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Child Services Law Doesn't Bar Med-Mal Suit in Child Abuse Case

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A unanimous three-judge panel of the Pennsylvania Superior Court reversed and remanded a Lancaster County Court of Common Pleas decision, holding that Plaintiffs-Appellants presented a prima facie case that their infant child’s risk of harm was increased by six treating physicians who failed to report suspected abuse, despite the fact that the Child Protective Services Law (“CPSL”) lacks an explicit civil remedy.  The Pennsylvania Superior Court held that regardless of whether the legislature intended the right to a private action under the CPSL, it certainly did not intend to preclude civil redress for violations so severe that they would otherwise amount to criminal conduct.

In K.H., ex rel. H.S. v. Kumar (2015 PA Super 177), defendant physicians participated in the examination and treatment of the child on various occasions and failed to identify or report his injuries as signs of child abuse.  The infant was eventually discovered in his crib unresponsive due to cranial hemorrhaging after being shaken by his father.  His father was subsequently convicted of felony child abuse.  The infant sustained permanent brain damage, seizures, physical and neurodevelopmental deficits, and other physical injuries.

One defendant physician expressed concern of child abuse after discovering rib fractures but concluded that the injury was likely related to the child’s premature birth.  Another defendant physician allegedly accused the child’s parents of abuse, but later denied making any accusations.  A third defendant physician noted a rash or bruise suspicious of abuse, but after speaking with the primary treating physician cancelled further tests.

The child’s mother and stepfather brought negligence claims against the primary treating physician and his medical offices for failing to recognize, treat, and report child abuse pursuant to the CPSL.  The CPSL does not expressly provide a right to a private action, nor does it immunize those who fail in their reporting obligations.  Plaintiffs presented evidence from two pediatricians who opined that pediatricians must recognize, diagnose, and report signs of abuse.  Upon Defendants’ Motion for Summary Judgment, the trial court dismissed all claims on the basis that the CPSL lacked an express provision providing for a medical malpractice claim for failure to report child abuse.

In overturning the trial court’s decision, the Superior Court held that the trial court applied too rigid of a standard in finding that Plaintiffs’ evidence of causation warranted dismissal and that it would be untenable to suggest that Plaintiffs-Appellants failed to adduce sufficient evidence to create a genuine issue of material fact that the physicians breached the standard of care.  The Superior Court held that Plaintiffs-Appellants’ claims should be treated as asserting common-law claims without reference to the CPSL, specifically medical malpractice.  The validity of claims in the case should be determined by a jury based on the applicable standard of care established by the physician-patient relationship.

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