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filed:  January 30, 2002

No. 2-00-0408

The trial court denied the defendant's motion for summary judgment,finding that a question of fact existed as to whether the defendant actedin good faith as required under the immunity provisions of the Act. Thetrial court, however, certified the following questions for interlocutoryappeal under Supreme Court Rule 308 (155 Ill. 2d R. 308):

"[1] Does the good faith immunity provided by 325 ILCS 5/9shield a physician from liability for his failure to meet acceptedmedical standards in providing care and treatment to his patient?

[2] Is evidence that a physician failed to meet acceptedmedical standards sufficient to create a question of fact overwhether that physician acted in 'good faith' within the meaning of325 ILCS 5/9?"

On May 19, 2000, this court denied the defendant's application for leaveto appeal pursuant to Rule 308. On October 26, 2000, the IllinoisSupreme Court entered a supervisory order directing this court to addressthe certified questions. On November 3, 2000, this court entered anorder allowing the defendant's application for leave to appeal. Inaddition to the briefs filed by the parties, amicus curiae briefs havebeen filed by the Illinois Trial Lawyers Association, the Illinois StateMedical Society, and DCFS.

The following facts appear in the depositions and other exhibitsprovided by the parties in briefing Dr. Winny's motion for summaryjudgment. The plaintiff in this action, Jane Doe, has two children, JohnDoe and June Doe. John was born on June 16, 1986, and June was born onOctober 26, 1987. Jane is a single parent and has a history of substanceabuse and depression. On October 23, 1989, DCFS received a hotline callfrom the Woodbridge police department advising it that Jane washospitalized after attempting suicide. Following this suicide attempt,John and June had been left in the care of their maternal grandparents. DCFS provided a child welfare services referral to the family, thepurpose of which was to provide support services such as daycare,therapy, and parenting classes. The case was assigned to DCFScaseworker, John Schweitzer.

In March 1991, Schweitzer received a call from Jane advising himthat John was having behavioral problems at home and in school. Sheindicated that, based upon the recommendation of her therapist, she wasadmitting John to Woodland hospital for a three-week inpatientpsychiatric evaluation. At Woodland Hospital, John's attending physicianwas Dr. Lerwut Wongsarnpigoon. Dr. Wongsarnpigoon reported that John wasoverly concerned with death, dying, Jesus, and Satan. Dr. Wongsarnpigoonsuspected that John might have been the victim of some type of abuse. Karen Hegel, a social worker at Woodland Hospital, reported that John hadsome bizarre behaviors, including eating feces and hurting others. Hegelindicated that John acted like a snake and tried to bite people and thathe said that he "saw little girls in cages with feces and urine on thefloor."

On April 7, 1991, DCFS received a hotline call reporting that Johnwas believed to be a victim of child abuse or neglect. The case was thenassigned to caseworkers Anne Carpenter and Deborah Borrini. Over thenext 36 hours, Carpenter and Borrini interviewed Dr. Wongsarnpigoon,Hegel, Schweitzer, Jane's father, the director of the children'spreschool, and two members of the Woodridge police department. Theseinterviews disclosed that John was self-destructive and had made attemptsto poke his own eyes out. He was obsessed with feces, death, and fearsthat his mother was going to cut out his heart and kill him. John alsospoke of ghosts, people in robes, and of children standing in a circle,holding hands, and chanting.

After a consultation with Carpenter, the Du Page County State'sAttorney agreed to join the investigation and to initiate a shelter-carehearing for the purpose of placing the Doe children in DCFS custody. OnApril 11, 1991, the trial court conducted a shelter-care hearing. At theclose of the hearing, the trial court determined that there was probablecause for believing that the Doe children were the victims of abuse andawarded temporary custody of the children to DCFS. Carpenter advised thetrial court that the plaintiff was to be released from Woodland Hospitalthat day and that Mercy Hospital was willing to accept both children forevaluation. The trial court inquired as to how long the evaluation wouldtake, and Carpenter indicated that the evaluation would take three weeks. The trial court determined that such an evaluation would be appropriate.

Immediately after the shelter-care hearing, John and June wereadmitted into Mercy Hospital through the emergency room. As theunderlying complaint contains no allegations of negligence concerning thetreatment received by June, we will focus only upon the treatmentreceived by John. Defendant Dr. George Winny was the psychiatrist oncall when John arrived at the hospital and was the admitting physician. Dr. Winny admitted John for a three-week inpatient evaluation. Dr. Winnyspent three hours with John the evening he was admitted. John told Dr.Winny about a man who beat him when his mother was not home and who didthings to him in a closet that made him cry. John said that the man"kissed me in my penis, in my private, he sucked me, he already did thatand also on my back, on my butt, he did it all the time." When Dr. Winnyasked John what he meant by his private parts, John opened his clothes,took his penis out, and asked, "Do you want to see my butt?"

Dr. Winny spoke with Carpenter that same evening and advised herthat John's admitting diagnosis was posttraumatic stress disorder causedby sexual or physical abuse. Dr. Winny explained that he had ordered afull battery of psychological testing, as well as play therapy, familytherapy, and metaphorical story therapy. Dr. Winny's immediate objectivewas to understand the reasons why John was behaving in this particularway. The initial treatment plan was to evaluate for the possibility ofsexual and physical abuse, to stabilize John's behavior, and to get Johnto talk about his problem in a realistic way.

Carpenter received oral reports from Dr. Winny on April 16, 1991,April 18, 1991, April 25, 1991, and April 29, 1991. In these reports,Dr. Winny described instances in which John asked members of the hospitalstaff to "put pointed objects in his butt." John also attempted to pulldown the pants of a therapist during play therapy "in order to kiss herbutt." When playing with a boy doll, John attempted to pull down thedoll's pants and then kissed the doll several times in the groin area. John would also ask to be "shot under [his] butt" and would place himselfin a sexually provocative position on his knees, raising the lowerportion of his body and his buttocks into the air.

Some of John's behavior during play therapy was videotaped. In avideotape created on April 23, 1991, John can be seen engaging in playwith a female therapist. John is dressed in a robe and a hat for a make-believe party. In preparation for the party, John explains that he ismaking a cake on which he is sprinkling a substance. John explains thateating the cake "takes him to a carnival" and makes him "do sex." Johnis then seen "imprisoning" the therapist by putting a milk crate over herhead. John then attempts to remove the therapist's pants and thenexposes himself to her. Throughout the video, the therapist cries forhelp from "Mommy," but John tells her that "if you tell Mommy, Mommywould be hurt and dead forever."

John was discharged from Mercy Hospital on May 3, 1991. Dr. Winny'sdischarge summary indicated "probable sexual abuse." However, Dr. Winnydid not believe that Jane was involved in the abuse. Dr. Winnyrecommended that both John and June be temporarily placed in foster care. Dr. Winny also recommended intensive therapy for John, preferably throughthe Child Sex Abuse and Treatment Center in Bollingbrook (CSATC).

On May 8, 1991, the trial court entered an order that the childrenbe placed in foster care and that Dr. Eleanor Ryan perform apsychological evaluation of the children and their mother. The trialcourt also ordered that John receive therapy and counseling at CSATC. Dr. Ryan's ensuing report recommended a six-month separation of thechildren from their mother and "considerable" treatment for John. Dr.Ryan opined that John had likely been enticed or coerced intoparticipating in sexual behavior.

DCFS issued its final determination on the case on July 1, 1991. The findings were that (1) Jane Doe was at risk of causing mental andphysical harm to the children; (2) an unknown person was indicated forsexual penetration and molestation of John; and (3) an unknown person wasindicated for molestation of June. DCFS's findings were based, in part,upon Dr. Winny's oral reports and discharge summaries. Although therecord is not entirely clear, it appears that the Doe children remainedin foster care until approximately 1994 or 1995.

On April 10, 1996, Jane Doe, individually and as parent and nextfriend of John Doe, filed the instant medical malpractice action againstDr. Winny and other defendants. The only count of the complaintconcerning Dr. Winny was count V. The count alleged that Dr. Winnynegligently failed to treat John for his actual psychological conditionand instead engaged John in a course of therapy that centered upon themesof satanic, physical, and sexual abuse. Such therapies were alleged tohave improperly encouraged John to engage in sexual play and sexualcontact with his therapist. The complaint also alleged that Dr. Winnyfailed to properly supervise his medical assistant, who was alsoconducting therapy upon John. Finally, the complaint alleged that Dr.Winny wrongfully diagnosed John as having been exposed to physical and/orsexual abuse. As a result of these omissions, John was alleged to havebeen deprived of his "proper loving and caring home" when he wasseparated from his mother for a period in excess of three years. John'sbehavior was also alleged to have worsened during Dr. Winny's treatment,necessitating additional lengthy inpatient psychiatric hospitalization. The complaint alleged that John's mental well-being was permanentlyharmed and damaged by Dr. Winny's treatment.

As noted above, Dr. Winny sought summary judgment based upon section9 of the Act (325 ILCS 5/9 (West 1996)), which provides good-faithimmunity from civil liability to individuals who report or investigatea report of child abuse pursuant to the provisions of the Act. Inresponse, the plaintiff argued that Dr. Winny's liability was predicatedupon the negligent administration of psychiatric care, as opposed to hisparticipation in the child abuse investigation. The plaintiff arguedthat liability for medical malpractice is not immunized under the Act. Attached to her response, the plaintiff filed the affidavit of Dr. JohnCannell, a California-based psychiatrist. Dr. Cannell opined that Dr.Winny had rendered "treatment" to John and did not merely "evaluate" him. Dr. Cannell also stated that Dr. Winny deviated from the standard of careby "failing to adequately observe, supervise, and monitor the carerendered to John."

On January 11, 2000, the trial court denied Dr. Winny's motion forsummary judgment. Without determining whether Dr. Winny's conduct fellwithin the scope of the immunities provided under section 9 of the Act,the trial court found that Dr. Cannell's criticisms presented a questionof fact as to whether Dr. Winny acted in "good faith" as required undersection 9. The trial court explained:

"As I read the definition of good faith, that good faith is adheringto one's standard obligation or duty and extending that concept toa doctor would be to--to conduct oneself within reasonableprofessional standards. I don't think that the statute shouldinsulate someone who is alleged to have performed his professionalobligation at a level below accepted medical standards."

At the request of Dr. Winny, the trial court certified the two legalquestions noted at the outset.

The first certified question asks whether the immunity provided bysection 9 of the Act shields a physician from liability for his failureto meet accepted medical standards in providing care and treatment to hispatient. The plaintiff argues that section 9 does not immunize aphysician for negligent care and treatment; rather, the plaintiff assertsthat section 9 immunizes a physician only from liability resulting fromhis good-faith participation in the making of a report of child abuse andthe investigation of such a report. Dr. Winny, on the other hand, arguesthat section 9 does immunize negligent medical care and treatmentperformed as part of a child abuse investigation. Dr. Winny argues thata physician necessarily provides care and treatment to a patient in theprocess of performing such an investigation.

Section 4 of the Act imposes an obligation upon certain individuals,including physicians, school personnel, law enforcement officers, andpsychologists, to report suspicions of child abuse to DCFS. 325 ILCS 5/4(West 1996). In order to encourage the reporting and investigation ofchild abuse, the legislature has afforded certain immunities toindividuals having a reporting duty under the Act. At the time inquestion, Section 9 of the Act provided:

"Any person, institution or agency, under this Act,participating in good faith in the making of a report or referral,or in the investigation of such a report or referral or in thetaking of photographs and x-rays or in the retaining a child intemporary protective custody shall have immunity from any liability,civil, criminal or that otherwise might result by reason of suchactions. For the purpose of any proceedings, civil or criminal, thegood faith of any persons required to report or refer, or permittedto report, cases of suspected child abuse or neglect or permittedto refer individuals under this Act, shall be presumed." 325 ILCS5/9 (West 1996).

In construing the scope of the immunities contained in section 9,our primary goal is to ascertain and give effect to the legislature'sintention in enacting the statute. See Harinek v. 161 North Clark StreetLtd. Partnership, 181 Ill. 2d 335, 340 (1998). The best indication of thelegislature's intent is the plain language of the statute and we may notdepart from the plain language of the Act by reading into it exceptions,limitations, or conditions that conflict with the express legislativeintent (Harinek, 181 Ill. 2d at 340). Additionally, immunity provisionsmust be strictly construed as they are in derogation of the common law. Snyder v. Curran Township, 167 Ill. 2d 466, 477 (1995).

A plain reading of the language contained in section 9 leads us toconclude that the legislature did not intend to immunize a physician forliability arising from negligent care and treatment administered to apatient. Indeed, section 9 contains no reference whatsoever to the "careand treatment" that a physician provides to his patient. Rather, at thetime in question, section 9 specifically immunized four categories ofconduct: (1) the making of a report or a referral, (2) the investigationof such a report or referral, (3) the taking of photographs and X-rays,and (4) the retaining of a child in temporary protective custody. 325ILCS 5/9 (West 1996). As the legislature did not include "care andtreatment" as a category of immunized conduct, we do not believe that theAct immunizes a physician for acts of medical malpractice that causepersonal injury to his patient. Instead, we believe that the statuteimmunizes only against damages specifically alleged to have resultedbecause a report of child abuse was made under the Act or because sucha report was investigated.

We further believe that such an interpretation best promotes thepurpose of the Act. Illinois courts have repeatedly noted that thepurpose of Act was to facilitate and encourage the reporting of childabuse to DCFS. Nosbaum v. Martini, 312 Ill. App. 3d 108, 117 (2000);Lehman v. Stevens, 148 Ill. App. 3d 538, 544-45 (1986). Duringlegislative debate on the Act, legislators explained that the purpose ofthe Act was to encourage the reporting of abuse. See 79th Ill. Gen.Assem., House Proceedings, June 13, 1975, at 75 (statements ofRepresentative Barnes) ("The whole concept and the whole idea ofrecreating the Act was to encourage more people to come forth *** withinformation to report various kinds of acts that are perpetrated onchildren"). To accomplish this objective, the Act was intended toprovide "immunity for persons participating in good faith in the makingof the [r]eport" (79th Ill. Gen. Assem., House Proceedings, June 19,1975, at 129 (statements of Representative Barnes)).

Viewing the language of section 9 in light of this expressedpurpose, we believe that the accorded immunities were intended to protectindividuals from damages alleged to have resulted directly from thereporting and investigation of child abuse under the Act. Such damagesmight include loss of companionship, mental anguish, libel, slander, orother injury arising from the report of child abuse and/or the removalof a child from his parents. See Pryweller v. Cohen, 282 Ill. App. 3d899, 908-10 (1996) (physician was immunized under the Act from cause ofaction brought by parent alleging emotional damage and loss of affectionresulting from removal of child); Lehman, 148 Ill. App. 3d at 551-52(1986) (physician was immunized under the Act for cause of action byparent alleging slander). Permitting the recovery of these types ofdamages against individuals who report and investigate child abuse underthe Act would undoubtedly discourage the reporting of child abuse andhinder the accomplishment of the Act's objectives. In our opinion, itwas this problem that section 9 was intended to address. However, wefind no indication, either in the language of the statute or thelegislative history, that the Act was intended to shield a physician forliability for medical malpractice.

The only other Illinois court to consider this issue has similarlyconcluded that the Act was not intended to immunize liability fornegligent care and treatment administered to a patient. See Nosbaum v.Martini, 312 Ill. App. 3d 108 (2000). In Nosbaum, the minor plaintiffwas medically examined by the defendant doctor who found a genitalabnormality that the doctor believed was indicative of sexual abuse. Nosbaum, 312 Ill. App. 3d at 111-12. The doctor's suspicions werereported to DCFS and the child was subsequently removed from her mother'scare. Nosbaum, 312 Ill. App. 3d at 112. Nine months after the doctor'sexamination, the doctor amended her examination report to reflect thatshe had made an error regarding the examination equipment and advisedthat the minor's genitals were normal. Nosbaum, 312 Ill. App. 3d at 112-13. After a year apart, the child was returned to the mother's care andcustody. The child filed suit against the physician, alleging medicalmalpractice and seeking damages for mental anguish and loss of thecompanionship of her mother and stepfather that she suffered during theremoval. The trial court dismissed the complaint, finding that thealleged conduct was immunized under section 9. Nosbaum, 312 Ill. App.3d at 113.

On review, the appellate court vacated the dismissal and remandedthe cause for further proceedings to determine whether the allegeddamages arose independently from the physician's misdiagnosis or whetherthe damages arose from the incorporation of that misdiagnosis into theDCFS report. Nosbaum, 312 Ill. App. 3d at 122. The court explained thatthe policy reason underlying the immunities contained in section 9 wasto encourage the reporting of child abuse by limiting liability arisingfrom such reporting. Nosbaum, 312 Ill. App. 3d at 117. The courtreasoned that such immunities were not intended to relieve a physicianof his duty of care to his patient or to immunize a physician fromliability for medical malpractice simply because it might have a link toa child abuse report. Nosbaum, 312 Ill. App. 3d at 119. The courttherefore held that, in instances where it could be shown that thedamages claimed resulted directly from a misdiagnosis and not from theDCFS report itself, "there is no reason to extend to that independentmalpractice the protection of the statute's immunity provision." Nosbaum, 312 Ill. App. 3d at 119.

We agree with Nosbaum that the application of section 9 immunity isdependent upon whether the alleged damages arise from the physician's actof reporting and investigating child abuse or whether they arise from anindependent act of medical negligence. These are separate and distinctcauses of action, and we agree that the former action falls within thescope of section 9 and that the latter action does not. Unlike Nosbaum,however, we do not believe section 9 permits a plaintiff to recover formental anguish and loss of society and companionship simply because ofa physician's misdiagnosis of child abuse. Illinois courts haveconsistently held that the diagnosis of child abuse is necessarilyrelated to the investigation and reporting of such abuse and is immunizedunder the Act. See Poulos v. Lane, 276 Ill. App. 3d 524 (1995); Lehman,148 Ill. App. 3d 538. To fall outside the scope of section 9, theplaintiff must allege some sort of personal injury directly arising fromnegligent care administered by the physician.

Dr. Winny asserts that the administration of medical care andtreatment is necessary to investigate a claim of child abuse and that aphysician should therefore be immunized for any negligence committedduring such an investigation, provided that the physician acted in goodfaith. Although we agree that a physician may be providing medical careto his patient in the course of investigating a claim of child abuse, wefind no indication in the language of the statute that the legislatureintended to shield a physician from liability for personal injuries thatresult from negligent care and treatment merely because such treatmentwas administered as part of a child abuse investigation.

Indeed, as we review other portions of the Act, it appears that thelegislature did not intend to immunize negligent medical care andtreatment. For example, section 5 of the Act permits physicians andother individuals to take a child into temporary custody under certainspecified circumstances. 325 ILCS 5/5 (West 1996). Under suchcircumstances, the individual taking custody may consent to theperformance of emergency medical treatment upon the child. 325 ILCS 5/5(West 1996). Section 5 accords immunity for any civil and criminalliability that might be incurred from taking a child into temporarycustody. 325 ILCS 5/5 (West 1996). However, such immunity does notextend to a physician's act of consenting to the administration ofemergency treatment upon the child unless the physician is "acting ingood faith and in accordance with accepted medical practice." 325 ILCS5/5 (West 1996). We believe that such language demonstrates that thelegislature did not intend to excuse a physician from his obligation toact in conformity with accepted medical practice. As the legislatureexpressly declined to immunize negligent medical care and treatment insection 5 of the Act, we believe that it would be illogical to find thatsection 9 immunizes against liability for negligent care and treatment. A court should read all portions of an act in relation to each other andas part of a coherent whole. Lake Hinsdale Village Condominium Ass'n v.Department of Public Aid, 298 Ill. App. 3d 192, 198 (1998).

Our interpretation of the Act is also in harmony with the approachtaken by other jurisdictions that have confronted this issue. Manystates have enacted immunity provisions similar to section 9 in order tosecure federal assistance grants. See 42 U.S.C.A.