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01/01/2007 FIRST DISTRICT HOLDS THAT NO STATUTORY OR COMMON LAW CAUSE OF ACTION EXISTS FOR VIOLATION OF ABUSED AND NEGLECTED CHILD REPORTING ACT By: Tracy B. Weiner, J.D. The Illinois Appellate Court for the First District recently confirmed that a healthcare provider’s purported violation of the Abused and Neglected Child Reporting Act did not give rise to statutory cause of action on behalf of a minor who subsequently suffered further injury at the hands of his abuser. Raynoldo Varela v. St. Elizabeth’s Hospital of Chicago, 2006 WL 2255751 (1st Dist. 2006). The Court further upheld the trial court’s determination that hospital emergency room personnel did not owe their minor patient a common law duty of care to discover and report healed injuries as suspected child abuse. On June 8, 1997, nine-week-old Raynoldo Varela was brought to St. Elizabeth’s Hospital with complaints of difficulty breathing and increased crying since noon the previous day, when his mother started him on a new formula. Dr. Luis Gomez examined Raynoldo in the emergency room and noted that the baby’s abdomen was soft but moderately distended with some initial voluntary guarding. The physical examination was otherwise normal, however. Dr. Gomez also reviewed a chest x-ray taken in response to the initial complaint of difficulty breathing to look for evidence of pneumonia, a dropped lung or abnormal lung tissue, but he found no pathology that would explain the complaint. Dr. Gomez did not note indications of healed rib fractures. He correctly concluded that Raynoldo suffered from intestinal colic and discharged him with instructions to discontinue the new formula and follow up with the family’s pediatrician. The written discharge instructions also stated that a radiologist on staff at St. Elizabeth’s would prepare a written interpretation of the chest x-ray and advised the parents to have their physician call for a copy of the official report. Raynoldo was seen by his private pediatrician the following day, but there was no mention of the emergency room visit in the pediatrician’s medical records, and no evidence that either the pediatrician or Raynoldo’s parents ever received the radiologist’s report. Such a report was prepared and included a finding of an “old healed fracture” involving three of Raynoldo’s left lower ribs. The radiologist later testified that the healed fractures were five to eight weeks old and could have resulted from birth trauma, a fall from a couch or abuse. Dr. Gomez was not working on the day that the report was prepared, did not receive a copy of it, and did not know if anyone else in the emergency department ever saw it. On July 26, 1997, Raynoldo’s mother again noted increased crying, this time accompanied by vomiting after Raynoldo had been left alone with his father. She took Raynoldo to a different hospital emergency room, where personnel diagnosed a subdural hematoma and eleven rib fractures in various stages of healing. These are signs of shaken baby syndrome and the situation was reported to the Illinois Department of Children and Family Services (“DCFS”). Raynoldo suffered permanent neurological damage and partial blindness in his right eye as a result of this subsequent abuse, and his father later confessed to shaking Raynoldo on three specific dates after the June 8, 1997 emergency room visit to Saint Elizabeth’s. Raynoldo’s father was convicted of aggravated battery and incarcerated. Raynoldo and his mother filed a complaint against Dr. Gomez and St. Elizabeth’s Hospital, alleging that they violated the Abused and Neglected Child Reporting Act by failing to report the earlier, healed fractures to Raynoldo’s mother and to DCFS. Attached thereto was the report of a health care professional, Dr. Eugene Saltzberg, who opined that multiple healed rib fractures indicate child abuse “until proven otherwise” and that, had the original injuries been reported, more likely than not the subsequent abuse would have been avoided. The trial court dismissed this claim on the ground that the Reporting Act did not give rise to a private cause of action, but gave plaintiffs leave to file an amended complaint. The amended complaint, which omitted the previous references to the Reporting Act, asserted instead that the defendants breached a common law duty that medical professionals owe to their patients to investigate potential child abuse and report it to the appropriate authorities. The defendants successfully moved for summary judgment on this claim, arguing that no such duty exists at common law. The trial court agreed that, while doctors and hospitals have certain statutory reporting requirements with regard to abuse, those statutory requirements do not translate into a standard of care, nor does the failure to meet those requirements give rise to a cause of action. In so ruling, the trial court noted that the liability claim was predicated, not on failure to diagnose and treat a present injury, but on failure to diagnose and report already healed injuries in order to prevent future abuse at the hands of a third party. The First District affirmed the trial court’s rulings. With respect to the claim based on purported violation of the Reporting Act, the appellate court adopted the Third District’s holding in Doe 1 v. North Central Behavioral Health Systems, Inc., 352 Ill.App.3d 284, 286 (3d Dist. 2004), that the statute did not give rise to a private cause of action. The Third District reasoned that the provision had no express or implied purpose to provide children or family with compensation for injuries they might suffer as a result of abuse, and that there was no evidence that the statute did not already serve the purposes it was designed to achieve. In rejecting the plaintiffs’ attempt to state an alternative common law cause of action, the First District relied on a recent federal appeals court ruling involving the Reporting Act, Cuyler v. United States, 362 F.3d 949 (7th Cir., 2004). In Cuyler, a babysitter’s abuse of the son of a military family led to the child’s hospitalization. The hospital staff actually suspected abuse, but they failed to report their suspicions, in violation of the Reporting Act. The same babysitter later inflicted fatal injuries on a child from another family. That second child’s family was awarded a $4 million dollar judgment in a wrongful death action against the healthcare providers, but the United States Court of Appeals for the Seventh Circuit vacated the judgment. Like the plaintiffs in Varela, the Cuyler plaintiffs argued that the healthcare providers’ violation of their reporting obligation with respect to the first child was prima facie evidence of negligence under Illinois common law. The Seventh Circuit rejected that argument, reasoning that with limited exceptions not applicable to the case before Court also rejected the plaintiffs’ “statutory duty” argument, stating that the mere fact that a statute defined due care did not, in and of itself, create a duty enforceable by tort law. Like the Cuyler Court, the First District panel in Varela rejected the plaintiffs’ request that it create a new common law cause of action for violating the Reporting Act, acknowledging that they had no legal basis or authority to create common law liability for a statutory violation. Because the plaintiffs’ common law action was based on a breach of a duty that did not exist, the Court upheld the trial court’s rulings in favor of the defendants. A petition for rehearing is still pending and, if that is denied, a petition for leave to appeal to the Illinois Supreme Court is likely. The Varela decision as it currently stands precludes civil liability claims against healthcare providers who fail to detect and report suspected child abuse, thereby exposing the child to the risk of further abuse. Any supplementation of the current criminal sanctions available for willful violation of the Reporting Act with civil liability will therefore require legislative action. -------------------------------------------------------------------------------------------------------------------- Return to Previous Page |
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