Manifold v. Ragaglia
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KAYLEE MANIFOLD ET AL. v. KRISTINE D.
RAGAGLIA, COMMISSIONER OF CHILDREN
AND FAMILIES, ET AL.
(SC 17150)
Sullivan, C. J., and Norcott, Katz, Palmer and Vertefeuille, Js.
Argued October 20—officially released December 28, 2004
Thomas C. Simones, with whom was Timothy A.
Bishop, for the appellants (plaintiffs).
Dana M. Horton, for the appellees (defendant Robert
Creutz et al.).
Carolyn Signorelli, assistant attorney general, with
whom, on the brief, were Richard Blumenthal, attorney
general, and Maite Barainca, assistant attorney gen-
eral, for the appellees (named defendant et al.).
Opinion
NORCOTT, J. The sole issue in this appeal is whether
a physician who is not the initial reporter of suspected
child abuse, but who performs a medical examination
of a child at the request of the department of children
and families (department) to determine whether rea-
sonable cause exists to suspect child abuse, is entitled
to the immunity from liability provided by General Stat-
utes § 17a-101e (b).1 The plaintiffs, the minors, Kaylee
Manifold (Kaylee) and Matthew Manifold (Matthew),
and their parents, Billie Jo Zaks and Michael Manifold
(parents), brought this action for, inter alia, negligent
infliction of emotional distress, against the following
defendants: (1) Kristine D. Ragaglia, individually, and
as commissioner of the department, and various depart-
ment employees (department defendants);2 and (2)
Robert Creutz, a physician, and his employer, William
Backus Hospital (William Backus), collectively referred
to as the medical defendants. The plaintiffs also brought
claims of medical malpractice against the medical
defendants. The plaintiffs appeal3 from the trial court’s
grant of the medical defendants’ motion for summary
judgment dismissing counts two, three and four of the
complaint. We conclude that a physician who performs
a medical examination of a child at the request of the
department to determine whether reasonable cause
exists to suspect child abuse is entitled to immunity
from liability under § 17a-101e (b) for claims arising
from that determination. Accordingly, we affirm the
judgment of the trial court.
The record reveals the following facts and procedural
history. On April 23, 2001, an anonymous caller from
the office of the plaintiffs’ pediatrician at the Norwich
Pediatric Group contacted the department to report
that Kathleen Welch, a speech therapist with the Birth
to Three Program, had noticed numerous bruises on
both Matthew and Kaylee, and a rash on Matthew while
she was conducting a home based therapy session.4 In
particular, Welch noticed that both children had bruises
in the same location on their foreheads.5 Matthew and
Kaylee were two and three years old, respectively, at
this time.
The following day, Richard Days, a department social
worker, made an unannounced visit to the plaintiffs’
home. Days informed the parents of the reason for the
visit, and they consented to his examining the children.
He noted that both children were dirty and had bruised
foreheads, while Matthew also had extensive bruising
on his entire back and a rash on the front and back of
his
torso. Upon questioning by Days, Manifold
explained that he had not taken Matthew to the pediatri-
cian because he thought the rash was from Matthew
recently having eaten $50 worth of chocolate. Manifold
explained to Days that his son bruised easily, and that
he had sustained the bruises while roughhousing with
his sister and playing with his new toy trucks and the
family dog. Later that day, Days accompanied the plain-
tiffs to the office of their family pediatrician at the
Norwich Pediatric Group.
Upon their arrival, Days asked whether Richard
Geller, the family’s regular pediatrician, could examine
the children to determine whether there was reasonable
cause to suspect that they had been abused. Geller
stated that he was unable to examine the children at
that time and that they should not have been brought
to his office; he advised Days to take the children to
the emergency room at William Backus if an immediate
examination was needed. Days then made an appoint-
ment with Geller for the following morning, but trans-
ported the plaintiffs to the William Backus emergency
room for a more immediate evaluation.
At William Backus, Creutz examined both children,
and ordered an X ray of Matthew. The X ray revealed
no fractures, but Creutz stated in the notes of his exami-
nation that Matthew had a rash6 and bruises on his head
and chest, as well as three large bruises on his back.
The report also noted that Matthew had bruises on his
legs, knees, thighs and both ocks. The parents told
Creutz that the bruises were the result of roughhousing
with the dog and his sister, as well as a fall. Both parents
denied causing the injuries, and told Creutz that no
one ever had struck Matthew, except for ‘‘pats on the
bottom.’’7 On the basis of the number and size of the
bruises, Creutz concluded, however, that the bruises
were typical of inflicted, rather than accidental, injuries,
and he recommended further investigation of the injur-
ies’ source. He testified at his deposition that he did
not order any blood tests to determine whether a blood
disorder contributed to the bruising because the physi-
cal findings alone raised a sufficiently high suspicion
of child abuse to require that it be ruled out, even if
the blood test result was positive.
Creutz explained the results of the examination to
Days, who in turn discussed them with other depart-
ment personnel. Shortly thereafter, Jorge Osorio, a
department supervisor, authorized a ninety-six hour
hold of the children pursuant to General Statutes § 17a-
101g (d). The children then were taken into department
custody with the assistance of local police, and were
placed in a licensed foster home. The department subse-
quently applied for and obtained orders of temporary
custody of the children from the Superior Court for
Juvenile Matters, Driscoll, J., on April 25, 2001.
On April 25, 2001, Days met the children and the
foster mother at the office of the Norwich Pediatric
Group. At that time, Nancy Cusmano, a pediatrician,
examined both children. Cusmano ordered blood tests
for Matthew, stating that a normal blood test would
indicate a high probability of abuse. Upon receiving the
results of the test, however, Cusmano informed Days
that Matthew’s blood test showed some abnormalities,
including a very low blood platelet count that generally
causes clotting difficulties. She said that this condition
could explain both the bruising and the rash. See also
footnote 6 of this opinion. Cusmano referred Matthew
to Joseph McNamara, a hematologist at Yale-New
Haven Hospital (Yale), for further evaluation. There-
after, McNamara diagnosed Matthew with idiopathic
thrombocytopenic purpura, a blood disorder, and
admitted him to Yale for treatment. The following day,
April 26, 2001, McNamara advised Days that the marks
and bruising were consistent with the blood disorder.
Matthew subsequently was discharged from Yale. In
light of this new information, the court granted the
department’s motion to vacate the orders of temporary
custody. The department returned the children to the
parents’ custody later that same day, and Days relayed
the Yale discharge instructions to them.
The neglect petitions that were filed with the court
on April 25, 2001, however, remained active, although
the department amended them to remove the initial
allegations of physical abuse. The case was transferred
to the department’s division of protective services for
further monitoring and study. A social study subse-
quently was filed with the court, and the neglect peti-
tions were withdrawn in October, 2001.
In April, 2002, the plaintiffs instituted this action.
In count one of the complaint, the plaintiffs alleged
numerous acts of malice, negligence and recklessness
by the department defendants with respect to the inves-
tigation. In count two of the complaint, the plaintiffs
alleged that Creutz committed medical malpractice by
failing to order a blood test, which resulted in a misdiag-
nosis of child abuse rather than a blood disorder. In
count three, the plaintiffs made claims against William
Backus derivative of Creutz’ alleged malpractice. In
count four, the plaintiffs alleged that the conduct of
all the defendants, including the medical defendants,
constituted negligent infliction of emotional distress.
Subsequently, the medical defendants moved for
summary judgment as to all of the counts against them.
The trial court, Gordon, J., granted their motion, con-
cluding that Creutz was entitled to immunity from liabil-
ity pursuant to § 17a-101e (b) because, as a physician,
he was a ‘‘mandated reporter’’ within the scope of that
statute. The trial court determined that, as a matter
of public policy, Creutz was entitled to the statutory
immunity because ‘‘we want to protect doctors and
other people who we rely on to protect our children to
feel free to participate in this often highly charged and
potentially legal minefield-like environment
.
.
.
.’’
The trial court noted that, ‘‘whether or not [the physi-
cian] is a ‘mandated reporter’ making a determination
at the outset in this case or not, he is immune as some-
body who is part of the evaluative process of detecting
and hopefully averting the mistreatment of children.’’
The court then concluded that William Backus was
immune because the claims against it were derivative
of those against Creutz, and emphasized that there was
no genuine issue of material fact present that would
preclude the court from granting a motion for summary
judgment in favor of the medical defendants. See Prac-
tice Book § 17-49. This appeal followed.8
On appeal, the plaintiffs claim that the trial court
improperly concluded that Creutz was immune from
liability under § 17a-101e (b). They contend that,
although Creutz is, as a general matter, a ‘‘mandated
reporter’’ under General Statutes § 17a-101 (b), and
hence entitled to immunity under § 17a-101e (b) when
making a good faith error in the initial ‘‘reporting’’ of
suspected child abuse, he was not acting in that capacity
when he committed routine medical malpractice by
failing to order blood tests that would have detected
Matthew’s blood disorder. Put differently, the plaintiffs
claim that Creutz’ failure to order the blood test falls
outside the scope of the immunity provided by § 17a-
101e (b) because his actions did not constitute the ‘‘first
person report[ing]’’ of child abuse.
In response, the medical defendants argue that § 17a-
101e (b) applies to Creutz because, as a mandated
reporter, he was obligated to report his reasonable sus-
picion of child abuse, regardless of the fact that he had
examined the children at the request of the department.
The medical defendants also rely on this court’s deci-
sion in Zamstein v. Marvasti, 240 Conn. 549, 692 A.2d
781 (1997), and contend that the public policy behind
the child protection statutes requires the extension of
immunity to physicians who act in good faith and per-
form independent medical examinations at the behest
of the department to determine the existence of a rea-
sonable suspicion of child abuse.
In the present case, the underlying material facts are
undisputed, and ‘‘the case distills to an issue of statutory
interpretation over which our review is plenary.’’9 Bar-
rett v. Montesano, 269 Conn. 787, 792, 849 A.2d 839
(2004). It is well settled that in construing statutes,
‘‘[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature.’’ (Internal
quotation marks omitted.) State v. Kirk R., 271 Conn.
499, 510, 857 A.2d 908 (2004). Our well settled principles
of statutory construction require us to interpret § 17a-
101e (b) as it relates to the other child protection stat-
utes, General Statutes § 17a-101 et seq. See, e.g., Hatt
v. Burlington Coat Factory, 263 Conn. 279, 309–10, 819
A.2d 260 (2003). We note that the text of § 17a-101e
(b), both by itself and in relation to other statutes, is
silent with respect to the extension of immunity to
physicians who perform child abuse evaluations for the
department pursuant to the investigation of a report of
suspected child abuse. Such silence does not, however,
necessarily equate to ambiguity, and we look first to
the text of § 17a-101e (b) and the related provisions
to determine the legislature’s intent. See, e.g., Carmel
Hollow Associates, Ltd. v. Bethlehem, 269 Conn. 120,
133, 848 A.2d 451 (2004); see also Public Acts 2003, No.
03-154, § 1.
We begin our analysis with a review of the relevant
statutory language. Section 17a-101 (a) is an express
statement of public policy and legislative intent, and
provides that: ‘‘The public policy of this state is: To
protect children whose health and welfare may be
adversely affected through injury and neglect;
to
strengthen the family and to make the home safe for
children by enhancing the parental capacity for good
child care; to provide a temporary or permanent nurtur-
ing and safe environment for children when necessary;
and for these purposes to require the reporting of sus-
pected child abuse, investigation of such reports by a
social agency, and provision of services, where needed,
to such child and family.’’
In furtherance of this public policy goal of protecting
children from abuse, the statute provides a comprehen-
sive list of persons who are ‘‘mandated reporters,’’ many
of whom are health care providers, including physicians
either licensed in Connecticut or acting as interns or
residents at our hospitals. See General Statutes § 17a-
101 (b). Thus, the statute prescribes that a ‘‘mandated
reporter .
.
. who in the ordinary course of [his or
her] employment or profession has reasonable cause
to suspect or believe that any child under the age of
eighteen years (1) has been abused or neglected .
.
.
(2) has had nonaccidental physical injury, or injury
which is at variance with the history given of such
injury, inflicted upon such child, or (3) is placed at
imminent risk of serious harm, shall report or cause a
report to be made [to the department] . . . .’’10 General
Statutes § 17a-101a. Indeed, ‘‘mandated reporters’’ who
fail to report reasonable suspicions of child abuse are
subject to a fine and compulsory participation in an
appropriate training program. See General Statutes
§ 17a-101a.
To encourage and facilitate compliance with the
reporting statute, § 17a-101e provides several protec-
tions for persons or institutions who make reports to
the department, among which is immunity from civil or
criminal liability. Specifically, § 17a-101e (b) provides:
‘‘Any person, institution or agency which, in good faith,
makes, or in good faith does not make, the report pursu-
ant to sections 17a-101a to 17a-101d, inclusive, and 17a-
103 shall be immune from any liability, civil or criminal,
which might otherwise be incurred or imposed and shall
have the same immunity with respect to any judicial
proceeding which results from such report provided
such person did not perpetrate or cause such abuse
or neglect.’’11
Resolution of the issue on appeal turns, therefore,
on whether Creutz was ‘‘making a report’’ of suspected
child abuse or neglect as contemplated by the child
protection statutes, despite the fact that it was a second-
ary determination of abuse. We conclude that Creutz’
act of describing the result of his examination of the
children orally to Days, followed by his provision of a
written account of that examination, clearly falls within
the common usage of the term ‘‘report’’; see American
Heritage College Dictionary (4th Ed. 2002);12 which we
construe broadly given the remedial nature of the child
protection statutes, § 17a-101 et seq. In re Shane P., 58
Conn. App. 244, 258, 754 A.2d 169 (2000) (concluding
that termination of parental rights is remedial); accord
In re Samantha C., 268 Conn. 614, 662–63, 847 A.2d
883 (2004) (noting that ‘‘termination of parental rights
proceedings are not designed to punish parents, but to
protect children’’). Moreover, neither the mandatory
reporting statute; see General Statutes § 17a-101a; nor
the immunity provision; see General Statutes § 17a-101e
(b); contain any language that either limits their applica-
tion to initial reporters of child abuse, or relieves man-
dated reporters from their obligation to report
suspected abuse because the department may already
have knowledge of the child’s circumstances. Indeed,
the immunity provision applies expressly to ‘‘[a]ny per-
son, institution or agency which, in good faith, makes,
or in good faith does not make, the report
.
.
.
.’’
(Emphasis added.) General Statutes § 17a-101e (b). This
is instructive because it is well established that we will
not supply an exception or limitation to a statute that
the legislature clearly intended to have broad applica-
tion. See Connecticut Light & Power Co. v. Dept. of
Public Utility Control, 266 Conn. 108, 119, 830 A.2d
1121 (2003); see also Ames v. Commissioner of Motor
Vehicles, 267 Conn. 524, 531, 839 A.2d 1250 (2004) (not-
ing that word ‘‘any’’ ‘‘can have a variety of meanings
.
. [which] depends upon the context and subject
.
matter of the statute’’ [citations omitted; internal quota-
tion marks omitted]). Accordingly, we conclude that a
physician who performs a child abuse evaluation at the
request of the department is a reporter who is entitled
under § 17a-101e (b) to immunity from liability for
claims arising from that determination.
This construction of this statute extending immunity
to physicians who are secondary reporters performing
child abuse evaluations for the department effectuates
the express legislative purpose behind the relevant child
protection statutes, namely, ‘‘to require the reporting
of suspected child abuse, investigation of such reports
by a social agency, and provision of services, where
needed, to such child and family’’ in order ‘‘[t]o protect
children whose health and welfare may be adversely
affected through injury and neglect .
.
.
.’’ General
Statutes § 17a-101 (a). Indeed, in Zamstein v. Marvasti,
supra, 240 Conn. 558–64, this court both recognized the
importance of the immunity provision to the reporting
statutes and the danger of thwarting these public policy
goals by placing limitations on that immunity.
In
Zamstein, the plaintiff parent was falsely accused of
and tried on charges of sexual abuse as the result of
an interview of his children conducted by the defendant
psychiatrist.13 Id., 551–52. The plaintiff then brought an
action against the defendant claiming, inter alia, negli-
gence in the conduct of the examination and aiding
of the prosecution. Id., 552. The plaintiff also alleged
negligent infliction of emotional distress. Id. The trial
court granted the defendant’s motion to strike the com-
plaint. Id., 552–53. On appeal, this court affirmed, con-
cluding that as a matter of public policy, a mental health
professional performing a sexual abuse evaluation owes
no duty of care to the alleged abuser. Id., 559. The court
relied on the mandated reporter statutes, including the
immunity provision, as evincing the ‘‘strong public pol-
icy of encouraging medical professionals and other per-
sons to report actual and suspected child abuse to the
appropriate authorities and agencies.’’ Id. The court
discussed the policy behind the immunity statute and
cautioned that ‘‘imposing a duty on mental health pro-
fessionals .
.
. would carry with it the impermissible
risk of discouraging such professionals in the future
from performing sexual abuse evaluations of children
altogether, out of a fear of liability to the very persons
whose conduct they may implicate. Such a result would
necessarily run contrary to the state’s policy of encour-
aging the reporting and investigation of suspected child
abuse . . . because effective evaluation and diagnosis
of children is a necessary component of discovering
the abuse in the first instance.’’14 Id., 560–61.
Indeed, our construction of § 17a-101e (b) as
extending immunity to secondary reporters of abuse
also is consistent with the legislature’s recognition of
the important roles of medical professionals in the
investigation of child abuse.15 For example, under Gen-
eral Statutes § 17a-101f,16 physicians examining children
‘‘with respect to whom abuse or neglect is suspected
[may] . . . keep such child in the custody of a hospital
for [up to] ninety-six hours in order to perform diagnos-
tic tests and procedures necessary to the detection of
child abuse or neglect and to provide necessary medical
care . . . .’’17 Moreover, the department is required to
‘‘provide the child [who is in department custody pursu-
ant to a ninety-six hour hold] with all necessary care,
including medical care, which may include an examina-
tion by a physician or mental health professional . . . .
During the course of a medical examination, a physician
may perform diagnostic tests and procedures necessary
for the detection of child abuse or neglect. . . .’’ Gen-
eral Statutes § 17a-101g (d). A construction of § 17a-
101e (b) that affords immunity to physicians aiding
the department in the investigation process encourages
medical professionals to help with this highly sensitive
task, rather than to avoid a role in this process out
of fear of liability when the department arrives at the
hospital with a child who potentially has been abused.
See Zamstein v. Marvasti, supra, 240 Conn. 560–61;
see also Ward v. Greene, 267 Conn. 539, 561, 839 A.2d
1259 (2004) (Palmer, J., concurring) (‘‘[t]he legislature
provided for such immunity because of the highly sensi-
tive, and necessarily discretionary, nature of
the
reporting requirement’’).
The plaintiffs contend, however, that our conclusion
will have a deleterious effect because it will create ‘‘a
loophole for medical malpractice committed against
the state’s children’’ and always give ‘‘a physician in a
similar circumstance .
.
. a second chance to defeat
a malpractice claim.’’ We disagree with the plaintiffs’
assessment of this holding’s effect on malpractice
claims predicated on other misdiagnosis or improper
treatment.
The immunity afforded to a physician under § 17a-
101e (b) is limited to ‘‘damages [that] arise from the
physician’s act of reporting and investigating child
abuse,’’ not those that ‘‘arise from an independent act
of medical negligence.’’ Doe v. Winny, 327 Ill. App. 3d
668, 678, 764 N.E.2d 143 (2002); id. (construing scope
of Illinois immunity statute). The statutory immunity
extends only to the determination of whether a child
has been abused, not to the diagnosis and treatment of
any underlying injuries. Put differently, if the depart-
ment brings a child with a fractured leg to a physician,
and asks the physician to: (1) treat the fracture; and
(2) determine whether the child has been abused, the
physician’s § 17a-101e (b) immunity would be limited
to the abuse determination. See id., 680 (rejecting con-
struction of immunity statute that would immunize phy-
sician ‘‘for his negligence in failing to observe a
cancerous tumor on a child’s labia simply because the
physician was examining the child as part of an investi-
gation of a report of child abuse’’). Accordingly, we
conclude that, contrary to the plaintiffs’ concerns, the
extension of immunity to physicians who participate in
the investigation and reporting of child abuse does not
give them carte blanche to commit malpractice with
respect to the diagnosis and treatment of any underlying
medical conditions.
We also note that our conclusion accords with our
sister states that have considered this issue. Indeed,
Lesley v. State ex rel. Dept. of Social & Health Services,
83 Wash. App. 263, 921 P.2d 1066 (1996), review denied,
131 Wash. 2d 1026, 939 P.2d 216 (1997), is particularly on
point.18 In Lesley, day care workers noticed suspicious
marks on the lower back and ocks of an infant and
were unsure whether they were birthmarks or bruises.
Id., 266–67. They notified child protective services,
whose caseworker called the infant’s pediatrician to
determine whether the child had birthmarks. Id., 267.
The pediatrician’s office staff advised her to take the
infant to the emergency room because the physician
was unavailable. Id. The caseworker and local police
then took the child into protective custody and brought
her to a hospital for evaluation. Id. In the meantime,
the infant’s parents informed the police that the infant
had normal birthmarks on her back and ocks, and
the police relayed this information to the caseworker.
Id. The caseworker did not, however, inform the emer-
gency room physician about what the parents had said
about the birthmarks. Id., 267–68. The physician subse-
quently examined the child and diagnosed the birth-
marks as contusions and possible child abuse. Id., 268.
He recommended further evaluation by a specialist; the
caseworker did not follow up on the suggestion. Id.
The child remained in the temporary custody of the
department for several days until another physician
diagnosed the marks as birthmarks. Id., 271.
Thereafter, the infant’s parents brought an action
against the social worker and the physician alleging,
inter alia, negligent investigation and medical malprac-
tice. Id., 266. With respect to the physician, the Washing-
ton Court of Appeals concluded that the trial court
properly determined that he was entitled to qualified
immunity under that state’s mandatory reporting stat-
ute. Id., 280. The court rejected the parents’ argument
that the physician’s acts did not constitute making a
report under the applicable statute, which ‘‘provides
immunity to any person participating in good faith in
reporting or testifying as to alleged child abuse or
neglect in a judicial proceeding.’’ Id. The court con-
cluded that ‘‘ ‘any person’ ’’ encompassed reporters
beyond the initial reporter of suspected child abuse; the
physician, therefore, was entitled to qualified immunity
because there was no evidence in the record that he
acted in bad faith. Id., 281.
In light of our conclusion that § 17a-101e (b) immu-
nity is applicable to a physician who performs a medical
examination of a child at the request of the department
to determine whether reasonable cause exists to sus-
pect child abuse, we turn to the facts in the present
case. It is clear that Creutz, a mandated reporter under
§ 17a-101 (b), examined the children in the ‘‘ordinary
course of [his] employment or profession’’ at the Wil-
liam Backus emergency room. General Statutes § 17a-
101a. He then complied with § 17a-101a when he relayed
his findings, namely, that there was a reasonable suspi-
cion of child abuse, to the department both orally and
via written documentation. Inasmuch as the plaintiffs
have not alleged that Creutz acted in bad faith during
the examination and reporting process,19 we conclude
that his actions constituted a report of suspected child
abuse protected by § 17a-101e (b), and, therefore, that
the trial court properly granted the medical defendants’
motion for summary judgment.
The judgment is affirmed.
In this opinion the other justices concurred.
1 General Statutes § 17a-101e (b) provides: ‘‘Any person, institution or
agency which, in good faith, makes, or in good faith does not make, the
report pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103
shall be immune from any liability, civil or criminal, which might otherwise
be incurred or imposed and shall have the same immunity with respect to
any judicial proceeding which results from such report provided such person
did not perpetrate or cause such abuse or neglect.’’
2 The following department employees were named as defendants both
in their individual and official capacities: (1) Richard Days, a social worker;
(2) Nancy Leibeson-Davis, a social work supervisor; (3) Antonio Donis, a
program supervisor; and (4) Daphne Knight, a social worker.
3 The plaintiffs appealed from the judgment of the trial court to the Appel-
late Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
4 At her deposition, Welch testified that, on Friday, April 20, 2001, she
had told the parents that she thought they should take Matthew to his
pediatrician as soon as possible because she was worried that the bruising
and rash might be signs of an underlying medical problem. She explained
to them that she was a mandated reporter of suspected child abuse, and
that it was imperative that Matthew be seen by a physician. Welch testified
that, although the parents seemed agreeable to her suggestion, she contacted
their pediatrician’s office the following morning to follow up on her concerns.
Welch testified that she had attempted to contact the parents during the
remainder of the weekend, but was unsuccessful. The next time Welch
spoke with the pediatrician’s office was Tuesday, April 24, 2001, and the
receptionist informed her at that time that the office already had made a
report to the department.
5 Welch also reported that Manifold initially had expressed his desire to
cancel or postpone the speech therapy appointment, but was dissuaded
from doing so because there would be substantial delays in securing another
appointment. At Manifold’s deposition, he stated that he realized that his
son had the bruises and rash, and that he did not want his son’s appearance
to be ‘‘misconstrued’’ because he had heard some ‘‘horror stories’’ about
the department’s actions in similar circumstances.
6 Creutz testified at his deposition that the rash was actually petichiae,
which are skin discolorations that may be caused either by trauma or platelet
abnormalities. Creutz stated that they could have been caused by squeezing
the child, but not from eating a lot of candy.
7 The parents stated similarly with respect to Kaylee.
8 We note that the trial court’s grant of the medical defendants’ motion
for summary judgment is an appealable order. Although generally ‘‘[a] judg-
ment that disposes of only a part of a complaint is not a final judgment’’;
Cheryl Terry Enterprises, Ltd. v. Hartford, 262 Conn. 240, 246, 811 A.2d
1272 (2002); under Practice Book § 61-3, ‘‘a party may appeal if the partial
judgment disposes of all causes of action against a particular party or parties
.
.
.
.’’ Id.
We also note that, in addition to appearing as coappellees in this appeal;
see Practice Book § 60-4; the department defendants moved for summary
judgment with respect to the claims against them on the ground that they
were immune from liability pursuant to General Statutes § 4-165. The trial
court denied their motion on August 27, 2004, and their appeal from that
denial is pending in the Appellate Court.
9 We note that the plaintiffs appear to claim the existence of an issue of
material fact with respect to whether Creutz was acting within the scope
of § 17a-101e (b). We, however, disagree with their characterization of this
inquiry as an issue of fact. Resolution of this case turns on a quintessential
issue of law, namely, the application of an ambiguous statute to undis-
puted facts.
10 ‘‘Mandated reporters’’ must make an oral report to the department or
a law enforcement agency within twelve hours of obtaining ‘‘reasonable
cause to suspect or believe that a child has been abused or neglected or
placed in imminent risk of serious harm .
.
.
.’’ General Statutes § 17a-
101b (a). The mandated reporter then must submit a written report to the
department within forty-eight hours of the oral report. See General Statutes
§ 17a-101c. The required contents of the oral and written reports are pre-
scribed specifically by General Statutes § 17a-101d, and include information
necessary to identify and locate the child and the parents or other responsible
parties, the age and gender of the child, and other details about the cause,
nature and history of the suspected abuse, as well as any interventions
taken to ‘‘treat, provide shelter or otherwise assist the child.’’
11 Section 17a-101e (a) protects good faith reporters from discrimination
or retaliation by their employers. Section 17a-101e (c), however, guards
against intentional false reports of child abuse by providing fines or imprison-
ment for ‘‘[a]ny person who knowingly makes a false report of child abuse
or neglect . . . .’’
12 Although the legislature did not provide a definition for the statutory
term ‘‘report,’’ the ‘‘word’s ordinary meaning,’’ as determined appropriately
by review of its dictionary definition; Jagger v. Mohawk Mountain Ski Area,
Inc., 269 Conn. 672, 682, 849 A.2d 813 (2004); see also General Statutes § 1-
1 (a); suggests that Creutz’ actions constituted a ‘‘report.’’ See American
Heritage College Dictionary (4th Ed. 2002) (defining ‘‘report,’’ in relevant
part, as noun: ‘‘1. An account presented usu[ally] in detail’’; and as verb: ‘‘1.
To make or present an often official, formal, or regular account of. 2. To
relate or tell about; present. 3. To write or provide an account or summation
of for publication or broadcast. 4. To submit or relate the results of considera-
tions concerning. 5. To carry back and repeat to another’’).
13 We discuss the facts in Zamstein briefly to provide context for our
discussion of the court’s reasoning in that case. During proceedings to
dissolve their marriage, the plaintiff’s wife accused him of sexually abusing
their children; he was then arrested and prosecuted. Zamstein v. Marvasti,
supra, 240 Conn. 551. At the same time, the plaintiff’s wife brought the
children to the defendant for a sexual abuse evaluation. Id. He met with
the children and videotaped each session. Id. The plaintiff’s complaint
alleged that the defendant then provided copies of those videotapes for use
in the criminal proceedings; the defendant, however, had deleted exculpatory
material from the videotapes prior to providing them to the prosecutor. Id.,
551–52. After a three month trial wherein the defendant testified for the
state, the plaintiff was acquitted of the sexual abuse charges. Id., 552. The
plaintiff ‘‘alleged that the state’s attorney’s prosecution of the plaintiff would
not have continued but for the defendant’s provision of the edited video-
tapes.’’ Id.
14 The court acknowledged in Zamstein ‘‘that persons falsely charged with
sexual abuse of children on the basis of incorrect evaluations may suffer
great harm in both their social and personal relationships, and that such
accusations have the potential of causing serious damage to a person’s
reputation.’’ Zamstein v. Marvasti, supra, 240 Conn. 564. The court, how-
ever, nevertheless concluded that the greater social harm would be allowing
the sexual abuse of children to go undetected. Id.
15 We note briefly that the legislative history of the immunity provision,
while silent with respect to the precise issue in the present case, does,
however, demonstrate the legislature’s awareness of the importance of the
medical community’s role in the child abuse investigation and reporting
process, and the health care professionals’ reluctance to be involved in the
process in the absence of immunity from liability. Section 17a-101e (b)
initially was enacted in 1965 as § 3 of Connecticut’s first mandatory reporting
statute, Public Acts 1965, No. 580, and applied only to physicians and sur-
geons. Moving for passage of the bill that was enacted as Public Act 580,
Senator Gloria Schaffer remarked that mandatory reporting was ‘‘vital to
both the health and the welfare of the children of our state’’ because many
cases of child abuse were seen, but unreported by physicians. 11 S. Proc.,
Pt. 5, 1965 Sess., p. 1909. Indeed, undisputed testimony before the legislative
committees demonstrated that the medical community considered the immu-
nity provision to be vital to the success of the mandatory reporting statute.
See Conn. Joint Standing Committee Hearings, Judiciary and Governmental
Functions, 1965 Sess., p. 350 (testimony of legislative chairman of state
medical society describing immunity as ‘‘essential’’ and stating that lack of
immunity resulted in physicians’ reluctance to report suspected abuse
cases); Conn. Joint Standing Committee Hearings, Public Welfare and
Humane Institutions, 1965 Sess., p. 89 (testimony of commissioner of mental
health stating that mandatory reporting legislation ‘‘would be entirely ineffec-
tive, no matter what the legislation and no matter what the penalties unless
there is a provision for exemption from any civil or criminal liability’’).
Further understanding of the impact of liability fears on the medical commu-
nity was shown in 1997, when the legislature in Public Acts 1997, No. 97-
319, § 12, amended § 17a-101e (b) to allow immunity for physicians and
other reporters who ‘‘in good faith, [do] not make,’’ such reports. 40 H.R.
Proc., Pt. 18, 1997 Sess., p. 6593, remarks of Explaining the change, Represen-
tative Ellen Scalettar stated that it was meant to add some ‘‘balance’’ and
address the overreporting of child abuse by extending immunity to those
who determine in the ‘‘exercise[e] [of] their professional judgment’’ that
there has been no abuse. Id., p. 6594.
16 General Statutes § 17a-101f provides: ‘‘Any physician examining a child
with respect to whom abuse or neglect is suspected shall have the right to
keep such child in the custody of a hospital for no longer than ninety-six
hours in order to perform diagnostic tests and procedures necessary to the
detection of child abuse or neglect and to provide necessary medical care
with or without the consent of such child’s parents or guardian or other
person responsible for the child’s care, provided the physician has made
reasonable attempts to (1) advise such child’s parents or guardian or other
person responsible for the child’s care that he suspects the child has been
abused or neglected and (2) obtain consent of such child’s parents or guard-
ian or other person responsible for the child’s care. In addition, such physi-
cian may take or cause to be taken photographs of the area of trauma visible
on a child who is the subject of such report without the consent of such
child’s parents or guardian or other person responsible for the child’s care.
All such photographs or copies thereof shall be sent to the local police
department and the Department of Children and Families. The expenses
for such care and such diagnostic tests and procedures, if not covered by
insurance, shall be paid by the Commissioner of Children and Families,
provided the state may recover such costs from the parent if the parent has
been found by a court to have abused or neglected such child.’’
17 Indeed, § 17a-101f evinces the legislature’s understanding that not all
suspicions of child abuse will be determined correctly, as ‘‘[t]he expenses
for such care and such diagnostic tests and procedures, if not covered by
insurance, shall be paid by the Commissioner of Children and Families,
provided the state may recover such costs from the parent if the parent
has been found by a court to have abused or neglected such child.’’ (Empha-
sis added.)
18 See also Michaels v. Gordon, 211 Ga. App. 470, 471, 439 S.E.2d 722 (1993)
(concluding that psychologist who interviewed two children at request of
children’s services for investigation of possible sexual abuse was entitled
to immunity from malpractice liability per statute providing that ‘‘[a]ny
person .
.
. participating in the making of a report .
.
. or participating
in any judicial proceeding or any other proceeding resulting [from such a
report of suspected child abuse] shall in so doing be immune from any civil
or criminal liability that might otherwise be incurred or imposed’’ [internal
quotation marks omitted]), cert. denied, 1994 Ga. LEXIS 529 (February 18,
1994); Doe v. Winny, supra, 327 Ill. App. 3d 680–81 (concluding that physician
who performed psychiatric evaluation of children at request of child welfare
department was entitled to statutory immunity for damages ‘‘directly related’’
to diagnosis of abuse in course of investigation, but not for damages stem-
ming from improper subsequent treatment); Walker v. Pollock, 981 S.W.2d
226, 227 (Tex. App. 1998) (concluding that physician hired by child protective
services to perform court-ordered neurological evaluation in child abuse
proceeding was immune from malpractice liability under statute providing
that ‘‘[a] person acting in good faith who reports or assists in the investigation
of a report of alleged child abuse or neglect or who testifies or otherwise
participates in a judicial proceeding arising from a report .
.
. of alleged
child abuse or neglect is immune from civil or criminal liability that might
be incurred or imposed’’ [internal quotation marks omitted]).
19 Acknowledging that ‘‘[i]t is not that the doctor meant to do harm,’’ the
plaintiffs argue for the first time in their reply brief responding to the
arguments of the medical defendants that their allegations of medical mal-
practice substitute for or are evidence of bad faith. We decline to reach this
argument because it is well settled that arguments may not be raised for
the first time in reply briefs. See, e.g., Calcano v. Calcano, 257 Conn. 230,
244, 777 A.2d 633 (2001).
