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Rubinstein v. Baron

April 15, 1987

HOWARD RUBINSTEIN AND DEBRA RUBINSTEIN, PLAINTIFFS,
v.
HARVEY L. BARON, M.D., DEFENDANT



Arnold, P.J.Cv.

Arnold

OPINION

In this defamation action plaintiffs allege that the defendant, who is a physician, maliciously reported that their child had been subjected to child abuse. The defendant has moved for summary judgment raising the issue of the scope of the immunity afforded by N.J.S.A. 9:6-8.13. Because this court concludes that the statute affords the defendant an absolute privilege, the motion for summary judgment is granted.

On July 25, 1985 the defendant, Dr. Baron, received a telephone call from the doctor on duty in the emergency room at Somerset Medical Center. The defendant was asked to go to the hospital to treat a three-year-old child who had sustained a spiral fracture of the left femur. Upon arrival at the hospital the defendant examined the child. He then spoke with the child's parents, the plaintiffs, to explain his recommended

course of treatment. Although the facts surrounding this discussion are in sharp dispute, it is clear that there was a heated argument, that the plaintiffs discharged the defendant, and that there is sufficient proof from which the trier of fact could reasonably conclude that the defendant acted with malice in subsequently reporting that the child had been the victim of child abuse. An investigation by the Division of Youth and Family Services (DYFS) resulted in a finding that the child had not been abused.

N.J.S.A. 9:6-8.10 requires persons having "reasonable cause" to believe that a child has been subjected to child abuse or acts of abuse to report it promptly to the Bureau of Children's Services (DYFS is the successor to the Bureau of Children's Services. N.J.S.A. 30:4C-2). Specifically, the statute reads in relevant part as follows:

Any person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse shall report the same promptly to the Bureau of Children's Services by telephone or otherwise. . . .

N.J.S.A. 9:6-8.13 provides immunity for persons acting pursuant to the Act who report child abuse. Specifically, the statute reads in relevant part:

Anyone acting pursuant to this act in the making of a report under this act shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed.

The defendant submitted two certifications in support of his motion for summary judgment. In his own certification the defendant, a specialist in orthopedics and orthopedic surgery, states that when he arrived at the emergency room he asked the emergency room physician about the possibility of child abuse since the spiral fracture suffered by the child is very often found in child abuse cases. The defendant also refers this court to a passage from Pediatric Orthopaedics by Lovell & Winter. On page 1152 of that text the following is found: "Spiral or oblique fractures, especially in the lower limbs and in nonambulatory children, are suggestive of abuse." The defendant has also provided this court with an article entitled "Child Abuse in a Military Population" by William A. Herndon, which

appeared in the Journal of Pediatric Orthopedics, Volume 3, Number 1, 1983, which states: "The tibia and femur were the most common broken long bones . . . the most common fracture pattern in the ...


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