On a 4-3 vote, the Michigan Supreme Court has upheld a Court of Appeals decision that held a hospital could be held vicariously liable for two doctors who may have breached a statutory duty to report suspected child abuse.
The key holdings by COA Judge Donald Owens, joined by Judge William Whitbeck: a failure-to-report claim does not sound in medical malpractice and a hospital may be held vicariously liable if staff doctors do not comply with MCL 722.623, which triggers a duty to report when there is “reasonable cause to suspect child abuse or neglect.”
Judge Peter O’Connell, dissenting in Lee, said doctors will be quick to report anytime a child under their care has a bump or a bruise to avoid litigation based on an alleged breach of the reporting duty.
Michigan Lawyers Weekly had a full report of the COA’s decision.
In the MSC, Chief Justice Marilyn Kelly and Justices Michael Cavanagh, Elizabeth Weaver and Diane Hathaway denied leave. Justices Maura Corrigan, Robert Young and Stephen Markman filed vocal dissents.
Because MCL 722.623 created a new statutory duty to report suspected abuse or neglect, defendants make a good argument that the Child Protection Law provides exclusive remedies for violation of the duty. …
Under the Child Protection Law, only individuals, not institutions, are required to report. MCL 722.623(1). And only a “person who is required … to report an instance of suspected child abuse or neglect and who fails to do so” is liable for resulting civil damages, MCL 722.633(1). Accordingly, I question whether an institution may be held liable for a reporting violation. …
[T]he Court of Appeals held that a complaint against physicians for alleged failure to report abuse sounds in ordinary negligence rather than medical malpractice. But, as the dissenting Court of Appeals judge aptly explained, doctors use medical judgment to determine whether a child has been abused and, therefore, whether abuse should be reported.
Accordingly, a doctor often will have “reasonable cause to suspect child abuse” that triggers the reporting requirement, MCL 722.623(1)(a), on the basis of different facts and knowledge than would a layperson who is required to report abuse pursuant to the statute. Thus, although laypersons may be held to ordinary negligence standards when they fail to report potential abuse, when a doctor fails to report his medical expertise is called directly into question.
Young joined Corrigan’s dissenting statement.
Markman echoed Corrigan’s statement that the issues are “jurisprudentially significant.”
Specifically at issue here is: (a) whether a claim against a physician based on a violation of the statute sounds in medical malpractice or ordinary negligence; and (b) whether a hospital may be subject to vicarious liability under the statute. In what are clearly thoughtful majority and dissenting opinions, the Court of Appeals held that a claim based on the Child Protection Law sounds in ordinary negligence and that vicarious liability is applicable.