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Lehman v. Stephens





Appeal from the Circuit Court of Champaign County; the Hon. Creed D. Tucker, Judge, presiding.


Plaintiffs filed a five-count complaint seeking damages after their minor son Matthew was admitted to the defendant Carle Foundation Hospital (Carle) for two days for observation and on a suspicion of abuse and neglect. The suit concerns the actions of the examining physician, defendant Dr. Frank Stephens, who made a report of possible abuse or neglect to the defendant Department of Children and Family Services (DCFS), and defendant Kathy McDonald, a DCFS child-protective worker, who acted to take official temporary protective custody of the child. Dr. Stephens and Carle filed a motion to dismiss the complaint, raising the immunity from civil liability afforded under the Illinois Abused and Neglected Child Reporting Act (the Act) (Ill. Rev. Stat. 1983, ch. 23, par. 2051 et seq.). Defendants DCFS and Kathy McDonald also filed a motion to dismiss, asserting that exclusive jurisdiction of the matter rested in the Court of Claims. The circuit court of Champaign County granted both motions, and the plaintiffs appeal.

On June 2, 1984, a Saturday, Matthew, then about 16 months old, was brought by his parents to the Carle Foundation Hospital in Champaign after suffering an apparent injury to his right leg. Dr. Stephens, the examining physician, questioned the plaintiffs as to the origin of Matthew's injury. They responded that the boy was in another room playing by himself or with his older brother when they suddenly heard him cry out. The plaintiffs stated they found their son lying on the floor crying, refusing to bear weight on his right leg. They also related to Dr. Stephens that there was nothing in the room from which the child could have fallen and twisted his leg.

The injury was diagnosed as a spiral fracture of the right tibia. According to his report of the examination, Dr. Stephens was "suspicious" of the cause of the fracture in light of the "twisting type" of injury evident and his dissatisfaction with the parents' explanation. Dr. Stephens further reported that this type of injury normally does not occur when a child merely falls down. He also believed the parents exhibited a "rather light and unconcerned" attitude toward the severity of the injury. Upon expressing his concerns to them, it was Dr. Stephens' opinion that the plaintiffs became "quite defensive" regarding the possibility of direct abuse.

Dr. Stephens then decided to admit the child to the hospital for observation against the parents' wishes. He also made a report of his observations to DCFS pursuant to the Illinois Abused and Neglected Child Reporting Act (Ill. Rev. Stat. 1983, ch. 23, par. 2051 et seq.).

Defendant Kathy McDonald, a DCFS worker, received a call that same day from the State central register hotline regarding the Matthew Lehman case. McDonald then telephoned Dr. Stephens, who informed her of the particulars of his suspicions. She also interviewed the parents that evening. The following day, a Sunday, she received a telephone call from an unnamed physician indicating that Matthew's father wanted to have the boy released from the hospital. McDonald then contacted the Champaign County State's Attorney, who advised that protective custody of the child be taken.

On Monday, June 4, Matthew was released from protective custody and returned to his parents. There is some indication that the decision to release was made after a determination that the charges were "unfounded."

Based upon these circumstances, on May 31, 1985, the plaintiffs, acting individually and with the father as next friend for Matthew, filed a five-count complaint against the defendants. Counts I and II purported to allege slander against Dr. Stephens and Carle. Counts III, IV and V, naming all parties as defendants, sounded in unlawful restraint, false imprisonment, and battery, respectively.

Defendants Dr. Stephens and Carle filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-619(a)(9)) on July 9, 1985. Defendants claimed statutory immunity from the plaintiffs' lawsuit under certain provisions of the Reporting Act (Ill. Rev. Stat. 1983, ch. 23, pars. 2055, 2059). This motion was supported by the attached affidavit of Dr. Stephens, which stated he believed "to a reasonable degree of medical certainty" that Matthew may have been an abused or neglected child as defined under the Act. The affidavit further recounted that Dr. Stephens' report to DCFS was made in good faith, based upon his examination of Matthew, his discussion with the parents, and his expertise and skill as a physician. A copy of a Carle Foundation Hospital report prepared by Dr. Stephens at the time of admission, based upon his physical examination of Matthew, was also filed with the motion to dismiss.

Defendants Kathy McDonald and DCFS filed their motion to dismiss on August 9, 1985. These defendants claimed that jurisdiction rested exclusively in the Court of Claims, as the action was in reality one against the State, and that in any event they were free from liability based upon sovereign immunity.

In response, plaintiffs presented objections to the motions to dismiss accompanied by their own affidavit and copies of progress notes from the hospital. Plaintiffs claimed these notes did not support an "objective" opinion that plaintiffs were abusive to Matthew or that the child's life or health was ever in imminent danger were he allowed to remain in the custody of his parents.

On September 3, 1985, the circuit court by written order ruled the cause of action against defendants Dr. Stephens and Carle was barred by the immunity provided in sections 5 and 9 of the Act (Ill. Rev. Stat. 1983, ch. 23, pars. 2055, 2059), and dismissed counts I through V with prejudice as to them. On September 16, 1985, the circuit court ruled that the court of claims had exclusive jurisdiction as to defendants McDonald and DCFS, dismissed the complaint as to them based upon lack of jurisdiction, and further denied the plaintiffs' oral motion to amend their complaint. Plaintiffs' two subsequent motions for reconsideration of these separate orders were also denied by the court below.

On appeal, plaintiffs first assert that sections 5 and 9 of the Act, which provide the immunity from civil liability relied upon by the court below, are unconstitutional. Plaintiffs further contend that the trial court erred in dismissing their complaint when it relied on the immunity set forth under those provisions of the Act and when it found that their claim against defendant McDonald must be maintained in the court of claims.

Essential to a resolution of this matter is a brief overview of the contested provisions of the Act. The authority to take or retain temporary protective custody without the consent of the persons otherwise responsible for the child's welfare arises out of section 5 of the Act (Ill. Rev. Stat. 1983, ch. 23, par. 2055). However, that authority is expressly limited to three enumerated groups of people: officers of a local law-enforcement agency, designated employees of DCFS, or treating physicians. (Ill. Rev. Stat. 1983, ch. 23, par. 2055.) Moreover, the statute in effect at the time of the complained-of actions mandated that the following three factors must be present to retain custody:

"(1) [There is] reason to believe that the circumstances or conditions of the child are such that continuing in his place of residence or in the care and custody of the person responsible for the child's welfare, presents an imminent danger to that child's life or health; and (2) the person responsible for the child's welfare is unavailable or has been asked and does not consent to the child's removal from his custody; and (3) there is not time to apply for a court order under the Juvenile Court Act for temporary custody of the child." Ill. Rev. Stat. 1983, ch. 23, par. 2055.

Section 5 provides that any "authorized" person, presumably one falling within the three aforementioned groups and acting with those three factors present, shall be immune from any civil or criminal liability that might otherwise be incurred, so long as that person acts in good faith. Any authorized physician acting in good faith and in accordance with acceptable medical practice in the treatment of a child is also granted immunity. Ill. Rev. Stat. 1983, ch. 23, par. 2055.

Pursuant to section 9, immunity is also afforded to any person, institution, or agency which participates in good faith in the making or investigating of a report, in the taking of photographs or X rays, or in the retaining of temporary protective custody of a child. (Ill. Rev. Stat. 1983, ch. 23, par. 2059.) Significantly, the good faith on the part of any person either required or permitted to report cases of suspected abuse under the Act is presumed. Ill. Rev. Stat. 1983, ch. 23, par. 2059.

To facilitate uncovering cases of abuse or neglect, certain medical personnel and staff members of public or private institutions who would tend to come into contact with such cases are denoted as reporters under the Act. (Ill. Rev. Stat. 1983, ch. 23, par. 2054.) Should any such required reporter have "reasonable cause to believe a child known to them in their professional or official capacity may be an abused child or a neglected child," they shall immediately report or cause a report to be made to DCFS. (Ill. Rev. Stat. 1983, ch. 23, par. 2054.) In addition, others are permitted to make a report under the Act should they have reason to believe a child is abused or neglected. To ensure that conscientious reports are made, and in recognition of the gravity of such circumstances, anyone who knowingly transmits a false report to DCFS may be criminally charged with disorderly conduct. Ill. Rev. Stat. 1983, ch. 23, par. 2054.

Turning now to the substantive issues raised by the parties, we note that the plaintiffs' initial argument assails the constitutionality of the Act in three respects. First, they contend that section 5, which they maintain permits parental rights to be terminated without any hearing or court proceeding, is violative of the due-process clause of the fourteenth amendment (U.S. Const., amend. XIV), and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 2). Second, plaintiffs assert that section 5 denies equal protection of the laws, as it provides immunity "only to particular people." Third, plaintiffs believe the immunity granted in sections 5 and 9 runs ...

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