Negligence – Psychiatrist – Duty to Warn – Private Cause of Action

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Where the appellant Doe, whose son was allegedly molested by Dr. Marion, sued multiple defendants, including the respondent psychiatrist who began treating a victim of Dr. Marion’s molestation, for negligence and negligence per se, alleging the psychiatrist had a duty to warn all future foreseeable victims, the trial court properly granted the respondents’ motion to dismiss under Rule 12(b)(6), SCRCP, since: (1) the appellants have failed to allege a specific threat necessary to compel a duty to warn; and (2) Sect. 20-7-510 of the South Carolina Code does not support a private cause of action for failing to report alleged abuse or support a claim for negligence per se.

Affirmed.

Background

James Doe, while under the care of Dr. Marion, was allegedly “repeatedly sexually molested by Defendant Marion for a period of several years.” James Doe allegedly suffered “permanent physical pain and suffering and extreme emotional distress.” John Doe, James Doe’s father, asserted he lost the companionship of his child, suffered extreme emotional distress, and has lost earnings as a result of his son’s molestation.

The appellants filed an amended complaint, which alleged the following facts that are deemed true and admitted for purposes of this appeal. Dr. Graf is a psychiatrist who began treating a victim of Dr. Marion’s molestation. The victim told Dr. Graf of the molestation beginning in at least 1984. Dr. Graf never notified law enforcement or social services authorities of the child abuse. Dr. Graf failed to notify the medical licensing board or ethics review panel.

The amended complaint alleges that under S.C. Code Ann. Sect. 20-7-510 (Supp. 2002), Dr. Graf had a duty to report the suspected child abuse and sexual abuse to the appropriate authorities. The complaint contends the failure to notify was negligence per se and “enabled Defendant Marion to continue contact with and molestation of his then current and future minor patients.” The amended complaint alleges Dr. Graf “failed to warn the foreseeable victims of Defendant Marion of the danger that he posed.” It contends Dr. Graf “breached her common law duty to warn Plaintiff James Doe.” The complaint asserts Carol Graf, M.D. & Associates, P.A. is vicariously liable as a result of Dr. Graf’s negligence.

The respondents filed a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), SCRCP. The trial court granted the motion and denied the appellants’ motion for reconsideration. This appeal followed.

Discussion

As to their theory of common law negligence, the appellants argue a duty to warn all future foreseeable victims arose out of the “special relationship” created in the psychiatrist-patient relationship. We find that no duty to warn was created.

South Carolina law does not recognize a general duty to warn of the dangerous propensities of others. The South Carolina Supreme Court relied upon Tarasoff v. Regents of Univ. of California, 551 P.2d 334 (1976), in reaching its conclusions in Bishop v. South Carolina Dep’t of Mental Health, 331 S.C. 79, 502 S.E.2d 78 (1998).

Citing several cases relying on Tarasoff, the court in Bishop said: “this duty [to warn] is only owed when a patient specifically threatens a readily identifiable third party” and reiterated that the duty requires “the defendant be aware or should have been aware of the specific threat made by the patient to harm a specific person.”Nowhere in the complaint have the appellants alleged a specific threat made by Dr. Marion directed against James Doe. The amended complaint alleges a duty to warn “foreseeable victims” which are defined in the complaint as the “future minor patients with whom [Dr. Marion] came into contact.”

This court addressed a similar situation in Gilmer v. Martin, 323 S.C. 154, 473 S.E.2d 812 (Ct. App. 1996). In Gilmer, this court was specifically asked whether “there should be a duty to warn all ‘foreseeable’ victims, such as in this case, where an identifiable threat exists to a specific, small group of individuals.” The court refused to extend the duty to warn to all foreseeable victims.Because the appellants have failed to allege a specific threat necessary to compel a duty to warn, the trial court correctly determined no legal duty existed under the common law.

As to negligence per se, the reporting statute of Sect. 20-7-510 does not purport to establish civil liability for the failure to report. The statute is silent in that regard. However, a subsequent, related statute imposes liability for making a false report. As such, it can reasonably be determined the legislative intent was for the reporting statute not to create civil liability. The statute in the instant case is in the portion of the Children’s Code establishing the policies and procedures of the state’s child welfare services. The statute is concerned with the protection of the public and not with the protection of an individual’s private right. This is consistent with other jurisdictions’ interpretations of similar statutes.

Accordingly, we rule that Sect. 20-7-510 does not give rise to a private cause of action. We further conclude Sect. 20-7-510 does not support a claim for negligence per se. Apodictically, the trial court properly dismissed the appellants’ claim for negligence per se under the statute. We find the trial court properly determined the amended complaint failed to allege Dr. Graf owed a duty which would support a claim for damages resulting from her failure to warn the appellants of Dr. Marion’s propensities. We hold Sect. 20-7-510 of the South Carolina Code does not support a private cause of action for failing to report alleged abuse. The decision of the trial court to dismiss the action against Dr. Graf pursuant to Rule 12(b)(6), SCRCP, is affirmed.

Doe v. Marion (Lawyers Weekly No. 011-319-04) (11 pages) (Anderson, J.) (SCCOA) Appealed from the Charleston County Circuit Court, Thomas L. Hughston Jr., J.; J. Graham Sturgis Jr., Gary B. Blasingame, Henry G. Garrard III, and Michael O. Crain for appellants; Stephen L. Brown and Carol B. Ervin for respondents (No. 3879) (Oct. 25, 2004).