A jury award of $11 million against an upstate New York pediatrician in an unusual medical malpractice case leaves health professionals in the awkward position of having to investigate whether a child has been molested -– even if they do not have to report the abuse.

Dr. Patricia Monroe

The verdict in a case brought by two sisters -– identified in court documents only as Brittany and Melissa -- who were molested by their half-brother found Dr. Patricia Monroe liable for being too “passive” after she learned in August 2000 that the boy had touched Brittany inappropriately.

Under New York's mandatory reporting law, Monroe, who practices in Saranac Lake, N.Y., did not have to report the suspected abuse because the half-brother was also a minor. The law only applies in a case involving an underage perpetrator if the parent or caretaker of the victim allowed the abuse to happen.

Police began an investigation in February 2001 but the sisters, now 18 and 16, alleged that Monroe fell below the standard of care by failing to discover that their mother was unable to protect them and take other steps to prevent the abuse at an earlier date. Among other things, she did not examine Brittany, the older girl, for physical signs of abuse during five office visits.

"I turned it over to the doctor," the mother told the Glen Falls Post-Star newspaper. "I didn't know what to do about it."

Monroe testified that she committed only an “error in judgment” -- not malpractice -- by choosing to address the sexual abuse issue with Brittany when she came into her office for a visit scheduled specifically for that purpose rather than attempt to address it while treating the girl's routine medical complaints.

But U.S. District Judge Lawrence E. Kahn refused to instruct the jury on the “error in judgment” theory, finding no proof that Monroe had to choose between two medically accepted treatment alternatives. The jury awarded $6 million to Brittany for pain and suffering and $5 million to Melissa.

The girls' mother called Monroe on Aug. 16, 2000 after reading an excerpt in Brittany's diary which said she had “been touched in places [she didn't] want to be touched.” Monroe testified she did not make a report because “the alleged touching was not done by someone who had a supervisory role over the child” and she felt the mother was taking care of Brittany.

Over the next few months, the mother, who had begun working nights, left her children in the care of a babysitter. On Jan. 31, 2001, Brittany and Melissa disclosed to their mother that the half-brother had been abusing them during that time, leading to the police investigation.

The girls sued Monroe and her employer –- Adirondack Internal Medicine and Pediatrics -- in January 2002 for violating the mandatory reporting law and malpractice but Judge Kahn summarily dismissed the case in May 2007.

“[T]his Court cannot find that it is a doctor’s duty to make a report against a parent of sexually  abused children or undertake independent investigations when a parent is taking responsible steps to protect her children,” he ruled, and

Expanding the scope of a physician’s duty in such a way is neither consistent with the state child protective system nor appropriately respectful of a parent’s autonomy ... The default under this system is that primary responsibility for preventing child abuse lies with the parents, not mandatory reporters.

Kahn also found no medical evidence that if Monroe had performed a thorough physical exam of Brittany, the abuse would have been discovered at an earlier time. But in an unpublished opinion, the U.S. 2nd Circuit Court of Appeals reinstated the malpractice claim without considering the broader policy implications of the case or the medical evidence.

After deliberating for just over seven hours, the jury found Aug. 27 that Monroe deviated from the accepted standard of care by failing to properly diagnose the plaintiffs of sexual abuse and to “appropriately treat and/or care” for them. That negligence, jurors said, was a substantial factor in causing the abuse they suffered between August 2000 and February 2001.

The verdict has sparked an outcry against the tort system from physicians and others. The jury “pinn[ed] an unbearable penalty -- professional ruination -- on someone who didn't do anything wrong,” the Adirondack Daily Enterprise raged in an editorial.

But the real culprit here may be the exemption of child-on-child sexual abuse from New York's mandatory reporting law. Florida closed a similar loophole in 1994, recognizing that the protection of children is more important than outdated notions of “parental autonomy.”

If the law had required Monroe to make a report in August 2000 -– even without evidence of parental neglect –- she could have avoided any legal liability and health professionals in New York would not be left trying to figure out how to protect themselves from a malpractice suit while not infringing on parents' rights.

Monroe has filed a motion for a new trial which argues that Kahn erred by refusing to allow apportionment of liability to the girls' mother and half-brother and instruct the jury on “error in judgment.” The motion is scheduled to be heard Oct. 5.

By Matthew Heller
9/18/09