April 01, 2011

Siblings of Deceased Child Could Not Recover on Wrongful Death and Survival Claims

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Beggs v. State Dep’t of Social & Health Servs., 2011 WL 543817 (Wash.).

Adoptive children whose sibling died due to foster mother’s neglect could not recover on wrongful death and survival claims against health care providers. Siblings were unable to show they were dependent on child, and although health care providers are subject to civil claims under mandatory reporting statute, court upheld lower court’s partial summary judgment order dismissing claims against health care providers.

The child and six other children were placed in a foster home between 1997 and 2002. Later, the child and three other children were adopted by the foster mother, despite 23 referrals to child protective services alleging physical or sexual abuse and neglect in the foster mother’s home. At least three of the referrals involved allegations of physical abuse of the child.

The child also lost significant weight while in the foster mother’s care.
On his seventh birthday, the child died of dehydration and starvation due to his adoptive mother’s neglect and abuse. He weighed 28 pounds. The child welfare agency then removed the other children from the foster/adoptive mother’s home and ended her support payments.

The child’s siblings and personal representative filed wrongful death and survival actions against the child welfare agency and its employees, the deceased child’s health care clinic and two of its doctors, and the child’s primary care physician and his psychiatrist. They argued the primary care doctor and psychiatrist knew of the child’s severe weight loss, stunted growth, and behavioral problems, and the CPS referrals.

The health clinic and doctors moved for partial summary judgment, arguing first that the wrongful death and survival actions should be dismissed since the siblings were not dependent on the child. They also moved for dismissal of any civil action under the mandatory reporting statute because the medical malpractice statute precluded it. The trial court granted these motions.

The child’s personal representative appealed. The court of appeals granted review and certified the case to the state supreme court.

The Supreme Court of Washington agreed to decide if (1) Washington’s mandatory reporting statute implies a cause of action against health care providers apart from the medical malpractice statute; and (2) the deceased child’s adoptive siblings were dependent on him for support under the wrongful death and survival action statutes based on adoption support payments the adoptive mother received for the child.

Regarding the first issue, the court found that child abuse victims are within the class for whom the legislature enacted the mandatory reporting statute and that the statute implicitly supports a civil remedy for failing to meet that duty. Further, it found an implied cause of action was consistent with the statute’s underlying purpose to prevent further abuse and safeguard children.

The doctors claimed that a civil remedy implied by the mandatory reporting statute did not apply to them because the legislature created a separate liability scheme for negligent health care in Washington’s medical malpractice statute. They further claimed their duty to report only arose during the course of their employment and in the context of a doctor-patient relationship.

The medical malpractice statute provides remedies for claims against doctors for injuries resulting from health care, defined as the process of using skills in examining, diagnosing, treating or caring for a patient. The court explained that the doctors’ duty to report did not necessarily arise while they were providing health care. Rather, doctors and health care professionals are among those professionals who must report when they have “reasonable cause to believe a child has suffered abuse or neglect.” They do not have to provide health care or exercise their special skills in examining, treating, or diagnosing a child to form this reasonable cause. The suspicion can arise during the course of professional employment and the threshold of suspicion is lower.

The court found the medical malpractice statute did not preclude a civil claim against the doctors in this case under the reporting statute. However, because a claim for failure to report suspected abuse could only be brought as a survival action, the court affirmed the trial court’s partial summary judgment order dismissing the claim.

Regarding the second issue—whether the adoptive siblings were dependent on the deceased child—Washington’s wrongful death statute creates two kinds of beneficiaries.  First tier beneficiaries need not show dependency to recover because of the nature of their relationship to the deceased. Second tier beneficiaries may only recover if there are no first tier beneficiaries and must show dependency to recover.

The adoptive siblings were second tier beneficiaries who had to show they were either dependent on the deceased child financially or for services. They claimed they were dependent on the child because the child welfare agency provided $717 per month in adoption support payments to the adoptive mother for his care; the household was dependenct on the adoption support payments; and the adoptive mother pooled the support money she received with other family resources that benefitted them.

The court rejected the siblings’ claims, finding the agency provided separate support payments to supplement their support and that they were not dependent on the deceased child’s support payments. The court therefore affirmed the trial court’s partial summary judgment dismissing these claims.