N.W.2d 402, 403 (Iowa 1992) (same). Summary judgment is appropriate when " there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Iowa R. Civ. P. 1.981(3). " The moving party has the burden of showing the nonexistence of a material fact." Hlubek v. Pelecky, 701 N.W.2d 93, 95 (Iowa 2005). " An issue of fact is 'material' only when the dispute involves facts which might affect the outcome of the suit, given the applicable governing law." Wallace, 754 N.W.2d at 857. An issue is " genuine" if the evidence in the record " is such that a reasonable jury could return a verdict for the non-moving party." Id. We view the evidence in the light most favorable to the nonmoving party, who is entitled to every legitimate inference that we may draw

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from the record. Id. " Speculation is not sufficient to generate a genuine issue of fact." Hlubek, 701 N.W.2d at 96.

III. Analysis.

We must decide whether the district court erred by denying defendants' motion for summary judgment based on the statutory immunity in Iowa Code section 232.73. We will discuss the scope of immunity under that statute and then address whether the defendants were entitled to summary judgment on the record in this case.

We begin with the text of section 232.73, which in relevant part provides:

A person participating in good faith in the making of a report, photographs, or X rays, or in the performance of a medically relevant test pursuant to this chapter, or aiding and assisting in an assessment of a child abuse report pursuant to section 232.71B, shall have immunity from any liability, civil or criminal, which might otherwise be incurred or imposed. The person shall have the same immunity with respect to participation in good faith in any judicial proceeding resulting from the report or relating to the subject matter of the report.

Iowa Code § 232.73(1).

Section 232.73 provides a form of qualified immunity. See Hlubek, 701 N.W.2d at 96 (noting statutes immunizing conduct performed in good faith provide qualified, not absolute, immunity). " Qualified immunity is a question of law for the court and the issue may be decided by summary judgment." Dickerson v. Mertz, 547 N.W.2d 208, 215 (Iowa 1996); see also Garvis, 492 N.W.2d at 404 (affirming summary judgment based on section 232.73 immunity); Maples v. Siddiqui, 450 N.W.2d 529, 531 (Iowa 1990) (same). Summary judgment is an important procedure in statutory immunity cases because a key purpose of the immunity is to avoid costly litigation, and that legislative goal is thwarted when claims subject to immunity proceed to trial. See Plumhoff v. Rickard, __ U.S. __, __, 134 S.Ct. 2012, 2019, 188 L.Ed.2d 1056, 1064 (2014) (" [T]his [immunity] question could not be effectively reviewed on appeal from a final judgment because by that time the immunity from standing trial will have been irretrievably lost." ); Hlubek, 701 N.W.2d at 98 (noting statutory immunity removes the " 'fear of being sued'" and affirming summary judgment (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396, 408 (1982))). Indeed, in Hlubek, we recognized the defendants' observation that " statutory immunity, like common-law immunity, provides more than protection from liability; it provides protection from even having to go to trial in some circumstances." 701 N.W.2d at 96. Qualified immunity is " an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411, 425 (1985).

In Garvis, we specifically noted the purpose of immunity under section 232.73 is to remove " the fear of litigation" for those assisting child abuse investigations. 492 N.W.2d at 404; see also Ellen Wright Clayton, To Protect Children from Abuse and Neglect, Protect Physician Reporters, 1 Hous. J. Health L. & Pol'y 133, 146 (2001) (calling for absolute immunity for physicians reporting child abuse or assisting investigations into suspected child abuse because " [r]elieving the fear of litigation will promote appropriate reporting" ). Defendants argue that to allow the claims in this case to proceed to trial would have a chilling effect on the willingness of the medical community to communicate with child abuse investigators. We share

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that concern and apply the immunity statute as written to effectuate its purpose.

A. The Scope of Immunity Under Iowa Code Section 232.73.

Section 232.73 applies in medical malpractice actions brought against private physicians who provide information to child abuse investigators. Maples, 450 N.W.2d at 530-31. The purpose of the statute is " to encourage those who suspect child abuse to freely report it to authorities without fear of reprisal if their factual information proves to be faulty." Id. at 530. " An additional purpose is to encourage those having information about child abuse to come forward when asked to do so, without the fear of litigation should it later be shown that the information was improperly released." Garvis, 492 N.W.2d at 404. These legislative purposes, in our view, apply equally to both physicians who initiate reports to the DHS, and to those, such as Dr. Lindaman, who respond to inquiries from child abuse investigators. The statute applies the same good-faith immunity to both those who report suspected abuse and those who assist in investigations initiated by others.

" Good faith" under section 232.73 is determined under a subjective standard. Id. " Reasonableness and the objective (reasonable person) standard are the hallmarks of negligence. Because immunity under section 232.73 extends to negligent acts, reasonableness and the objective standard play no part in determining good faith." Id. Therefore, good faith " rests on a defendant's subjective honest belief that the defendant is aiding and assisting in the investigation of a child abuse report." Id. We further observed:

" [a]s good faith means only honesty in fact, negligence ordinarily has no significance. That is, the honesty in fact that constitutes good faith merely requires honesty of intent and it is not necessary to show that the person was diligent or non-negligent. Bad faith, then, is obviously something far more extreme than a failure to observe reasonable . . . standards or the standards of a reasonably prudent [person]. It is irrelevant that the person in question was negligent in forming a particular belief. All that is required . . . is the actual belief or satisfaction of the criterion of 'the pure heart and empty head.'"

Id. (quoting Jackson v. State Bank of Wapello, 488 N.W.2d 151, 156 (Iowa 1992)). Thus, persons aiding or assisting in a child abuse investigation are entitled to immunity under section 232.73 if they act in good faith as we described in Garvis. To avoid summary judgment, the plaintiff must have evidence the defendant acted dishonestly, not merely carelessly, in assisting the DHS. Id.

We are mindful of the legislative directive that chapter 232 " shall be liberally construed to the end that each child under the jurisdiction of the court shall receive . . . the care, guidance and control that will best serve the child's welfare." Iowa Code § 232.1. The legislature elaborated on the purpose of the child abuse reporting provisions:

Children in this state are in urgent need of protection from abuse. It is the purpose and policy of this part 2 of division III to provide the greatest possible protection to victims or potential victims of abuse through encouraging the increased reporting of suspected cases of abuse, ensuring the thorough and prompt assessment of these reports, and providing rehabilitative services, where appropriate and whenever possible to abused children and their families which will stabilize the home environment so that the family can remain intact without further danger to the child.

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Id. § 232.67 (emphasis added). We have observed that " the forceful language of the statute articulates a well-recognized and defined public policy of Iowa." Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 301 (Iowa 1998). We therefore construe the immunity provision in section 232.73 liberally to encourage communications between physicians and DHS child abuse investigators. This is consistent with our general approach to construe statutory immunity provisions broadly. See Cubit v. Mahaska County, 677 N.W.2d 777, 784 (Iowa 2004) (surveying cases construing Iowa statutory immunity provisions broadly and exceptions to immunity narrowly).

In Maples, parents brought their four-month-old child to a hospital where Dr. Siddiqui diagnosed the baby with failure to thrive that she attributed to poor parenting skills. 450 N.W.2d at 529. The child was placed in temporary foster care, but further studies determined that malabsorption syndrome was responsible for his failure to gain weight. Id. at 530. After the child was returned to his parents, they sued Dr. Siddiqui for their loss of companionship and society while the child was in foster care. Id. Dr. Siddiqui moved ...

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