Dental Office Shows Teeth in Reporting Drill

On Feb. 8, 1993, Angel Tayyan of Santa Ana took her son, who was almost 4, to the dentist. The dentist prescribed work on some cavities and raised the specter of possible infection. On March 2, after receiving insurance company authorization to pay for some of the charges, the dentist’s office called Tayyan back to set an appointment.

By then, however, Tayyan had developed misgivings about the dental office. She informed the office manager that she was getting a second opinion on her son’s condition and likely was going to seek treatment elsewhere. Tayyan said her son was fine, but the office manager insisted that the boy’s condition was potentially serious and he needed to be brought in. Tayyan refused and asked that the office manager not phone her again.

Over the next week, the office manager made at least five calls to the Tayyan household. Tayyan says the calls became increasingly harassing in nature, with the office manager eventually questioning Tayyan’s fitness as a mother and threatening to report her to the county Social Services Agency, which she did. Tayyan says that the office manager at various points told her she didn’t deserve to have children, adding, “If you cannot take care of your children, I am going to see to it that somebody else will take care of them for you.”

A few days later, Tayyan sued the dental office, alleging infliction of emotional distress.

At trial, Tayyan’s attorney made a brief opening statement. The dentist’s attorneys then asked the judge to dismiss the case on the grounds that, under state law, he and his staff had immunity because they were required to report suspected child abuse--in this case, parental neglect. Even if all the allegations about the phone calls were true, they argued, the dental office was protected. Superior Court Judge Robert Todd agreed, and the jury never heard the facts argued.

Tayyan appealed. Last month, a three-judge panel in the state’s 4th District Court of Appeal upheld Todd.

George Saba, Tayyan’s attorney, is still steaming. “We have to put a check on that reporting act,” he said this week. “It can’t go in like a runaway train. If we don’t stop this, believe me, people will be breaking down your door, coming in under the argument, ‘Hey, I’m a health-care provider, I’m here to check on your son.’ To me, this absolute immunity is a runaway train. We’ve seen it go through towns destroying people. We’ve got to put a stop to it, slow it down at least.”

A quick legal aside: The narrative I used above is taken from the appellate court ruling, written by Justice William Bedsworth. Because the case didn’t go to trial, the court is required to accept Tayyan’s version of events, even while noting that the defense might have disputed it had a jury heard the case.

Indeed, Charles Peterson, an attorney representing the dental office, told me this week his clients would have denied the heart of the allegations had the case gone to trial. However, even if they conceded them to be true, Peterson said, his clients still deserved absolute immunity.

Peterson said the boy “needed to be hospitalized for his dental problems.”

The dentist and his staff, Peterson said, “were just trying to see that the little guy got treatment. The mother took it a different way.” Saba said the boy was never in serious jeopardy and that his mother secured the proper treatment. “This had nothing to do with the boy’s health,” he said. “The calls were made just to harass her.”

Saba said he could understand perhaps a single follow-up call from the dentist. But when Tayyan informed the office about what Saba calls “a motherly choice” to get treatment elsewhere, the calls should have stopped, he said.

If past columns on this subject are any gauge, the public will be divided on this case. My argument continues to be that while society must protect children who can’t protect themselves, parental rights shouldn’t be trampled.

Writing for the court, Bedsworth cited the original 1980 California statute and subsequent case law. Before the law was passed, he wrote, health-care professionals and teachers failed to report suspected abuse “for fear of personal liability in the event their suspicions were proven wrong.” The Legislature, he noted, “chose the measure that would provide the most protection for abused and neglected children, even if some investigated individuals would be left without redress against those who made incorrect reports.”

To show how far the law goes in protecting “required reporters” of suspected abuse, Bedsworth cited a 1986 case in which an appellate court noted, “We can conceive of a situation in which a medical practitioner maliciously and knowingly submits a false report of child abuse with the intent to vex, annoy and harass an innocent party.”

Still, the courts have upheld that it was the Legislature’s right to tilt the scales as it sees fit.

In the Tayyan case, Bedsworth wrote that “the facts present the very hypothetical of a malevolent report by a vindictive practitioner envisioned [in the 1986 ruling]. The harassing phone calls, threats and malicious reporting, if proven, would constitute intentional misconduct. Nonetheless, as the conduct can be viewed objectively as rationally related to the collection of data giving rise to the report, immunity must attach. To hold otherwise could erode the immunity our Legislature deemed paramount.”

That, my fellow citizens, is the law in California.

Saba won’t appeal the ruling, but told me: “It’s been bugging the hell out of me. How can we let them get away with this? This is ridiculous. I can understand protecting children who are abused. I sympathize with them, but my God, we’ve got to put some check on these people, especially the unscrupulous ones.”

Peterson, representing the dental office, called the decision “a victory for children.” The immunity clause, he said, was enacted “to make sure that kids are not abused,” noting that without it, health-care professionals might be reluctant to raise warning flags about possible abuse.

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Dana Parsons’ column appears Wednesday, Friday and Sunday. Readers may reach Parsons by calling (714) 966-7821 or by writing to him at the Times Orange County Edition, 1375 Sunflower Ave., Costa Mesa, CA 92626, or by e-mail to [email protected]