Verdicts

Appeals Court Permits Med-Mal Suit Based on Failure to Follow Law

Pennsylvania's Superior Court has reversed and remanded a Lancaster County Court of Common Pleas decision which erroneously held that a child with suspicions of abuse who suffers additional abuse after being seen by doctors has no right of action against the recalcitrant doctors because the state's Child Protective Services Law (CPSL) does not explicitly provide for a civil remedy. K.H. v. Kumar, PICS No. 15-1362., 2015 PA Super 177 (8/25/2015).

The child at the center of the case was allegedly treated on several occasions by six doctors who failed to identify or report his injuries as stemming from child abuse. He was eventually found unresponsive in his crib, having suffered shaken baby syndrome. The victim now has permanent brain damage and accompanying seizure disorder, and his father has been convicted of felony child abuse.

The child's mother and stepfather brought suit against the doctors and their medical offices for failure to report child abuse in accordance with the CPSL, which requires doctors to report suspicions of child abuse to the proper authorities. Because nothing in the CPSL expressly states that private parties may recover from a doctor for failure to comply with the law, the trial court dismissed the plaintiffs' CPSL claims. On appeal, a unanimous three-judge panel of the state Superior Court found that, despite the lack of a specified remedy in the CPSL, doctors can be sued pursuant to the law for a failure to comply therewith that leads to injury, because the child's risk of harm may have been increased by the doctors' inaction. This conclusion was based in large part on the plaintiffs' “voluminous evidence” ' including two pediatricians' expert reports which stated that the standard of care for pediatricians requires reporting of suspected child abuse.

Writing for the panel, Judge David N. Wecht stated that “[i]rrespective of whether the legislature intended to imply a private right of action under the CPSL, it beggars belief that, in enacting that statute, the General Assembly intended to immunize from civil redress violations of the standard of care so severe that the legislature deemed them worthy of criminal punishment.” Judge Wecht went on to turn the defendants' argument on its head, pointing out that the “CPSL does not expressly preclude civil liability for a failure to report abuse, nor immunize those who fail in their reporting obligations.”

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Appeals Court Permits Med-Mal Suit Based on Failure to Follow Law

Pennsylvania's Superior Court has reversed and remanded a Lancaster County Court of Common Pleas decision which erroneously held that a child with suspicions of abuse who suffers additional abuse after being seen by doctors has no right of action against the recalcitrant doctors because the state's Child Protective Services Law (CPSL) does not explicitly provide for a civil remedy. K.H. v. Kumar, PICS No. 15-1362., 2015 PA Super 177 (8/25/2015).

The child at the center of the case was allegedly treated on several occasions by six doctors who failed to identify or report his injuries as stemming from child abuse. He was eventually found unresponsive in his crib, having suffered shaken baby syndrome. The victim now has permanent brain damage and accompanying seizure disorder, and his father has been convicted of felony child abuse.

The child's mother and stepfather brought suit against the doctors and their medical offices for failure to report child abuse in accordance with the CPSL, which requires doctors to report suspicions of child abuse to the proper authorities. Because nothing in the CPSL expressly states that private parties may recover from a doctor for failure to comply with the law, the trial court dismissed the plaintiffs' CPSL claims. On appeal, a unanimous three-judge panel of the state Superior Court found that, despite the lack of a specified remedy in the CPSL, doctors can be sued pursuant to the law for a failure to comply therewith that leads to injury, because the child's risk of harm may have been increased by the doctors' inaction. This conclusion was based in large part on the plaintiffs' “voluminous evidence” ' including two pediatricians' expert reports which stated that the standard of care for pediatricians requires reporting of suspected child abuse.

Writing for the panel, Judge David N. Wecht stated that “[i]rrespective of whether the legislature intended to imply a private right of action under the CPSL, it beggars belief that, in enacting that statute, the General Assembly intended to immunize from civil redress violations of the standard of care so severe that the legislature deemed them worthy of criminal punishment.” Judge Wecht went on to turn the defendants' argument on its head, pointing out that the “CPSL does not expressly preclude civil liability for a failure to report abuse, nor immunize those who fail in their reporting obligations.”

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