ROBERT ROE No. 1 & others vs. CHILDREN‘S HOSPITAL MEDICAL CENTER & others.
Supreme Judicial Court of Massachusetts
April 8, 2014. - October 1, 2014.
469 Mass. 710 (2014)
Suffolk. Present: SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.
Roe No. 1 v. Children‘s Hospital Medical Center.
Child Abuse. Negligence, Hospital, Employer, Duty to prevent harm. Practice, Civil, Complaint, Amendment of complaint, Dismissal.
In a civil action brought by eleven former patients of a pediatric physician against a hospital that had once employed him, arising out of the physician‘s alleged abuse of the plaintiffs at another hospital in another State after he had left the defendant hospital‘s employ, the Superior Court judge properly dismissed the complaint for failure to state a claim on which relief could be granted, where the defendant hospital owed no duty of care to the plaintiffs requiring it to take affirmative action to protect them from the physician, including informing the hospital in the other State or other appropriate authorities of allegations of sexual abuse made against him. [713-720]
CIVIL ACTION commenced in the Superior Court Department on March 28, 2011.
A motion to dismiss was heard by Merita A. Hopkins, J.
The Supreme Judicial Court granted an application for direct appellate review.
Mark F. Itzkowitz (Carmen L. Durso with him) for the plaintiffs.
Gail M. Ryan (John P. Ryan with her) for Children‘s Hospital Medical Center.
The following submitted briefs for amici curiae:
John J. Barter for Professional Liability Foundation, Ltd.
Darrell L. Heckman, of Ohio, & Ninamary Buba Maginnis, of Kentucky, for National Center for Victims of Crime.
J. Michael Conley, Jeffrey S. Beeler, Thomas R. Murphy, & Kimberly A. Alley for Massachusetts Academy of Trial Attorneys.
CORDY, J. This case requires us to decide whether a Massachusetts hospital employer owes a legally cognizable duty of care to future patients of a doctor who has left the hospital‘s employ and
resumed practicing medicine in the employ of a different hospital in another State. We conclude that such a duty is not cognizable in the circumstances presented here, where the hospital does not have the type of special relationship either with its former employee, or with any of his prospective patients, that would create such a duty. Consequently, we affirm the judgment entered in the Superior Court dismissing the complaint for failing to state a claim on which relief may be granted.
1. Background. We recite the relevant facts as drawn from the plaintiffs’ complaint, which we assume to be true for the purposes of our review. Nader v. Citron, 372 Mass. 96, 98 (1977).
The defendant, Children‘s Hospital Medical Center (Children‘s Hospital), is a fully licensed hospital located in Boston. In 1966 it hired Melvin Levine as a pediatric physician. Levine held that position until leaving Children‘s Hospital‘s employ in 1985.3 On leaving Children‘s Hospital, Levine relocated to North Carolina, where he obtained a license to practice medicine and became employed as a pediatrician at the University of North Carolina School of Medicine (UNC). Twenty-four years later, in 2009, amid allegations that he had performed medically unnecessary genital examinations on a number of his patients at UNC, Levine signed a consent order surrendering his license to practice medicine in North Carolina and agreeing not to practice medicine in any other jurisdiction.
In 2011, the plaintiffs, eleven former patients of Levine at UNC, brought this suit against Children‘s Hospital in the Superior Court. Essentially, they allege that Children‘s Hospital failed to properly train, supervise, or discipline Levine during his employment at Children‘s Hospital; knew or should have known that Levine was conducting inappropriate genital examinations of minors during that employment; and failed to report Levine‘s conduct to various licensing authorities and UNC. Further, they allege that, as a consequence of this negligence on the part of Children‘s Hospital, Levine was able to continue his abuse of patients, including the plaintiffs, during his employment at UNC.4
Hospital and unknown individuals to conceal and prevent the disclosure of Levine‘s sexual abuse of his patients; and count III alleges that Children‘s Hospital intentionally and fraudulently concealed and prevented the disclosure of Levine‘s sexual abuse of his pediatric patients.
In July, 2011, Children‘s Hospital moved to dismiss the plaintiffs’ complaint pursuant to
In July, 2012, a Superior Court judge, in a detailed memorandum of decision and order, allowed Children‘s Hospital‘s motion to dismiss and denied the plaintiffs’ motion to amend. She concluded that Children‘s Hospital did not owe a recognized duty of care to the plaintiffs — victims of abuse at a hospital in North Carolina — given that the alleged abuse occurred after Levine left Children‘s Hospital‘s employ. The judge added that public policy did not dictate the creation of a duty to the plaintiffs that would expose an employer to liability for future potential abuse on unknown persons by a former employee anywhere in the country. As a result, she denied the motion for leave to amend, as the proposed amendment would not “cure the defect in the original complaint: the lack of a cognizable legal duty to these particular plaintiffs.” The plaintiffs timely appealed the judge‘s decision, and we granted their application for direct appellate review.
2. Discussion. The only issue on appeal is whether Children‘s Hospital owed a duty of reasonable care to the plaintiffs requiring it to take affirmative action to protect them from Levine, including informing UNC or other appropriate authorities of allegations of sexual abuse made against him. Our review of the judge‘s decision to dismiss the claim pursuant to
“To recover for negligence, a plaintiff must show ‘the existence of an act or omission in violation of a . . . duty owed to the plaintiff[s] by the defendant.‘” Cottam v. CVS Pharmacy, 436 Mass. 316, 320 (2002), quoting Dinsky v. Framingham, 386 Mass. 801, 804 (1982). “Whether a defendant owes a plaintiff a duty of reasonable care is a question of law that is decided ‘by reference to existing social values and customs and appropriate
As a general rule, all persons have a duty to exercise reasonable care in their own conduct to avoid harming others where the risk of harm is foreseeable to the actor. Id. That duty does not typically extend to controlling the conduct of a third party — here, Levine — unless a “special relationship” exists between the party posing a risk to others and the party who can prevent that harm from occurring by taking action. Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234, 242 (2010).
We have recognized the relationship between an employer and employee as a type of special relationship “that potentially would give rise to a duty of care [to third parties] . . . when ‘the employment facilitates the employee‘s causing harm‘” to them (citation omitted). Lev, 457 Mass. at 243-244. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41 (2012) (“Duty to Third Parties Based on Special Relationship with Person Posing Risks“).7 In such circumstances, employers are responsible for exercising reasonable care to ensure that their employees do not cause foreseeable harm to a foreseeable class of plaintiffs. For example, an employer whose employees have contact with members of the public in the course of conducting the employer‘s business has a duty to exercise reasonable care in selecting and supervising its employees. See Coughlin v. Titus & Bean Graphics, Inc., 54 Mass. App. Ct. 633, 639 (2002).
Although there is little doubt that Children‘s Hospital had a duty to supervise and monitor Levine‘s conduct while he was employed as a physician there, and owed a duty of reasonable care to his minor patients to prevent foreseeable harm to them, that is
In similar circumstances, the Supreme Court of Wisconsin declined to find a special relationship giving rise to a duty of care in Hornback v. Archdiocese of Milwaukee, 313 Wis. 2d 294 (2008). In that case, the plaintiffs, who grew up in Kentucky, alleged that their former teacher sexually abused children between 1964 and 1966 while employed by various schools in Wisconsin that were operated by the Diocese of Madison (diocese). Id. at 302. The teacher then accepted a position in another State, Kentucky, where he allegedly abused the plaintiff students. Id. The plaintiffs brought suit against the diocese, claiming that it knew or should have known of the teacher‘s conduct and was negligent in failing to affirmatively warn other schools or authorities of the teacher‘s history of sexual abuse. Id. at 302-303. The court affirmed the dismissal of the complaint,9 id. at 328, concluding that the diocese did not owe the plaintiffs a duty of care,
The plaintiffs here have not alleged that Children‘s Hospital affirmatively misrepresented Levine‘s employment history in response to reference or professional qualification inquiries from UNC or any other authority, or that any such inquiries were even made.10 Rather, the duty the plaintiffs seek to impose is one that would obligate Children‘s Hospital to seek out Levine‘s future employers in order to warn them of past allegations of abuse made against him. It is unclear what level of knowledge on the part of an employer would trigger such an obligation. For example, if Children‘s Hospital received a complaint about Levine (or any other doctor), investigated that complaint, and determined it to be unsupported, would it still be obliged to seek out potential future employers and disclose the complaint to them in order to avoid liability? Such a duty would place an onerous burden on employers, obligating them to track former employees and warn their future employers or, perhaps, even the customers of such future employers. While the protection of children from sexual abuse is of great importance, an employer‘s duty to prevent such harm cannot extend to a duty to prevent the actions of a former employee later employed by an unrelated entity in another State in the decades following his departure from the employer‘s employ.
We also have recognized, on occasion, a “special relationship” between a defendant and prospective plaintiffs. See McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 162 (1986) (social
We decline to recognize a special relationship between Children‘s Hospital and the plaintiffs. The potential class of plaintiffs who could claim a special relationship with Children‘s Hospital includes every potential patient in any State where Levine ever worked after he left its employ — essentially, an unlimited and unknowable number of people. The plaintiffs had virtually no relationship with or connection to Children‘s Hospital. There are significant gaps both temporally and geographically between Levine‘s employment at Children‘s Hospital and the alleged abuse at UNC. See Hornback, 313 Wis. 2d at 318-319. Indeed, the only connection between the plaintiffs and Children‘s Hospital is that their alleged abuser worked for Children‘s Hospital twenty-four years before their abuse was reported. This simply is insufficient to support the existence of a special relationship between the parties giving rise to a duty of care.
In support of their argument that Children‘s Hospital owed them a duty of care, the plaintiffs also argue that (1) the medical community has imposed a duty on itself to report alleged abuse in order to protect future patients from predatory physicians; (2) the general public has demonstrated, through the enactment of stat-
utes
First, a community may impose a duty of care on itself. See Mullins, 389 Mass. at 51. The plaintiffs contend that the medical community has imposed on itself the duty to protect children from being abused. As evidence, they point to the creation of the Federation of State Medical Boards (FSMB) and the National Board of Medical Examiners (NBME),12 which are organizations whose services are used by medical facilities to determine the fitness of applicants for licensure. They also point to the 1958 version of the American Medical Association‘s “Principles of Medical Ethics,” which called on physicians to “safeguard the public” against immoral physicians and “expose, without hesitation, illegal or unethical conduct of fellow members of the profession.” Finally, they draw our attention to a policy statement of the American Academy of Pediatrics (AAP), which recommends that medical facilities search State registries and contact former employers to determine whether an employee has a history of child abuse. American Academy of Pediatrics, Policy Statement — Protecting Children from Sexual Abuse by Health Care Providers, 128 Pediatrics 407, 411-412 (2011).
While we agree that the medical community has taken steps to protect children from sexual abuse, we are not persuaded that medical care facilities have undertaken a duty to protect unknowable future plaintiffs from harm by former employees. The FSMB and NBME are licensing databases, and exist to allow medical institutions and licensing boards to research the histories of applicants. Medical facilities are not required to report alleged abuse to them, and there is no penalty for a failure to do so. The mere existence of the boards does not create a duty of care on Children‘s Hospital‘s part to the plaintiffs.
The same is true of the plaintiffs’ contention that the duty of care proposed has been incorporated into Massachusetts statutory law, evincing a consensus in the general public in support of the duty. The plaintiffs refer us to
As an initial matter, and as the judge correctly noted, the mere existence of a statute or regulation does not automatically give rise to a legal duty for the purpose of a negligence action. See Lev, 457 Mass. at 245. Rather, “[i]t is only where a duty of care exists that the violation of a statute, ordinance, regulation, or policy is relevant because it constitutes some evidence of a
In any event, the statutes referenced by the plaintiffs do not support a conclusion that the public has come to the consensus that Children‘s Hospital owes a duty of care to the plaintiffs. To be certain, they require that Children‘s Hospital report abuse to the department and the board in order to protect children in the care of Massachusetts hospitals and doctors. They do not, however, create a duty to protect potential future plaintiffs in other States, or require Children‘s Hospital affirmatively to alert prospective employers that Levine had been accused of sexual abuse. We thus conclude that the plaintiffs’ complaint does not state a claim on which relief may be granted.15
3. Conclusion. We affirm the denial of the plaintiffs’ motion to amend the complaint and the allowance of Children‘s Hospital‘s motion to dismiss the complaint.
So ordered.