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Monday, February 17, 2020

Doctors not liable for misdiagnosis of sexual abuse

By Jessica M. Karmasek | Mar 4, 2011

Justice Kaye Hearn wrote, "In our view, the good faith willingness of medical providers to identify the existence of sexual abuse should not be chilled or otherwise compromised by subjecting them to malpractice actions."

COLUMBIA, S.C. (Legal Newsline) - The South Carolina Supreme Court has upheld a lower court's ruling in favor of a doctor who allegedly misdiagnosed a 4-year-old girl as a victim of sexual abuse.

The Court, in its opinion filed Feb. 22, was asked to decide whether South Carolina should recognize a third party cause of action for negligent diagnosis of sexual abuse.

The Court ruled it held no such cause of action exists and affirmed a circuit court's grant of summary judgment in favor of Dwight Raymond Reynolds, the medical director of the Lexington County Children's Center, Inc.

Reynolds had examined the girl for about 30 seconds to a minute, according to Court documents, took photographs and videotape for later reference. He diagnosed her with a torn hymen and concluded she was sexually abused.

Kirby Oblachinski was subsequently indicted for criminal sexual conduct with a minor, but the charges were dropped after a second doctor concluded Reynolds misdiagnosed the child and opined Reynolds' examination fell below the standard of care.

Oblachinski then brought a civil suit against his accusers, and Reynolds testified during that action on Oblachinski's behalf.

The doctor admitted there was no evidence of blunt force trauma to the hymen, that the female victim had a "perfectly normal hymen," and he had made a mistake in his earlier diagnosis.

Following the civil suit, Oblachinski brought a separate suit against Reynolds and Lexington Pediatric Practice, alleging negligence in examining and diagnosing the girl.

The circuit court granted Reynolds and his practice's motion for summary judgment, finding that they owed no duty of care to Oblachinski. The Supreme Court appeal followed.

Justice Kaye G. Hearn, who authored the Court's majority opinion, wrote that an "essential element" in a cause of action based on negligence is the existence of a legal duty of care owed by the defendant to the plaintiff.

Without a duty, there is no actionable negligence, the Court said.

"Even though the harm which befell Oblachinski as a result of the misdiagnosis may have been reasonably foreseeable, we believe important policy concerns weigh against extending a duty to him in this case," Hearn wrote for the Court.

"The devastating nature of child sexual abuse charges requires that they be lodged only after a careful and thorough investigation. Juxtaposed against this important principle is the equally compelling goal of protecting children from sexual abuse. Medical diagnoses of sexual abuse as well as a child's ability to accurately relate the history of such incidents are not as absolute and infallible as they ought to be, given the serious consequences that may result.

"In our view, the good faith willingness of medical providers to identify the existence of sexual abuse should not be chilled or otherwise compromised by subjecting them to malpractice actions. While in no way minimizing the traumatic effect to an individual wrongfully accused of child sexual abuse, an analysis of the competing policy ramifications of our decision persuades us to refuse to recognize a cause of action in this situation," the Court concluded.

Acting Chief Justice Costa M. Pleicones dissented in part and concurred in part.

"I agree that the question of the existence of a duty is one for the Court, and that policy concerns must govern our decision to extend the duty of a diagnosing physician to a third party. I also agree that we must tread warily where the diagnosis sought to be challenged is that of sexual abuse of a child. Moreover, these concerns lead me to agree that negligence alone is not the appropriate standard for the duty," Pleicones wrote.

"I would hold, however, that a professional owes a duty to third persons to refrain from examining and diagnosing a child as a victim of sexual abuse in a reckless manner. In finding such a duty, I have considered not only the stigma that attaches to a person accused of such abuse, but also of the suffering of a child falsely labeled a sexual abuse victim."

The judge said he would reverse the circuit court's order.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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