Mandatory Reporters Must Speak for the Abused Child

Reprinted with permission of the Minnesota Association for Justice, Fall 2007 

The Minnesota Supreme Court provided Nykkole Becker and other victims of child abuse in Minnesota an opportunity for justice in Becker v. Mayo Foundation, 737 N.W.2d 200 (Minn. 2007).  The Court held that evidence of a medical professional’s responsibility to report suspected child abuse to outside authorities, when the standard of care requires such a report, is admissible.

Factual Background
Classic Signs of Child Abuse Unreported 

Before Nykkole Becker was two months old, she suffered multiple incidents of severe physical abuse, which left her permanently incapacitated.   Nykkole will never be able to walk or eat on her own, and she will never be able to express herself in her own words.  As long as she lives, she will require special medical equipment and around-the-clock medical care.  This should have been prevented.

Within her first two months of life, Nykkole went to the Mayo Clinic on four separate occasions for diagnosis and treatment of classic child abuse-related injuries, including a broken upper arm, broken ribs, vomiting, listlessness, failure to gain weight, bruising, a fractured skull, and other serious injuries.  Until her final visit—when it was too late to prevent her ultimate catastrophic injuries—Nykkole’s physicians misdiagnosed classic signs of abuse and chose not to report her abuse-related injuries to local authorities.

Nykkole first arrived at the Mayo Clinic’s emergency room at 22 days of age with bruises on both arms.  The Mayo doctors diagnosed a comminuted spiral fracture of the mid-left humerus (the arm’s “long bone”).  Nykkole’s birth father told the ER doctor that while he was reaching for a bottle to feed Nykkole, she “spasmed” out of his arms and that he grabbed her left arm to keep her from falling.  While the treating physician admitted that she considered child abuse, she chose not to corroborate the birth father’s story with another source, she chose not to question Nykkole’s parents separately about the suspicious injury, and she chose not to seek objective evidence, such as a skeletal survey.[1]  A skeletal x-ray aids a physician because “[t]he bones tell a story the child is too young or too frightened to tell.”[2]  No telephone call was made to alert local county child protection authorities or the police of suspected abuse.  The treating physician instead chose to accept the abuser’s tale and to send Nykkole home. 

Nykkole returned to Mayo less than three weeks later for additional care of her broken arm.  While subsequently acknowledging that Nykkole’s particular injury was the most commonly fractured bone in childhood battering injuries, the treating physician chose not to report suspected abuse and Nykkole returned home with her abuser.

A week later, Nykkole returned for the third time to the Mayo Clinic.  This time, her ribs were broken.  Nykkole was cool to the touch, sleepy, and thin in appearance.  Nykkole had vomited ten times that day; she also had head injuries.  No skeletal survey was done.  Shaken Baby Syndrome was not diagnosed.[3]  And critically, no report to Child Protective Services was made.  Again, Nykkole was allowed to go home with her abusive parents.  

Four days later, Nykkole returned to the Mayo Clinic pale and listless.  She arrived smacking her lips and jerking her left arm and leg.  Her eyes did not respond to movement, and the treating physicians identified a multi-colored bruise on the left side of her head, which was probably present at the earlier visit.  Nykkole also had rib fractures in various states of healing, making it apparent that the fractures predated her third visit.  On this visit, Nykkole was admitted to the intensive care unit with a diagnosis of catastrophic injuries, including multiple skull fractures and bleeding on the brain.  The treating physicians now diagnosed Shaken Baby Syndrome and reported the abuse.  The local authorities took steps to prevent further abuse.

Appropriately, the parental rights of Nykkole Becker’s birth parents were terminated, and the birth father faced a criminal trial.  Several of the Mayo doctors testified against Nykkole’s birth father.  One doctor testified that the humerus “is the most commonly fractured bone in childhood battering injuries.”  He even went so far as to testify: “It’s possible that it could snow in July in Rochester, and I think it’s equally possible that the August 17th spiral fracture of the humerus was an accidental trauma.”  Nykkole’s birth father was convicted of first- and third-degree assault for Nykkole’s injuries, and he is serving a 180-month sentence.[4]            

Procedural History
Evidentiary Gap: Duty to Report Suspected Abuse Ruled Off Limits

On July 27, 2001, Nykkole’s adoptive parents, Michael and Nancy Becker, began a medical malpractice case against the Mayo Clinic and its doctors, alleging that they had a duty to diagnose and treat Nykkole’s abuse-related injuries and that they failed to prevent the ongoing abuse.  In part, the doctors failed to protect Nykkole, because they did not report their suspicions of abuse to outside authorities who would have protected her.  The Beckers raised the following counts of negligence in their Complaint: (1) failure to adequately assess and document injuries associated with intentionally afflicted trauma; (2) failure to recognize and treat signs and symptoms of head trauma in an infant with a history of suspicious traumatic injury; (3) failure as a mandatory reporter to report suspected child abuse; (4) failure to have in place hospital policies requiring hospital personnel to comply with mandatory reporting requirements; and (5) failure to monitor activities of hospital staff to assume compliance with reporting of suspected child abuse.  Claims (3) – (5) were stricken before trial based on Mayo’s argument that no private civil cause of action for failure to report suspected child abuse exists.  

The district court allowed the Beckers to proceed with their medical malpractice claim but prevented them from presenting the strongest evidence in their negligence case: the Mayo Clinic and its physicians acted outside the standard of care in their failure to diagnose Shaken Baby Syndrome and in their decision not to report classic signs of child abuse. 

Central to the case is the scope of a doctor’s responsibility under the Child Abuse Reporting Act (CARA).  CARA’s stated policy is to “protect children whose health or welfare may be jeopardized through physical abuse, neglect, or sexual abuse.”[5] CARA requires the reporting of neglect and physical or sexual abuse in the home, school, and community settings and requires an investigation when the report alleges substantial child endangerment.  Professionals engaged “in the practice of the healing arts,” such as doctors and nurses, are mandatory reporters.[6]  That means that if a doctor knows or has reason to believe that a child is being abused, the doctor must immediately report the information to the local welfare agency or police department.  CARA provides a misdemeanor criminal penalty for a mandatory reporter’s failure to report.[7]  CARA also provides immunity from liability to any mandatory reporter who reports in good faith.[8] 

The district court granted the Mayo’s Motion in Limine to exclude reference to the Child Abuse Reporting Act and anything related to CARA, including contacts outside the Mayo Clinic.  The Beckers petitioned the Court of Appeals for discretionary review of the district court’s decision, but the petition was denied.  As a result, this ruling severely affected the trial in January 2004.  There could be no mention of a duty to report suspected child abuse and the resulting investigation that would follow from such a report.  After nearly two weeks of trial, the Beckers won the first-ever negligence verdict in Olmsted County against the Mayo Clinic, but the jury did not find that the negligence caused Nykkole’s injuries.
  
The Beckers sought a new trial without success and then appealed to the Minnesota Court of Appeals arguing that (1) the district court’s erroneous exclusion of reporting-related evidence abolished the common law claim that the Mayo breached its duty to treat Shaken Baby Syndrome by failing to report suspected abuse; (2) the Mayo physicians had a special relationship with Nykkole and a common law duty to protect her from the abuse of her father; and (3) the jury’s causation verdict was based on errors of law.

After the principal briefing, the Minnesota Supreme Court decided Radke v. County of Freeborn,[9] which recognized a private cause of action under CARA against county workers for failure to investigate reported child abuse and neglect.  The Beckers argued that to harmonize CARA, a private cause of action should be extended to mandatory reporters who fail to report in the first instance.
  
The Court of Appeals recognized “[t]he tragic facts of this case are hard to swallow.”[10]  Even though Nykkole had “slipped through the cracks,” the court affirmed the district court and declined to apply the civil remedy in Radke to mandatory reporters who fail to report abuse in the first place.  The Court of Appeals also found no common law duty to report child abuse and that the Mayo owed no special duty to Nykkole because she was not an inpatient.  The Court of Appeals held that while reporting-related evidence would have been admissible at trial, the exclusion of it had not prejudiced the Beckers because they could have established causation based on Mayo’s failure to utilize its own internal resources to prevent Nykkole’s injuries.
   
The Minnesota Supreme Court granted review to the Beckers and the Minnesota Department of Human Services on three issues: (1) whether CARA creates a cause of action for failure to report child abuse; (2) whether a hospital that accepts responsibility for treating a child owes that child a special duty to protect her from future harm; and (3) whether there is a common law cause of action for failure to report suspected child abuse in Minnesota.  Oral argument was heard on October 30, 2006,[11] and the Court’s opinion, authored by Justice Paul H. Anderson, was issued on August 16, 2007.  Justices G. Barry Anderson and Lorie S. Gildea dissented.  Justice Alan Page did not take part in the consideration or decision of the case.

Minnesota Supreme Court Opinion
CARA and Common Law Allow Evidence of Duty to Report

The Court recognized that the Beckers have a common law cause of action, which they were prevented from developing given the early ruling to exclude all reporting-related evidence.  As a result of the erroneous ruling, the Beckers were unable to introduce evidence that Mayo chose to violate accepted standards of medical practice by not reporting Nykkole’s suspected abuse.  An error in the exclusion of evidence is grounds for a new trial if it appears that the evidence “might reasonably have changed the result of the trial if it had been admitted.”[12]

The Court found that the district court’s error in excluding evidence stemmed from its reliance on a Minnesota Court of Appeals case, which held that CARA does not create civil liability for failure to report suspected abuse.[13]  However, the Court noted that it does not follow that there is no common law cause of action for failure to report suspected child abuse.  A new trial is required because admission of reporting evidence might reasonably have changed the result at trial based on the Court’s analysis of the standard of care and causation.

The Court noted that establishing negligent care and treatment in a medical malpractice action typically requires the introduction of expert testimony regarding (1) the standard of care in the medical community applicable to the particular defendant’s conduct; (2) that the defendant departed from that standard of care; and (3) that the departure directly caused the plaintiff’s injury.[14]  Importantly, as the Court recognized, the standard of care is a question of fact for the jury to determine from testimony of qualified experts.  The Court found the Beckers’ evidence—proffered medical experts[15] and authoritative medical journals, which provided that physicians should report possible non-accidental trauma to the police department or community child protective services—would have allowed a reasonable jury to conclude that the accepted standard of care required Mayo’s physicians to report suspected abuse.  Moreover, the Court held that CARA’s reporting requirement is admissible as evidence that a physician of ordinary skill who suspects that a patient is a child abuse victim would report the abuse to outside authorities.
    
The Court’s analysis did not end there.  In order to win a new trial, the Beckers were required to show that the excluded evidence would have had a reasonable likelihood of affecting the jury’s verdict.  The Court found that the only argument the Beckers were able to make—that the Mayo should have indefinitely hospitalized Nykkole—was implausible.  An average juror would assume that a hospital has no inherent authority to confine an infant indefinitely without parental consent.  Given that the jury’s basis for finding negligence was unknown, the Court concluded that reporting-related evidence might reasonably have changed the jury’s analysis of the standard of care or causation.  On this basis, the exclusion of reporting-related evidence required reversal and the grant of a new trial.

The Court rejected the Beckers’ argument that the Mayo had a “special relationship” with Nykkole and that this special relationship created a duty to protect her from future injuries by her parents.  The general common law rule is that a person does not have a duty to protect another from harm caused by a third party’s conduct[16] except when the harm is foreseeable and a special relationship exists between the actor and the person seeking protection.[17]  The Court reviewed its special relationship jurisprudence; the relevant factors in its analysis include the vulnerability and dependency of the individual, the power exerted by the defendant, and the degree to which the defendant has deprived the plaintiff of her ordinary means of protection.  Noting that the facts in the case present a close and difficult question, the Court ultimately concluded that no special relationship existed.
  
The Court also rejected the Beckers’ argument that nothing in CARA precludes an implied civil cause of action for failure to report suspected child abuse even though it is not expressly stated in the statute. The Beckers argued CARA’s policy of preventing abuse and its civil immunity provision to a mandatory reporter who acts in good faith,[18] along with Radke and the lack of prosecutions for failure to report, weigh in favor of recognizing such liability.  The Court noted that principles of judicial restraint strongly caution against the recognition of a cause of action that does not exist at common law or that was not expressed by the legislature.  CARA’s criminal penalty and its silence regarding civil penalty for failure to report were unambiguous.  The Court found that the legislature deliberately chose not to provide for a civil remedy.

The Court held that Radke does not compel the conclusion that civil liability can be imposed on mandatory reporters who fail to report.  In Radke, a civil cause of action existed against a county for its negligence in investigating reports of child abuse because the legislature had failed to impose any sanction whatsoever on investigators.  The Court did not find any incongruity with criminal sanctions against mandatory reporters given the legislature’s choice to encourage reporting of suspected child abuse.  Nor did the Court find that CARA’s provision of civil and criminal immunity to mandatory reporters applies to those who fail to report.  Finally, the Court left to the legislature the determination of whether civil liability is appropriate.

The Beckers will return to the district court in Olmsted County in October 2007 for a scheduling conference.  They will now be able to develop evidence related to their medical malpractice claim that the doctors breached the standard of care for treating Shaken Baby Syndrome by failing to diagnose and report.  It is the Beckers hope that the Minnesota Supreme Court’s recognition of their common law claim will help to prevent such unnecessary tragedies by encouraging doctors to pick up the phone and report suspected abuse to local county authorities.  Nykkole’s catastrophic injuries could have been prevented had the doctors chosen to do so.