December 20, 2012

On November 16, 2012, the Superior Court of New Jersey Appellate Division issued its opinion in an appeal of the August 13, 2010 orders dismissing medical malpractice claims of a minor against a hospital emergency room physician and the hospital itself. The medical malpractice lawsuit had alleged that the minor was born on November 5, 1998 and subsequently abandoned by her biological mother in September 1999, at which time the New Jersey Division of Youth and Family Services (“DYFS”) assumed custody and placed her in a foster home. In November 2000, DYFS approved placement of the minor child with her biological father.

During the evening of January 13, 2001, unidentified relatives brought the then two-year-old to the hospital’s emergency department, stating that the minor had been “vomiting,” had an “unsteady gait,” and had been “unable to walk.” The emergency room nurse noted the minor child to be “very lethargic and weak on arrival to ER with unusual odor on breath.” The medical malpractice defendant emergency room physician examined the child and noted a “cologne smell” and a “smell of chemical alcohol” from her mouth. Lab test results showed that the child had a blood alcohol level of 0.035 percent. At about the same time, the biological father arrived at the hospital and showed the emergency room physician a container of cologne that he said his daughter may have ingested.

The emergency room physician failed to note in the medical record the type of cologne, its alcohol concentration, or the volume and contents of the container, and there was no notation in the medical record concerning the circumstances under which the  child had accessed the cologne or who, if anyone, had been with her at the time. After the child’s condition improved in the emergency room, the emergency room physician discharged the child to home in her father’s care and the physician did not report the matter to DYFS.

About six weeks later, the child was treated for burns by another physician who did not report that incident to DYFS. However, about one week later, DYFS received a report that the child had been burned. About two weeks later, DYFS received another report that the child was being burned and beaten. Although those allegations were substantiated the following day, the child was not removed from her father’s custody until a third report of physical abuse was investigated by DYFS a little over two weeks later. A medical examination of the child at that time revealed “multiple burns to [the minor’s] lower extremities, vaginal area and back; a loop shaped welt mark to her left chest; and multiple bruises to her lower back.” The child was placed in foster care and then adopted five years later.

Ten months later, the child’s adoptive mother filed a medical malpractice lawsuit against the first emergency room physician, the hospital, DYFS, and others alleging that the physician had committed medical malpractice by failing to report the child’s emergency room visit to DYFS and by otherwise breaching the appropriate standard of care, and that the hospital was liable for the physician’s actions in its capacity as his employer.

In response to motions filed on behalf of the emergency room physician and the hospital, the trial judge dismissed the medical malpractice claims against both of them, stating, in part: the Court agrees with [the defendant emergency room physician] that no reasonabl[e] jury could find that there was reasonable cause to believe that child abuse had been committed against [the minor child] or that . . . she — had been subject to child abuse …. the fact that a child ingests any type of substance, in and of itself, is not sufficient to present one with reasonable cause to believe that child abuse has been committed or that the child has been subjected to child abuse.

In deciding the case on appeal, the appellate court referenced N.J.S.A. 9:6-8.10 that states: 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 immediately to the Division of Child Protection and Permanency by telephone or otherwise. Such reports, where possible, shall contain the names and addresses of the child and his parent, guardian, or other person having custody and control of the child and, if known, the child’s age, the nature and possible extent of the child’s injuries, abuse or maltreatment, including any evidence of previous injuries, abuse or maltreatment, and any other information that the person believes may be helpful with respect to the child abuse and the identity of the perpetrator.

The appellate court determined that N.J.S.A. 9:6-8.10 requires the reporting of injuries resulting from conduct that is reckless, or grossly or wantonly negligent, but not conduct that is merely negligent. The appellate court held that the triggering of the obligation to report, especially in the context of civil litigation involving professional malpractice, does not require the potential reporter to possess the quantum of proof necessary for an administrative or judicial finding of abuse or neglect. All that is required by N.J.S.A. 9:6-8.10 is “reasonable cause to believe.” The purpose of the reporting requirement is to bring potential cases of abuse to the attention of DYFS for further investigation and, if required, emergent action and eventual adjudication, since the “safety of the children” is of “paramount concern” (N.J.S.A. 9:6-8.8(a)).

Therefore, the appellate court held that, in the context of a case in which the statutory language establishes a physician’s standard of care, a physician has “reasonable cause to believe” that there has been abuse if a  “probable inference” from the medical and factual information available to the physician is that the child’s condition is the result of child abuse, including “reckless” or “grossly or wantonly negligent” conduct or inaction by a parent or caregiver. The inference need not be the “most probable,” but it must be more than speculation or suspicion.

The appellate court held that a reasonable jury could find that a probable inference from the information available to the emergency room physician at the time of treatment was that the child’s condition was the result of “reckless” or “grossly or wantonly negligent” conduct or inaction on the part of her parent or guardian, and that the emergency room physician breached the standard of care by failing to report the matter to DYFS for further investigation. For that reason, the complaint should not have been dismissed by summary judgment.

Source:  L.A., as Parent and Legal Guardian of S.A., a minor, and L.A., individually, Plaintiff-Appellant, v. New Jersey Division of Youth and Family Services, et al., Docket No. A-2726-11T1.

If you may be the victim of medical malpractice in New Jersey or in another state in the United States, you should promptly seek the advice of a New Jersey medical malpractice attorney or a medical malpractice attorney in your state to assist you with your medical malpractice claim.

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