JULIE A. ROBINSON, District Judge.
This case involves a very tragic situation. Plaintiff E.P. endured such severe child abuse at the hands of his potential adoptive mother, Holly Bellinger, that he sustained catastrophic and permanent brain damage. Sadly, despite the concern, inquiry and examination by many individuals, including his biological mother, a doctor and nurse practitioner at Irwin Army Community Hospital ("IACH"), and a Riley County Health Department worker, Ms. Bellinger's abuse continued over the course of E.P.'s first month of life. As a result, the once healthy baby boy now has cerebral palsy that will limit him for his entire life.
Plaintiff seeks damages from the United States of America under the Federal Torts Claims Act ("FTCA") for injuries that Plaintiff sustained from Ms. Bellinger's abuse, alleging that the doctor and nurse practitioner who examined him at his two-week well-baby exam at IACH failed to diagnose and treat him for child abuse. The case is now before the Court on Plaintiff's Motion to Exclude Defendant's Evidence of E.P.'s Life Expectancy (Doc. 110), Motion for Partial Summary Judgment (Doc. 122), and Motion to Amend Pretrial Order (Doc. 136) and Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Doc. 133). As described more fully below, while the Court is sympathetic for the grievous harm done to this innocent child, E.P., the Court nonetheless must grant Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment because the doctor and nurse practitioner committed no medical negligence, for their legal duty to diagnose and treat E.P. did not extend to reporting any suspected child abuse. Because the Court grants Defendant summary judgment, the Court denies Plaintiff's Motion to Exclude Defendant's Evidence of E.P.'s Life Expectancy, Motion for Partial Summary Judgment, and Motion to Amend Pretrial Order as moot.
Before discussing the merit of the motions, the Court must determine the extent of Plaintiff's claims. The parties have been in dispute about the scope of Plaintiff's allegations. Within Plaintiff's response to Defendant's motion for summary
Plaintiff makes clear that he withdraws every other theory of recovery besides the medical negligence claim described above. And so, the Court dismisses all other claims. Thus, the only claim before the Court is Captain Darsow's and Dr. Talbot's medical negligence in failing to diagnosis and treat Plaintiff's child abuse.
Defendant moves to dismiss all claims other than those against Dr. Talbot and Captain Darsow because Plaintiff did not properly exhaust the other claims as required under the FTCA. Because the claims were not exhausted, Defendant argues, the Court has no subject matter jurisdiction over those claims. As described above, however, Plaintiff has withdrawn all claims other than those for medical negligence against Dr. Talbot and Captain Darsow, and the Court has dismissed those claims. As a result, Defendant's argument that the Court must dismiss those claims for lack of subject matter jurisdiction is moot.
The Court next examines Defendant's motion for summary judgment. Defendant argues that it is entitled to judgment as a matter of law because Dr. Talbot and Captain Darsow did not owe Plaintiff a legal duty to protect him from harm by a third party. Plaintiff, on the other hand, claims that Dr. Talbot and Captain Darsow had a duty to protect him from harm within their duty to diagnose and treat him.
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine dispute as to any material fact" and that it is "entitled to a judgment as a matter of law."
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."
Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."
Defendant objected to some of Plaintiff's factual statements because they were not supported by citation to evidence in accordance with the Federal Rules of Civil Procedure. The Court need not resolve these
Plaintiff was born at IACH, in Fort Riley, Kansas, on December 29, 2003. Plaintiff was a generally healthy infant, noted to have facial bruising around the mouth. Plaintiff's biological mother is Shirlynne Craddock. Ms. Craddock arranged to give Plaintiff up for adoption to her friend and neighbor, Holly Bellinger. Ms. Bellinger already had one daughter as did Ms. Craddock. Ms. Bellinger stayed at the hospital with Ms. Craddock and Plaintiff after Plaintiff's birth, but because the adoption was not yet complete, the hospital released Plaintiff to his biological mother. Ms. Craddock planned to give Plaintiff to Ms. Bellinger when they got home.
On January 15, 2004, Ms. Craddock and Ms. Bellinger went to the Riley County Healthy Start/WIC office with Plaintiff for a scheduled appointment. During the appointment, Barbara Gassman, a Healthy Start Home Visitor, observed three bruises around Plaintiff's mouth, which looked like they had been caused by the pacifier being pushed into Plaintiff's mouth. Ms. Gassman asked Ms. Bellinger about the bruises and Ms. Bellinger told her that her daughter had hit Plaintiff with a toy. Ms. Bellinger also told Ms. Gassman that Plaintiff had his well-baby exam later that day.
Ms. Gassman was concerned about the bruises and other behavior of Ms. Bellinger. She reported her concerns to Kim Kluesner, a New Parent Support Program Worker. Ms. Gassman also told Ms. Kluesner that Ms. Bellinger was on the way to Plaintiff's well-baby exam. Ms. Kluesner then called Christine Campbell of Social Work Service to report the information that she received from Ms. Gassman. Ms. Campbell confirmed that Plaintiff had a well-baby exam at the IACH. After speaking with Ms. Kluesner, Ms. Campbell called the military police and relayed the information she received from Ms. Kluesner. She also told them that Ms. Bellinger was at the IACH with Plaintiff. Meanwhile, Ms. Kluesner called the Well Baby Clinic at IACH, relayed Ms. Gassman's concerns, and asked that the doctor be given the information so that the child could be evaluated during the well-child exam. A social worker, Rosetta Allen, and military police responded to the IACH clinic at the time of Plaintiff's well-baby exam.
Plaintiff was seen at his well-baby exam at IACH on January 15, 2004 by Captain Wayne Darsow, a family nurse practitioner. Ms. Craddock and Ms. Bellinger were both present in the examination room. During Plaintiff's examination, Captain Darsow noted that Plaintiff was well consoled, behaved normally, and was able to move his extremities. No abnormalities were noted upon examination of Plaintiff's skin and palpitation of Plaintiff's skull, scalp, and bones. Plaintiff had some diaper rash, what appeared to be thrush, and some small bruises on his face and on his sternum. The bruises were smaller than a pencil eraser and difficult to see. Captain Darsow asked both Ms. Craddock and Ms. Bellinger about the bruises. Ms. Bellinger told him that her older child had hit Plaintiff in the head with a toy. He was also informed that Plaintiff had a lot of bruising at birth.
Due to his concern about the explanation of the bruising, Captain Darsow requested assistance from pediatrician Dr. Thomas Talbot in examining Plaintiff. Dr. Talbot examined Plaintiff and observed that he
Based upon his examination of Plaintiff, the pattern of bruising, and Ms. Bellinger's and Ms. Craddock's statements, Dr. Talbot considered bleeding problems such as factor deficiencies and disorders, hemophilia, and transient neonatal thrombocytopenia. Dr. Talbot had recently seen a case of neonatal thrombocytopenia with a presentation similar to Plaintiff. He formed a working diagnosis of neonatal thrombocytopenia, which is a condition of platelet destruction by an immune process. Accordingly, Dr. Talbot requested a follow-up examination of Plaintiff and a complete blood count and coagulation panel, and Plaintiff was given medication for his thrush.
After his examination of Plaintiff, Dr. Talbot met with the social worker and military police who were waiting outside. Dr. Talbot informed the social worker and military police that he was aware of the bruising on Plaintiff, he thought there was a medical condition causing the bruising, and that medical staff would be following up with Plaintiff.
Plaintiff's lab results came back on January 15 and 16, 2004, showing Plaintiff's platelet count was in the normal range, with the presence of giant platelets. Captain Darsow did not believe the lab explained the bruises and that it essentially ruled out thrombocytopenia. But Dr. Talbot believed the presence of giant platelets was consistent with a child recovering from neonatal thrombocytopenia.
When Ms. Bellinger brought Plaintiff back to the clinic on Tuesday, January 20, 2004, for a follow-up visit, they were turned away without Plaintiff having been examined because Captain Darsow was not in the clinic. Also on January 20, 2004, Ms. Gassman and Ms. Kluesner went to see Plaintiff at Ms. Bellinger's home. Ms. Gassman observed additional bruises, but she did not report the bruises because Dr. Talbot had informed them that the bruising was from a skin condition.
On January 29, 2004, Plaintiff had not yet been rescheduled for a follow-up exam and Captain Darsow requested that the clinic nurse call Ms. Bellinger or Ms. Craddock to have Plaintiff brought to the clinic for the follow-up exam. But on that same day, before Captain Darsow made his request, Ms. Bellinger brought Plaintiff to the emergency room in Geary Community Hospital. Plaintiff was unresponsive, lethargic, and having seizures. He had multiple skull fractures and an epidural hematoma. Plaintiff was transferred by air ambulance from Junction City to Children's Mercy Hospital in Kansas City. Today, Plaintiff suffers from cerebral palsy as a result of these injuries.
On March 24, 2004, Ms. Bellinger was indicted on one count of assault of a child (Plaintiff) in the United States District Court for the District of Kansas. She pled guilty on September 15, 2004 and was sentenced to 41 months in prison.
Plaintiff's claim arises under the Federal Tort Claims Act ("FTCA"), which grants limited waiver of sovereign immunity for claims against the United States for "personal injury ... by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment."
Plaintiff claims medical negligence occurred when Dr. Talbot and Captain Darsow breached a duty to diagnose and treat Plaintiff for child abuse. To establish liability for medical negligence under Kansas common law, Plaintiff must show (1) the healthcare provider owed the patient a duty of care, (2) the healthcare provider breached that duty or deviated from the applicable standard or care, and (3) the patient's injury proximately resulted from the healthcare provider's breach.
Within the duty of care, healthcare professionals have a duty to use reasonable care and diligence in the diagnosis, care, and treatment of a patient.
Captain Darsow and Dr. Talbot examined Plaintiff during his two-week well-baby exam. During the visit, both Captain Darsow and Dr. Talbot noticed bruising on the baby, and while they suspected possible child abuse, they eventually attributed the bruises to a blood condition. The healthcare professionals then ordered blood tests and sent Plaintiff home with Ms. Bellinger. Neither Captain Darsow nor Dr. Talbot saw Plaintiff for another appointment after the initial well-baby exam. Plaintiff does not contend that the medical treatment of the bruises present at the well-baby exam caused the injuries alleged in the Complaint, nor does Plaintiff contend that he suffered permanent damages from those injuries. The only contention is that Dr. Talbot and Captain Darsow failed to properly diagnose and treat the child abuse — i.e., report the abuse to the appropriate authorities — and as a result, Ms. Bellinger was allowed to abuse Plaintiff after the well-baby exam, causing catastrophic neurological injuries. Put differently, Plaintiff claims that the healthcare professionals not only had the duty to diagnose and treat the baby's immediate
The issue of whether a duty exists is a question of law.
Plaintiff has cited no Kansas cases — and the Court has similarly found none — that discuss whether a doctor has a common law duty to report child abuse of a patient within the duty to diagnose and treat. Plaintiff, however, has cited to other jurisdictions that have examined whether a doctor is negligent when failing to report child abuse.
Other courts have found that healthcare professionals have no common law duty to report child abuse as part of their duty to diagnose and treat patients.
This Court finds that Kansas law is consistent with those jurisdictions determining that common law does not recognize a cause of action for medical negligence based on failure to report child abuse. First, under Kansas common law, "[g]enerally, an actor has no duty to control the conduct of a third party to prevent that person from causing harm to others unless there is a special relationship between the actor and the third party or the actor and the injured party."
Second, the Kansas Supreme Court in Kansas State Bank and Trust Co. seemed to suggest that no common law duty to report exists in Kansas.
And while a medical professional's failure to report was not at issue in Kansas State Bank and Trust Co. or in Borne, the Kansas Supreme Court cited to another case where a doctor's failure to report suspected child abuse was at issue.
Thus, this Court cannot conclude that Kansas common law recognizes a cause of action for medical negligence based on the duty to report child abuse. As such, the Court finds that Dr. Talbot and Captain Darsow did not owe Plaintiff a duty to report his injuries as child abuse. Without a duty, there can be no breach or recovery, and so the Court need not address the
Because the Court grants Defendant summary judgment, the remaining motions are moot. First, Plaintiff's motion to amend the Pretrial Order does not change the Court's analysis. Plaintiff sought to narrow the Pretrial Order by withdrawing allegations. With those allegations withdrawn, Defendant is still entitled to summary judgment on the remaining claim as discussed above. Second, in his motion to exclude evidence, Plaintiff argues that the Court should exclude evidence offered by Defendant's expert witnesses on Plaintiff's life expectancy. Because the Court grants Defendant summary judgment, the Court need not determine whether expert testimony on Plaintiff's life expectancy should be excluded. Finally, in his motion for partial summary judgment, Plaintiff argues that the court should preclude Defendant from comparing the negligence of any person not a party to the lawsuit to Defendant's own negligence. Again, because Defendant is entitled to judgment as a matter of law, the availability of Defendant's comparative fault defense is irrelevant. And so the Court denies Plaintiff's three motions as moot.
Ms. Bellinger caused tremendous harm and misled many individuals involved in Plaintiff's care. She gained the confidence of Plaintiff's biological mother, who vouched for Ms. Bellinger's abilities as a mother. Ms. Bellinger also appeared at ease with the baby during her time at IACH. Captain Darsow and Dr. Talbot may have suspected child abuse, but after speaking with Ms. Craddock and Ms. Bellinger, they formed a different conclusion about the cause of the bruising. After they sent Plaintiff home with Ms. Bellinger, she abused Plaintiff, causing severe and permanent damage. It is a tragedy that E.P. continued in the care of Ms. Bellinger, despite concerns and suspicions, albeit suspicions that were allayed by the laboratory results and assurances provided by the biological mother. Nonetheless, the Court cannot find that the healthcare providers breached a legal duty by failing to report any suspicions of child abuse. Under Kansas law there is no legal duty for doctors to report child abuse within the duty to diagnose and treat. Thus, Plaintiff cannot maintain a cause of action against Defendant for Dr. Talbot and Captain Darsow's medical treatment of Plaintiff.