concurring. This case is one of first impression under our child abuse reporting statutes, but unfortunately, was not presented to this court in such a way to establish legal precedent under those statutes. I write only to emphasize certain points not discussed in the majority opinion.
Our child abuse reporting statutes are found at Ark. Code Ann. §§ 12-12-501 — 518 (Repl. 1995), and among other reasons, were enacted to protect the best interest of the child and to prevent further harm to the child. § 12-12-501. Under § 12-12-507(b), any physician, dentist, medical personnel, teacher, day care worker, inter alios, having “reasonable cause to suspect that a child has been subjected to child maltreatment . . . shall immediately notify central intake or law enforcement.” (Emphasis added.) The statute places a duty on those who are most likely to observe and examine the child, and who are in positions of trust of the child’s welfare. Additionally, § 12-12-507(c) provides that “[n]o privilege or contract shall relieve anyone required by the subchapter to make notification of the requirement of making notification.” Thus, under our statutory scheme, a physician has an absolute duty to report to authorities when the physician has a reasonable suspicion that child abuse has occurred, and the physician cannot claim a doctor-patient privilege in order to avoid the statute’s reporting requirements.
In the present case, Dr. Rheeta Stecker admitted she suspected Laura’s injuries were due to child abuse beginning with Laura’s broken arm; nonetheless, she made a conscious decision not to report those suspicions. The standard of care is what a physician in Stecker’s position should have reasonably suspected.1 The burden was on the estate to show that Stecker breached that standard of care, and at what point in time, she had an absolute duty to report her suspicions. While Dr. Epstein testified, in his opinion, Stecker breached her duty to report on July 22, the jury never heard this testimony. As the majority opinion holds, we are reversing because of the exclusion of Epstein’s testimony as to the medical malpractice cause of action. However, the estate did not properly preserve reversal as to the issue of violation of the child abuse reporting statutes. Without Epstein’s excluded testimony, there is no evidence to show Stecker breached her duty under the reporting statutes. This court cannot reverse a trial court for denying a directed verdict based on evidence never presented to the trier of fact.
Finally, I note that while Stecker contended on appeal that her failure to report was not the proximate cause of Laura’s death, nothing in the statute requires that failure to report child abuse result in the child’s death. Under section 12-12-504(b), any person, official, or institution required to make notification of suspected child maltreatment who willfully fails to do so shall be civilly liable for damages proximately caused by that failure.
Because the estate filed its complaint against Stecker for damages under two different causes of action, medical malpractice and violation of the child abuse reporting statutes, it was necessary to show Stecker breached both standards of care. The estate failed to meet its burden under the reporting statutes.
I note there is no locality rule under the child abuse reporting statutes.