MEMORANDUM-DECISION AND ORDER*fn1
This case concerns the "mandatory reporter" system of New York State, through which certain professionals are required to report suspected child abuse to the Statewide Central Register of Child Abuse and Maltreatment ("State Central Register" or "hotline").*fn2 Plaintiffs are two children who allege that Defendants Dr. Patricia Monroe ("Dr. Monroe") and Adirondack Internal Medicine and Pediatrics, P.C. ("Adirondack") breached their duty to take steps to identify and report abuse that they were suffering and that Defendants' breach of this duty resulted in harm to Plaintiffs.
On August 15, 2000, Catherine Page ("Ms. Page"), the mother of Plaintiffs Brittany and Melissa ("Plaintiffs" or "Brittany" and "Melissa") (at the time, ages nine (9) and seven (7) respectively)read an excerpt of Brittany's diary, in which Brittany recounted that she had "been touched in places [she didn't] want to be touched." Complaint (Dkt. No. 1) at ¶ 31. Brittany then told her mother that her half-brother Anthony (age 14)had touched her genitals, over her clothes, on more than one occasion when he had first moved into the family home, a year prior. Id.; Page Depo. (Dkt. No. 81, Attach. 2, Ex. A) at 60-61.
Ms. Page then confronted Anthony, who claimed that he did not remember touching Brittany inappropriately, though if he did, it was accidental. Page Depo. (Dkt. No. 81, Attach. 2, Ex. A) at 61-62. Ms. Page thought that it was possible that Anthony was telling the truth and the touching was accidental. Id. at 62. However, because Ms. Page "wasn't going to sit and let it, you know, happen again without trying to do something," in case the touching was not accidental, she called the hotline. Id. at 65. The hotline staff told Ms. Page that a report could not be registered, because the situation she described was not child abuse or maltreatment under the terms of New York Social Services Law, as Anthony, the perpetrator of the sexual abuse, could not be the subject of a report. Id. at 66.
New York Social Services Law defines the "subject" of a report to be:
"any parent of, guardian of, custodian of or other person eighteen years of age or older legally responsible for...a child reported to the central register of child abuse and maltreatment who is allegedly responsible for causing injury, abuse or maltreatment to such child or who allegedly allows such injury, abuse or maltreatment to be inflicted on such child."
N.Y. SOC. SERV. LAW§412 (4) (MCKINNEY2007). Anthony was not legally responsible for his sisters' care; that responsibility lay in the hands of Ms. Page, their mother. Accordingly, Anthony could not be the subject of a report. New York has established, for policy reasons, that "[o]rdinarily, the State would not need to intervene when a minor is abusing a sibling," because such a situation is within the capacity and authority of a fit parent. Catherine G. v. County of Essex, 3 N.Y.3d 175, 180 (2004). However, as Section 412(4) indicates, a report is properly made against a parent who commits such abuse, or allows it to take place. N.Y. SOC. SERV. LAW§412 (4) (MCKINNEY2007). This does not encompass every parent whose child was abused; there must be a showing that the parent or guardian failed to exercise a minimum degree of care, such as failing to take any appropriate action to protect their child to establish that they allowed the abuse to happen. See In re Mary S., 720 N.Y.S.2d 568, 569-70 (App. Div., 3d Dep't. 2001) (noting that respondent's characterization of the friend's criminal sexual conduct with [her child] as "just fooling around" demonstrates that her "understanding of the duties associated with caring for [her] children was fundamentally flawed") (quoting Matter of Nathaniel TT.,, 696 N.Y.S.2d 274, 277 (App. Div., 3d. Dep't 1999)). If the parent is responding appropriately and acting to prevent harm to their child, then there is no grounds for a report and no justification for state involvement. See Robbins Depo. (Dkt. 81, Attach. 19, Ex. I2) at 56, 57-8 (noting that a report is not usually appropriate when a parent is attempting to remedy the situation).
As the situation described to the hotline staff could not legally justify a report, the hotline staff instead recommended that Ms. Page contact a local agency to obtain services for her children. Page Depo. (Dkt. No. 81, Attach. 2, Ex. A) at 66. Ms. Page then called the Essex County Mental Health Department, inquiring about services for Brittany and Anthony, and left her name for a call back. Id. at 67-68.
After that call, Ms. Page called Dr. Monroe, a pediatrician at Adirondack Internal Medicine and Pediatrics, P.C., who had treated Plaintiffs, as well as Anthony, in the past. Id. at 65, 69; Medical Records (Dkt. No. 81, Ex. C1). Ms. Page told Dr. Monroe what Brittany had alleged and Anthony's response. Page Depo. (Dkt. No. 81, Attach. 2, Ex. A) at 69. Ms. Page also told Dr. Monroe of her call to Essex County Mental Health Department, and possibly of the call to the State Central Register, as well. Id. at 70. Ms. Page also told Dr. Monroe that Brittany would be staying at her aunt's house for the next week. Monroe Depo. (Dkt. No. 81, Attach. 8, Ex. B) at 53-54. Dr. Monroe did not make a report to the state central register in response to the information Ms. Page told her. Id. at 62. While completing her pediatric residency in 1994, Dr. Monroe had undergone a training outlining her duties as a mandated reporter. Id. at 11-13. Dr. Monroe testified that she did not make a report because the sexual contact "was not a reportable incident...because the alleged touching was not done by someone who had a supervisory role over the child." Id. at 46. Additionally, according to her testimony, Dr. Monroe felt that Brittany would be safe from then on, as her mother was taking care of her. Id. at 74.
Instead, Dr. Monroe advised Ms. Page not to leave Brittany and Anthony alone. Page Depo. (Dkt. No. 81, Attach. 2, Ex. A) at 69-70. Dr. Monroe also asked Ms. Page to bring Brittany in, if Brittany would be willing to speak to Dr. Monroe about the inappropriate touching. Id. at 72-73 However, Ms. Page did not bring Brittany to the office because Brittany did not want to go and did not want to speak to Dr. Monroe about the incidents of sexual touching. Id. Ms. Page told Dr. Monroe that, although Brittany would not speak to Dr. Monroe about the incidents, Brittany would speak to a therapist. Id. Dr. Monroe saw Brittany several times that fall and winter to treat medical complaints, but did not discuss with Brittany the allegations from the August 16 phone call. Medical Records (Dkt. No. 81, Ex. C1).
On February 1, 2001, Dr. Monroe received a phone call from the New York State Police, asking if she would examine Brittany and Melissa, in relation to possible sexual abuse. Id. Ms. Page brought Plaintiffs to Dr. Monroe's office and told Dr. Monroe that Plaintiffs had just disclosed additional and more severe instances of sexual abuse against them, committed by their half-brother Anthony. Id. Dr. Monroe confirmed the stories with Plaintiffs and physically examined them. Id. At that time, Ms. Page told Dr. Monroe that she had begun working nights and leaving the children with a 19-year old babysitter. Id. On February 6, 2001, Dr. Monroe reported Ms. Page to the State Central Register for failure to supervise the children adequately. Id.
Plaintiffs allege that Dr. Monroe violated her statutory duty to report the abuse, in that she had reasonable cause to suspect that Ms. Page was allowing the abuse to happen. Plntfs' Mem. of Law (Dkt. No. 119) at 8. They also allege that Dr. Monroe was negligent in failing to identify the extent of the abuse or conduct physical evaluations that would have allegedly revealed the extent of the abuse at an earlier date. Id. at 17. Both of these failures allegedly resulted in significant harm to Plaintiffs in that the abuse continued undetected. Plaintiffs additionally name Adirondack as a defendant, on theories of negligent supervision and training, respondeat superior, and that Adirondack also bears the statutory duties of a mandated reporter.
Plaintiffs originally named several other defendants in their complaint, including Lake Placid Central School District, St. Agnes School, the Crisis Center of Clinton, Essex, and Franklin Counties, Inc., the County of Essex, Essex County Mental Health, Essex County Department of Social Services, and Essex County Child Protective Services, as well as individual employees of those entities. The claims against those former defendants were, like those against Dr. Monroe and Adirondack, based on their failure to make reports to the State Central Register, after Ms. Page alerted them to the possibility of inappropriate sexual conduct. However, the claims as to all defendants (and cross-claims between all defendants) except Dr. Monroe and Adirondack were discontinued by stipulation. Stipulation (Dkt. No. 56). The cross-claims that now remain are claims for indemnification by Dr. Monroe and Adirondack against the former defendants.
Additionally, Plaintiffs (joined by Ms. Page) had brought a claim, based on the same facts, in New York State Court, naming most of the former defendants, but not Dr. Monroe or Adirondack, as parties. Catherine G. v. County of Essex, 761 N.Y.S.2d 727 (N.Y. App. Div., 3d Dep't. 2003). In that case, Plaintiffs alleged that the county and school defendants violated their statutory duty to make a report against Anthony. Catherine G., 3 N.Y.3d at 178-9. The New York Court of Appeals found that Plaintiffs' claims were "patently without merit" in that no proper report could have been made against Anthony and, accordingly, the defendants did not have a duty to make such a report. Id. at 181. The matter currently before the Court differs in several ways from that case: 1) different defendants are named, 2) Plaintiffs assert a claim for medical malpractice, as well as violation of statutory duties, and 3) Plaintiffs (no longer joined by Ms. Page, although she remains their representative) argue that, even if a report could not have properly been made against Anthony, Defendants had a duty to make a report against Ms. Page, for allowing the abuse to have occurred.*fn3
Currently before the Court are Motions for summary judgment filed by Plaintiffs and Defendants, Cross-Motions to dismiss filed by the third party Defendants, and a Motion to withdraw Ms. Page as Plaintiffs' representative and replace her with Plaintiffs' older sister, Elizabeth ...