LANDEROS v. FLOOD (1975)

Plaintiff, Gita Landeros, appeals from a judgment of dismissal entered on an order sustaining respondents' demurrers to her amended complaint.

Appellant, a minor, through her guardian ad litem, commenced this malpractice action against A. J. Flood, a medical doctor, and The San Jose Hospitals & Health Center, Inc. (‘respondents') on April 27, 1972. The amended complaint in dispute purports to allege four causes of action. The first cause of action charges respondents with general negligence for failing to properly diagnose the so-called battered child syndrome and for failure to report the same to the proper authorities. The second and third causes of action are based on an alleged violation of the reporting statutes, claiming that by failing to report the battered child syndrome respondents violated both Penal Code, section 11161.5 (second cause of action) and Penal Code, sections 11160 and 11161 (third cause of action). The fourth cause of action sets out a claim for punitive damages for willful and wanton violation of the statutes and for reckless disregard of appellant's rights. Respondents filed general demurrers to all causes of action of the amended complaint. After a hearing, the trial court sustained respondents' demurrers as to all counts, granting leave to amend the first and second causes of action, but sustaining the demurrers to the third and fourth causes of action without leave to amend. Appellant declined to further amend, and as a result a judgment dismissing the entire action was entered.

Before discussing the merits of the case, which incidentally presents a question of first impression in the United States, we set out the principles governing general demurrers. Accordingly, in ruling upon a general demurrer the allegations of the complaint must be regarded as true. It is assumed that plaintiff can prove all the facts as alleged; defects in the pleadings which do not affect the substantial rights of the parties are disregarded; pleadings must be reasonably interpreted must be read as a whole, and each part must be given the meaning it derives from the context wherein it appears. All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief. In passing upon the sufficiency of the complaint, its allegations must be liberally construed with a view to substantial justice between the parties, and the administration of justice shall not be impeded or embarrassed by technicalities (Custodio v. Bauer (1967) 251 Cal.App.2d 303, 310, 59 Cal.Rptr. 463; Mercer v. Elliott (1962) 208 Cal.App.2d 275, 277–278, 25 Cal.Rptr. 217; M. G. Chamberlain & Co. v. Simpson (1959) 173 Cal.App.2d 263, 267, 343 P.2d 438). Bearing these principles in mind, we now proceed to closely examine and analyze whether the facts alleged in the first, second and third causes of action¹ of the amended complaint are sufficient to entitle appellant to some relief and thereby withstand a general demurrer.

First Cause of Action: The first cause of action sets forth, in essence, that on April 26, 1971, appellant, an eleven-month-old child, was taken to respondents for diagnosis and treatment of a comminuted spiral fracture of the tibia and fibula of her right leg which gave the appearace of having been caused by a twisting force. The mother, who took appellant to the hospital, provided no explanation with respect to the cause of the fractures. It is also alleged that at the time of her admission to the hospital appellant was suffering from bruises and lacerations on certain parts of her body and had a linear skull fracture which was in the process of healing. It is alleged in conclusory terms that the symptoms above described demonstrated a medical condition known as the battered child syndrome. It is asserted that respondents were negligent in failing to take X-ray pictures of appellant's bones and skull in order to confirm the syndrome and to report the case to the proper authorities. Finally, it is alleged that as a proximate result of respondents' negligence in failing to detect and report the battered child syndrome, plaintiff was released to her ‘parents'² instead of having been placed in protective custody, and that as a further proximate result she suffered permanent injury due to the subsequent willful and criminal acts of her parents.

Although in the last decade or so, much has been said and written about child abuse, not infrequently with emotional overtones³ (e. g., Kempe, Silverman, Steele, Droegermueller and Silver, The Battered-Child Syndrome (1962) 181 J.A.M.A. 17; Paulsen and Blake, The Abused, Battered and Maltreated Child: A Review (1967) 9 Trauma 4:7; Paulsen, The Legal Framework for Child Protection (1966) 66 Colum.L.Rev. 679; MeCoid, The Battered Child and Other Assaults Upon the Family, 50 MinnL.Rev. 1; Reporting of Child Abuse (1963–1965) 22 Assembly Interim Com. Report No. 8; Part 5, Criminal Procedure; The California Legislative Approach to Problems of Willful Child Abuse (1966) 54 CalL.Rev. 1805), the question presented to us is purely a legal one which calls for a determination of whether the allegations of the first count are sufficient to constitute a cause of action for medical malpractice under the common law.

The elements of a cause of action for professional negligence are, of course, well defined. They are: (1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage stemming from the professional negligence (Ventura County Humane Society v. Holloway (1974) 40 Cal.App.3d 897, 902, 115 Cal.Rptr. 464). The cases dealing with medical malpractice consistently emphasize that a physician or surgeon is not liable for every untoward result which may occur in his medical practice. The law requires only that a physician or surgeon have the degree of learning and skill possessed by practitioners of the medical profession in the same locality and that he exercise ordinary care in applying such learning and skill to the treatment of his patient. A mere error of judgment will not render a doctor responsible for untoward consequences in the treatment of his patient, because the doctor is not a guarantor of cures or required to guarantee results (Lawless v. Calaway (1944) 24 Cal.2d 81, 86, 147 P.2d 604; Huffman v. Lindquist (1951) 37 Cal.2d 465, 473, 234 P.2d 34; Custodio v. Bauer, supra, 251 Cal.App.2d at 311–312, 59 Cal.Rptr. 463; see also : Hesler v. California Hospital Co. (1918) 178 Cal. 764, 766–767, 174 P. 654; Johnston v. Brother (1961) 190 Cal.App.2d 464, 471, 12 Cal.Rptr. 23). We entertain no doubt that in light of the foregoing principles the first cause of action fails to establish common law malpractice liability for a number of reasons.

First, although it has been said by way of dictum that the battered child syndrome has become an accepted medical diagnosis (People v. Jackson (1971) 18 Cal.App.3d 504, 507, 95 Cal.Rptr. 919), the very legal, medical and sociological articles and essays referred to by appellant negate that proposition and indicate that the clinichild syndrome is far from being well decal condition designated as the battered fined or clear-cut. Rather, it includes a vast array of phenomena, such as physical, sexual and emotional abuse, as well as nutritional and medical care neglect of the child. Dr. Kempe, considered to be the founder of the battered child syndrome, himself acknowledges that the condition has been described by radiologists, orthopedists, pediatricians and social workers as “unrecognized trauma” (Kempe, et al.: The Battered-Child Syndrome, supra, p. 17.) Other articles dealing with the problem likewise point out that ‘The meaning and scope of many basic terms and concepts associated with the understanding and description of varying degrees of neglect and abuse are not clear . . .’ (Silver, Dublin and Lourie, Child Abuse Syndrome: The ‘Gray Areas' in Establishing Diagnosis (Oct. 1969) 44 Pediatrics, 595; emphasis added), and that the ‘Identification of the abused child is tempered by awareness of the fact that children may suffer physical mars, bruises, and scratches due neither to parental neglect nor intent, and at any one time may coincidentally show a variety of types of physical marks (e. g., a black eye, cut lip, bruised ear, scratches, and diaper rash burns), even though their parents may be loving, concerned, and reasonably careful.’ (The Battered Child (1971) 8 San Diego L.Rev. 364, fn. 2 at p. 365.)

In addition, the symptoms characteristic of the battered child syndrome are described in differing terms. While it has been stated that a marked discrepancy between the clinical findings and the history of the injury supplied by the parents is a major diagnostic feature of the battered child syndrome, the authorities set out additional factors which must also be taken into account in making the diagnosis. These additional factors include subdural hematomas, multiple fractures in various stages of resolution, pupuric lesions of the skin, severe burns, repeated hospitalization, unexplained malnutrition and failure to thrive. (Fontana, Donovan and Wong, The ‘Maltreatment Syndrome’ in Children (1963) 269 New Emgland J. Med. 1389; Kempe, et al: The Battered-Child Syndrome, supra.) In accord with the foregoing criteria the court in Jackson concluded that in order to establish the battered child syndrome there must be evidence of both physical injury and parental neglect (People v. Jackson, supra at p. 506, 95 Cal.Rptr. 919.)

It bears special emphasis that in the case at bench respondents were not presented with all the criteria of the battered child syndrome. The issue before us, therefore, narrows down to a determination of whether a showing of a leg fracture in the infant without adequate parental explanation creates a legal duty on the part of a doctor or hospital to undertake investigative and exploratory efforts in order to detect the possible symptoms of the battered child syndrome. We believe the answer to this question must be in the negative.

While a doctor is under a duty to diagnose and treat with due skill and diligence the medical problem presented to him, there is no authority, and appellant has furnished none, that a doctor owes a legal obligation to embark on a general investigation or exploration of unknown and unsuspected diseases or disorders to which his attention has not been called. In fact, Professor Paulsen, a foremost protagonist of the detection and prevention of child abuse, concedes that the ‘Physicians and others who are required or encouraged to report [the child abuse] ought not be asked to play detective.’ (Paulsen, Child Abuse Reporting Laws: The Shape of the Legislation (1967) 67 Colum.L.Rev, 1, 10.) Appellant has not alleged—and, in fairness, could not allege—that the discovery of the battered child syndrome was an element of the required learning and skill of medical practitioners in the locality where respondents functioned. On the contrary, the authorities point out that physicians in private practice do not encounter a sufficient number of cases to recognize the symptoms of the battered child syndrome (Gwinn, Lewin and Peterson, Roentgenographic Manifestations of Unsuspected Trauma in Infancy (1961) 176 J.A.M.A. 926; Fontana et al., The ‘Maltreatment Syndrome’ in Children, supra), and that the diagnosing of that condition is hampered first of all by the inexperience of most doctors with this type of case (The California Legislative Approach to Problems of Willful Child Abuse, supra, 54 Cal.L.Rev., p. 1808). This latter fact unmistakably demonstrates that the battered child syndrome, which undoubtedly plays a significant role in medical, legal and sociological literature, has not become—at least as yet—an integral and demonstrable part of the skill and learning of an everyday medical practitioner. It thus goes without saying that under these circumstances there is no basis for imposing a legal duty upon the members of the medical profession for the failure to recognize the syndrome.

Although appellant's failure to establish the requisite duty of care is by itself fatal with respect to her first cause of action (cf. Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 307, 29 Cal.Rptr. 33, 379 P.2d 513), we note that another element of the cause of action, i. e., proximate causation, is also conspicuously lacking. The first cause of action alleges that the proper treatment should have included not only further diagnosis of the syndrome, but also reporting the same to the child protective agencies. Analysis of that cause of action makes it clear that the duty to report was intended to serve the necessary causal link between the alleged negligence and the resulting injury.⁴ For the reasons which follow, we are persuaded that in the instant case no common law duty to report the alleged battered child syndrome arose; consequently, the essential element of proximate causation was absent as a matter of law.

One, it is axiomatic that under common law a duty to warn, if any, arises only if the danger is known to the defendant or if he is negligent in discovering the danger. However, it clearly appears from the foregoing discussion that in the case at bench respondents owed no duty to detect the battered child syndrome from the scarce symptoms presented to them, and the complaint fails to allege that respondents were in fact aware of the presence of such syndrome. Absent such knowledge of danger, no duty to report arose; and but for the obligation to report there is no causal link between the omission claimed and the injury sustained by appellant.

Two, in addition there is persuasive authority to the effect that in the absence of statute doctors are under no legal duty to report child abuse cases. Professor Paulsen elaborates in his essay that the action which a physician must undertake in treating an abused child must be judged by the standard of a reasonably prudent physician in comparable circumstances. Applying this standard, Professor Paulsen concludes that the doctor's duty to report may be only a moral, but not a legal, duty (Paulsen, Child Abuse Reporting Laws, etc., supra, 67 Colum.L.Rev. at p. 35).

The cases cited by appellant in which the courts have held that the doctor incurred liability for a failure to report (Medlin v. Bloom (1918) 230 Mass. 201, 119 N.E. 773; Dietsch v. Mayberry (1942) 70 Ohio App. 527, 47 N.E.2d 404; Jones v. Stanko (1928) 118 Ohio St. 147, 160 N.E. 456) are distinguishable from the case at bench. In all those cases the duty to report rested on clearly recognized and diagnosed contagious diseases posing a known danger to others (infectious eye disease in Medlin and Dietsch, black smallpox in Jones). Furthermore, the obligation of reporting was prescribed by statute and was not based on general rules of common law.

Second Cause of Action: By contrast, the second cause of action poses an entirely different problem. Unlike the first cause of action which is founded on common law negligence for failure to properly diagnose and treat the battered child syndrome, a vaguely defined, generally not recognizable clinical condition, the second cause of action is predicated upon the violation of a statute which explicitly provides that the doctor shall report any physical injury which appears to the doctor to have been inflicted upon the minor by other than accidental means (Pen.Code, § 11161.5).⁵ The duty to report is prescribed by the statute itself and the incident to be reported is not a fuzzy conglomerate of clinical symptoms making up the battered child syndrome but observable external injury or injuries which are properly recognizable through the expertise of a physician. In this situation the imposition of a duty to report cannot be said to be unreasonable or unjustifiably onerous.

Indeed, the primary issue relative to the second cause of action is not whether a legal duty to report exists or whether the breach of that duty is properly alleged, but rather the circumstance that the duty to report has been prescribed in a criminal statute which, while imposing criminal punishment for its violation, is entirely silent as to the possible civil consequences (cf. Pen.Code, § 11162).⁶

Addressing ourselves to this issue, we initially note that there is no requirement in California that, in order to recover tort damages for breach of a statutory duty, the legislation provide for civil consequences. Quite to the contrary, the rule is established that a duty of care and the attendant standard of conduct required of a reasonable man may be found in a legislative enactment which does not provide for civil liability (Richards v. Stanley (1954) 43 Cal.2d 60, 63, 271 P.2d 23; Routh v. Quinn (1942) 20 Cal.2d 488, 491–492, 127 P.2d 1). In fact, in this state a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm which the plaintiff suffered as a result of the violation of the statute (Vesely v. Sager (1971) 5 Cal.3d 153, 164, 95 Cal.Rptr. 623, 486 P.2d 151; see also Alarid v. Vanier (1958) 50 Cal.2d 617, 327 P.2d 897; Satterlee v. Orange Glenn School Dist. (1947) 29 Cal.2d 581, 177 P.2d 279). The Legislature has codified this presumption with the adoption of Evidence Code, section 669, which provides in pertinent part that ‘That failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.’ (Subd. (a); emphasis added. See also: Rest.2d Torts, §§ 286, 287, 288 B.)

It can hardly be debated that appellant is one of the persons for whose protection the reporting statute was enacted, or that the purpose of the statute is to prevent the parental abuse from which the injury here claimed has resulted. The authorities unanimously emphasize that the objective of a reporting statute is to promote the well-being of children,⁷ that it is extremely important that cases of suspected child abuse be brought to the attention of proper authorities as early as possible; and, because the inflicted injuries are often serious and coupled with a pattern of abuse, such children must be considered in danger as long as they remain with their parents. (The California Legislative Approach to Problems of Willful Child Abuse, supra, 52 Cal.L.Rev. at p. 1809.) In the case at bench it is alleged that due In the failure to comply with the reporting to the failure to comply with the reporting statute, appellant was returned to her parents instead of being taken into protective custody, and as a proximate result thereof she suffered permanent injury by the repeated willful and intentional acts of the parents. The conclusion is thus inescapable that appellant, a member of the protected class, suffered from the type of injury which the reporting statute intended to prevent and, as a consequence, respondents' negligence has been presumptively alleged under Evidence Code, section 669, and the authorities pertaining thereto.

Respondents nevertheless contend that the second cause of action should fail because proximate causation has not been properly alleged. In essence, respondents maintain that according to the averments of the amended complaint the injury to appellant was not proximately caused by the violation of the statute but rather by the intentional and criminal acts of third persons, which broke the chain of causation, superseded the original negligence of respondents, and relieved them from the consequences of their omission (cf. Prosser on Torts (4th ed. 1971), p. 287).

The conclusion that certain conduct is negligent involves the finding both of a legal duty to use due care and a breach of such duty by the creation of an unreasonable risk of harm. It is well settled that a defendant's negligent act need not be the sole cause of the injury; it is enough that it be a legal cause (McEvoy v. American Pool Corp. (1948) 32 Cal.2d 295, 298, 195 P.2d 783). An actor may be liable if his negligence is a substantial factor in causing an injury and he is not relieved from liability because of the intervening act of a third person if such act was reasonably foreseeable at the time of his negligent conduct. As has been consistently held, if the likelihood that a third person may act in a particular manner is one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 69, 107 Cal.Rptr. 45, 507 P.2d 653; Vesely v. Sager, supra, 5 Cal.3d at pp. 163–164, 95 Cal.Rptr. 623, 486 P.2d 151; Rest.2d Torts, § 449; see also: Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 241–242, 60 Cal.Rptr. 510, 430 P.2d 68; McEvoy v. American Pool Corp., supra, 32 Cal.2d at p. 299, 195 P.2d 783). The real issue, therefore, is not whether the intervening act was intentional and/or criminal but whether it was reasonably foreseeable.

Viewed under this standard, it appears that in the case at bench the intentional criminal act of the parents and the resulting injury to the appellant may be found to have been foreseeable. Recurrence of physical injuries is the single most noteworthy characteristic of child abuse. This fact is universally recognized by the legal, medical and sociological scholars who have studied the phenomenon of child injury.⁸

But respondents' contention cannot be sustained for the additional reason that where, as here, under undisputed facts there is room for reasonable differences of opinion, proximate causation and foreseeability of intervening acts are factual questions which cannot be resolved as a matter of law upon the pleadings (Stevens v. Parke, Davis & Co.; Vesely v. Sager; McEvoy v. American Pool Corp., all supra. See also: Weaver v. Bank of America (1963) 59 Cal.2d 428, 434, 30 Cal.Rptr. 4, 380 P.2d 644; Mosley v. Arden Farms Co. (1945) 26 Cal.2d 213, 218–219, 157 P.2d 372; Berkey v. Anderson (1969) 1 Cal.App.3d 790, 803, 82 Cal.Rptr. 67; Hession v. City & County of S. F. (1954) 122 Cal.App.2d 592, 603, 265 P.2d 542; Rest.2d Torts, § 453, comment b).⁹

Third Cause of Action: Appellant's third cause of action is premised on alleged violations of two additional Penal Code sections, viz., section 11160 which imposes on hospitals and pharmacies the duty to report injuries inflicted upon persons in violation of any penal law, and section 11161 which contains comparable provisions as to doctors.¹⁰ While appellant maintains that the obligation prescribed by these code sections is separate and distinct from the statutory duty contained in Penal Code, section 11161.5, and therefore supports an independent cause of action, respondents insist that section 11161.5 is later and specific legislation which, as far as child abuse is concerned, supersedes the provisions of Penal Code, sections 11160 and 11161, and that the alleged violation of these latter sections therefore does not constitute a separate cause of action.

It is well settled that where the terms of a later specific statute apply to a situation covered by an earlier general one, the later specific statute controls. As the court put it in Rose v. State of California (1942) 19 Cal.2d 713, 723–724, 123 P.2d 505: ‘[A] general provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.’ (Emphasis added.) (County of Placer v. Actna Cas., etc., Co., (1958) 50 Cal.2d 182, 189, 323 P.2d 753, 757; see also: People v. Gilbert (1969) 1 Cal.3d 475, 479, 83 Cal.Rptr. 724, 462 P.2d 580; In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593.)

Applying these principles to the case at bench, it is evidence that Penal Code, section 11160 and 11161.5 do not require reporting by the same persons. While section 11160 applies to: (1) every person, firm or corporation conducting a hospital or pharmacy in California; (2) the managing agent or person in charge of any of those institutions; and (3) the person in charge of a hospital ward, section 11161.5 embraces a vast range of individuals, i. e., physicians, surgeons, dentists, residents, interns, podiatrists, chiropractors, religious practitioners, registered nurses, school superintendents, certificated pupil personnel employees, school principals, teachers, licensed day care workers, administrators of summer day camp or child care centers, social workers.

Since sections 11160 and 11161.5 do not apply ‘to the same situation’ within the meaning of law, the argument that section 11161.5 has superseded or preempted section 11160 is untenable. The same, however, cannot be said about section 11161. This section prescribes a reporting duty on the part of every physician and surgeon who must report also under section 11161.5. Moreover, the scope of injuries to be reported under section 11161 is broad enough to encompass the instance of child abuse, the subject matter of section 11161.5. Since sections 11161 and 11161.5 cover the same persons and the same subject matter, section 11161.5, as later enacted special legislation, must be deemed to have superseded the general provisions of section 11161. It follows that this latter section does not support an independent cause of action for failure to report child abuse.

In summary we hold that the amended complaint in dispute does state causes of action for the alleged violation of Penal Code, sections 11161.5 (second cause of action) and 11160 (the third cause of action insofar as if applies to respondent hospital). The sustaining of respondents' demurrers as to these counts, therefore, constitutes reversible error.

For the guidance of the trial court on remand we must make it emphatically clear that we do not imply that under the facts stated appellant will be able to sustain her burden of proof. Quite to the contrary, it would seem more than obvious that both establishing duty and proving causation place on appellant an unusually heavy burden. Thus, it bears special emphasis that the statutory phrase ‘it appears to the physician . . . from observation of the minor that the minor has physical injury or injuries which appear to have been inflicted upon him by other than accidental means' (Pen.Code, § 11161.5; emphasis added), imposes a subjective standard upon the physician. Thus, a duty to report can be established only of appellant proves that the doctor in fact observed the injury and in fact believed that the injury was caused by other than accidental means.¹¹ The proof of proximate causation in this unusual type of case is also extremely onerous. This becomes increasingly manifest in light of the empirical data that, even if the report was made and the child abuse was established, the removal of the child from parental custody is discretionary. The authorities relied upon by appellant indicated that in many cases children were returned to the old environment ever after the reporting of abuses (Fontana, Letter to the Editor, 46 Pediatrics,supra at p. 319; Elmer and Gregg, Developmental Characteristics of Abused Children (1967) 40 Pediatrics 596, 602; Silver et al., Child Abuse Syndrome: the ‘Gray Areas' in Establishing a Diagnosis, supra), and only in one-third of the cases was the medical diagnosis followed by some type of legal action (Kempe, et al., The Battered-Child Syndrome, supra, p. 17; Fontana, et al., The ‘Maltreatment Syndrome’ in Children, supra). This squares with the position taken by the California cases which emphasize that the removal of the minor from parental custody is a matter of last resort and should not be ordered unless other means have failed (cf. Welf. & Inst.Code, § 726; In re Donna G. (1970) 6 Cal.App.3d 890, 894, 86 Cal.Rptr. 421).

We also remark that respondents before us are engaged in practicing medicine; as such they are in the best position to discover the suspected child abuses and possess the requisite competence to properly characterize child injuries and separate accidental ones from those intentionally inflicted. As to them the reporting statute may be considered reasonable. However, as indicated before, the reporting statute does include numerous other persons as well (e. g., school teachers, social workers, administrators of summer day camps, etc.) who, although not adequately equipped to determine from the appearance of an injury whether it was caused by accidental or nonaccidental means, are nonetheless under the same statutory duty to report as are doctors and other medical professionals. We profoundly believe that the possible extension of civil liability to these persons for mere failure to report would raise serious questions of fairness and would subject the statute to a constitutional challenge for unreasonableness, uncertainty and vagueness (cf. People v. Madearos (1964) 230 Cal.App.2d 642, 41 Cal.Rptr. 269).

The judgment is reversed with directions to overrule the demurrers as to the second and third causes of action in accordance with the views herein expressed.

FOOTNOTES

1.  On appeal appellant has abandoned the fourth cause of action.

2.  In actual fact the child was living with her mother and the latter's common law husband. The record is silent as to the child's natural father. For purposes of clarity we shall refer to plaintiff's mother and the latter's common law husband as plaintiff's parents.

3.  For example, Fontana, Somewhere a Child is Crying (1973) (McMillan, p. 57) describes the abused child as follows: ‘In summary, what is the maltreated child? He is a child who is pushed around, thrown down stairs, dropped out of windows, burned with cigarette butts, fried on stove tops, scalded in boiling water, manhandled, beaten, tortured, a victim of bizarre accidents, battered to death, found in the river or rock pile. He is ignored, to get into whatever trouble he may, hungry to the point of starvation, crawling with vermin, begging in the streets, arriving shoeless at school, sexually abused, a youthful drug addict, or the pawn of addict parents. He is life-starved and love-starved, insidiously neglected, growing up without a sense of self-esteem, a hater and potential killer, a future child abuser learning dreadful lessons in the art of handling his, or her, own children.’

4.  The pertinent part of the first cause of action of the amended complaint reads as follows: ‘13. Proper diagnosis would have included x-rays of plaintiff's long bones and skull, by which GITA's linear skull fracture would have been discovered. This was not done. Proper treatment, would have included reporting plaintiff's appearance or condition to the local police authority, juvenile probation department or other child protective servece. Nor was this done. Such reporting would have resulted in an immediate investigation by the concerned agencies followed by protective custody for GITA from which she would have not been released until her safety was assured.‘14. As a proximate result of the negligence of said defendants, and each of them, plaintiff was released from defendant SAN JOSE HOSPITAL and from the medical care and treatment of defendant, and each of them, without her battered child syndrome having been properly diagnosed or treated, and returned to ALMA LANDEROS and JAMIE REYES, with the further proximate result that ALMA LANDEROS and JAMIE REYES continued and persisted in subjecting plaintiff to cruel and inhuman abuse, and they wilfully and intentionally inflicted further bodily harm and mental suffering on plaintiff, so that, finally, on or about July 1, 1971, plaintiff sustained and suffered from great traumatic blows to her right eye and back, puncture wounds over her left lower leg and across her back, severe bites on her face, and second and third degree burns to plaintiff's left hand.’ (Emphasis added.)

5.  Penal Code, section 11161.5 provides in part that ‘(a) In any case in which a minor is brought to a physician and surgeon, dentist, resident, intern, podiatrist, chiropractor, or religious practitioner for diagnosis, examination or treatment, or is under his charge or care, or in any case in which a minor is observed by any registered nurse when in the employ of a public health agency, school, or school district and when no physician and surgeon, resident, or intern is present, by any superintendent, any supervisor of child welfare and attendance, or any certificated pupil personnel employee of any public or private school system or any principal of any public or private school, by any teacher of any public or private school, by any licensed day care worker, by an administrator of a public or private summer day camp or child care center, or by any social worker, and it appears to the physician and surgeon, dentist, resident, intern, podiatrist, chiropractor, religious practitioner [practitioner], registered nurse, school superintendent, supervisor of child welfare and attendance, certificated pupil personnel employee, school principal, teacher, licensed day care worker, by an administrator of a public or private summer day camp or child care center or social worker from observation of the minor that the minor has physical injury or injuries which appear to have been inflicted upon him by other than accidental means by any person, * * * that the minor has been sexually molested, or that any injury prohibited by the terms of Section 273a has been inflicted upon the minor, he shall report such fact by telephone and in writing, within 36 hours, to both the local police authority having jurisdiction and to the juvenile probation department; or, in the alternative, either to the county welfare department, or to the county health department. The report shall state, if known, the name of the minor, his whereabouts and the character and extent of the injuries or molestation.‘Whenever it is brought to the attention of a director of a county welfare department or health department that a minor has physical injury or injuries which appear to have been inflicted upon him by other than accidental means by any person, that a minor has been sexually molested, or that any injury prohibited by the terms of Section 273a has been inflicted upon a minor, he shall file a report without delay with the local police authority having jurisdiction and to the juvenile probation department as provided in this section.‘No person shall incur any civil or criminal liability as a result of making any report authorized by this section.’ (Emphasis added.)

6.  Penal Code, section 11162, sets forth that ‘Any person, firm or corporation violating any provision of this article is guilty of a misdemeanor and is punishable by imprisonment in the county jail not exceeding six months or by a fine not exceeding five hundred dollars ($500), or by both.’

7.  The model statute provides that ‘The purpose of this Act is to provide for the protection of children who have had physical injury inflicted upon them and who are further threatened by the conduct of those responsible for their care and protection. Physicians who become aware of such cases should report them to appropriate police authority thereby causing the protective services of the State to be brought to bear in an effort to protect the health and welfare of these children and to prevent further abuses.’ (Children's Bureau DHEW, The Abused Child: Principles and Suggested Language for Legislation on Reporting of the Physically Abused Child, 1 (1963) (emphasis added); see to the same effect: Paulsen, The Legal Framework for Child Protection, supra, 66 Colum.L.Rev. at p. 710).

8.  The following excerpts are illustrative of the consensus reached on this subject. ‘Repetition of Injury.—This is probably the most important factor in producing diagnostic radiological signs of the syndrome’ (Kempe, et al., The Battered-Child Syndrome, supra, at p. 22). ‘[O]ver 50 per cent of these [abused] children are liable to secondary injuries or death if appropriate steps are not taken to remove them from their environment.’ (Fontana, et al., The ‘Maltreatment Syndrome’ in Children, supra at p. 1393.) ‘In our experience and in the experience of others, returning a ‘battered’ child to an inadequate family environment oftentimes leads to further inflicted injury to these children' (Fontana, Letter to the Editor, 46 Pediatrics 318, 319). The recidivism rate for battered child offenses is quite high—tragically so for the children involved. Experiences with the respective nature of injuries indicate that an adult who has once injured a child is likely to repeat. The child must be considered in grave danger unless his environment can be proved to be safe. (Grummet, The Plaintive Plaintiffs: Victims of the Battered Child Syndrome (1970) 4 Fam.Law Quart. 296, 303–304.) ‘We know that adults who attack children are likely to repeat the incident. In view of the repetitive nature of the injuries, authorities in this subject therefore believe it is dangerous to permit these children to remain or return to their own home until the homes have been proved to be safe.’ (Rubin, The Need for Intervention (1966) 24 Pub.Welfare 230, 231.) (Emphases added.)

9.  Restatement Second of Torts, section 453, comment b, sets out that ‘If the facts are undisputed, it is usually the duty of the court to apply to them any rule which determines the existence or extent of the negligent actor's liability. If, however, the negligent character of the third person's intervening act or the reasonable foreseeability of its being done (see §§ 447 and 448) is a factor in determining whether the intervening act relieves the actor from liability for his antecedent negligence, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was negligent or foreseeable, the question should be left to the jury.’ (Emphasis added.)

10.  Penal Code, section 11160, sets forth that ‘Every person, firm or corporation conducting any hospital or pharmacy in the state, or the managing agent thereof, or the person managing or in charge of such hospital or pharmacy, or in charge of any ward or part of such hospital to which any person suffering from any wound or other injury inflicted by his own act or by the act of another by means of a knife, gun, pistol or other deadly weapon, or in cases where injuries have been inflicted upon any person in violation of any penal law of this state shall come or be brought, shall report the same immediately, both by telephone and in writing, to the chief of police, city marshal, town marshal or other head of the police department of any city, city and county, town or municipal corporation of this state, or to the sheriff, if such hospital or pharmacy is located outside the incorporated limits of a city, town or other municipal corporation. The report shall state the name of the injured person, if known, his whereabouts and the character and extent of his injuries.’Penal Code, section 11161, in turn, provides that ‘Every physician or surgeon who has under his charge or care any person suffering from any wound or injury inflicted in the from any wound or injury inflicted in the manner specified in Section 11160 shall make a report of the kind specified in this article to the appropriate officers named in Section 11160.’ (Emphasis added.)

11.  This, of course, means that a plaintiff seeking to recover under section 11161.5 must make out a case on testimony and evidence extracted from the defendant. While this standard of liability is unusual, the statute by its very terms permits of no other interpretation; and, in our opinion, potential liability based upon an objective standard would impose ad intolerable and unfair burden upon those persons described in the reporting statute (§ 11161.5).

KANE, Associate Justice.

TAYLOR, P. J., and ROUSE, J., concur.