During this hospitalization, a physician recommended that Elizabeth undergo a more complete psychological evaluation. Ct. 1994), aff'd, 620 N.Y.S.2d 371 (1995). 497, 499-501 (1967); Mohr v. Commonwealth, 421 Mass. Last, the Commonwealth asserts that it is immune from liability because of the discretionary function exception to governmental tort liability. Students can look up a subject they don't understand, review the law, instructional videos on the topic, and then test themselves right away on the concepts. 747, 752-753 (2018); Commonwealth v. Orbin O., 478 Mass. . 535, 536 (1939); Breen v. Burns, 280 Mass. In August, 1976, the plaintiffs adopted Elizabeth after she had lived with them for two years. We conclude therefore that the plaintiffs' cross appeal is without merit, and affirm the judgment in favor of the defendant Tompkins. any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused. Also, the negligence claim against Tompkins individually was not submitted to the jury. In their adoption application, the plaintiffs indicated that they would accept a child with a "[c]orrectable medical problem. 199 5) (recognizing "wrongful adoption" cause of action grounded in fraud and fraudulent misrepresentation). Those are the elements that you must find. The discovery rule "prescribes as crucial the date when a plaintiff discovers, or any earlier date when she should reasonably have discovered, that she has been harmed or may have been harmed by the defendant's conduct." If you find there was, all of the case will be applied with respect to the written rules and regulations and that oral policy. Id. See Mohr v. Commonwealth, 421 Mass. Rather, according to Tompkins, she acted in accordance with an agency policy not to disclose a biological parent's mental illness to prospective adoptive parents. [Note 5] The plaintiffs responded that they did not feel they could consider "special needs" children. Id. The Commonwealth does not argue on appeal that the plaintiffs did not comply with the provisions for presentment contained in G. L. c. 258, Section 4 (1994 ed.). Id. (c) the foster mother with whom Elizabeth was first placed one month after birth was concerned that the infant was not developing as quickly as she should. Tompkins told the plaintiffs about Elizabeth's ethnic background, her placement in foster care from birth, and that the department had no background information about the father. 147 - MOHR v. COMMONWEALTH, Supreme Judicial Court of Massachusetts, Bristol. The biological father was unknown, but was presumed to be a mental patient. In this case, Tompkins did not make a policy or planning judgment in deciding whether to withhold information from the plaintiffs about Elizabeth's background. The Seventh Circuit considers whether "a person sincerely holds beliefs dealing with issues of `ultimate concern' that for her occupy a `place parallel to that filled by . Soc'y of Wis., supra at 32. Her admission and discharge diagnoses were "mental retardation." Once you create your profile, you will be able to: Claim the judgments where you have appeared by linking them directly to your profile and maintain a record of your body of work. Meracle v. Children's Serv. Another expert testified that it would have been possible to determine in 1974 that there was not "any way that this young woman would have attained normal cognitive development; have been able to function the way the vast majority of children do . [Note 16] The judge's instructions on the intentional tort claims against Tompkins were as follows: "The last cause of action that has been brought in this case is one of fraud, deceit, and intentional tort, misrepresentation of a material fact. The Supreme Judicial Court granted an application for direct appellate review. 3d 519, 524, 538 (1992) (agency told three sets of adoptive parents that the particular children they planned to adopt were normal in physical and mental condition as well as level of development, despite its knowledge that children had exhibited violent and uncontrollable behavior while in foster care, and that two children suffered from social and emotional retardation); M.H. Somebody makes a mistake. ", In March, 1974, Pamela Tompkins, the social worker responsible for Elizabeth's adoption placement, notified the plaintiffs that six year old Elizabeth was available for adoption. Stephen P. Sheehan, of Rhode Island, for the plaintiffs. Tests conducted while Elizabeth was an inpatient indicated that she had "moderate cerebral atrophy.". Absent a "wrongful adoption" cause of action based upon negligence, adoptive parents would have no recourse against the Commonwealth for misrepresentations by a State adoption agency about a child's medical and familial background. in the field of social work that schizophrenia and mental retardation in the biological family should be disclosed to adoptive parents prior to placement. You must be logged in to post a comment. Elizabeth was born on January 15, 1968. Last, the Commonwealth asserts that it is immune from liability because of the discretionary function exception to governmental tort liability. 96, 99-100 (1993) (duty exists under G. L. c. 93A to disclose material facts known to party at time of business transaction); Restatement (Second) of Torts Section 551 (1977) (addressing duty to disclose in business transaction). 605, 611 (1990), S.C., 411 Mass. . Tompkins described the biological mother as "generally in good health," and stated that "[b]ecause of the severe marital problems of [her] parents, [the mother] had a problem with interpersonal relationships and was unable to meet the needs of a baby." Thus, the judge did not err in declining to give an instruction on comparative negligence. Fifth, we note that G. L. c. 258, Section 10 (c) (1994 ed.) [164-166] At the trial of an action against the Commonwealth, error, if any, in the judge's instructions to the jury with respect to the applicability of certain State regulations was harmless where it could not have influenced the jurors' deliberations. Get 1 point on adding a valid citation to this judgment. The plaintiffs did not choose to follow this recommendation. Section 10 ( b) provides as follows: "The provisions of sections one to eight, inclusive, shall not apply to . CIVIL ACTION commenced in the Superior Court Department on January 27, 1987. 627, 628 (1939); Pike v. Proctor, 303 Mass. at 73. . 258, § 2. The judge granted the Commonwealth's motion to amend or alter the judgment to $200,000 with no interest, the amount permitted by G.L.c. At that time, her mother was a committed patient at Worcester State Hospital and was under the care of the Department of Mental Health. The case was tried before John J. O'Brien, J. On the contrary, Faison testified it was the defendant who finally convinced him to abandon his flight and surrender to the police. Meracle v. Children's Serv. Following are real estate transactions over $5,000 as listed in records of the Erie County clerk’s office for the week ending Oct. 23. the fiftieth to the third percentile. Id. (h) by October, 1973, Elizabeth's height and weight had declined from the fiftieth to the third percentile. The Commonwealth asserted a statute of limitations defense in its answer, as well as in its motions for a directed verdict and for judgment notwithstanding the verdict. ), which authorizes the release of "nonidentifying information" concerning a biological parent's "medical, ethnic, socio-economic, and educational circumstances." In March, 1974, Pamela Tompkins, the social worker responsible for Elizabeth's adoption placement, notified the plaintiffs that six year old Elizabeth was available for adoption. In addition, these courts have maintained that allowing negligent misrepresentation claims against adoption agencies does not subject agencies to potentially limitless liability or make them guarantors of adopted children's health. 258, § 10 ( b). intentional misrepresentation. Tompkins did not disclose the above information in the petition that she prepared for submission to the Probate Court in connection with Elizabeth's adoption. I. He also testified that a child born to a schizophrenic mother would be fifteen times as likely to develop schizophrenia as a child in the general population. retarded, emotionally disturbed child whose physical ailments have The Commonwealth asserts also that the judge erred in instructing the jury to determine whether regulations issued in 1972, 1974, or 1976 governed the disclosure of information to the plaintiffs. where the plaintiffs commenced their action within three years of the Both sides timely appealed, and this court granted a joint application for direct appellate review. parents about a child's history prior to adoption. misrepresentation." II. See also M.H. Mohr v. Commonwealth, 421 Mass. Facts. See also Hendrickson v. Sears, 365 Mass. Summary: Leandra Dunlevy's birthday is 02/25/1981 and is 39 years old. of Holyoke, 394 Mass. [Note 3] In addition, the plaintiffs had alleged that the Commonwealth negligently failed to place Elizabeth in a safe foster home and negligently failed to remove her from an abusive and neglectful foster home, and that this negligence caused her extreme pain and suffering, mental anguish and emotional distress. Somebody makes a mistake. Commonwealth v. Donaldson ... this time stopping his pickup near a Hispanic male who Officer Schaffer had noticed loitering near the corner of Mohr and Allen Streets. . [164-166], At the trial of an action against the Commonwealth, error, if any, in the based on both intentional and negligent misrepresentation to adoptive Div. c. 258, Section 10 (b), does not extend to the acts of a social worker, It is an intentional tort. 535, 536 (1939); Breen v. Burns, 280 Mass. Soc'y of Wis., 149 Wis.2d 19, 32-33 (1989) (agency told adoptive parents that child's biological father had tested negative for Huntington's disease and therefore child had no more chance of developing it than any other child, even though paternal grandmother had died of Huntington's disease and no reliable test existed to determine whether biological father had it; child subsequently diagnosed as having Huntington's disease). The plaintiffs also alleged that Tompkins made misrepresentations and fraudulently concealed from them certain background information about Elizabeth. 1995) (recognizing "wrongful adoption" cause of action grounded in fraud and fraudulent misrepresentation). Adoption, "Wrongful adoption." Tompkins described the biological mother as "generally in good health," and stated that "[b]ecause of the severe marital problems of [her] parents, [the mother] had a problem with interpersonal relationships and was unable to meet the needs of a baby." Her admission and discharge diagnoses were "mental retardation." Burr v. County Comm'rs of Stark County, supra at 78. The average Elizabeth Mohr is around 74 years of age with around 43% falling in to the age group of 61-80. Id. misrepresentation by an adoption agency [159-160]. The plaintiffs commenced this action in January, 1987. Second, our conclusion applies accepted tort principles to the interactions between adoption agencies and potential adoptive parents during the adoption process. [Note 5] Hazel Mohr acknowledged attending meetings at which the available children's emotional and behavioral problems were discussed. Appeals Court, March 22, 2018. Instead, Elizabeth was discharged with a diagnosis of "[f]ailure to thrive, probably due to environmental deprivation. See Lariviere v. Lariviere, 304 Mass. Id. White v. Laingoir, 434 Mass. We add that an adoption agency does have an affirmative duty to disclose to adoptive parents information about a child that will enable them to make a knowledgeable decision about whether to accept the child for adoption. See id. 688, 689 (1958); Allen v. Allen, 214 Or. 171, 175 (1983). were interpreted as "diagnostic of moderate cerebral atrophy." I. Ct. 1994), aff'd, 620 N.Y.S.2d 371 (1995). 260, § 3A, which governs claims brought against the Commonwealth under G.L.c. See Underwood v. Risman, 414 Mass. In reaching this conclusion, we note that the Legislature has not acted affirmatively to provide adoption agencies immunity from common law sanctions for negligence. agency for the agency's negligent material misrepresentations of fact v. Commonwealth, 402 Mass. This need, according to these courts, outweighs any increased burden that is placed on adoption agencies when liability is imposed for negligent as well as intentional misrepresentation. at 5). The plaintiffs cross appeal from a judgment entered in favor of the codefendant, Pamela Tompkins (a social worker in the adoption placement unit of the Department of Public Welfare), on the plaintiffs' claim that Tompkins intentionally failed to disclose to them the mental illness of the child's biological mother. This objection was not heeded. Adoption agencies could provide information about a child's medical and familial background without disclosing the biological parents' identities. Elizabeth was placed in foster care by the Department of Public Welfare (department) for five years. They commenced this action in order to recover sufficient damages to enable them to provide for the structured, residential placement that Elizabeth will need throughout her lifetime. . The next month, Tompkins sent Elizabeth's medical records to Dr. Raymond Guillette, whom the plaintiffs had selected to be Elizabeth's pediatrician. Bristol. governing principles of justice . 258, § 10 (. (c) the foster mother with whom Elizabeth was first placed one month The top city of residence is Alexandria, followed by Fredericksburg. See Gibbs v. Ernst, supra at 211. [Note 9] We note that, like the plaintiffs in this case, none of the plaintiffs in the above-cited cases sought to nullify the adoption decree because of the adoption agency's alleged misrepresentations. import. First, as noted above, there is a compelling need for full disclosure of a child's medical and familial background not only to enable adoptive parents to obtain timely and appropriate medical care for the child, but also to enable them to make an intelligent and informed decision to adopt. We disagree. Full disclosure is particularly necessary in the adoption context, where often the adoption agency is the only party with access to information about a child's medical and genetic background. Massachusetts Tort Claims Act. Insofar as negligence is concerned, negligence is the failure to exercise due care. Id. Thus, under the act, the Commonwealth as a public employer is immune from suits arising from intentional torts. to thrive. In July, 1974, Elizabeth went to live with the plaintiffs. This provision, like G. L. c. 260, Section 2A, requires that claims be brought within three years after the cause of action accrues. [166], There was no merit to plaintiffs' assertion on appeal that the judge 258, § 10 ( b). In the absence of a duty, there can be no liability for negligence. It is rather an extension of the doctrine of common law fraud. In fact recognition of such a tort would promote public policy"). The judge denied the motions as to the claims against the Commonwealth and the intentional tort claims against Tompkins. at 8-9), "[w]hen [the defendant] began allegedly volunteering information concerning [the child's] and his biological mother's medical and genetic background, the agency assumed a duty to refrain from making negligent misrepresentations." ", (e) a follow-up examination at thirty-nine weeks found that many of Before confirming, please ensure that you have thoroughly read and verified the judgment. Eventually, he was diagnosed as suffering from Huntington's disease, a genetically inherited condition. [and] that there was [not] any way, given this history, that she would have attained normal emotional status.". 258. In November, 1975, the plaintiffs took Elizabeth to Joseph P. Kennedy Jr. Memorial Hospital for neurological testing. Welfare of St. Joseph County v. Morningstar, 128 Ind. In their cross appeal, the plaintiffs assert that the judge erroneously instructed the jury that "Tompkins is not liable for intentional tort if the nondisclosure was pursuant to the orders of her superiors." 258, § 4 (1994 ed.). (j) the supervisor of social service at the Springfield office of the Division of Family and Children's Services (now the Department of Social Services) objected to transferring "this five year old retarded, emotionally disturbed child whose physical ailments have not yet been diagnosed" to the Adoption Placement Unit in Boston. See G.L.c. On discharge, responsibility for Elizabeth's care was transferred from the Springfield regional office of the department to its adoption placement unit in Boston, which placed her in the Nazareth Child Care Center for adoption preparation. Elizabeth was born on January 15, 1968. 1, 3-4, 654 S.E.2d 305, 306 (2007). App. Id. [Note 6] One of the plaintiffs' experts testified that the familial nature of schizophrenia has been recognized for over one hundred years. 139, 141-142 (1992); Onofrio v. Department of Mental Health, 408 Mass. Division of Family and Children's Services (now the Department of . The judge granted the Commonwealth's motion to amend or alter the judgment to $200,000 with no interest, the amount permitted by G. L. c. 258, Section 2. Leave a Reply Cancel reply. Second, our conclusion applies accepted tort principles to the interactions between adoption agencies and potential adoptive parents during the adoption process. See Mallette, supra at (slip op. App. Thus, we need not and do not address whether and to what extent an agency has a duty to investigate a child's background. [Note 1] Hazel Mohr, individually and as guardian of the person and estate of Elizabeth Ann Mohr. (slip op. extend liability to cases involving negligent, rather than intentional, (i) when Springfield Hospital evaluated Elizabeth in 1973, a physician recommended that she be admitted to the hospital's Child Guidance Center for a complete psychological evaluation. She also then discovered that Elizabeth's birth mother had been diagnosed as schizophrenic [Note 6] and that Elizabeth's early infant development. In this case, Tompkins did not make a policy or planning judgment in deciding whether to withhold information from the plaintiffs about Elizabeth's background. . is around 24 weeks and this being the See also Juman v. Louise Wise Servs., 159 Misc. And again, there is one caveat, and that is the evidence that was presented to you relative to an oral policy, you have to make a judgment and find was there or was there not. In their cross appeal, the plaintiffs contend that the judge erred in instructing the jury that Tompkins would not be liable for an intentional tort if she acted pursuant to orders of her superiors in not disclosing information to the plaintiffs. Medical records admitted in evidence indicated that Elizabeth is mentally retarded, with a verbal scale IQ of seventy-seven and a performance scale IQ of fifty-five. 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