Portenier Ex Rel. E.P. v. United States

FILED
United States Court of Appeals
Tenth Circuit

April 3, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

THEA PORTENIER, Mother and next
friend of minor E.P.,

Plaintiff-Appellant,
No. 11-3371
v. (D.C. No. 5:09-CV-04163-JAR)
(D. Kan.)
UNITED STATES OF AMERICA,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before HARTZ, MURPHY, and HOLMES, Circuit Judges.

Plaintiff-Appellant Thea Portenier, mother and next friend of minor E.P.

(“EP”), 1 appeals from the district court’s grant of summary judgment to the

government on her medical malpractice claim brought on behalf of EP pursuant to

the Federal Tort Claims Act (“FTCA”) and governed by Kansas tort law. Ms.

Portenier asserts that certain healthcare professionals did not properly diagnose

*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
1
According to the complaint, Ms. Portenier legally adopted EP after
the events at issue in this appeal had transpired.
and treat EP’s child abuse and that this failure caused EP to suffer severe injuries

from a subsequent episode of abuse. This appeal requires us to decide whether

Kansas law imposes a legal duty on healthcare professionals—as part of their duty

to diagnose and treat patients who have suffered child abuse—to report that child

abuse to authorities or take measures to prevent a subsequent episode of child

abuse from occurring. Because we conclude that Kansas law does not recognize

such a duty, Ms. Portenier’s medical malpractice claim cannot succeed.

Accordingly, we affirm the district court’s grant of summary judgment to the

government.

I

A

We briefly set forth the very limited factual background necessary to the

disposition of this appeal. EP was born on December 29, 2003, at Irwin Army

Community Hospital (“IACH”) in Fort Riley, Kansas. Shortly after giving birth

to EP, his biological mother, Shirlynne Craddock, placed him in the care of her

neighbor, Holly Bellinger.

On January 15, 2004, EP was taken to IACH for a scheduled visit. He was

examined by several persons, most notably Captain Wayne Darsow, a family

nurse practitioner, and Dr. Thomas Talbot; both noticed that EP had bruising in

multiple locations. Although Captain Darsow and Dr. Talbot had some suspicions

that the bruising was evidence of abuse, Dr. Talbot eventually concluded that the

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bruising was most likely caused by a blood disorder. Dr. Talbot requested a

follow-up examination, and EP was discharged at that time from the hospital.

However, a follow-up examination never occurred.

According to the complaint, on January 29, 2004, Ms. Bellinger brought EP

to Geary County Community Hospital where he was found to have, among other

injuries, multiple fractures to his skull and permanent brain damage. The

complaint alleges—and the parties do not dispute—that these injuries were caused

by Ms. Bellinger’s abuse.

B

Ms. Portenier brought this suit on behalf of EP against the

government—i.e., the employer of Dr. Talbot and Captain Darsow—to recover

damages for the severe injuries EP sustained from Ms. Bellinger’s abuse

following his January 15 examination at IACH. In her initial complaint, Ms.

Portenier alleged two claims: medical malpractice and failure to report child

abuse. She subsequently abandoned her failure to report child abuse claim and

went forward solely with her medical malpractice claim. This claim was

predicated on the legal duty that the healthcare professionals owed to EP to

properly diagnose and treat his child abuse during the January 15 examination.

Ms. Portenier asserted that had the healthcare professionals complied with this

duty, EP would not have sustained the injuries caused by Ms. Bellinger’s

subsequent abuse.

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 The government moved for summary judgment on Ms. Portenier’s medical

malpractice claim, and the district court granted the motion. The district court

rejected Ms. Portenier’s contention that her medical malpractice claim involve

only the duty to diagnose and treat EP’s injuries and in no way relied on a duty to

report child abuse. Because Ms. Portenier “claim[ed] that the healthcare

professionals not only had the duty to diagnose and treat [EP’s] immediate

medical condition but also had a duty to diagnose the nonmedical cause of the

injuries and report the injuries so that further abuse by Ms. Bellinger could be

prevented,” the district court concluded that “whether Dr. Talbot and Captain

Darsow had a duty to report child abuse [was] necessarily at issue in this case.”

Aplt. App., Vol. I, at 131 (Dist. Ct. Mem. & Order, filed Dec. 7, 2011).

In the end, the district court concluded that Kansas law does not impose on

healthcare professionals a duty to report child abuse as part of their duty to

diagnose and treat their patients. The district court noted that, although

healthcare professionals have a statutory duty to report child abuse, the Kansas

Supreme Court in Kansas State Bank & Trust Co. v. Specialized Transportation

Services, Inc., 819 P.2d 587, 604 (Kan. 1991), held that the child abuse reporting

statute does not create individual liability for noncompliance.

Moreover, the district court concluded that Kansas has not recognized a

duty to report child abuse at common law and reasoned that it would not likely do

so for three reasons: first, several other jurisdictions have found that healthcare

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professionals do not have a common law duty to report child abuse; second,

Kansas common law does not impose a duty to prevent a third party from injuring

another unless there exists a special relationship between the actor and the third

party or injured person, which the district court concluded was not present here;

and third, the court in Kansas State Bank & Trust, while not directly reaching the

issue, intimated that there is no common law duty to report child abuse.

Because Ms. Portenier’s medical malpractice claim necessarily relied on a

duty to report child abuse, and Kansas law does not recognize such a duty, the

district court concluded that her claim failed as a matter of law. Summary

judgment was entered for the government, and this appeal followed.

II

We must decide whether the district court properly granted summary

judgment to the government on Ms. Portenier’s medical malpractice claim. To do

so, we review the district court’s grant of summary judgment de novo, applying

the same standards as the district court. See e.g., Kan. Penn Gaming, LLC v. HV

Props. of Kan., LLC, 662 F.3d 1275, 1284 (10th Cir. 2011). Additionally, “[w]e

review the district court’s determinations of state law de novo.” Ayala v. United

States, 49 F.3d 607, 611 (10th Cir. 1995).

Ultimately, we conclude that the district court correctly ruled that Ms.

Portenier’s claim necessarily relies on the existence of a duty for healthcare

professionals to report child abuse or to take measures to prevent future episodes

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of abuse caused by third parties. Because we find that no such duty exists under

Kansas law, Ms. Portenier’s FTCA claim must fail. Accordingly, we affirm the

district court’s grant of summary judgment to the government.

A

We begin with a brief overview of the FTCA. Generally, “[t]he United

States can be sued only to the extent that it has waived its immunity [from suit].”

Harvey v. United States, 685 F.3d 939, 946 (10th Cir. 2012) (quoting United

States v. Orleans, 425 U.S. 807, 814 (1976)) (internal quotation marks omitted).

“The FTCA . . . was designed primarily to remove the sovereign immunity of the

United States from suits in tort.” Levin v. United States, 568 U.S. ----, 133 S. Ct.

1224, 1228 (2013) (quoting Richards v. United States, 369 U.S. 1, 6 (1962))

(internal quotation marks omitted). “[It] gives federal district courts exclusive

jurisdiction over claims against the United States for ‘injury or loss of property,

or personal injury or death caused by the negligent or wrongful act or omission’

of federal employees acting within the scope of their employment.” 2 Id. (quoting

28 U.S.C. § 1346(b)(1)).

“[T]he FTCA makes the United States liable ‘to the same extent as a

private individual under like circumstances.’” Id. (quoting 28 U.S.C. § 2674); see

2
The parties do not dispute that suit against the United States is proper
because Dr. Talbot and Captain Darsow are federal employees who were working
within the scope of their employment at all relevant times. See Levin, 133 S. Ct.
at 1228.

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Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1117 (10th Cir. 2004) (“The

FTCA provides that the United States shall be liable under state tort law only in

the same manner and to the same extent as a private individual under like

circumstances.” (quoting Nationwide Mut. Ins. Co. v. United States, 3 F.3d 1392,

1396 (10th Cir. 1993)) (internal quotation marks omitted)). “State substantive

law applies to suits brought against the United States under the FTCA.” Hill, 393

F.3d at 1117. The governing state law is “the law of the place where the act or

omission occurred.” Esposito v. United States, 368 F.3d 1271, 1274 (10th Cir.

2004) (quoting 28 U.S.C. § 1346(b)(1)) (internal quotation marks omitted); see

Levin, 133 S. Ct. at 1228. “Even if specific behavior is statutorily required of a

federal employee, the government is not liable under the FTCA unless state law

recognizes a comparable liability for private persons.” Ayala, 49 F.3d at 610; see

Klepper v. City of Milford, 825 F.2d 1440, 1448 (10th Cir. 1987) (“It is well

established that where a negligence claim is based on a violation of a federal

statute or regulation, no claim will lie under the FTCA in the absence of some

other duty under the applicable state law.”).

Here, the acts at issue all occurred in Kansas; consequently, Kansas

supplies the controlling law for Ms. Portenier’s medical malpractice claim. Under

Kansas law, “[m]edical malpractice is negligence of a healthcare professional in

the diagnosis, care, and treatment of a patient.” Munoz v. Clark, 199 P.3d 1283,

1288 (Kan. Ct. App. 2009) (quoting Perkins v. Susan B. Allen Mem’l Hosp., 146

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P.3d 1102, 1105 (Kan. Ct. App. 2006)) (internal quotation marks omitted). A

medical malpractice claim requires proof of the following:

(1) the health care provider owed the patient a duty of care,
which required that the provider meet or exceed a certain
standard of care to protect the patient from injury; (2) the
provider breached that duty or deviated from the standard of
care; (3) the patient was injured; and (4) the injury proximately
resulted from the health care provider’s breach of the standard of
care.

Foster ex rel. Foster v. Klaumann, 294 P.3d 223, 229 (Kan. 2013); accord Puckett

v. Mt. Carmel Reg’l Med. Ctr., 228 P.3d 1048, 1060 (Kan. 2010) (setting forth the

same four elements); see also Hale v. Brown, 197 P.3d 438, 440 (Kan. 2008) (“In

order to establish a negligence claim, the plaintiff must establish the existence of

a duty, a breach of that duty, an injury, and proximate cause . . . .”).

“Whether a physician owes a legal duty to a patient under a particular

circumstance is a question of law.” Irvin v. Smith, 31 P.3d 934, 942 (Kan. 2001);

see Woodruff v. City of Ottawa, 951 P.2d 953, 956 (Kan. 1997) (“Whether a duty

. . . exists is a question of law.”); Calwell v. Hassan, 925 P.2d 422, 428 (Kan.

1996) (“Whether a duty exists is a question of law.”). “[T]he fact that a plaintiff

produces an expert witness who will testify that a particular act or omission

constitutes ‘a departure from the standard of care’ [does not] establish that a duty

exists as a matter of law.” Irvin, 31 P.3d at 942.

Kansas law imposes a statutory duty on healthcare professionals who have

reason to suspect that a child has been abused to report the suspected abuse to the

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State. See Kan. Stat. Ann. § 38-2223 (2012). However, as noted by the district

court, the Supreme Court of Kansas held that this statute does not create a private

right of action against those who fail to comply. 3 See Kan. State Bank & Trust,

819 P.2d at 604 (“There is no express indication of legislative intent to impose

any liability for failure to report.”); see also Adams v. Bd. of Sedgwick Cnty.

Comm’rs, 214 P.3d 1173, 1188 (Kan. 2009) (“[In Kansas State Bank & Trust,]

this court rejected the argument that the child abuse reporting statute created a

duty owed to a subsequently abused child.”). Notably, Ms. Portenier recognizes

that Kansas law is postured in this manner and that the district court was correct

in finding that healthcare professionals do not have a statutory duty to report

child abuse that is actionable under Kansas tort law.

Further, under Kansas common law, the “prevailing rule . . . is that in the

absence of a ‘special relationship,’ there is no duty of an actor . . . to control the

conduct of a third person . . . to prevent harm to another.” D.W. v. Bliss, 112

P.3d 232, 239 (Kan. 2005); see Calwell, 925 P.2d at 428–29. “A special

relationship may exist between parent and child, master and servant, the possessor

of land and licensees, persons in charge of one with dangerous propensities, and

persons with custody of another.” Calwell, 925 P.2d at 428–29 (quoting C.J.W. v.

3
At issue in Kansas State Bank & Trust was an earlier codification of
the child abuse reporting statute, Kan. Stat. Ann. § 38-1522 (1990). See 819 P.2d
at 602–03. The statute was later recodified as Kan. Stat. Ann. § 38-2223.

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State, 853 P.2d 4, 9 (Kan. 1993)) (internal quotation marks omitted); see Bliss,

112 P.3d at 239 (listing the same types of special relationships). Once again, Ms.

Portenier recognizes that this is the law in Kansas and does not contend that a

special relationship exists in this case.

B

We begin our analysis by reiterating for clarity what is not disputed by the

parties. Next, we set forth the contours of Ms. Portenier’s argument, concluding

that her claim necessarily relies on healthcare professionals having a duty to

report child abuse or take measures to prevent their patients from being harmed

by third parties as part of their duty to treat their patients. Finally, we conclude

that because Kansas law has not recognized such a duty, nor would it, Ms.

Portenier’s claim must fail.

Beginning with what the parties do not dispute, the district court held that

Kansas common law “does not recognize a cause of action for medical negligence

based on failure to report child abuse.” Aplt. App., Vol. I, at 134. On appeal,

Ms. Portenier made clear that she “does not dispute that the District Court was

correct in that statement of law.” Aplt. Opening Br. at 31. Similarly, Ms.

Portenier does not contest that the healthcare professionals here cannot face

liability in a private action under Kansas’s child abuse reporting statute for failing

to report abuse. The district court also held that, under Kansas law, “an actor has

no duty to control the conduct of a third party to prevent that person from causing

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harm to others unless there is a special relationship between the actor and the

third party or the actor and the injured party.” Aplt. App., Vol. I, at 134 (quoting

Bliss, 112 P.3d at 238) (internal quotation marks omitted). This too is undisputed

by Ms. Portenier.

Ms. Portenier’s position, however, is that these legal determinations are

irrelevant because her claim is not that healthcare professionals have a duty to

report child abuse or a duty to protect their patients from harm caused by third

parties. Instead, says Ms. Portenier, her claim is one of medical malpractice, and

if EP’s healthcare professionals had properly diagnosed and treated his

condition—traumatic child abuse 4—he would not have sustained the injuries

subsequently caused by Ms. Bellinger. According to Ms. Portenier, she can prove

her medical malpractice claim by showing that the healthcare professionals

misdiagnosed EP’s child abuse as a blood condition. Had they not done so, Ms.

Portenier continues, the standard of care for the treatment of child abuse—as

testified to by her experts and established in the Department of Army’s Protocol

for Child Abuse and Neglect (“PCAN”)—would have required the healthcare

professionals to report the child abuse or take preventative measures to ensure

that no further abuse occurred.

4
Because the parties both proceed under the assumption that child
abuse is a medical condition that healthcare professionals have a duty to non-
negligently diagnose and treat, we accept that premise (without definitively
opining on it) for purposes of this appeal.

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 Despite her protestations to the contrary, however, Ms. Portenier’s claim

rests on more than an alleged misdiagnosis of EP’s injuries during the January 15

examination; it rests on the additional premise that had the alleged misdiagnosis

not occurred, the healthcare professionals would have had a duty to report the

child abuse or take measures to prevent further abuse from occurring as part of

their duty to treat the abuse. The language of Ms. Portenier’s own arguments

demonstrate that this is true. For example, she argues:

[A] diagnosis [of child abuse] triggers two protocols. The first
is the duty to complete a thorough evaluation of the baby’s
condition to determine not only the injuries but also their cause.
The second is a duty to alert authorities, but this follows only
after the healthcare evaluation is completed. If the medical
evaluation required by the infant’s condition is not made, injuries
are not treated and the protective protocols cannot be
implemented. The purpose of the duty—of the standard of
care—is to prevent future injury to the baby.

Aplt. Opening Br. at 30 (emphases added); see id. at 34 (“[Ms. Portenier’s]

complaint alleges negligence in the failure to make an accurate and timely

diagnosis and institute treatment, which would have included hospitalization and

removal from the abusive custodian.” (emphases added)). 5 Put differently, Ms.

5
Ms. Portenier made nearly identical arguments before the district
court. See, e.g., Aplt. App., Vol. I, at 68 (Pl.’s Resp. to Def.’s Mot. to Dismiss or
in the Alternative, Mot. for Summ. J., filed July 5, 2011) (“In addition to showing
. . . that E.P.’s health care providers had a duty to properly diagnose suspected
child abuse, [Ms. Portenier] will show . . . that [they] had a duty to timely treat
the suspected child abuse, which includes taking the necessary steps to safeguard
the victim to prevent further immediate abuse.” (second emphasis added)); id. at
(continued...)

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Portenier argues that the duty to diagnose and treat “include[s]” removing the

patient “from the abusive custodian,” id., and that the “purpose of the duty” is to

prevent further abuse by the third-party abuser, 6 id. at 30. These arguments make

it clear that Ms. Portenier’s claim necessarily relies on the existence of a duty of

healthcare professionals to report child abuse or take steps to prevent a third party

from subsequently abusing their patient as part of their duty to treat child abuse. 7

5
(...continued)
89 (“[I]f Captain Darsow and Dr. Talbot had followed the accepted standard of
medical care, they would have made the proper diagnosis . . . [of] child abuse.
They then would have followed the accepted standard of medical care in
reporting their diagnosis of child abuse . . . .” (emphasis added)).
6
That Ms. Portenier seeks to impose a duty on healthcare
professionals to prevent subsequent injuries to their patients caused by third
parties is further bolstered by considering the injuries for which she seeks to hold
the healthcare professionals liable—viz., injuries caused by Ms. Bellinger after
EP’s January 15 visit to IACH.
7
Ms. Portenier argues that the failure to diagnose child abuse, which
could lead to further abuse of the child, is no different than the failure to diagnose
any other healthcare condition that could lead to further injuries on account of the
undiagnosed condition. To demonstrate this, she relies on two hypothetical
situations that she contends are analogous to her claim. But these hypothetical
situations only serve to demonstrate that her claim is legally distinct from medical
malpractice claims recognized by Kansas. First, she states:

When an emergency room physician fails to do cardiac enzymes
and misses an impending myocardial infarction, the physician
does not actually cause the fatal injury—a glob of fatty plaque
does that—but physicians are routinely held accountable for the
failure to diagnose the impending myocardial infarction because
with timely treatment the injury is avoided; no different rule
should apply here.

(continued...)

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 7
(...continued)
Aplt. Opening Br. at 40 n.9. But unlike the cause of the eventual injuries in a
typical medical malpractice claim—or, more specifically, the hypothetical glob of
fatty plaque in Ms. Portenier’s hypothetical—the cause of EP’s eventual injuries
was the conduct of a third party, i.e., Ms. Bellinger, not an untreated medical
condition running its course. In other words, Ms. Portenier does not contend that
the injuries themselves present at the January 15 examination, if left untreated,
would have caused EP’s subsequent injuries. She acknowledges that Ms.
Bellinger inflicted these injuries, and Kansas law clearly distinguishes between
injuries caused by third parties and those that are not. See Bliss, 112 P.3d at 239
(“[The] prevailing rule in Kansas is that in the absence of a ‘special relationship,’
there is no duty of an actor . . . to control the conduct of a third person . . . to
prevent harm to another . . . .”).

Her second hypothetical further demonstrates why the duty she seeks to
impose on healthcare professionals is unique:

When a patient comes to the Emergency Room after automobile
trauma, he presents with a medical condition—trauma—that has
a non-medical cause. If the patient has a ruptured aorta, and that
is missed in the diagnosis, and the patient later exsanguinates as
a result, the “non-medical cause” of the patient’s injuries will not
prevent the physician from being liable for the patient’s death
....

Aplt. Reply Br. at 4–5. It is true that a patient injured in a car accident and a
patient injured due to child abuse both suffered injuries having, in Ms. Portenier’s
words, a “non-medical cause.” And it is further true that healthcare professionals
have a duty to non-negligently diagnose and treat patients presenting these types
of injuries. See, e.g., Monoz, 199 P.3d at 1288. But Ms. Portenier’s second
hypothetical departs from the instant case in that the duty to diagnose and treat
does not require healthcare professionals to take measures to prevent the “non-
medical cause” from recurring. Put differently, absent a special relationship,
Kansas law does not place a duty on healthcare professionals to take steps to
prevent a subsequent car accident any more than it requires them to take steps to
prevent a subsequent episode of child abuse, as healthcare professionals have no
duty to control the conduct of third parties. See Bliss, 112 P.3d at 239. Thus Ms.
Portenier’s attempt to equate her claim to that of an ordinary medical malpractice
(continued...)

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 Ms. Portenier seeks to avoid this conclusion at least in part through an

argument that misguidedly conflates the distinct—but related—concepts of duty

and standard of care. See, e.g., Aplt. Opening Br. at 30 (“The purpose of the

duty—of the standard of care—is to prevent future injury to the baby.”). Having

already purportedly established the existence of the requisite legal duty for

purposes of prosecuting her claim—viz., the overarching duty to diagnose and

treat traumatic child abuse—Ms. Portenier reasons that she may direct the

analysis to the question of whether the healthcare professionals violated the

standard of care, which includes reporting child abuse or otherwise taking steps to

protect child patients from further abuse of third parties. See, e.g., id. (noting that

part of the “standard of care” “triggers two protocols,” one of which is “a duty to

alert authorities” to the suspected child abuse).

However, the standard of care establishes “[w]hat the defendant must do, or

must not do . . . to satisfy the duty”—it is not conceptually conterminous with the

duty itself. Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and

Keeton on Torts § 53, at 356 (5th ed. 1984) [hereinafter Prosser]; see Ingram v.

Howard-Needles-Tammen & Bergendoff, 672 P.2d 1083, 1088 (Kan. 1983)

(having concluded that the defendant had a legal duty “to the traveling public to

exercise reasonable care in making annual bridge inspections,” next asking

7
(...continued)
claim in this manner is wholly unpersuasive.

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“[w]hat was the standard of care required of [defendant] in order to fulfill its

duty”).

Whether the law imposes a given duty is a purely legal determination. See,

e.g., Irvin, 31 P.3d at 942; Woodruff, 951 P.2d at 956; Nero v. Kan. State Univ.,

861 P.2d 768, 772 (Kan. 1993); see also Black’s Law Dictionary 580 (9th ed.

2009) (specifying that a “duty” is “[a] legal obligation that is owed or due to

another and that needs to be satisfied”). This proposition naturally follows from

the well-established premise that a duty is “an expression of the sum total of

those considerations of policy which lead the law to say that the particular

plaintiff is entitled to protection.” Wicina v. Strecker, 747 P.2d 167, 173 (Kan.

1987) (quoting Prosser, Law of Torts § 53, at 325–26 (4th ed. 1971)) (internal

quotation marks omitted).

Consistent with this Kansas law, distinguished commentators have

discussed the conceptual distinction that exists between duty and the set of

actions constituting the standard of care: “It is better to reserve ‘duty’ for the

problem of the relation between individuals which imposes upon one a legal

obligation for the benefit of the other, and to deal with particular conduct in terms

of a legal standard of what is required to meet the obligation.” Prosser, supra,

§ 53 at 356; see, e.g., Black’s Law Dictionary 1535 (defining “standard of care”

as “[i]n the law of negligence, the degree of care that a reasonable person should

exercise”).

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 The upshot is that a defendant may engage in careless or negligent conduct

without subjecting himself to tort liability; such conduct only gives rise to tort

liability when the defendant owes a legal duty to the plaintiff to refrain from

acting carelessly. See Prosser, supra, at 356–57 (noting that “[i]n the early

English law” “[t]he defendant’s obligation to behave properly apparently was

owed to all the world . . . [b]ut when negligence began to take form as a separate

basis of tort liability, the courts developed the idea of duty, as a matter of some

specific relation between the plaintiff and the defendant, without which there

could be no liability”); see also Bryan A. Garner, A Dictionary of Modern Legal

Usage 301 (2d ed. 1995) (noting “writers use duty [in tort law] only to mean that

there could be liability”). Kansas law reflects these fundamental principles. See

Irvin, 31 P.3d at 942 (“Without a legal duty, there can be no compensable

negligence.” (emphasis added)); id. (“Actionable negligence must be based upon

breach of duty.” (emphasis added)); Wicina, 747 P.2d at 174 (“It is fundamental

that before there can be any recovery in tort there must be a violation of a duty

owed by one party to the person seeking recovery.”).

Consequently, notwithstanding Ms. Portenier’s efforts to couch them as

part and parcel of a standard of care, in order for the healthcare professionals in

the instant case to be found liable for a failure to report child abuse or otherwise

take steps to protect child patients from further abuse of third parties, they must

have had a legal duty to do so. Thus, Ms. Portenier’s argument premised on a

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standard of care is misguided.

Similarly, Ms. Portenier’s reliance on evidence—notably, expert testimony

and the PCAN—to demonstrate that the standard of care requires the reporting of

traumatic child abuse or the implementation of other measures to protect against

further child abuse from third parties misses the mark. As noted, the standard of

care relates to the requisite conduct to satisfy a legal duty; it is not conterminous

with the duty itself. In order to impose tort liability upon them, the healthcare

professionals at issue must have had a legal duty to report child abuse or to take

steps to protect the child patient from further abuse by third parties. And Ms.

Portenier’s marshalling of evidence cannot create such a legal duty. This is

because, as noted above, whether the law imposes a given duty is a purely legal

determination. 8 See Irvin, 31 P.3d at 942 (“[T]he fact that a plaintiff produces an

expert witness who will testify that a particular act or omission constitutes ‘a

departure from the standard of care’ [does not] establish that a duty exists as a

matter of law.”); cf. Nold ex rel. Nold v. Binyon, 31 P.3d 274, 281–84 (Kan. 2001)

8
Indeed, Ms. Portenier’s reliance on the PCAN is particularly
misguided. For there to be a viable claim under the FTCA, the liability must flow
from a violation of an obligation imposed by state law. See Ayala, 49 F.3d at 611
(“Even if specific behavior is statutorily required of a federal employee, the
government is not liable under the FTCA unless state law recognizes a
comparable liability for private persons.”). The PCAN is the United States
Army’s protocol for handling cases of child abuse and neglect—i.e., it is not a
state law obligation.

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(holding that the trial court erred in excluding proffered testimony of plaintiff’s

expert medical witness on the breach of the standard of care of defendant

hospital’s nurses). Thus, Ms. Portenier’s evidence-based arguments are

unavailing.

Although there is no dispute that Kansas law does not hold healthcare

professionals liable for failing to report child abuse or preventing third parties

from injuring their patients, our final task is to predict whether the Supreme Court

of Kansas would recognize such a duty as part of the overall duty to diagnose and

treat traumatic child abuse. We conclude that it would not.

The two most relevant indications of whether the Supreme Court of Kansas

would recognize such a duty persuasively demonstrate that it would not. First,

the Supreme Court of Kansas recognized in Kansas State Bank & Trust that the

child abuse reporting statute does not create a private right of action against

individuals who fail to comply with the reporting requirements. 9 See 819 P.2d at

604. Second, Kansas tort principles belie the notion that such a duty would be

9
Although not determinative of the question, it is noteworthy that in
declining to recognize that the child abuse reporting statute created individual
liability, the Supreme Court of Kansas relied in part on another jurisdiction’s
recognition that “such an action is not authorized at common law” and, further,
cast doubt on whether recognition of such a claim would be a sound policy. See
Kan. State Bank & Trust, 819 P.2d at 604 (quoting Borne by Borne v. Nw. Allen
Cnty. Sch. Corp., 532 N.E.2d 1196, 1203 (Ind. App. 1989)) (internal quotation
marks omitted); see also Adams, 214 P.3d at 1188 (highlighting the Kansas State
Bank & Trust court’s reliance on this reasoning in Borne and citing it again with
approval).

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found to exist. As recognized by both parties and the district court, absent a

“special relationship,” which Ms. Portenier does not contend existed between EP

and the healthcare professionals, there was no duty of the actors (the healthcare

professionals) to control the conduct of a third person (Ms. Bellinger) to prevent

harm to another (EP). See Bliss, 112 P.3d at 239; see Calwell, 925 P.2d at

428–29. And the harm for which Ms. Portenier seeks recompense derives entirely

from injuries inflicted on EP after the January 15 examination by Ms. Bellinger.

Notably, Ms. Portenier offers no justifications—and we could not identify any

persuasive ones—for why Kansas would recognize such a duty. The only Kansas

authorities relied on by Ms. Portenier do not involve, let alone discuss, the duty to

diagnose and treat in such broad terms. See, e.g., Puckett, 228 P.3d at 1054–57

(involving allegations that the failure to properly diagnose and treat a patient’s

urinary tract infection led to sepsis and contributed to the patient’s death);

Lashure v. Felts, 197 P.3d 885, 887–88 (Kan. Ct. App. 2008) (involving

allegations that the failure to properly diagnose osteomyelitis caused unnecessary

pain, suffering, and healthcare bills); George v. Pauly, 45 P.3d 1, 2–3 (Kan. Ct.

App. 2001) (alleging that the failure to properly diagnose Hirschsprung’s Disease

led to the patient’s death).

In sum, we hold that Ms. Portenier’s claim relies on a duty that Kansas law

does not (and would not) recognize—viz., a duty for healthcare professionals to

report child abuse or take measures to prevent one of their patients from being

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subject to future episodes of child abuse at the hands of a third party, as part of

their duty to diagnose and treat their patients for traumatic child abuse. “In the

absence of a duty, there can be no breach of a duty and no basis for a negligence

cause of action.” See Bliss, 112 P.3d at 243. And if the government cannot be

held liable under Kansas law, it cannot be liable under the FTCA. See Hill, 393

F.3d at 1117.

III

For the foregoing reasons, we AFFIRM the district court’s grant of summary

judgment to the government on Ms. Portenier’s FTCA claim.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

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