Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Thomas v. Nationwide Children's Hospital, Inc.

United States District Court, S.D. Ohio, Eastern Division

May 19, 2017

DANIEL THOMAS, et al., Plaintiffs,
v.
NATIONWIDE CHILDREN'S HOSPITAL, et al., Defendants.

          Magistrate Judge Terence P. Kemp

          OPINION AND ORDER

          EDMUND A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Motions for Summary Judgment of Defendants Nationwide Children's Hospital, the Center for Family Safety and Healing, the Center for Child and Family Advocacy, Dr. Farah Wadia Brink, Dr. Jonathan Thackeray, and Dr. Corey Rood ("Children's Defendants") (ECF No. 155) and Franklin County Children Services ("FCCS") (ECF No. 156). Plaintiffs have filed a combined Memorandum in Opposition to Defendants' Motion for Summary Judgment (ECF No. 181.) The Children's Defendants and FCCS filed their Replies (ECF Nos. 183, 184) on April 10, 2017, and the matter is ripe for consideration. For the reasons that follow, Defendants' Motions for Summary Judgment (ECF Nos. 155, 156) are GRANTED.

         I. BACKGROUND

         A. The Plaintiffs

         The Plaintiffs are three families, the Thomases, the Rose-Moores, and the Burleys. These parents brought newborn or infant children for treatment at the Emergency Department of Nationwide Children's Hospital ("NCH") in Columbus, Ohio.[1] These three children were six months old or younger at the time they were brought to the Emergency Department for treatment, and are sometimes referred to by the medical providers as the "index children, " to differentiate them from siblings who were seen for evaluation at NCH.

         1.The Thomas Family

         Anna and Daniel Thomas's son, Evan, was three months old when he was brought to the Emergency Department at NCH for treatment on the night of May 23, 2013. Emergency Department doctors asked them to bring in Evan's sibling, Samuel, aged twenty-two months, so that he could also be examined. The Thomases brought Samuel as requested, "in the early morning hours of May 24, 2013." The parents assert that "[w]ithout parental consent, or justification, the two children were subjected to high doses of ionizing radiation and insertion of needles in their bodies while Anna Thomas looked on in fear and confusion, " and that "the intrusions into the boy's [sic] bodies has [sic] caused severe, long-term consequences for the children and their mother." (Compl., ECF No. 17, at ¶1.)

         2. The Rose-Moore Family

         Jessica Rose and Russell Moore's daughter, Gabriella, was six months old when she was brought to the Emergency Department at NCH on the night of April 19, 2014. No siblings were reported. She was admitted to the hospital. The parents assert that "[w]ithout parental consent, or justification, the child was subjected to high doses of ionizing radiation and insertion of needles in her body while the mother looked on in fear and confusion, " and that "her further detention as an inpatient; the subsequent skeletal x-rays; and the intrusions into the privacy of the child's body has caused severe, long-term consequences for the children and parents." (Compl., ECF No. 17, at ¶ 3.)

         3.The Burley Family

         Lori and Chad Burley's son, Luke, was 19 days old when he was brought to the Emergency Department at NCH for treatment on the night of July 27, 2014. Emergency Department doctors asked them to bring in their children, Suzanna, Jacob, and Lillian, ages six years old and younger, so that they could also be examined. The parents did so. The parents contend that "[w]ithout parental consent, or justification, the children were subjected to high doses of ionizing radiation and insertion of needles in their bodies while their mother and father looked on in fear and confusion, " and that "the intrusions into the privacy of the children's bodies has caused severe, long-term consequences for the children and their parents." (Compl., ECF No. 17, at ¶ 2.)

         B. The Defendants

         Plaintiffs bring suit against "Nationwide Children's Hospital, the Center for Child Advocacy and Healing at Nationwide Children's Hospital and The Center for Family Safety and Healing" asserting that they are "not-for-profit corporations organized under the laws of the State of Ohio ...." (Compl., ECF No. 17, at ¶ 4.)

         Plaintiffs also bring suit against several medical doctors. They sue Dr. Jonathan Thackeray, "in his individual and official capacities" as formerly "Executive Director of The Center for Family Safety and Healing, acting under authority of the Nationwide Defendants" and as "the final decision maker representing the Nationwide Defendants in formulating and authorizing illegal actions taken against the Plaintiffs as set forth herein." (Compl., ECF No. 17, at ¶ 5.) Additionally, Plaintiffs bring suit against Dr. Farah Brink and Dr. Corey Rood, "fellows at The Center for Family Safety and Healing, acting for and under the authority of the Nationwide Defendants, and authorized the illegal actions taken against the Thomas family as set forth herein. They are sued in their individual and official capacities." (Compl., ECF No. 17, at ¶ 6.)

         The last defendant is the "Board of Trustees, Franklin County Children Services" as "the duly organized body responsible for the actions of the employees of the agency as set forth herein. All actions taken were in conformance with the agency's policies, practices and customs" (Compl., ECF No. 17, at ¶ 7.)

         After the Children's Defendants and FCCS filed their motions for summary judgment, the Plaintiff families advised the Court that they will not proceed on six of the nine claims brought in their amended Complaint, including all of the claims brought under state law. See PL's Mem. Opp. (ECF No. 181, p. vii.) Thus, the Plaintiffs proceed "only on their claims for Fourth Amendment violations (Count Five of the First Amended Complaint), for violations of the parents' familial association rights (Count Seven), and for declaratory and injunctive relief based on these violations (Count Nine)." (Id.)

         II. FACTS

         The following facts are not disputed.

         A. NCH and the Named Physicians

         NCH is a private pediatric hospital in Columbus, and its designated corporate representative for this litigation was Dr. Jonathan Thackeray, a medical doctor board-certified in both Pediatrics and Child Abuse Pediatrics, and the former Chief of the Division of Child and Family Advocacy, and former Medical Director of the Center of Family Safety and Healing at NCH.[2] (Children's Def. Mot. Summ. J., ECF No. 155, at p. 15, n. 16.) Dr. Thackeray stated that the hospital provides "family centered care" and focuses "on the family's needs, as well as the child's, to promote and maintain the health of the child in the context of the family and community." (Thackeray Aff, ECF No. 155-10, ¶ 2.) Dr. Thackeray explained that "[c]hild abuse is a recognized medical diagnosis." (Id. at ¶ 6.) NCH has a Child Assessment Team ("CAT"), which is a consulting service that includes "Child Abuse Pediatricians and social workers who provide medical consultations for patients in the hospital with injuries suspicious for child abuse." (Id. at ¶ 9.) The consultation may be made by phone, "or may involve the Child Assessment Team examining the child and speaking to the family." (Id. at ¶ 10.)

         Dr. Thackeray's involvement with the three Plaintiff families was through the Child Assessment Team at NCH. (Id. at ¶ 8.) Dr. Brink and Dr. Rood were Child Abuse Pediatrician Fellows under the supervision of Dr. Thackeray, who was the Child Assessment Team Attending Physician on duty when the CAT was consulted by the treating physicians in the Emergency Department. (Id. at ¶¶ 11-12, 28-29.)

         B. The Injuries Presented

         It is undisputed that between 2013 and 2014, the three Plaintiff families brought infant children to be treated at the Emergency Department of Nationwide Children's Hospital for very serious injuries: Evan, a three month-old infant, was treated for a fractured femur; Gabriella, a six month-old infant, was treated for a skull fracture and right distal ulnar fracture; and Luke, a 19 day- old infant, was treated for two skull fractures, one on each side of his head. (Id. at ¶¶ 14, 22, and 27.) In each case, NCH and its physicians diagnosed and provided medical treatment for the injuries, and at least one parent of each child consented to the treatment, and was present in the hospital for all medical tests and treatment performed by the hospital. (Id. at ¶ 33.)[3] Additionally, Dr. Thackeray stated that the medical standard of care "requires physicians to recommend that young siblings of suspected child abuse victims be evaluated for medical purposes to determine whether they are also suffering from child abuse, which is a medical diagnosis." (Id. at ¶ 16.)

         1. Evan Thomas's injury

         On May 23, 2013, three-month-old Evan was brought to the NCH Emergency Department with a fractured femur. Dr. Elizabeth Claxton, a Board Certified Pediatric Emergency Medicine Physician, was the attending physician in the Emergency Department of NCH assigned to Evan. (Claxton Aff, ECF No. 155-5, at ¶¶ 1 -3.) She stated that the "facture was proximal, suggesting that the injury could have been caused by torqueing, meaning a turning or twisting force, which is a common mechanism of injury in child abuse victims." (Id. at ¶ 4.) Dr. Claxton explained that she "and the other medical professional treating Evan Thomas recommended consistent with the standard of care, that his siblings, under the age of two also be seen and examined in the emergency room to determine whether they had any signs or symptoms of child abuse, which is a medical diagnosis." (Id. at ¶ 14.) Dr. Claxton further stated that "[t]he medical tests and treatments provided to the siblings were also medically necessary and performed for medical purposes. None of the tests performed on any of the minor plaintiffs were performed for investigatory purposes." (Id. at ¶ 18.) Dr. Thackeray was the attending physician for the CAT team, and he explained further that "[t]here had been a delay in seeking treatment for the injury, and this type of fracture in a non-ambulatory child is highly suspicious for a diagnosis of child abuse. Additionally, the mother's story regarding how the injury occurred did not indicate the type of force that would be needed to break this bone in an infant." (Thackeray Aff., ECF No. 155-10 at ¶ 14.) Dr. Farah Brink, the Child Abuse Pediatrician Fellow on duty, was consulted by the Emergency Department treating physicians on Evan's case, and Dr. Thackeray agreed with Dr. Brink's medical recommendations. (Id. at ¶¶ 11-13.) Specifically, Dr. Thackeray "agreed with Dr. Brink's assessment and the assessment of the Emergency Department physicians, Dr. Claxton, and Dr. Little that Evan Thomas' injury was reasonably suspicious for child abuse. [Dr. Thackeray] further agreed with their recommendations that Evan's 23 month old brother, Samuel, should also be seen and examined in the Emergency Department." (Id. at ¶ 15.)

         "The Emergency Department physicians and social workers appropriately reported then-reasonable suspicions of child abuse to Franklin County Children's Services ("FCCS"), and requested and completed examinations of the sibling of Evan, as appropriate and within the standard of care for treatment of suspected child abuse." (Id. at ¶¶ 17-18.) Dr. Thackeray never spoke with Evan's family directly, but rather was consulted by the Emergency Department physicians. (Id. at ¶¶ 18-19.)

         2.Gabriella Rose-Moore's injury

         On April 19, 2014, six-month-old Gabriella was brought to the NCH Emergency Department with a skull fracture. "The parents reported that four days prior, Gabriella had been left on a table in her bumbo seat, and had fallen from the table.[4] The mother reported that she found Gabriella lying on her right side after the fall. Gabriella's fracture was on the left side of her skull. The parents' story was inconsistent with her injury, and there was a four day delay in seeking treatment." (Thackeray Aff, ECF No. 155-10, at ¶¶ 27-30.) Dr. Corey Rood, the Child Abuse Pediatrics Fellow on duty for the Child Assessment Team, was consulted by the Emergency Department treating physicians on Gabriella's case, and Dr. Thackeray agreed with Dr. Rood's medical assessment and recommendations for tests and treatment. (Id. at ¶¶ 28-29.) "The Emergency Department Staff appropriately reported their reasonable suspicions of child abuse to the Franklin County Children's Services." (Id. at ¶ 31.)

         Dr. Sandra Cockerham, a Board Certified Pediatric Emergency Medicine Physician, was the attending physician in the Emergency Department when Gabriella was brought in for treatment. She explained in her affidavit that "[d]elay in seeking treatment is an indicator of the medical diagnosis of child abuse, and Gabriella Moore's parents had waited four days to seek care for her injury." (Cockerham Aff., ECF No. 155-13, at ¶ 6.) "The combination of these factors, as well as the additional finding of an ulna fracture, led us to reasonably suspect that Gabriella Moore was the victim of child abuse or neglect and thus a mandatory report was required to be made to Franklin County Children's Services and the Columbus Police Department." (Id. at ¶ 7.) Gabriella "was admitted to the hospital due to the seriousness of her injuries." (Id. at ¶ 16.)

         3. Luke Burley 's injury

         On July 27, 2014, 19-day-old Luke was admitted to the hospital with a skull fracture on each side of his skull. (Thackeray Aff., ECF No. 155-10, at ¶¶ 21-22.) The Child Assessment Team received a consult to examine Luke on July 28, 2014, and Dr. Thackeray was the Child Abuse Pediatrician who responded to the consult request. (Id.) Dr. Thackeray examined Luke and spoke with his mother, who reported that Luke had fallen 10 days earlier. (Id. at ¶ 23.) Dr. Thackeray stated that the report "would not account for the significant fractures seen - specifically the right parietal displaced fracture. Further, we would not expect swelling to appear as dramatically as it did 10 days after the event." (Id.) Dr. Thackeray stated that "[d]uring our discussions with the mother, she also revealed that she had lost custody of three other children due to suspected child abuse and that those children were placed in the permanent custody of their grandmother." (Id. at ¶ 24.) Dr. Thackeray further stated that, after examining Luke and speaking with Luke's mother, he "felt that the findings were highly suspicious for physical abuse, as the history provided was not plausible to support the type of injury sustained by the child." (Id. at ¶ 25.)

         Dr. Julia Lloyd, a Board Certified Pediatric Emergency Medicine Physician, was the attending physician in the Emergency Department at NCH when Luke was brought to the hospital with head swelling. She stated that neither parent could explain how the injury occurred, but Luke's father speculated that it may have occurred when the newborn rolled off the sofa 10 days earlier. (Lloyd Aff., ECF No. 155-4, at ¶¶ 5-6.) Dr. Lloyd explained that "[t]he fact that the only potential cause provided by either parent was an event that occurred ten days earlier suggested a delay in seeking care, which is a common indicator of the medical diagnosis of child abuse." (Id. at ¶ 7.) Prior to consulting Dr. Thackeray, the Emergency Department staff had reported their "reasonable suspicions of child abuse to Franklin County Children's Services, and ha[d] requested and completed examinations of the siblings of Luke Burley, as appropriate and within the standard of care for treatment of suspected child abuse." (Thackeray Aff., ECF No. 155-10, at ¶ 26.)

         C. Expert Opinion

         The Children's Defendants have offered the reports of three medical expert witnesses: two expert witnesses in the field of Child Abuse Pediatrics, and an expert in Pediatric Radiology. These expert witnesses prepared reports, and testified to the medical standard of care provided by NCH and the physicians in this case. These experts reviewed the medical records of the children and opined that the standard of care was met for each of the child plaintiffs in this case, including the siblings of the index children, and that all of the medical testing was appropriate and necessary and Within the standard of care. Further, Dr. Pollock, a radiologist with a specialty in pediatric radiology, opined that the level of radiation each child was exposed to was at or below the acceptable dose range set forth by the American College of Radiology. See Expert Reports of Dr. Avrum Pollock (ECF No. 155-2, at p. 4); Dr. Robert Shapiro (ECF No. 155-3); and Dr. Daniel Lindberg (ECF No. 155-12). The evidence presented by these expert witnesses is uncontested. (See Children's Def. Mot. Summ. J., ECF No. 155, at p. 15, n. 17.)

         D. Franklin County Children Services

         Franklin County Children Services ("FCCS") is a public children services agency. (FCCS Mot. Summ. J., ECF No. 156, at p. 3.) It is uncontested that under Ohio law, physicians have a legal duty to report reasonable suspicions of child abuse or neglect to children's services or law enforcement agencies. The duty to report is set forth in O.R.C. § 2151.421(A)(1)(a) and (b). Physicians who have reasonable cause to suspect that an injury may indicate abuse must "immediately report that knowledge or reasonable cause to suspect" to the public children services agency or municipal or county peace officer where the child resides.[5]

         FCCS asserts that its role upon receipt of a report of suspected abuse is established by Ohio law as follows:

Upon receipt of a report of suspected abuse, a PCSA must investigate that report within twenty-four hours to determine the circumstances surrounding the injuries, abuse, or neglect and the person(s) responsible. O.R.C. § 2151.421(F)(1). That investigation is required to be conducted "in cooperation with the law enforcement agency, " and the PSCA is required to submit a written report of its investigation to law enforcement. Id. The investigation must be conducted pursuant to the memorandum of understanding "MOU" required of each PCSA pursuant to O.R.C. § 2151.421 (J). Id. The required MOU must be signed by numerous public entities and officers, O.R.C.§2151.421(J)(1)(a)-(i), and must generally set-forth the procedures to be followed in conducting the investigations under O.R.C. § 2151.421. O.R.C. § 2151.421 (J). The MOU created by FCCS as required under this section is Exhibit 1 to the Second Amended Complaint, Doc. # 17-1 and 17-2, Page ID 345-393 (the "FCCS MOU")....

(FCCS Mot. Summ. J., ECF No. 156, at p. 4.)

         Ms. Lara Laroche, the Director of Intake for FCCS, testified at deposition and provided an affidavit explaining the role of FCCS in conducting investigations. (Laroche Aff, ECF No. 156-1 .[6] She stated that a "safe discharge plan" is separate from a physician's determination of when to medically discharge a patient, and that FCCS had no role in any of the medical decisions in this case. Additionally, she testified in her affidavit ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.