4D06-2712-Ross v. Dr. Diane Blank

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State: Florida

Court: Florida Fourth District Court

Docket No: 4D06-2712

Case Date: 05/02/2007

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2007

RICHARD S. ROSS, Appellant, v. DR. DIANE BLANK, Appellee. No. 4D06-2712 [May 2, 2007] SHAHOOD, J. Richard S. Ross ("appellant") appeals (1) the trial court's order and final judgment granting final summary judgment in favor of Dr. Diane Blank ("Blank") on Count I of Ross's Second Amended Complaint, (2) the trial court's order granting Blank's Motion for Sanctions pursuant to section 57.105, Florida Statutes, and (3) the trial court's order denying appellant's motion for in camera inspection of certain documents. This case stems from the dissolution of appellant's marriage. The wife met with Blank, a practicing psychologist, several times in connection with the divorce proceeding. On one occasion, the wife took the older of the couple's two daughters with her. The wife asked the daughter to discuss with Dr. Blank the situation of the older daughter showering with appellant. The wife also brought the couple's younger daughter with her to see Blank at a different counseling session. Appellant learned about the counseling session between Blank and his older daughter. He contacted Blank to find out what had transpired. On May 21, 2002, appellant met briefly with the wife, the older child, and Blank. Blank subsequently consulted Dr. William Samek, a colleague with whom she was not previously familiar, for guidance about her reporting responsibilities to the Department of Children and Families ("DCF") regarding suspected sexual abuse. Blank presented the suspected abuse situation to Dr. Samek in the form of a hypothetical, but with the understanding it was an actual case she was working. Dr. Samek was of

the opinion there was sufficient evidence to suspect the possibility of child abuse by the father against the daughter. Blank made a report to DCF of a possible threat of harm regarding appellant. Appellant sued Blank for defamation per se and negligence. Appellant alleged that Blank's failure to report any suspected abuse to DCF from March 19, 2002, to June 10, 2002, coupled with Blank's admission that she knew she had a duty to report suspected abuse, was evidence that Blank did not in fact suspect appellant had committed child abuse. Appellant claimed that Blank filed the DCF report in retaliation for appellant having her banned from further involvement with the children as psychological counselor in the divorce proceeding. Appellant alleged that Blank knew his wife's allegations were not reportable because she was informed of this by DCF, that the reporting was made maliciously for the purpose of hurting him, and that the reporting caused him mental anguish, torment, and humiliation. Blank filed a motion for summary judgment in which she argued that her statements were made in accordance with the mandatory reporting requirements imposed on her by section 39.201(1), Florida Statutes, and that statements made in compliance therewith are immune from civil liability pursuant to section 39.203(1)(a), Florida Statutes. The motion also argued that the other allegedly defamatory statements made by Blank fell under the litigation privilege because they were made in the course of legal proceedings. As to appellant's negligence claim, the motion argued that Blank owed no duty to appellant because he was not her patient. The trial court granted Blank's motion for summary judgment as to the defamation claim and denied the motion as to the negligence claim. Appellant later voluntarily dismissed the negligence claim. Blank also filed a motion for attorney's fees against appellant under section 57.105, Florida Statutes. The motion alleged that appellant was aware it was Blank's duty to report the suspected abuse, that appellant had no evidence that any defamatory statement was ever made to Dr. Samek, and that appellant was aware he was not a patient of Blank sufficient to satisfy the duty for malpractice. The motion sought sanctions against appellant for filing a frivolous suit. The trial court granted this motion as to the defamation claim and ordered that a hearing to determine the amount of fees and costs would be set at a later date. Appellant filed a motion for relief from the court's order for sanctions and the summary judgment on the defamation count. He argued that
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Blank could still be liable for defamation despite having a duty to report suspected abuse to DCF. Appellant further requested that the court conduct an in camera review of the DCF report filed by Blank. The court declined appellant's request to inspect the DCF report in camera. Section 39.201, Florida Statutes, sets out the mandatory reporting requirement for suspected child abuse. The statute names a nonexclusive list of professions such as physicians, teachers, and law enforcement officers, and requires that any of them "who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child's welfare shall report such knowledge or suspicion to the department . . . ."

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