Nancy Becker and Michael Becker, individually and as parents and guardians for Nykkole E. Becker f/k/a Nykkole E. Rossini v. Mayo Foundation

The adoptive parents of a child abused by her biological father sued the hospital that treated the child. The parents alleged that the hospital's physicians failed to prevent ongoing abuse. The district court granted the hospital's motion to strike three counts in the parents' complaint and ruled that the parents could not introduce evidence of the hospital's failure to report suspected child abuse to outside authorities. A jury then determined that the hospital was negligent but that this negligence was not a direct cause of the child's injuries. The parents appealed, arguing that a cause of action exists under the Child Abuse Reporting Act, Minn. Stat. § 626.556, and at common law for failure to report suspected abuse. The court of appeals affirmed the district court. We affirm in part, reverse in part, and remand.

Nykkole Becker, formerly known as Nykkole Rossini, is the adopted daughter of appellants Nancy Becker and Michael Becker. Nykkole, who is now ten-years-old, suffers from severe, permanent disabilities as a result of physical abuse by her biological father. Her biological parents are Brian Rossini and Sabryna Koob.

Nykkole was born on July 26, 1997 at Methodist Hospital in Rochester, Minnesota. At birth she was a healthy child. On August 17, 1997, when she was 22 days old, her biological parents brought her to the emergency room at Saint Mary's Hospital in Rochester, a hospital owned by respondent Mayo Foundation. When Nykkole was brought to the hospital she had bruises on her left forearm. Following an examination and x-rays, hospital staff diagnosed Nykkole as having a spiral fracture to the left humerus. The humerus is the long bone in the upper arm and a spiral fracture is one that goes around the bone. Medical staff at Saint Mary's questioned both parents about the injury to Nykkole and how it occurred. Brian Rossini told the medical staff that the fracture occurred as the result of an accident. He said that he was feeding Nykkole while holding her in his arms and that as he stood to reach for a bottle she "spasmed" and began to roll out of arms. He stated that as Nykkole fell, he grabbed her left arm to keep her from hitting the floor.

Dr. Gregory Alberton applied a splint to Nykkole's left arm and gave her parents a date for a follow up appointment. Dr. Alberton and other medical staff members who had seen Nykkole on August 17 were questioned extensively at trial about the decision to send Nykkole home with her parents that day. Dr. Julia Rosekrans stated that she questioned Nykkole's parents about the injury. Because the humerus is the most commonly fractured bone in child abuse cases and this type of injury is uncommon in infants, Dr. Rosekrans indicated that she initially suspected child abuse. As a result of this suspicion, Dr. Rosekrans, Dr. Alberton, and Dr. Sarah Brandt, a pediatric resident, all questioned Nykkole's parents about the injury.

Dr. Rosekrans stated that after questioning Rossini, she and other staff members believed his story because the accident he described would cause the precise type of injury Nykkole suffered and because he told the story consistently to Dr. Alberton and Dr. Brandt and told it in an unrehearsed manner. Dr. Rosekrans stated that based on her experience, when abusive parents describe injuries to their children their stories tend to change with each retelling. Dr. Rosekrans acknowledged that she did not interview Nykkole's parents separately and that she and the other staff members did not corroborate Rossini's story with additional sources. After consulting with each other, the physicians concluded that the injuries to Nykkole were not caused by abuse, and they released her to her parent's care.

On September 3, Nykkole returned to the hospital for a follow-up treatment for the fracture to her left arm. At this time, hospital staff who treated Nykkole determined that the fracture was healing and that no further treatment was necessary.

On September 11, 1997 Nykkole was again brought to Saint Mary's emergency room by her mother Sabryna Koob. Koob told the medical staff who attended to Nykkole that she was concerned because Nykkole had vomited at least ten times that day and was "sleeping a lot." Koob stated that Nykkole had no other symptoms. Dr. Rosekrans again examined Nykkole, spending almost an hour performing a full physical examination and feeding Nykkole water and infant formula. Dr. Rosekrans stated that she observed no other symptoms and - after concluding that Nykkole had a stomach bug - sent her home with her mother.

Four days later, on September 15, 1997, Koob again brought Nykkole to Saint Mary's emergency room. Nykkole was pale, listless, "acting spacey," smacking her lips, and jerking her left arm and leg. She also had a yellow/green bruise on her head and a swollen fontanelle.[1] Radiological testing revealed that Nykkole had multiple skull fractures, multiple rib fractures, and fractures to both legs. She was also diagnosed as suffering from bleeding in the brain and brain infarctions.[2] The amount of healing to some of the rib fractures made it apparent that the fractures predated the September 11 emergency room visit. Koob asserted that Nykkole hit her head on the bathtub, but Nykkole's treating physicians found this explanation implausible. Nykkole was admitted to the intensive care unit with a diagnosis of Shaken Baby Syndrome.

Following Nykkole's hospitalization and treatment, the state took custody of Nykkole and placed her in foster care with petitioners Nancy and Michael Becker. Rossini was arrested, charged, tried, and convicted of first- and third-degree assault for injuring Nykkole. The district court sentenced Rossini to 180 months in prison. At Rossini's trial, Koob admitted that she made up the story about Nykkole hitting her head on the bathtub because she feared she would lose custody of Nykkole. Koob pleaded guilty to child endangerment. Rossini and Koob each had their parental rights terminated and were ordered jointly to pay the Beckers $58,685 in restitution. The Beckers subsequently adopted Nykkole.

Nykkole, who is now ten-years-old, will never function above the level of an infant. She cannot walk, talk, sit up, or feed or dress herself. Her life expectancy has been significantly reduced as a result of her injuries, and as long as she lives she will require 24-hour medical care and special medical equipment. It is undisputed that Nykkole's disabilities resulted from the injuries discovered and diagnosed on September 15, 1997.

In 2001, the Beckers sued Mayo,[3] alleging that negligence on the part of Nykkole's treating physicians caused her injuries. The Beckers alleged that Mayo's negligence included:

(a) failure to adequately assess and document injuries associated with intentionally afflicted trauma;

(b) failure to recognize and treat signs and symptoms of head trauma in an infant with a history of suspicious traumatic injury;

(c) failure as a mandatory reporter to report suspected child abuse;

(d) failure to have in place hospital policies requiring hospital personnel to comply with mandatory reporting requirements;

(e) failure to monitor activities of hospital staff to assure compliance with reporting of suspected child abuse.

Mayo moved to strike allegations (c), (d), and (e) on the grounds that there is no private civil cause of action for failure to report suspected child abuse. The Beckers opposed the motion, relying on cases from other jurisdictions, expert testimony, and journal articles to argue that a physician's standard of care includes diagnosing and reporting abuse to outside authorities, and this standard in turn creates a common law duty on the part of the physician to report the suspected abuse to the proper authorities. The district court granted Mayo's motion to strike, relying on the conclusion of the Minnesota Court of Appeals in Valtakis v. Putnam, 504 N.W.2d 264, 266 (Minn. App. 1993), that the Minnesota Child Abuse Reporting Act ("CARA"), Minn. Stat. § 626.556, created a statutory duty to report suspected abuse but did not create a civil cause of action for failure to do so. Subsequently, the district court granted Mayo's motion in limine to exclude all evidence related to Mayo's reporting of child abuse to outside authorities.

In a petition for discretionary review to the court of appeals, the Beckers challenged the district court's order to strike their allegations. The court of appeals denied review, and the district court then prevented the Beckers from presenting any evidence at trial of Mayo's failure to report suspected abuse of Nykkole to outside authorities. The district court did allow the Beckers to present evidence regarding services available to Mayo's physicians, including social, family, or psychological services that could have assisted in diagnosing and treating Nykkole.

After a two-week trial, a jury found that Mayo had been negligent but that its negligence was not a direct cause of Nykkole's injuries. The Beckers moved for a new trial, asserting that they were deprived of a fair trial and that the jury's verdict was not supported by the evidence. The district court denied the motion, concluding again that there was no common law cause of action for failure to report child abuse in Minnesota and that the verdict was reasonable. In denying the Beckers' motion, the court acknowledged Mayo's argument that the Beckers' offer of proof of what child protection agents would have done if contacted about suspected abuse to Nykkole was insufficient to warrant a new trial. The court noted that this argument had some merit, as the Beckers never offered to call a child protection worker as part of their offer of proof. But the court concluded that the Beckers had nevertheless made their theory of liability "abundantly clear" and therefore the court stated that it was not denying the motion based on the insufficiency of the Beckers' offer of proof.

The Beckers sought review by the court of appeals, arguing that (1) the district court's erroneous exclusion of reporting-related evidence effectively abolished their common law claim that Mayo breached its duty to report Nykkole's abuse; (2) Mayo's physicians had a special relationship with Nykkole and thus a common law duty to protect Nykkole from the criminal conduct of her father; and (3) the jury's causation verdict was based solely on errors of law at trial. Becker v. Mayo, No. CO-01-3453, 2005 WL 3527163, at *1 (Minn. App. Dec. 27, 2005).

On April 21, 2005, after the parties had filed their principal briefs with the court of appeals but before the Beckers filed their reply brief, we issued our decision in Radke v. County of Freeborn, 694 N.W.2d 788 (Minn. 2005). In Radke, we held that a cause of action exists for "negligence in the investigation of child abuse and neglect reports as required under CARA [the Child Abuse Reporting Act]." 694 N.W.2d at 799. In their reply brief, the Beckers argued that the Radke decision "topples the foundation upon which the district court struck" their negligence allegations and excluded reporting evidence at trial.

Following oral argument, the court of appeals, in an unpublished decision, affirmed the district court's denial of the Beckers' motion for a new trial. Becker, 2005 WL 3527163, at *6. The court first noted that our decision in Radke recognized civil liability for failure to investigate abuse after it has been reported, not for failure to report suspected abuse. Id. at *3-4. The court concluded that the cases from other jurisdictions, expert testimony, and journal articles cited by the Beckers were unpersuasive and held that there is no common law cause of action in Minnesota for failure to report suspected child abuse. Id. at *4. The court also concluded that Mayo had no "special relationship" with Nykkole that would give rise to a duty to report. Id. at *4-5. Finally, the court held that, while reporting-related evidence would have been admissible at trial, its exclusion did not prejudice the Beckers' ability to establish causation because they were still able to present testimony regarding Mayo's own resources that might have prevented Nykkole's injuries. Id. at *5-6.

We granted the Beckers' petition for review of three issues: (1) whether CARA creates a cause of action for failure to report suspected child abuse; (2) whether a hospital that accepts responsibility for treating a child owes that child a special duty to protect her from future harm; and (3) whether there is a common law cause of action for failure to report suspected child abuse in Minnesota.

I.

Although CARA does not expressly create a cause of action for failure to report suspected child abuse, the Beckers argue that our holding in Radke compels us to recognize such a cause of action. They also argue that CARA's policy of preventing abuse, CARA's civil immunity provision, and the lack of actual prosecutions for failure to report weigh in favor of recognizing civil liability. Mayo asserts that the vast majority of other states' reporting acts impose criminal, not civil, liability for failure to report, and that courts in those states have rejected efforts to impose civil liability by implication.

* * *

Affirmed in part, reversed in part, and remanded.