PAULA JOHNSON and MARK JOHNSON,
and on behalf of their minor daughters,
T.J. and Claire Johnson,
Plaintiffs,
v.
PEDIATRIC SPECIALISTS OF SIOUX FALLS;
Dr. Terry Lang, Individually and in His Capacity as Employee/agent of
Pediatric Specialists of Sioux Falls; Sioux Valley Hospital; Jon Soderholm;
Nurses Monica Maurer, (First Name Unknown) Amen, Shelly Doe
(Last Name Unknown at this Time), and Kathy Doe (Last Name Unknown),
Individually and in Their Capacity as Employees/agents of Sioux Valley Hospital;
St. Luke's Hospital (a/k/a "Dakota Midland St. Luke's Hosp.");
Kathy Gerdes, Yvonne Abeln, Nancy Hartung, and Kathy Peterson
as Employees/agents of St. Luke's Hospital,
Defendants.
[2001 DSD 1]

United States District Court
District of South Dakota--Southern Division
CIV. 98-4188

MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT


Patrick M. Schroeder, Brende & Schroeder, Sioux Falls, SD
Michael Verbrick, Gant Law Firm, St. Paul, MN
Attorneys for Plaintiff.

Michael L. Luce, Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD
Attorney for Defendants Pediatric Associates, Dr. Lang, Sioux Valley Hospital,
Jon Soderholm, Monica Maurer, Miss Amen, Shelly Doe, and Kathy Doe.

Roger A. Sudbeck, Boyce, Murphy, McDowell & Greenfield, Sioux Falls, SD
Attorney For Defendants St. Luke's Hospital, Kathy Gerdes, Yvonne Abeln, 
Nancy Hartung and Kathy Peterson


Dated January 2, 2001

Karen E. Schreier, United States District Judge

[¶1] Plaintiffs Paula and Mark Johnson filed a complaint alleging negligence and malpractice, defamation, fraud and misrepresentation, and intentional infliction of emotional distress. Defendants Pediatric Specialists of Sioux Falls, Dr. Terry Lang, Sioux Valley Hospital, Jon Soderholm, Monica Maurer, ____(first name unknown) Amen, Shelly Doe (last name unknown), and Kathy Doe (last name unknown) [hereinafter Pediatric Specialists] moved for summary judgment. Defendants St. Luke's Hospital, Kathy Gerdes, Yvonne Abeln, Nancy Hartung, and Kathy Peterson [hereinafter St. Luke's] also filed a motion for summary judgment. Plaintiffs oppose both motions for summary judgment.

[¶2] In 1990, Paula and Mark Johnson lost their third child, Sara, after she developed an infection following a heart transplant. Some time after Sara's death, Paula became pregnant with T.J. and was subsequently diagnosed with breast cancer for which she received treatment during her pregnancy. T.J. was born in 1993. At the time of her birth, T.J., though born prematurely, appeared to be a normal, healthy baby. After being home for a short time, T.J. was hospitalized for an infection. T.J.'s health did not return to normal. She continued to suffer a variety of infections and complications. In 1995, T.J. aspirated while eating, which resulted in pneumonia. St. Luke's, feeling they did not have the capability to deal with T.J.'s health problems, referred her to Sioux Valley Hospital. T.J. was admitted into Sioux Valley Hospital and Dr. Terry Lang became her primary physician.

[¶3] T.J. was treated by feeding her through a gastronomy tube. During the use of this tube, there were several times when the tube malfunctioned, either being stopped or coming apart. In the fall of 1995, T.J. received a jejunostomy tube and a Hickman catheter. These devices were surgically implanted. Shortly thereafter, the Hickman catheter came apart and an infection developed, necessitating the removal of the device and its replacement by a portacath.

[¶4] The record shows that T.J. was in the hospital a great deal of the time from 1995 to 1996. In 1996, T.J. was able to go home. To facilitate her homecoming, T.J. was to receive in-home nursing care. While home, T.J.'s portacath became infected and another Hickman catheter was inserted. Paula then gave birth to her fifth child. As a result, 24-hour nursing care was ordered.

[¶5] On October 11, 1996, the Johnsons were informed that there was no nurse available to provide care through the night. A nurse arrived the next morning to find that the pump which provided T.J. her nutrients had stopped. The nurse also found that T.J.'s central line, which had been surgically implanted, had come out. T.J. was readmitted to Sioux Valley Hospital.

[¶6] On October 23, 1996, after a meeting of the home care nurses, the head of the home health department (Kathy Gerdes), and St. Luke's in-house counsel, St. Luke's reported to the Department of Social Services its suspicions that Paula was causing T.J.'s health problems. Dr. Lang was contacted by the Department of Social Services regarding the report. Subsequently, Dr. Lang spoke with Jon Soderholm, the vice president of Sioux Valley Hospital. Soderholm suggested that they speak with legal counsel and that they present the issue to the hospital's ethics committee.

[¶7] Dr. Lang presented the information he had to the hospital's ethics committee. They determined that this was likely a case of Munchausen Syndrome By Proxy, whereby Paula was intentionally causing T.J.'s health problems, and that the allegations needed to be reported to the legal authorities. Soderholm then contacted the Minnehaha County State's Attorney, David Nelson. Mr. Nelson discussed the matter with Dr. Lang and several of the pediatric nurses. Being uncertain that there was enough evidence to go to court, Mr. Nelson asked Dr. Lang if he would testify that he thought this was a case of Munchausen's. Dr. Lang requested time to review the matter. Dr. Lang contacted the family's prior treating physicians to verify his suspicions that Paula had Munchausen Syndrome By Proxy. After consulting with the family's past physicians, Dr. Lang was of the opinion that there existed a pattern of excessive use of unnecessary medical technology, a symptom of Munchausen's. Dr. Lang prepared a detailed affidavit which reported his suspicions to DSS.

[¶8] On November 4, 1996, Paula was summoned out of T.J.'s room to the emergency room. There she was told that she was to leave the hospital and was not allowed to have contact with T.J. or her newborn, Claire. Mark was allowed to have contact with T.J. on a regular, but more restricted basis than before. Paula, in what she claims to have been an attempt to secure custody of the children for Mark, took an overdose of Tylenol with Codeine and subsequently began counseling with Dr. Ulises Pesce, one of plaintiffs' experts in this case.

[¶9] Mark was able to get conditional custody of Claire shortly after her removal by DSS. In December of 1996, a custody hearing was held and Mark received physical custody of T.J. on the condition that Paula not be in the home and that Social Services was able to closely monitor the situation. Paula was allowed supervised visitation with T.J. and Claire. In August of 1997, the family moved to Minnesota and the Minnesota Department of Social Services did not pursue the case.

[¶10] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if it can show that "there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." Lambert v. City of Dumas, 187 F3d 931, 934 (8^th Cir. 1999). In determining whether summary judgment should issue, the court must view the evidence and inferences reasonably drawn therefrom "in the light most favorable to the nonmoving party." Lambert v. City of Dumas, 187 F3d 931, 934 (8^th Cir. 1999) (citing Enterprise Bank v. Magna Bank, 92 F3d 743, 747 (8^th Cir. 1996); Adkison v. G.D. Searle & Co., 971 F2d 132, 134 (8^th Cir. 1992)). The burden is on the moving party to establish the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Enterprise Bank v. Magna Bank, 92 F3d 743, 747 (8^th Cir. 1996); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 US 574, 106 SCt 1348, 1356-57, 89 LEd2d 538 (1986). "As to materiality ... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 US 242, 248, 106 SCt 2505, 2510, 91 LEd2d 202 (1986). Once this burden has been met, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts that create a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 US 242, 256, 106 SCt 2505, 2514, 91 LEd2d 202 (1986).

[¶11] In determining whether a genuine issue of material fact exists, the court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. Anderson v. Liberty Lobby, Inc., 477 US 242, 255, 106 SCt 2505, 2513, 91 LEd2d 202 (1986). "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 US 317, 327, 106 SCt 2548, 2555, 91 LEd2d 265 (1986).

[¶12] "Summary judgment is to be granted only where the evidence is such that no reasonable jury could return a verdict for the nonmoving party." Lambert v. City of Dumas, 187 F3d 931, 934 (8^th Cir. 1999) (citing Anderson v. Liberty Lobby, Inc., 477 US 242, 250, 106 SCt 2505, 2511, 91 LEd2d 202 (1986)).

[¶13] A. Failure to Comply With Local Rule 56.1(C)

[¶14] Under Local Rule 56.1(C), the party opposing a motion for summary judgment is required to respond to the moving party's statement of undisputed material facts with "a separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried." If the opposing party fails to comply with this Rule, the moving party's facts are deemed to be admitted. Local Rule 56.1(D).

[¶15] In the present case, plaintiffs did not respond to the moving parties' statements of undisputed facts in a separate, short, and concise statement of material facts. Therefore, it is deemed that the facts set forth by defendants in their statements of undisputed facts are deemed admitted. See Christian Children's Fund, Inc. v. Crow Creek Sioux Tribal Court, 103 FSupp2d 1161, 1163 (DSD 2000); Hanson v. North Star Mut. Ins. Co., 71 FSupp2d 1007, 1009 (DSD 1999).

[¶16] B. Dr. Terry Lang

[¶17] Plaintiffs claim that Dr. Lang engaged in medical malpractice when he negligently diagnosed Paula with Munchausen Syndrome By Proxy and reported his suspicions to the Department of Social Services. Plaintiffs also allege that Dr. Lang engaged in defamation, intentional infliction of emotional distress, fraud, and misrepresentation. SD Codified Laws Ann. §§ 26-8A-3 and 26-8A-14 provide immunity for reporting child abuse if there is a good faith, reasonable cause to suspect abuse. Section 26-8A-3 provides in pertinent part:

Any physician, ... (or) nurse, ... having reasonable cause to suspect that a child under the age of eighteen years has been ... abused ... as defined in § 26-8A-2 shall report that information ... .

Section 26-8A-2 defines abuse as including a child "(w)hose parent ... has subjected the child to mistreatment or abuse ... ." Immunity is provided by section 26-8A-14:

Any person or party participating in good faith in the making of a report or the submitting of copies of medical examination, treatment or hospitalization records ... is immune from any liability, civil or criminal, that might otherwise be incurred or imposed, and has the same immunity for participating in any judicial proceeding resulting from the report. Immunity also extends in the same manner to ... any person who in good faith cooperates with ... department of social services in investigation, placement, or a treatment plan... . (emphasis added).

[¶18] While plaintiffs admit in paragraph sixty of their complaint that Dr. Lang is immune from liability for reporting his suspicions of child abuse, they contend that statutory immunity does not extend to their claim of medical malpractice. All of the damages alleged by plaintiffs in their complaint result from Dr. Lang's reporting of the alleged child abuse, his cooperation with DSS in the investigation, and the temporary removal of the children from their parents. Plaintiffs do not seek any damages for physical injuries to the minor children resulting from the alleged misdiagnosis. All of the causes of action alleged against Dr. Lang arise from and result from the information that Dr. Lang provided to the Department of Social Services as part of its investigation of the child abuse allegations.

[¶19] "Immunity is critical to South Dakota's evident public policy of protecting the reporting and investigation of child abuse without fear of reprisal ... ." B.W. v. Meade County, 534 NW2d 595, 597 (SD 1995). "A physician is absolutely encharged with the responsibility of deciding if a child has received abusive or intentional neglect or has been starved or had physical injury inflicted. Failing this, a physician (as well as other public officials who have become aware of the abuse) may be held criminally responsible for a Class I misdemeanor and placed in confinement." State v. Olesen, 443 NW2d 8, 10 (SD 1989) (specially concurring J. Henderson).

[¶20] In Lux v. Hansen, 886 F2d 1064, 1068 (8^th Cir. 1989), the Eighth Circuit Court of Appeals found that mental health professionals who reported child abuse were entitled to immunity under South Dakota law with regard to state law negligence claims as long as the report was made in good faith. Other jurisdictions interpreting substantially identical statutory grants of immunity to reporters of suspected child abuse also have concluded that alleged tort actions against individuals who reported or were involved in the investigation of child abuse allegations are afforded immunity from any civil liability. See Michaels v. Gordon, 439 S.E.2d 722, 211 Ga. App. 470 (1993) (psychologist who allegedly made improper diagnosis that child had been molested by father found immune in medical malpractice action); Maples v. Siddiqui, 450 NW2d 529 (Iowa 1990) (physician who, after allegedly improper diagnosis of malnutrition, recommended child be placed in temporary foster care found immune in medical malpractice action); Krikorian v. Barry, 196 Cal. App. 3d 1211, 242 Cal. Rptr. 312 (1987 rev. denied) (clinical psychologist found immune in professional negligence and intentional infliction of emotional distress action); Awkerman v. Tri-County Orthopedic Group, P.C., 143 Mich. App. 722, 373 NW2d 204(1985) (immunity afforded to physician who, after erroneously ruling out diagnosis of "brittle bone" disease, reported suspected abuse of child who had sustained five bone fractures in four-month period); Morales v. Kagel, 58 Conn. App. 776, 755 A.2d 915 (2000) (psychologist found immune to defamation and intentional infliction of emotional distress action); Jones v. Snyder, 714 A.2d 453 (Pa. 1998) (hospital and physician found immune to defamation and intentional infliction of emotional distress action). Thus, as plaintiffs conceded during the oral argument on the summary judgment argument, as long as Dr. Lang acted in good faith in reporting the alleged child abuse and in assisting DSS in the child abuse investigation, he is entitled to immunity with regard to the state law tort actions.

[¶21] "Good faith," as defined by the South Dakota Supreme Court, "denotes performing honestly, with proper motive, even if negligently." B.W. v. Meade County, 534 NW2d 595, 598 (SD 1995). "The standard for determining good faith is a defendant's honest belief in the suitability of the actions taken." Id. at 598. Whether a person is negligent in arriving at a certain belief or in taking a particular action is immaterial. See id. "It is that the person in question was negligent in forming a particular belief. All that is required ... is the actual belief or satisfaction of the criterion of the 'pure heart and empty head.'" Cotton v. Stange, 582 NW2d 25, 28 (SD 1998) (quoting Garvis v. Scholten, 492 NW2d 402, 404 (Iowa 1992)).

[¶22] Reviewing the evidence in the light most favorable to the plaintiffs, there is no genuine issue of material fact to dispute that Dr. Lang was acting in good faith when he made the diagnosis of Munchausen Syndrome By Proxy and provided this information to the Department of Social Services. The statement of undisputed facts filed by Pediatric Specialists states as follows: "Dr. Lang's diagnosis of Munchausen's Syndrome By Proxy and subsequent report to the Department of Social Services were done in good faith and motivated by his overwhelming concern for the safety of T.J. and Claire Johnson." Plaintiffs did not dispute this statement pursuant to the procedure set forth in Local Rule 56.1, and therefore, this fact is deemed admitted. Furthermore, three of the four plaintiffs' experts stated that in their opinion Dr. Lang was not acting in malice, that he had good intentions, and that the evidence was sufficient to support a reasonable suspicion of the Munchausen Syndrome By Proxy condition when he reported Paula Johnson to the Department of Social Services. The remaining expert expressed no opinion on the issue of good faith.

[¶23] Plaintiffs' evidence of alleged unprofessional acts and omissions committed by Dr. Lang, viewed in the light most favorable to the nonmoving party, at the most would authorize a finding that he was negligent or exercised bad judgment in reaching the conclusion that Paula suffered from Munchausen Syndrome By Proxy. Proof of mere negligence or bad judgment, however, is not proof that Dr. Lang refused to perform his professional duties out of self-interest or sinister motive, or that he acted for some dishonest or improper purpose. In fact, Dr. Lang's written opinion that he provided to DSS carefully detailed all of his reservations about the diagnosis of Munchausen Syndrome By Proxy. Because there is no genuine issue of material fact to dispute good faith, Dr. Lang is entitled to summary judgment in his favor on all the causes of action.

[¶24] C. Jon Soderholm

[¶25] Plaintiffs also allege that Jon Soderholm, vice president of Sioux Valley Hospital, was negligent when he had T.J. and Claire removed from the home. A similar duty to report abuse is placed on hospitals pursuant to SDCL 26-8A-6, which provides in pertinent part:

Any person who has contact with a child through the performance of services as a member of a staff of a hospital or similar institution shall immediately notify the person in charge of the institution or his designees of suspected abuse or neglect. The person in charge shall report the information in accordance with the provisions of § 26-8A-8.

Soderholm reported the alleged abuse to the Department of Social Services in his role as vice president of Sioux Valley Hospital. Thus, he is entitled to immunity under SDCL 26-8A-14, as discussed above. Plaintiffs have not alleged that Soderholm was not acting in good faith when he made the report to DSS, and therefore, Soderholm is entitled to summary judgment on all the causes of action.

[¶26] D. Nurses

[¶27] Plaintiffs admitted during oral argument, and the court agrees, that the nurses are immune from liability pursuant to SDCL 26-8A-2 from the causes of action arising from the reporting or cooperating with DSS regarding the child abuse allegation unless they were not acting in good faith. Plaintiffs have offered no evidence to prove that the nurses were acing in a manner that was not in good faith. Therefore, the nurse defendants are entitled to summary judgment on these causes of action.

[¶28] Plaintiffs also allege that the nurses who provided care through St. Luke's Hospital (Gerdes, Abeln, Peterson, and Hartung), were negligent and failed to provide adequate care for T.J.. It is well-settled in South Dakota jurisprudence "that negligence in a medical malpractice case must be established by the testimony of medical experts." Magbuhat v. Kovarik, 382 NW2d 43, 46 (SD 1986) (citing Block, 80 SD at 474, 126 NW2d at 810). Plaintiffs admitted that they have no expert witnesses to support their claims of negligence against the St. Luke's nurses when they failed to respond to St. Luke's statement of undisputed facts. Additionally, all of plaintiffs' experts have declared that they have no opinion regarding the quality of care that the St. Luke's nurses provided to T.J.. Thus, there is no question of fact regarding this claim and the St. Luke's nurses are entitled to summary judgment on the negligence cause of action.

[¶29] E. St. Luke's, Pediatric Specialists, and Sioux Valley

[¶30] Plaintiffs claim that St. Luke's, Pediatric Specialists, and Sioux Valley are liable for the actions of their agents - the nurses, Soderholm, and Dr. Lang - under the doctrine of respondeat superior. Since it has been determined that there was no liability on the part of Dr. Lang, Soderholm, or the nurses, there is no liability for St. Luke's, Pediatric Specialists, or Sioux Valley. See generally Primeaux v. United States, 181 F3d 876 (8^th Cir. 1999). Thus, St. Luke's, Pediatric Specialists, and Sioux Valley are entitled to summary judgment on all the causes of action.

[¶31] Based on the foregoing discussion, it is hereby

[¶32] ORDERED that defendants' Pediatric Specialists of Sioux Falls, Dr. Terry Lang, Sioux Valley Hospital, Jon Soderholm, Monica Maurer, _____(first name unknown) Amen, Shelly Doe (last name unknown), and Kathy Doe (last name unknown) motion for summary judgment (Docket 67) is granted.

[¶33] IT IS FURTHER ORDERED that defendants' St. Luke's Hospital, Kathy Gerdes, Yvonne Abeln, Nancy Hartung and Kathy Peterson motion for summary judgment (Docket 71) is granted.

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