Summary Judgment Precluded in Adoptive Parent’s Malpractice Action for Failure to Report Emergency Visit to Child Services for Abuse Investigation

An adoptive mother, as the parent and legal guardian of a child, brought an action against a doctor and medical center alleging that the doctor had committed medical malpractice by failing to report the child's emergency room visit to the New Jersey Division of Youth and Family Services (DYFS) and by otherwise breaching the appropriate standard of care when he treated child. The adoptive mother also alleged that the medical center was liable for the doctor's actions under the doctrine of respondeat superior. The doctor moved for summary judgment and the Superior Court, Law Division, Mercer County, dismissed the claims against the doctor and medical center. The adoptive mother appealed. The Superior Court, Appellate Division, held that a genuine issue of material fact as to whether the condition of the child was the result of “reckless” or “grossly or wantonly negligent” conduct or inaction on the part of her parent or guardian, and whether the doctor thereby breached the standard of care by failing to report the potential abuse matter to DYFS for further investigation, precluded summary judgment.


The court determined the standard of care applicable in an action for medical malpractice brought against the doctor, who failed to report the emergency room visit of the allegedly abused child to DYFS, required reporting only by someone who had “reasonable cause” to believe that the child had been subjected to child abuse or acts of child abuse, rather than reporting of a mere suspicions concerning child abuse. The New Jersey statute requires the reporting of injuries resulting from conduct that is reckless, or grossly or wantonly negligent, but not conduct that is merely negligent. All that is required is a “reasonable cause to believe” the child has been subjected to abuse. The statute does not require the potential reporter possess the higher quantum of proof necessary for an administrative or judicial finding of abuse or neglect.


In this case, when the child was one year old the child had been abandoned by her biological mother, DYFS assumed custody and placed the child in a foster home, and later, DYFS approved placement of the child with her biological father. Regarding the incident in question, unidentified relatives brought the two-year-old child to the Medical Center's emergency room (ER). They told the triage nurse that the child had been “vomiting” and had an “unsteady gait.” They told another nurse that the child had been “unable to walk.” The second nurse observed the child to be “very lethargic and weak on arrival to the ER with an unusual odor on [the child’s] breath.” Defendant doctor examined the child, noting a “cologne smell” and a “smell of chemical alcohol” from her mouth. He checked her breathing and pulse, looked for metabolic disorders, ingestion, and bleeding, and checked her mucous membranes, neck, heart, lungs, abdomen, extremities, and skin. Defendant doctor ordered blood work, a chest x-ray, a urinalysis, a blood-sugar check, and a test for carbon monoxide. He put the child on a saline IV to prevent dehydration. The child was also seen by a pediatric resident.Test results received at 8:33 p.m. showed that the child's blood alcohol level was 0.035 percent.


At about the same time, the biological father arrived at the hospital. He showed defendant doctor a container of cologne, which he said the child might have ingested. The records do not reflect that he gave defendant doctor any information concerning how the child had ingested cologne or any other form of alcohol. Based on the results of the lab tests, the odor detected on the child's breath, and the biological father's presentation of the cologne, defendant doctor concluded that the child had ingested cologne. Although defendant doctor recorded “cologne presented,” neither he nor any Medical Center employee noted the type of cologne, its alcohol concentration, or the volume and contents of the container. Similarly, there were no notes concerning the circumstances under which the child had accessed the cologne or who, if anyone, had been with her at the time. By 9:30 p.m., the child was able to be discharged and the biological father took her home at 11:30 p.m. Defendant doctor did not report The child's January 13, 2001 emergency room visit to DYFS.


The child was treated twice soon thereafter for burns. The child was not removed from the biological father's custody at that time. However, because of an abuse report, DYFS investigated and the child was removed from the biological father's home. The child was adopted by the adoptive mother two years later.


The appeals court held that based on the record a reasonable jury could find that a probable inference from the information available to defendant doctor at the time of treatment 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 defendant doctor 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 on summary judgment The case dismissal was reversed and remanded to the trial court.


See: L.A. v. New Jersey Division of Youth and Family Services, 2012 WL 5627175 (N.J.Super.A.D.  Nov 16, 2012) (not designated for publication).