The child abuse reporting laws in force in January 1994 when the defendant-psychologist reported the sexual abuse of the plaintiff's daughter (Melanie) were in 21 O.S. 1991 §§ 843[ 21-843]-848. Without any substantive change these statutes were carried from Title 21 to Title 10 by legislation enacted in 1995 (Oklahoma Child Abuse Reporting and Prevention Act, 10 O.S.Supp. 2001 § 7101[ 10-7101] et seq). For the terms of the earlier (pre-1995) statutory reporting privilege see 21 O.S. 1991 § 847[21-847] [ now 10 O.S.Supp. 2000 § 7105[ 10-7105]], infra note 21.

According to the evidentiary materials, several victim protective orders, custody modifications, and contempt citations were sought.

For the Psychologists Licensing Act see 59 O.S. 1991 §§ 1351-1376.

Dr. Lashley's typed notes of 20 January 1994 state that she contacted DHS and Melanie's family lawyer about Melanie's allegations of sexual abuse. Dr. Lashley's handwritten notes of 30 January 1994 indicate that she contacted about the sexual abuse Melanie's mother, DHS, the Bethany police as well as an attorney.

The mother notified the Oklahoma City police about Melanie's allegations of sexual abuse and the Bethany police about M.D.M.'s allegations of sexual abuse.

The grandmother's original petition alleged that Rhonda had communicated to M.D.M., and to the grandmother's friends and associates, that Phyllis Myers had sexually molested M.D.M. The father's original petition alleged that Rhonda had communicated to his three daughters and their friends as well as to his friends and associates that he had sexually molested his three daughters and that he continued to be a threat to the daughters as well as to other children.

The record for this appeal reflects that the Gilbert Medical Center, Inc. was dismissed with prejudice by order entered 9 September 1999. According to the trial court's 9 November 2000 order, Gilbert Medical Center and Rhonda Thomason were declared by stipulation to be no longer parties defendant in this action. Although the latter order is not in the record for appeal, it was included in the appendix to Dr. Lashley's 22 November 2000 application for a writ of mandamus, styled on this court's docket as Dr. Karen H. Lashley v. The Honorable Nancy L. Coats, No. 95,537. An appellate court may take judicial notice of its own records in litigation interconnected with a cause before it. Matter of C.A.D., 1992 OK 89, 839 P.2d 165, 169 n. 10; Reeves v. Agee, 1989 OK 25, 769 P.2d 745, 756 n. 40.

The record includes an unstamped copy of the first amended petition. Item 3 on the Index to Contents of Record. The court clerk's certificate informs us that the documents listed on the index "are true and correct copies of the originals on file in the court clerk's office in the consolidated case."

Dr. Lashley alleges as affirmative defenses: negligence of third parties over whom she had no control, Myers' contributory and comparative negligence, intentional misconduct of Myers and/or of third parties over whom she had no control, lack of a duty to Myers, and her law-imposed duty to report which protects her from liability.

The trial court found that (a) as a matter of law Dr. Lashley owes no duty to Myers and (b) the claim is not actionable under state law when measured in light of Paulson v. Sternlof, 2000 OK CIV APP 128, 15 P.3d 981; Zaharias v. Gammill, 1992 OK 149, 844 P.2d 137 and 10 O.S.Supp. 2000 § 7105.

Akin v. Missouri Pacific R. Co., 1998 OK 102, ¶ 35, 977 P.2d 1040, 1054; Bivins v. State ex rel. Oklahoma Memorial Hosp., 1996 OK 5, ¶ 22, n. 40, 917 P.2d 456, 465, n. 40; Matter of Estate of Maheras, 1995 OK 40, ¶ 7, 897 P.2d 268, 272 n. 6; Wright v. Grove Sun Newspaper Corp., Inc., 1994 OK 37, ¶ 18, 873 P.2d 983, 992.

In the course of the original proceeding in this court Dr. Lashley sought to compel the trial judge (1) to order Melanie Myers and M.D.M. to provide medical authorization; or to issue an order waiving Melanie's and M.D.M.'s medical privilege and (2) to compel the guardian ad litem (of M.D.M. and former guardian ad litem of Melanie Myers) to provide pertinent testimony and records. In the event her request were denied, Dr. Lashley sought an order that would: (1) compel the trial court to bifurcate the Myers' trials; and/or (2) grant her relief from Judge Amick's orders of 26 July 1996 (by which he denied her motion for order requiring limited waiver of psychologist-patient privilege) and of 11 June 1998 (overruling motion to compel Dr. Lashley to produce interrogatories and documents, by which Judge Amick reiterated his previously declared position that the psychologist-patient privilege has not been waived).

This court's 16 January 2001 order in Dr. Lashley's original proceeding states in pertinent part:

Original jurisdiction is assumed; all proceedings in this court are stayed until the parties have secured from the trial court, through appropriate procedural means, the following determinations:

(1) Whether the plaintiffs' claim is actionable under the laws of this State when measured in light of Paulson v. Sternlof, 2000 OK CIV APP 128, [15] P.3d [981]; Zaharias v. Gammill, 1992 OK 149, 844 P.2d 137; and 10 O.S. 2000 Supp. § 7105; see also Bryson v. Tillinghast, 1988 OK 6, 749 P.2d 110; and

(2) If the preceding question be answered in the affirmative, then whether the defendant below is effectively precluded from advancing her critical theories of defense by legal barriers that operate to render her virtually defenseless.

21 O.S. 1991 §§ 843[ 21-843]-848 [ now 10 O.S.Supp. 2000 § 7101[ 10-7101] et seq.].

For the statutory reporting privilege Dr. Lashley relies on the provisions of 10 O.S.Supp. 2000 § 7105[ 10-7105]. For the terms of the earlier (pre-1995) statute, see 21 O.S. 1991 § 847[21-847], infra note 21.

The terms of 21 O.S.Supp. 1992 § 845[ 21-845] ( now 10 O.S.Supp. 2001 § 7102[ 10-7102]) provided in pertinent part:

A. It is the policy of this state to provide for the protection of children who have had physical injury inflicted upon them and who, in the absence of appropriate reports concerning their condition and circumstances, may be further threatened by the conduct of persons responsible for the care and protection of such children.

B. As used in Sections 846 and 848 of this title:

1. "Abuse and neglect" means harm or threatened harm to a child's health or welfare by a person responsible for the child's health or welfare;

2. "Harm or threatened harm to a child's health or welfare" includes but is not limited to nonaccidental physical or mental injury; sexual abuse, sexual exploitation, . . .

The pertinent terms of 21 O.S.Supp. 1993 § 846[21-846] [ now 10 O.S.Supp. 2000 § 7103[ 10-7103]] were:

A. 1. Every:

a. physician or surgeon, including doctors of medicine and dentistry, licensed osteopathic physicians, residents and interns, examining, attending or treating a child under the age of eighteen (18) years,

b. registered nurse examining, attending or treating such a child in the absence of a physician or surgeon,

c. teacher of any child under the age of eighteen (18) years, and

d. other person having reason to believe that a child under the age of eighteen (18) years has had physical injury or injuries inflicted upon him by other than accidental means where the injury appears to have been caused as a result of physical abuse, sexual abuse, or neglect, shall report the matter promptly to the county office of the Department of Human Services in the county wherein the suspected injury occurred.

* * *

B. It shall be a misdemeanor for any person to knowingly and willfully fail to promptly report any incident as provided in this section. . . .

21 O.S. 1991 § 848[ 21-848] [ now 10 O.S.Supp. 2000 § 7103[ 10-7103] (A)(3)].

21 O.S.Supp. 1993 § 846[21-846] (B) [ now 10 O.S.Supp. 2000 § 7103[ 10-7103] (C)(D)], supra note 18.

The pertinent provisions of 21 O.S. 1991 § 847[21-847] [ now 10 O.S.Supp. 2000 § 7105[ 10-7105]] were:

Any person participating in good faith and exercising due care in the making of a report pursuant to the provisions of Section 846 or 846.1 of this title, or any person who, in good faith and exercising due care, allows access to a child by persons authorized to investigate a report concerning the child shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed. Any such participant shall have the same immunity with respect to participation in any judicial proceeding resulting from such report.

When the court is called upon to determine if a statute applies to a given scenario, its analysis focuses on the intent of the legislature. Cooper v. State ex rel. Dep't of Pub. Safety, 1996 OK 49, ¶ 10, 917 P.2d 466, 468. The law-making body is presumed to have expressed its intent in the statute's language and to have intended what the text expresses. TXO Production Corp. v. Oklahoma Corp. Comm'n, 1992 OK 39, ¶ 7, 829 P.2d 964, 969. Only where the intent cannot be ascertained from a statute's text, as it would occur when ambiguity or conflict (with other statutes) was shown to exist, may rules of statutory construction be employed. Cooper, supra, at ¶ 10, at 468; TXO, supra, at ¶ 7, at 969.

For the then-effective statutory privilege see 21 O.S. 1991 § 847[21-847] [now 10 O.S.Supp. 2000 § 7105[ 10-7105]], supra note 21.

Lynn v. Shaw, 1980 OK 179, ¶ 9, 620 P.2d 899, 901 affords an eloquent example for this case. There, the court considered the continued actionability of criminal conversation. The question presented was whether that common-law tort survived the statutory abrogation of two other torts — those of alienation of affection and of seduction. According to the teaching of Lynn, because criminal conversation is a necessary ingredient of, and is intertwined with, both abolished torts, it stands abrogated by implication (although it was not expressly mentioned in the statute by its name). Similarly here the statute conferring Dr. Lashley's invoked privilege does not limit its sweep to liability on any one theory, but rather covers the harm occasioned by her obedience to the duty.

All of the plaintiffs' harm doubtless flows from the defendant's act of reporting. This stands uncontradicted. Record, Plaintiffs' Exhibit H, Deposition of Phyllis Myers, pages 74-75, Appendix infra at ¶ 62. Not only does the acceptable proof fail to support the notion that substandard evaluative techniques alone produced Myers' injury, the law itself militates against that legal conclusion.

The reporting requirement does not insulate health care professionals from legally cognizable liability to their patients. It neither affects the existence of physician-patient relationship nor the duties that may flow from that status. We need not (and do not) address here the actionability of a claim for harm that flows to the children.

Steve Myers sought damages for "loss of income," "loss of companionship of his daughters," "mental anguish and emotional distress at being called a child molester," loss of "love and affection of his daughters" and "interference with the family relationship;" Phyllis Myers for "lost income from the . . . day care business" that she and her son owned, "medical expense," "mental anguish and emotional distress," "damage to her reputation," and "loss of enjoyment of the consortium of her granddaughter" M.D.M. Rec. Tab #6 (joint response to motion for summary judgment at pgs. 19, 24).

Myers would describe their claim as one for malpractice. A more accurate characterization might be one for negligent use of improper evaluative techniques in child abuse diagnosis that required a report to the authorities. The former claim would seek vindication for injury to the children, while the latter is for harm to Myers. No matter what language is used in attempting to pigeonhole the tort in contest, the hurdle to liability is the same.

The qualifiedly concurring justice calls for the court to recast its analysis with greater emphasis on negligence, but does not suggest or show a method of overcoming the unpierced statutory privilege.

The qualifiedly concurring justice incorrectly attributes to the court's opinion a flaw occasioned by converting Myers' theory of recovery from professional negligence to bad-faith reporting of child abuse. The gist of today's pronouncement is that no matter what Myers' theory of liability, the harm for which they seek to recover is that which resulted to them, not from Dr. Lashley's diagnosis and treatment, but from her child abuse report to the authorities. The qualifiedly concurring justice's first premise, stated in the opening paragraph of his writing, is hence flawed.

For Myers' damages, see supra note 27.

The qualifiedly concurring justice calls on the court to follow the nisi prius theory that rests its judgment for Dr. Lashley on her lack of duty to a nonpatient. We know of no rule that either mandates a slavish appellate adherence to the reasoning or analysis of the nisi prius court or requires this court to follow counsel's arguments that are not dispositive of the case. In sum, we are not frozen to theories either advanced in the trial court or utilized by the nisi prius judge.

For the psychotherapist/patient privilege, see infra note 58.

It is of no significance, even if we were to concede (which we do not), that the privilege asserted must be analyzed solely on Myers' theory of professional negligence. The result would be the same. Myers know not of, and assert not, an injury to the patient but to themselves. Moreover, their own injury stems not from wrong evaluative techniques, but from the report's revelations. The children's injury may have been proximately caused by substandard evaluative techniques whereas Myers' injury would be from reporting based on those techniques' results. If harm from the consequences of reporting — Dr. Lashley's act alleged to be delictual - is protected by privilege, what matters here is not the theory of liability, but the outer reach of the statutory privilege.

Because we conclude today that whatever liability may be pressed is extinguished by the invoked statute-conferred privilege of reporting, we need not precisely define the essence of the tort Myers seek to prosecute against Dr. Lashley.

The qualifiedly concurring justice's call would not change the conclusion that withholds victory from Myers. A lawyer may be liable in a malpractice suit brought by a nonclient. See Bradford Securities Processing Serv., Inc. v. Plaza Bank Trust, 1982 OK 96, 653 P.2d 188,190-91 (where the court rejected the then-decades-old pronouncement by Cardozo, J., in Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931), which holds that professional malpractice defendants are not liable to third parties for the breach of a duty to the client). A Bradford analysis focuses on whether "the conduct of an ordinarily prudent man based upon the dangers he should reasonably foresee" to the plaintiff "in view of all the circumstances of the case [is sufficient] to bring the plaintiff within the orbit of defendant's liability." Id., at ¶ 10, at 191. That inquiry would indeed be in vain here. Dr. Lashley is clearly protected by an unpierced statutory privilege.

See Patterson v. Beall, 2000 OK 92, ¶ 4, 19 P.3d 839, 849-50 (Opala, J., dissenting) for a warning sounded against "hyperglobal" pronouncements. "Another facet of the common law, one rooted in the Western Concept of legislative supremacy, is that precedent-issuing courts have no lawmaking power beyond the facts of the particular dispute being entertained. A legislature can issue a rule which captures, in its generality, an infinite number of future situations, but court holdings cannot extend, theoretically, beyond the precise situations being adjudicated." Richard B. Cappalli, The American Common Law Method § 2.15 at page 18 [1997].

The common-law technique abhors the notion of an excess appellate pronouncement — one that goes beyond the issues of the case and results in obiter dictum. This principle coincides with the demands of judicial economy. Caselaw is confined to dimensions coextensive with its binding force. Patterson, supra note 37 at 849-50 (Opala, J., dissenting).

Id. The separate writing of the qualifiedly concurring justice would adopt as a common-law norm the very same public policy the court divines today from clearly expressed legislative will.

Manley v. Brown, 1999 OK 79, ¶ 22, 989 P.2d 448, 455-56.

Russell v. Bd. of County Comm'rs, 1997 OK 80, ¶ 7, 952 P.2d 492, 497; Gray v. Holman, 1995 OK 118, ¶ 11, 909 P.2d 776, 781.

Mahan v. NTC of America, 1992 OK 8, ¶ 2, 832 P.2d 805, 808 (Opala, C.J., concurring) ("The de novo standard of review is utterly nondeferential because it ascribes absolutely no weight to a lower tribunal's findings."). An order that grants summary relief, in whole or in part, disposes solely of law questions. It is hence reviewable by a de novo standard. Brown v. Nicholson, 1997 OK 32, ¶ 5, 935 P.2d 319, 321; Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1083 ("Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary independent and non-deferential authority to re-examine a trial court's legal rulings."); Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).

Manley, supra note 40 at ¶ 24, at 456.

" Onus probandi," onus for short, means the burden of proof. Webster's Third New International Dictionary 1577 (1961).

Manley, supra note 40 at ¶ 24, at 456. A plaintiff who confronts in summary process a demonstrated absolute defense cannot save the claim from legal defeat by mere silence.

"Bad faith in fact, or mala fides, is the opposite of good faith, and consists in guilty knowledge, or willful ignorance, showing a vicious or evil mind. . . ." Burnham Loan Investment Co. v. Sethman, 171 P. 884, 887 (Colo. 1918) (emphasis supplied); National Mut. Cas. Co. v. Britt, 1950 OK 159, ¶ 10, 218 P.2d 1039, 1041 ("Bad faith is the antithesis of good faith . . ."); May's Drug Stores, Inc. v. State Tax Commission, 45 N.W.2d 245, 255 (Iowa 1951) (" Bona fides or good faith is the opposite of mala fides or bad faith. . . ."). Good faith is defined by 25 O.S. 1991 § 9[ 25-9] as "an honest intention to abstain from taking any unconscientious advantage of another." Another definition of good faith appears in 12A O.S. 1991 § 1-201[ 12A-1-201] (19) of the Uniform Commercial Code ("Good faith means honesty in fact in the conduct or transaction concerned").

Brehany v. Nordstrom, Inc., 812 P.2d 49, 58 (1991) ("If a qualified privilege exists, the burden is on the plaintiff to prove that the privilege was abused") (citing Prosser on Torts§ 115, at 835). McAndrew v. Scranton Republican Pub. Co., 72 A.2d 780, 785 (Pa. 1950) (if the defendant invokes a privilege as a liability-defeating defense, he bears the initial burden to establish the existence of the privilege; once the defendant meets that burden it shifts to the plaintiff to demonstrate that the privilege has been abused) (citing Prosser on Torts, p. 851); Catrone v. Thoroughbred Racing Associations of North America, Inc., 727 F. Supp. 717, 725 (D.Mass. 1999) ("Once the defendants have met their burden of showing a qualified privilege exists, . . . the burden shifts to the plaintiff to show the defendants abused their privilege. If defendants are entitled to a privilege and have not abused it, . . . the defendants are entitled to judgment as a matter of law".).

For Myers' evidentiary material see Exhibits A and B infra at ¶¶ 55, 56.

Wootan v. Shaw, 1951 OK 307, 237 P.2d 442, 444.

Graham v. Keuchel, 1993 OK 6, 847 P.2d 342, 362. Contributory negligence is at common law a defense against ordinary negligence, but not against gross negligence or willful or wanton misconduct. Id. at ¶ 46, at 361. Graham teaches that gross negligence is placed under the same rubric as ordinary negligence for the purpose of allowing the jury's comparison of the parties' responsibility for the total harm, but that the "same apportionment of fault into percentage figures becomes impermissible once a defendant's behavior has been established as willful and wanton misconduct. While `ordinary' and `gross' negligence differ in degree, `negligence' and `willful and wanton misconduct' differ in kind." Id. at ¶ 49, at 362. The court declined in Graham to "read into our comparative negligence regime an abrogation of the common law's dichotomous division of actionable tortious conduct into (1) negligence, ordinary or gross, and (2) willful acts that result in intended or unintended harm." Id.

Id.

Graham, supra note 50, at ¶¶ 45-49. at 361-362; National Mut. Cas. Co. , supra note 46 at 1041; Burnham Loan, supra note 46 at 887; May's Drug Stores, supra note 46 at 255.

This court is powerless to lower the barrier for piercing the privilege from its statutory bad-faith formula to some less stringent requirement. While the standard may appear to be too high, the governing policy is not for judicial rethinking but for the legislature.

In civil law the element of "prior knowledge" is not always tantamount to willfulness of conduct. Willfulness stems from "guilty knowledge" which is synonymous with "culpable knowledge" or "scienter. " State ex rel. Oklahoma Bar Ass'n v. Eakin, 1995 OK 106, 914 P.2d 644, 650 n. 22; Dayton Hudson Corporation v. American Mutual Liability Insurance Company, 1980 OK 193, 621 P.2d 1155, 1161; In re Initiative Petition 272, State Question 409, 1963 OK 285, 388 P.2d 290, 293.

11 December 1992 divorce decree. The trial court's authority to provide for a minor's medical care is set out in the provisions of 43 O.S. 1991(1) § 112. Its pertinent terms provide:

A petition or cross-petition for a divorce, legal separation, or annulment must state whether or not the parties have minor children of the marriage. If there are minor children of the marriage, the court:

1. Shall make provision for guardianship, custody, medical care, support and education of the children;

For the legislature's recognition of the custodial parent's exclusive right to consent to treatment , see the terms of 10 O.S. 1991 § 170.1[ 10-170.1]. Coextensive with that power is the authority to monitor the treatment and be informed of its progress. The terms of§ 170.1 provide in pertinent part:

Either parent, if both parents have legal custody, or the parent or person having legal custody or the legal guardian of a minor may authorize, in writing, any adult person into whose care the minor has been entrusted to consent to any x-ray examination, anesthetic, medical or surgical diagnosis or treatment and hospital care to be rendered to said minor under the general or special supervision and upon the advice of a physician and surgeon licensed under the laws of the State of Oklahoma, or to consent to an x-ray examination, anesthetic, dental or surgical diagnosis or treatment and hospital care to be rendered to said minor by a dentist licensed under the laws of the State of Oklahoma. ***

Although the psychotherapist/patient privilege is established by statute (12 O.S. 1991 § 2503[ 12-2503] (C)), the manner of creating a psychotherapist/patient relationship with persons under legal disability (infants or incompetents) remains steeped in the common law. Parents had at common law the power to consent to treatment for their children. In re Guardianship of Hight, 1944 OK 143, 148 P.2d 475, 480 (parents are the natural guardians of their minor children and ordinarily have the right to their custody, control and care); see Susan D. Hawkins, Note, Protecting the Rights and Interests of Competent Minors In Litigated Medical Treatment Disputes, 64 FORDHAM L. REV. 2075, 2076 (1996) (surveying the history of children's legal rights).When sole legal custody of an infant is given one parent, a duty is placed on that parent to make all decisions concerning its care and control. People with power to give consent to treatment for infants generally have the power to monitor the treatment and be informed of its progress. A custodial parent ordinarily bears no duty to advise the noncustodial parent of any treatment or procedure to which consent had been given. Because Steve Myers was a stranger to the custodial status, he was not privy to the psychotherapist/patient relationship. Phyllis Myers, the paternal grandmother, stood in an even more remote legal position.

The terms of 12 O.S. 1991 § 2503[ 12-2503] (C) (Physician and Psychotherapist-Patient Privilege) provide in pertinent part:

C. The privilege may be claimed by the patient, his guardian or conservator or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.

The provisions of 10 O.S. 1991 § 5.2[ 10-5.2] allow a noncustodial parent, upon request, to access a minor's medical information that is available to the custodial parent:

Any information or any record relating to a minor child which is available to the custodial parent of the child, upon request , shall also be provided the noncustodial parent of the child. Provided, however, that this right may be restricted by the court, upon application, if such action is deemed necessary in the best interests of the child. For the purpose of this section, "information" and "record" shall include, but not be limited to , information and records kept by the school, physician and medical facility of the minor child.

According to the plaintiffs' probative substitutes in the record, Phyllis Myers knew of no one who had been informed by Dr. Lashley about the allegations of child sexual abuse in advance of the report's submission to DHS officials. Record, Plaintiffs' Exhibit H, pages 74-75, Appendix infra at ¶ 62. No contrary statement is found in the evidentiary materials.

Record, Plaintiffs' Exhibit H, Deposition of Phyllis Myers, pages 74-75, Appendix infra at ¶ 62.

Even if we were to answer in the affirmative the question posed by the qualifiedly concurring justice — i.e., whether Dr. Lashley does owe a duty of due care to Myers "who were never her patients" — upon concluding that this is indeed the quintessence of the lawsuit , we could not hold in Myers' favor . This is so because, assuming a breach of duty to the children and of the same duty to Myers, the gist of the harm Myers assert is not in any detriment to the underage patients but in damage to themselves , all of which stems from the child-abuse report. In sum, no concrete benefit would be derived from confining appellate analysis to reexamining the lawsuit on Myers' theory and the trial judge's response. Were we to follow the qualifiedly concurring justice's call, our conclusion would still remain the same — the evidentiary materials do not pierce, avoid or overcome the statutory privilege either by demonstrated mala fides or by any other means.