A published appeals court decision that an emergency room doctor must stand trial for not telling child welfare authorities that a 2-year-old ingested cologne is making heads turn.
The obligation to report possible abuse or neglect to the Division of Youth and Family Services “does not require the potential reporter to possess the quantum of proof necessary for an administrative or judicial finding,” the Appellate Division said in reversing a summary judgment dismissal of the complaint in L.A. v. DYFS, A-2726-11.
All that is required under the statute is a “reasonable cause to believe,” the panel said, noting that a reasonable jury could blame the child’s actions on reckless or negligent conduct by a parent and find the doctor breached the standard of care by failing to report it.
The ruling “puts doctors in a very difficult position, if these are all going to be jury questions,” says Abbott Brown, writer and lecturer on medical malpractice law. “If I were counsel to family doctors, pediatricians or emergency room doctors, I would make sure they read this and understood this.”
The child in the case, S.A., was abandoned by her mother soon after birth and in 2000, at the age of 2, was sent by DYFS to live with her father. On Jan. 13, 2001, other relatives brought her to the emergency room at Jersey Shore University Medical Center in Neptune. The child was described to a nurse as vomiting and walking with an unsteady gait and was observed as lethargic and weak with an unusual odor on her breath.
Dr. Daniel Yu conducted an extensive examination, ran tests for blood-sugar and carbon monoxide poisoning, and ordered blood work, a chest X-ray and urinalysis. The child had a blood-alcohol concentration of 0.035 percent.
Based on the test results, the cologne odor and accounts by the child’s relatives, Yu concluded that S.A. had ingested cologne. Three hours after she arrived, S.A. was alert and able to walk normally, and was discharged.
In March 2001, DYFS received reports that S.A. had been burned and beaten and removed her from her father’s care in April after she was found with chemical burns on her vagina, foot, leg and buttocks, along with bruises and belt marks.
An individual identified as L.A. adopted S.A. in April 2006 and a year later sued DYFS, state officials, Jersey Shore and Yu on behalf of the child.
The suit alleged that Yu was negligent for failing to abide by N.J.S.A. 9:6-8.10, which requires any person who has reasonable cause to believe a child has been subject to abuse to contact DYFS. The claims against the hospital were premised on Yu’s liability.
Mercer County Superior Court Judge Paul Innes awarded summary judgment to Yu and Jersey Shore in August 2010. Innes found that the mere fact that the child ingested a foreign substance is not sufficient to give reasonable cause to believe child abuse occurred.
The case went to trial and last Dec. 16, a jury assessed $3.25 million in damages against DYFS. Facing a claim for attorney fees because of a civil rights allegation, and a separate trial on punitive damages, the state agreed to settle for $5 million that day.
Appellate Division Judges Alexander Waugh Jr., Carmen Alvarez and Jerome St. John reversed Innes’ ruling releasing Yu and Jersey Shore from the case.
They concluded that a reasonable jury could find that the child’s condition was the result of “reckless” or “grossly or wantonly negligent” conduct or inaction by a parent or guardian.
They also concluded that Yu fell short of his obligations by failing to report the matter to DYFS. “[A] physician has ‘reasonable cause to believe’ that there has been abuse if a ‘probable inference’ from the medical and factual information available … is that the child’s condition is the result of child abuse,” Waugh wrote for the panel.
“The inference need not be the ‘most probable,’ but it must be more than speculation or suspicion,” he added.
Brown, who represents medical malpractice plaintiffs but was not involved in the case, says the appeals court’s failure to set a bright line on when doctors should contact DYFS is “problematic.” The decision “seems to suggest a jury could place a pretty low standard” on what cases warrant reporting, he says.
A jury’s finding of liability against Yu would shake up the medical profession, but it’s more likely the physician will be exonerated, says Brown, of Bendit Weinstock in West Orange.
The lawyer for S.A. and L.A., David Mazie of Mazie, Slater, Katz & Freeman in Roseland, was not available for comment Monday.
Richard Amdur of Amdur, Maggs & Shor in Eatontown, for the hospital, and Michael Opacki of Buckley Theroux Kline & Petraske in Princeton, for Yu, did not return a reporter’s calls.