Fulton-DeKalb Hospital Authority v. Reliance Trust Co.

Adams, Judge,

concurring specially.

I am constrained by existing law to concur with the majority in this case. This is an especially difficult case given the fact that Terrell had previously been diagnosed by the Hospital with battered child syndrome, a factor not present in the cases previously considered by this Court. Nevertheless, under the circumstances and the law existing at the time, the only options available to the treating physician were to address the child’s immediate injuries and to report the matter to DFACS as suspected child abuse in accordance with OCGA § 19-7-5. Prior to the passage of OCGA § 15-11-15, the physician had no authority to retain temporary protective custody of the child.

There is no contention that the immediate medical care provided was inadequate or negligent. Rather, the issue centers around the hospital’s failure to report the child abuse. As the majority points out, the duty to report the abuse arises not from the common law, but instead is a statutorily-imposed duty under OCGA § 19-7-5. See Cechman v. Travis, 202 Ga. App. 255, 257-258 (2) (414 SE2d 282) (1991). This Court has previously found that no civil cause of action exists for a violation of that duty. Id. That finding is in accord with the majority of states to have considered the issue. See Doe v. Marion, 361 S.C. 463 (II) (605 SE2d 556) (2004); Arbaugh v. Bd. of Ed., 214 W. Va. 677, 683 (591 SE2d 235) (2003); Danny R. Veilleux, Validity, Construction, and Application of State Statute Requiring Doctor or Other Persons to Report Child Abuse, 73 ALR4th 782, 819 (1989) (for a survey of these cases). Compare Landeros v. Flood, 17 Cal.3d 399 (551 P2d 389) (1976) (allowing cause of action under then-existing statute against physician who, after forming the opinion that the injuries to the child were intentionally inflicted, failed to report abuse); Williams v. Coleman, 194 Mich. App. 606 (488 NW2d 464) (1992) (Child Protection Law provided both criminal penalty and civil cause of action for failure to make statutorily required report).

While the failure to report the second incident involving Terrell was regrettable in the extreme, I must agree with the majority that no basis for civil recovery exists under the current law for that omission. Any imposition of civil liability under circumstances such as those present here must be authorized by the General Assembly.

*827Decided November 24, 2004 Reconsideration denied December 9, 2004 Alston & Bird, Bernard Taylor, Joshua B. Belinfante, for appellant. Don C. Keenan, Allan L. Galbraith, for appellees.