EXECUTIVE SUMMARY
A Florida jury ordered a $261 million verdict against a hospital that reported suspected child abuse. The hospital has requested a new trial.
- The child’s parents were prevented from seeing her.
- The mother committed suicide, allegedly in response to the hospital’s actions.
- A Netflix documentary brought publicity to the case.
A recent $261 million judgment against a hospital could have a chilling effect on hospitals trying to weigh the obligation to protect minor patients against the parents’ rights to see the child. The case received substantial media attention, which could influence the way clinicians and administrators handle such cases.
A jury in Florida ordered a hospital to pay $261 million in damages to a family that alleged the hospital abused a 10-year-old patient and accused her mother of Munchausen by proxy, leading to the mother’s suicide in 2017. The parents were barred from seeing the child during months of treatment.
The family’s story received widespread publicity in the Netflix documentary “Take Care of Maya,” which further prompted media coverage of the resulting trial. The jury in Florida’s 12th Judicial Circuit Court in Sarasota County ordered $211 million in compensatory damages and $50 million in punitive damages for false imprisonment, battery, medical negligence, and other charges. The damages were awarded for infliction of emotional distress on the daughter, Maya Kowalski, and her mother, Beata Kowalski.
Maya Kowalski was hospitalized from Oct. 7, 2016, to Jan. 13, 2017, initially for treatment of a rare pain syndrome, court documents show. When she first was admitted through the ED, a child welfare agency physician specializing in detecting child abuse examined the girl. The state issued a court order, and the girl remained in the hospital for about three months as the family attempted to have her discharged.
The plaintiff alleged that the hospital issued orders to isolate Maya, monitor her with video surveillance, and restrict family access. It also claims the girl was touched against her will or without parental consent. During this time, the lawsuit claims “symptoms worsened: her lesions reappeared, her legs atrophied, she regressed and became wheelchair bound.” (The complaint is available online at: https://www.scribd.com/documen....)
Mother’s Death Tied to Case
The hospital claimed that it was only following the orders of the Florida Dependency Court, which handles matters of child abuse and neglect. The court said there was a reasonable suspicion of abuse.
Beata Kowalski saw her daughter in a court hearing on Jan. 6, 2017, for the first time since the girl was admitted to the hospital three months earlier. She thought her daughter’s health was worse than when she was first admitted to the hospital. Beata Kowalski took her own life less than 48 hours later, the complaint said. The court ordered the discharge of Maya to her father on Jan. 13, 2017.
After the verdict, the hospital requested a new trial, claiming one of the jurors acted improperly, including accessing information not presented at trial. The family also filed a second lawsuit against the hospital, claiming Maya was sexually assaulted during her stay at the hospital.
Dilemma for Hospitals
Hospitals in such situations can find themselves under criticism when they are only complying with state reporting requirements, says Christopher J. Ryan, JD, an attorney with Dickinson Wright in Ann Arbor, MI. Most states require healthcare providers to report suspected child abuse. In Michigan, the standard is reasonable cause to suspect child abuse or neglect. Abuse includes mistreatment, such as Munchausen by proxy, in which a parent or caregiver deliberately makes a child sick or interferes with medical care, usually to gain attention and sympathy.
The statute provides civil and criminal penalties for failing to report, Ryan says. In Michigan, good faith is presumed, and the reporter is supposed to be immune from civil or criminal liability.
“If I were talking to a risk manager, my concern is going to be whether this encourages underreporting, that a verdict like this law might actually have the potential to dissuade healthcare providers from contacting the appropriate authorities if they do suspect child abuse,” Ryan says. “Obviously, that not only exposes the healthcare provider to liability, but it runs the risk of underreporting when there’s actual child abuse that’s taking place.”
Reporting child abuse can pose a quandary for clinicians when the evidence is not clear, as is the case with Munchausen by proxy. In these cases, clinicians may strongly suspect a parent is hurting the child but have no obvious evidence as might be present with physical abuse. They may hesitate to report suspicions for fear of the repercussions to the parents — and themselves — if they are wrong.
“On top of that uncertainty they already may feel, they may say that’s what they did down in Florida. They suspected this and reported it, and the headlines would suggest that if I reported that, maybe I’ll be on the hook for a big verdict,” Ryan says. “It’s a tough position for them to be in.”
Reassure Wary Clinicians
Ryan suggests risk managers review their state laws on reporting suspected child abuse and the protections the statute might offer for good faith reporting. However, the risk lies on the frontline, with clinicians who may be discouraged from reporting their concerns because they are afraid of becoming entangled in a legal battle that could end with a large verdict.
Ryan advises educating clinicians and supervisors about the importance of protecting patients without the fear of repercussions. It could be useful to acknowledge the recent Florida case and state plainly that it should not discourage anyone from making a good faith report of suspected abuse.
“What we don’t want to see here is people backing off of what they think are legitimate concerns about Munchausen or even something related. That would be an unfortunate outcome of all of this publicity through Netflix,” Ryan notes. “As an attorney, I would rather be defending a healthcare provider who was accused of reporting suspected abuse that turned out to be wrong than defending somebody accused of failing to report because they were concerned about being sued.”
Unusual Case
The Florida case was not typical. That may help avoid any chilling effects on healthcare workers, says Emily L. Fernandez, JD, partner with Wilson Elser in White Plains, NY.
“This was an unusual and challenging case that I do not expect, for those reasons, will have a wide impact on hospitals in this country. I expect a decision on potential appeal would be more impactful in terms of potential application to other, future cases,” Fernandez says.
On appeal, it will be interesting to evaluate the appellate court’s analysis of the relationship alleged between the hospital, the patient’s mother, the reporting physician, and the state of Florida, Fernandez says. The effect, if any, of prior allegations against the physician could be relevant because it relates to the negligent hiring, retention, and supervision claim against the hospital.
As long as the hospital stays within the standard of care and uses appropriate judgment supported by good documentation, it is the hospital’s role to devise and recommend treatment plans for even difficult cases irrespective of external influences, Fernandez says.
Risk managers need to keep in mind that intentional torts such as battery, fraud, or sexual assault by an employee/agent, as were claimed in this case, may not be covered by medical malpractice insurance and can support an award of punitive damages, which are designed to punish the hospital — not make whole the plaintiff.
“Risk managers should seek to ensure that staff and even independent contractors involved in patient care with the hospital are aware of applicable hospital policies and procedures. Training and training updates may assist in ensuring compliance with or variation from such policies and procedures,” Fernandez explains. “Billing entries and codes should be consistent with diagnoses and treatments reflected in the medical chart. While seemingly obvious, this may be an increasing issue in litigation in the face of increasing automation with electronic medical records and different software systems dictating or circumscribing available diagnoses and treatment options in drop-down menus.”
Follow Child Welfare Orders
In circumstances when child abuse is not observed, but only suspected, it is not advised that healthcare providers decide to physically separate the child from their parents, as was alleged in the Florida case, says Henry Norwood, JD, an attorney with Kaufman Dolowich in San Francisco.
Contacting the appropriate authorities, including the state child welfare organization and the police, is the appropriate response. These authorities are better equipped to handle suspected abuse and determine whether any abuse occurred.
“In the healthcare setting, the provider is often in possession of a patient’s contact information, including their address, so a provider separating a child from their parents should not be necessary. Referring suspected child abuse to the proper authorities is the proper course of action,” Norwood says.
SOURCES
- Emily L. Fernandez, JD, Partner, Wilson Elser, White Plains, NY. Phone: (914) 872-7509. Email: [email protected].
- Henry Norwood, JD, Kaufman Dolowich, San Francisco. Phone: (628) 219-9814. Email: [email protected].
- Christopher J. Ryan, JD, Dickinson Wright, Ann Arbor, MI. Phone: (734)-623-1907. Email: [email protected].
A recent $261 million judgment against a hospital could have a chilling effect on hospitals trying to weigh the obligation to protect minor patients against the parents’ rights to see the child. The case received substantial media attention, which could influence the way clinicians and administrators handle such cases.
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