Monday, January 22, 2018
Ninth Circuit Withdraws 2015 Opinion, Reverses Result
Says Medical Doctor Immune From Liability for ‘Seizure’ of Baby She Thought Was Abused
By a MetNews Staff Writer
A three-judge panel of the Ninth U.S. Circuit Court of Appeals on Friday withdrew its Sept. 21, 2015 published opinion in which the majority denied qualified immunity to a medical doctor who caused the detention of a three-month-old boy whom she suspected was beaten by his parents, and issued an unpublished memorandum opinion coming to the opposite conclusion.
A couple lost custody of their child, G.J., for months in 2010, based on action by the county Department of Family and Children’s Services, at the urging of the defendant, Dr. Claudia Wang, a pediatrician. Eventually, the department’s commissioner determined that the child, brought to an emergency room, had been injured in an accident and there had been no abuse.
The panel on Friday announced the vacating of the 2015 opinion in a published order. In the memorandum opinion, it held unanimously that the Wang, is entitled to qualified immunity as to claims by Senior Deputy County Counsel Jill Jones and her husband, attorney Michael N. Jones of Booth LLP, based alleged federal constitutional violations.
However, the judges—Circuit Judges N. Randy Smith and Mary H. Murguia and District Judge Stephen M. McNamee of the District of Arizona, sitting by designation—had varying views as to whether there was immunity with respect to claims under California law. Smith said there is, except as to a cause of action for false imprisonment; Jones concurred but did so “dubitante” (with doubts) as to whether Wang had immunity as to all causes as a child-abuse reporter; and Murguia (who wrote the 2015 majority opinion) insisted there was no immunity to any state cause of action.
Concerns Over Opinion
After the 2015 opinion was issued, the California Medical Association, along with the American Academy of Pediatrics, American Professional Society on the Abuse of Children, and the Ray E. Helfer Society, expressed support for the petition by the defendant, Dr. Claudia Wang, for a rehearing by the panel or by the court, sitting en banc. In their motion seeking leave to file a brief, they said:
“Amici are concerned about this case because they believe the majority opinion will negatively impact a physician’s ability to treat, evaluate and protect vulnerable victims of child abuse.”
However, the Dec. 4, 2015 petition by Wang for a rehearing was never acted upon. Instead, the three-judge panel spent two years and four months mulling what to do.
The case harks to an accident on Feb. 24, 2010. Jill Jones was carrying the baby in her aims when she slipped, dropping the infant, who tumbled down the stairs.
At the UCLA emergency room in Santa Monica, a severe head injury was diagnosed and G.J. remained in the hospital for two days.
On March 5, 2010, Jill Jones brought the infant to a medical facility on UCLA’s Westwood campus, pursuant to an appointment. Wang determined—erroneously—that the baby had suffered rib fractures subsequent to the February accident, and secured the mother’s permission for the child to be admitted to the hospital.
The parents were persuaded not to take the child home; the DCFS put a hold on him; and dependency proceedings were instituted. After the proceedings were terminated when the department concluded that Wang had erred, the parents sued on April 5, 2011.
U.S. District Court Judge S. James Otero denied Wang summary judgment which she sought based on qualified immunity, finding that such immunity was unavailable in light of triable facts as to whether Wang violated a clearly established constitutional right—in particular, an unlawful “seizure” of the infant. The Ninth Circuit affirmed in 2015, with Murguia declaring:
“[A] child is seized for purposes of the Fourth and Fourteenth Amendments when a representative of the state takes action causing a child to be detained at a hospital as part of a child abuse investigation, such that a reasonable person in the same position as the child’s parent would believe that she cannot take her child home….
“We conclude that the Joneses’ version of the facts supports a rational conclusion that, due to Dr. Wang’s alleged conduct, reasonable parents in the Joneses’ position would not have felt free to leave with G.J.”
McNamee dissented, based on reasoning the circuit judges adopted in the opinion filed Friday.
“[W]e hold that Dr. Wang is entitled to qualified immunity because in March 2010 there was no clearly established case law that would have provided Dr. Wang with “fair warning” that her actions would violate federal constitutional law….
“At the time of Dr. Wang’s purported seizure of G.J., it was well-settled that a child could not be removed from his or her parents without prior judicial authorization, absent evidence that the child was in imminent danger of serious bodily injury….At the same time, however, it was not beyond debate that the totality of the circumstances surrounding Dr. Wang’s purported seizure of G.J. would not support a finding of exigency or that this purported seizure was otherwise unreasonable.”
Smith went on to say:
“[T]here is no Ninth Circuit or Supreme Court case law that could have provided Dr. Wang with sufficiently fan notice that her purported seizure of G.J. in order to investigate plausible child abuse, under the circumstances in this case, would violate federal constitutional law. Without such fair notice, we hold that Dr. Wang is entitled to qualified immunity.”
State Law Immunity
The judge said Wang is entitled to immunity as to state causes of action under California Government Code §820.2 which applies to discretionary acts of public employee under specified circumstances which, Smith said, existed. But, he noted, the section does not apply to a cause of action, which the Joneses have asserted, for false imprisonment.
Smith said that absolute immunity available under §11172(a) of the California Penal Code to mandatory reporters of child abuse—which would include false imprisonment—was not applicable, explaining:
“[V]iewing the facts in the light most favorable to the Joneses. Dr. Wang sought to take G.J. into temporary custody in exigent circumstances. That is the role of the DCFS, not the role of a mandatory reporter.”
The opinion remands the case, leaving it to Otero to exercise supplemental jurisdiction over the cause of action for false imprisonment or to remand it to the Los Angeles Superior Court.
McNamee concurred, reluctantly, that §11172(a) immunity was not available, protesting that “our conclusion is in clear conflict with Dr. Wang’s professional responsibility as a child abuse pediatrician.”
He went on to comment:
“…Dr. Wang was acting in the best interest of G.J. and took the least controversial course of action in recommending hospitalization for him. She certainly could have taken more drastic measures. To subject Dr. Wang to a claim of false imprisonment for acting in G.J.’s best interest and taking the least controversial course of action is not only an unjust result, but an illogical one.
“Should this case be remanded to the California courts, the issue of whether Dr. Wang’s post-report statements to the Joneses are entitled to section 11172(a) immunity can be placed squarely before those courts.”
“[T]o be entitled to immunity under section 820.2. the employee must be vested with the authority to exercise discretion….
“Here, Dr. Wang has not identified any authoritative source indicating that, in California, physicians, as opposed to social workers, have the authority to decide whether to place a hospital hold on a child or otherwise detain a child in order to investigate suspected abuse. Because the decision to detain G.J. at the hospital rested within the authority and discretion of DCFS, I cannot conclude that Dr. Wang acted within her authority in misleading G.J.’s parents that his hospitalization was required. Accordingly, I would affirm the district court’s decision that Dr. Wang is not entitled to discretionary immunity under section 820.2”
The case is Jones v. County of Los Angeles, 12-55995.
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