Date: 02-26-2002

Case Style: Phyllis Myers, et al. v. Karen H. Lashley, Ph.D., et al.

Case Number: Unknown

Judge: Unknown

Court: Oklahoma Supreme Court

Plaintiff's Attorney: Garvin A. Isaacs, Nancy A. Zerr, Garvin A. Isaacs, Inc., Oklahoma City, Oklahoma for Appellants

Defendant's Attorney: Robert T. Goolsby, Goolsby, Olson & Proctor, Oklahoma City, Oklahoma for Appellee

Laura Haag McConnell, Hartzog, Conger, Cason & Neville, Oklahoma City, Oklahoma for Guardian Ad Litem

Description: The sole issue presented by this appeal is whether the evidentiary materials demonstrate a nonactionable claim because the defendant-psychologist's conduct in contest is within the range of her qualified statutory privilege2 for good-faith reporting of child abuse? We answer in the affirmative.

I

THE ANATOMY OF LITIGATION

2 This is an appeal from summary judgment for the defendant Karen H. Lashley, Ph.D. [Dr. Lashley], in an action by Steve Myers [father] and his mother, Phyllis Myers [grandmother] [both plaintiffs named Myers will be referred to as plaintiffs or Myers (in the plural)], to recover for harm occasioned by allegedly substandard evaluative techniques in the treatment of Steve Myers' children (Mandi and Melanie Myers, who are neither parties to this appeal nor to the litigation below), which resulted in Myers being wrongly identified as child abusers.

3 Steve Myers and Rhonda Thomason were married 7 May 1977. The three children born of the marriage are Melissa, Melanie and Mandi. The parents divorced 11 December 1992 and the custody of their oldest daughter, Melissa (then 14 years), went to the father. The mother received custody of the two younger daughters, Melanie (11 years) and Mandi (6 years). During the ten-year period between the filing of the divorce petition and the prosecution of this lawsuit the father and mother have continued to do forensic battle over various domestic problems.3

4 In November 1993 the mother took Melanie and Mandi to the Gilbert Medical Center. There Dr. R. diagnosed Melanie as being depressed and fatigued. He referred her and Mandi to Dr. Karen Lashley [Lashley], a licensed clinical psychologist,4 who then practiced at the clinic. According to Dr. Lashley's notes, Dr. R based his referral of Melanie on concerns about "anxiety, depression and possible abuse." Dr. Lashley's clinical notes, taken during a 30 January 1994 therapy session, indicate that Melanie made allegations about her father's sexual abuse. Mandi also revealed sexual abuse by her paternal grandmother, Phyllis Myers. Dr. Lashley notified the Oklahoma Department of Human Services [DHS] in January 1994 about receiving information of Melanie's sexual abuse.5 Rhonda Thomason reported the same allegations to the police department.6 After an extensive investigation, the police declined to press charges against Myers.

5 On 4 January 1996 Myers brought two separate actions against Dr. Lashley, Rhonda Thomason and the Gilbert Medical Center, Inc. (consolidated as joint proceedings for discovery purposes). The plaintiffs initially pressed their claims on three theories of liability: (a) against Rhonda Thomason7 for slander per se and (b) against Rhonda Thomason, Dr. Lashley and the medical center for negligent infliction of emotional distress as well as (c) for reckless and/or intentional infliction of emotional distress. Myers' amended petitions name Dr. Lashley as the sole defendant8 and allege only two theories of liability9 - professional negligence and intentional infliction of emotional distress. Dr. Lashley's answer tenders several affirmative defenses.10 A guardian ad litem was appointed to represent the interest of the children.

6 Steve Myers sought damages for loss of income, loss of companionship, love and affection of his daughters, mental anguish and emotional distress (suffered from being called a child molester); Phyllis Myers for harm to her reputation, for lost income from the day care business that she and her son owned, medical expense, mental anguish and emotional distress.

7 The trial court initially denied Dr. Lashley's quest for summary relief. A year later it declared (by order entered 9 March 2001) Myers' claim not actionable. Summary judgment went to Dr. Lashley.11 Myers' joint appeal stands retained for disposition by this court. Today we affirm the nisi prius judgment on a theory different from that on which it was rested below (lack of duty to the plaintiffs). Although we let the judgment for Dr. Lashley stand, we need not examine it on the ground assigned by the trial court. When supported by the record, a legally correct nisi prius judgment must be affirmed although it was anchored to a theory different from that on which it comes to be tested on appellate review.12

The Mid-Trial Appellate Controversy

8 In launching her defense below Dr. Lashley had perceived herself impeded in the discovery of testimony and records relating to her treatment of the girls and in her access to certain medical information about the girls' mental health, which are now under control of other physicians. She sought a writ (of mandamus) to compel the trial judge to aid her in these efforts.13 By its January 16, 2001 order this court took original cognizance of the mandamus case and stayed all further proceedings here until the trial court had decided whether Myers had an actionable claim and if so, whether Dr. Lashley would be impeded by legal barriers in pressing her chosen defense theories.14 Because the reason for the writ stood removed by the summary judgment later entered below in Dr. Lashley's favor, the original proceeding was eventually terminated for mootness. II

THEORIES AND CONTENTIONS OF THE PARTIES

A.

Theories of Myers' Claim Which Stood under Consideration in the Summary Process

9 Myers argue that a mental health care professional owes a duty to a parent (or grandparent) not to misdiagnose negligently a child's condition, if that misdiagnosis should lead to a false accusation of sexual abuse. They urge that their claim is actionable on the theory that the defendant's negligent therapy and psychiatric care brought about the implanting and reinforcing of false memories (of sexual abuse) in Steve Myers' daughters. By their other theory of liability, Dr. Lashley is alleged to have intentionally inflicted emotional distress upon them "by planting false memories in the minds of the children and making false reports of sexual abuse." Myers insist their claim is not rested on the defendant's submission of a report compelled by Oklahoma's child abuse reporting laws,15 but rather upon negligent misdiagnosis of Myers' children and the resultant harm to them from therapy-induced suggestions of sexual abuse.

B.

Dr. Lashley's Theories of Defense Under Nisi Prius Consideration in the Summary Process

10 Dr. Lashley argues that in third-party suits (those that are not brought by a patient) she is protected from liability by the shield afforded her through the statutory reporting privilege.16 According to her, when a psychologist is under compulsion to report the revealed (or discovered) information of child abuse, that professional's actions in the report's submission stand protected by the Act.

III

POST-REPORTING HARM TO THE PLAINTIFFS, WHICH WAS OCCASIONED BY DR. LASHLEY'S ALLEGEDLY IMPROPER EVALUATIVE TECHNIQUES, FALLS WITHIN THE AMBIT OF THE REPORTING STATUTE'S QUALIFIED PRIVILEGE

A.

Oklahoma's Child Abuse Reporting Laws

11 Oklahoma's child abuse reporting laws express the State's strong public interest in protecting children from abuse by the policy of mandatory reporting of actual and suspected child abuse or neglect to appropriate authorities and agencies.17 The statutory scheme imposes upon all health care professionals (teachers as well as all other persons) an obligation to report in good faith all suspected instances of child abuse to the Department of Human Services.18 No privilege or contract will relieve any person from the legally mandated reporting requirement.19 The knowing and willful failure to report child abuse (or the making of a false report) is a misdemeanor.20 Any one acting in good faith and exercising due care in reporting child abuse has "immunity from any liability, civil or criminal, that might otherwise be incurred."21

12 There is neither ambiguity in, nor conflict between, the various terms of the statutory reporting laws. Their legislative intent can easily be divined from the plain language of the statutes.22

B.

The Statute-conferred Qualified Reporting Privilege Invoked By Dr. Lashley

13 The statute-conferred privilege23 is not aimed at shielding the professional from any one identified theory of liability. Rather, it is the harm that may flow from the reporting which is made irredressable.24 The act of reporting and the consequences of a licensed clinical psychologist's lawful compliance with the reporting statute lie at the very base of the privilege conferred. When reporting constitutes the instrument through which the damage is inflicted, as it clearly does in this case,25 it matters not what type of harm flows from reporting or what common-law theory is invoked by those who seek recovery. The broad statutory privilege extends across all cognizable theories of liability. It protects every professional in Dr. Lashley's class from any effort by those who seek to recover for harm occasioned by or through the act of reporting. In short, the act itself as well as all the consequences of compelled reporting stand shielded by the law's privilege.26 Whenever post-reporting harm is the object of one's recovery - and it cannot be connected to a professional's bad-faith reporting of abuse - it falls both explicitly and implicitly within the ambit of the law's conferred privilege.

14 Because this lawsuit does not seek vindication for injury to the children, but rather for that harm to Myers27 which clearly flowed as a direct consequence of the compelled reporting, Myers' claim in contest must be regarded as one for detriment from good-faith reporting by a licensed clinical psychologist.28 The statutory reporting privilege is broad enough to protect Dr. Lashley from liability upon all theories of recovery for reporting-occasioned harm from submission to the authorities of a child abuse report.29marker1fn0

15 The qualifiedly concurring justice perceives the court's characterization of the action as flawed.30 Stripped of all excess verbiage and reduced to articulate simplicity, Myers, without a doubt, seek recovery - in behalf of themselves as nonpatients - for harm sustained from Dr. Lashley's professional negligence in allegedly using substandard evaluative techniques for discovery of her underage patients' improper intra-familial carnal intimacy and then submitting to the authorities a statutorily-required report, naming Myers as revealed participants in impermissible physical contacts with these minors. Myers, who allege harm to themselves alone,31 press solely for damages occasioned, directly or obliquely, by Dr. Lashley's child-abuse report.32 In short, the gravamen of the tort in contest is the reporting. Had the reporting statute not commanded Dr. Lashley to submit the information, the entire child-abuse scenario would likely have remained a private matter protected by the psychotherapist/patient relationship.33 It was the report that lifted the silence imposed by that privilege and transformed a purely private document into public knowledge.

16 Whether Myers' claim is malpractice proper is of no moment to today's analysis.34 The critical dispositive issue is whether assumed redressability of the claim is defeated by unpierced statutory privilege. Because unpierced privilege is here the insurmountable barrier to Dr. Lashley's liability, it is unnecessary for us to test the malpractice theory of actionability by nonpatients. It does not matter if Myers may, in abstracto, sue as a nonpatient; they cannot prevail without first piercing (avoiding or overcoming) Dr. Lashley's privilege.35marker1fn0

17 The qualifiedly concurring justice invites the court to expand appellate inquiry beyond the issues the case tenders.36 We must decline the invitation, mindful as we are of the time-honored principle that courts cannot extend their pronouncements beyond the strict framework of matters that must be resolved.37 When issues decided extend beyond those that the case presents, a cloud of uncertainty is cast upon the excess of the appellate court's pronouncement.38 If the court were to reach for decision the very issue which the qualifiedly concurring justice seeks to settle, its pronouncement on that issue, clearly unnecessary to the decision, would be an obiter dictum.39marker1fn0

IV

THE LEGAL SUFFICIENCY OF THE SUMMARY-PROCESS RECORD TO SUPPORT THE NISI PRIUS JUDGMENT

18 Summary process is a procedural pretrial device for the prompt and efficient disposition of an action sans forensic combat. It is applied where there is no dispute as to the material facts or as to any inferences that may be drawn from undisputed facts, and the law favors the movant's claim or liability-defeating defense.40 It is not the purpose of summary process to substitute a trial by affidavit for one by jury, but rather to afford a method of summarily terminating a case (or eliminating from trial some of its issues on the merits of a claim or defense) where only questions of law remain.41 Summary relief issues stand before us for de novo review. This court's scrutiny of the entire record is accomplished independently and without deference to the trial court's resolution.42marker1fn0

19 Dr. Lashley's claimed substandard professional performance rests on her use of allegedly improper evaluative techniques in the therapy sessions with the father's two minor daughters. To prevail as the summary-judgment movant, Dr. Lashley had the initial burden of showing (by proffered evidentiary material) want of at least one material element in Myers' claim.43 She clearly met this burden by demonstrating that her report of sexual abuse and all the post-reporting harm to Myers stood shielded from liability by a legislatively conferred qualified reporting privilege.

20 One need not pause to ponder even for a brief moment before rejecting out-of-hand the delusive suggestion that the plaintiffs are somehow legally shortchanged by today's affirmance. Dr. Lashley's absolute defense could not be defeated by mere silence. There can be no doubt that the plaintiffs had received below the full measure of that summary process which is their constitutional due. Equally unassailable stands this pronouncement's analysis of the privilege statute's outer reach in its application to the defendant's liability-defeating defense. Once the plaintiffs were put on notice of Dr. Lashley's reliance on privilege, the onus44 shifted to them to overcome its effect. It called upon them to pierce, avoid or overcome that privilege (either or all) by tendering acceptable evidentiary materials which would show the psychologist's conduct in contest was outside the range of her statutory protection45 or their claim to be unaffected by her immunity from liability. Plaintiffs could have pierced the privilege by showing Dr. Lashley's submission in bad faith46 of a flawed child-abuse report to the authorities. They had the same opportunity to avoid the legal incidence of the invoked privilege by showing that their tort claim pressed for recovery of harm entirely disconnected from the consequences of mandatory reporting. A party, who, when confronted in summary process by evidentiary material demonstrative of its adversary's absolute statutory defense against the pressed claim, does not act to pierce, avoid or overcome the complete defense by appropriate probative devices, becomes indeed the architect of its own claim's demise.47marker1fn0

A.

The Summary-process Record Falls Short of Providing Evidentiary Material That Would Demonstrate Bad-faith Reporting of Child Abuse

21 Myers utterly failed to offer any acceptable evidentiary substitutes that would show Dr. Lashley's bad-faith report of abuse.48 Instead of meeting the privilege head-on and piercing it by evidentiary materials that would demonstrate mala fides, they pretended that their most serious impediment to nisi prius victory was not Dr. Lashley's immunity. Myers' strategy choices plainly doomed this lawsuit.

22 Absent from the record are probative materials showing that Dr. Lashley's allegedly substandard evaluative techniques amounted to gross negligence or intentional wrongdoing from which either bad faith or even gross negligence might be inferred. Gross negligence is characterized as reckless indifference to the consequences.49 It falls short of an intentional wrong's equivalent.50 While gross negligence may support a punitive damages assessment,51 it is insufficient either to bar the defense of contributory negligence or to provide a predicate for an inference of bad faith.52marker1fn0

23 Even if Myers were relying on gross negligence in Dr. Lashley's use of evaluative techniques they could not escalate their claim against her to a willful tort from which bad faith could be inferred. While their evidentiary materials might be sufficient to show professional negligence in the use of substandard evaluative techniques, we are constrained to hold that Myers' probative substitutes neither support an inference of bad faith nor rise to the level required to demonstrate Dr. Lashley's willful tort.53 The element of scienter54 - that of guilty knowledge - is an indispensable ingredient in the pattern of proof required to show lack of good faith. It is utterly absent here.

B.

The Notion That Myers' Alleged Harm from Dr. Lashley's Substandard Evaluative Techniques Was Disconnected from the Consequences Of Mandatory Reporting Lacks Support in the Record

24 Myers had the probative burden to demonstrate by responsive evidentiary material that they were harmed by Dr. Lashley's allegedly substandard evaluative techniques in advance of the report's release. There is no such showing in the summary-process record.

25 The mother had been given the "exclusive care, custody and control" of Melanie and Mandi.55 By the terms of the decree, hers was the sole power to consent to the children's treatment.56 Because the excluded noncustodial parent is not in privity with the psychotherapist/patient relationship,57 the statutory psychotherapist/patient privilege58 could not be lifted by Steve Myers except upon his request for the health-related information.59IfIf the request is refused, the noncustodial parent may resort to judicial proceedings to secure the requested but undelivered information. There is no statutory duty to release a child's medical information to a noncustodial parent before a request has been made. Even when a request is made, access to a child's medical history may be restricted by the court.

26 There is no showing here that Dr. Lashley released the medical report to the father before its submission to DHS officials.60 The only harm alleged by Myers and shown by this record occurred to them after the report's submission.61 Had the reporting statute not compelled submission of child-abuse reports, Dr. Lashley's medical records would likely have remained a private matter protected from Myers' probing eyes by the psychotherapist/patient relationship.

27 The summary-process record is totally devoid of probative documents that show any damages occasioned by harm disconnected from the consequences of mandatory reporting. In short, Myers have failed to meet their probative burden by a proffer of evidentiary materials that would show the psychologist's conduct in contest was outside the range of her legislatively conferred qualified reporting privilege.

V

SUMMARY

28 Liability will not attach to a licensed clinical psychologist protected by the statutory reporting legislation for her alleged post-reporting harm that flows from the legitimate consequences of providing information coerced by law. Reporting privilege shields the professional against all theories of recovery for information-occasioned harm through the commanded submission to the authorities of child-abuse information. In short, the plaintiffs' claim to recover for harm occasioned by Dr. Lashley's allegedly substandard evaluative techniques must stand defeated by the statutory reporting privilege she invoked below.62marker1fn0

29 The evidentiary materials fail to demonstrate an actionable claim against Dr. Lashley. On this record, her conduct clearly falls short of demonstrated lack of good faith.

* * *

Click the case caption above for the full text of the Court's opinion.

Outcome: ¶30 The trial court's summary judgment is affirmed.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: E-mail suggested comments and/or corrections to: Kent Morlan

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