Opinion
00023-18
01-07-2019
In the Matter of Tessa S., A Child Under Eighteen Years of Age Alleged to be Neglected by v. Laura T., Respondent.
This matter involves allegations by the Erie County Department of Social Services ("DSS") that respondent, Laura T., neglected her child, Tessa S., by exposing her to unnecessary medical procedures and treatment. It is also alleged that Ms. T. has derivatively neglected her other child, Gemma B. Trial commenced on January 28, 2019, and continued over approximately ten days.
The petition alleges that Ms. T. has engaged in a pattern of seeking unnecessary medical treatment for the child, including catheterizations, MRIs and other procedures; becoming confrontational with medical staff when they refuse her demands and taking the child to numerous facilities in search of doctors who will comply with her wishes. It alleges that the child, Tessa, who was approximately between the ages of one and three during the period covered by the petition, suffers from a medical condition that makes her especially susceptible to infections, so that this behavior put her at imminent risk of harm. It also alleges that the child has been discharged as a patient at numerous medical practices due to Ms. T.'s aggressive behavior towards staff. There are no specific allegations regarding the child, Gemma, other than that she is a derivatively neglected child.
In order to establish neglect, the Department of Social Services ("D.S.S.") was required to show, by a preponderance of the evidence, that Tessa's "physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of [her] parent or other person legally responsible for [her] care to exercise a minimum degree of care." New York Family Court Act, Sec 1012(f)(i).
The factual pattern established at trial is lengthy and complicated but can be summarized as follows: Tessa has been diagnosed with two conditions that require some monitoring but otherwise do not impact her health or lifestyle, as well as other common issues which do not impact her health or require treatment. The first is autoimmune neutropenia, which requires regular blood tests to make sure it is not progressing and that the child be taken to the hospital for blood tests if she exhibits a fever of one hundred and one degrees or higher. No other treatment is required, and the condition is expected to resolve itself by the time she starts school. The second is a mild von Willebrand factor deficiency, which requires the administration of a medicine called DDAVP prior to any medical procedure that the child might undergo.
Ms. T. was not satisfied with these diagnoses. Over the course of Tessa's first three-plus years of life, she took her to nine different tertiary medical centers, located in seven states, where she demanded invasive testing and scanning, insisting that Tessa had conditions such as a tumor on her spine and an inability to urinate. When one facility did not confirm her thoughts on the child's condition or refused to order the procedures, she would move on to the next medical provider. She would direct that medical records not be shared with other providers and would give incomplete or inaccurate medical histories to the new providers, so that they would not be aware of the findings made by prior physicians.
As a result, Tessa underwent lumbar punctures on four occasions, had multiple bone marrow biopsies, was repeatedly catheterized, and underwent scanning that required sedation or anaesthesia. She also spent significant portions of her young life being driven from state to state to go to further medical facilities. In addition, she never established a regular relationship with a pediatrician or hematologist that would enable her to receive the type of monitoring that her condition actually required.
Ms. T., on the other hand, argues that it was reasonable for her to not accept the opinions of the Physicians who told her that Tessa was essentially a healthy child. She asserts that she acted as a reasonable parent in seeking the best medical care for her child, given her own inability to understand the diagnoses and treatment that Tessa was given. She also argues that any testing or procedures done on Tessa were ordered by physicians who had a professional responsibility to not direct unneeded procedures and, therefore, she is not responsible for such procedures being done on her child. Finally, she asserts that there is no proof that Tessa suffered any harm or risk of harm from her actions.
Contrary to the arguments of Ms. T. and the attorney for Gemma, this behavior, if proven, can constitute neglect. See, e.g., Matter of Anesia E. , 23 A.D.3 rd 465, 805 N.Y.S.2d 623 (2nd Dept 2005); and Matter of Suffolk County. Department of Social Services on Behalf of Aaron S., 215 AD2d 395, 626 N.Y.S.2d 227 (2nd Dept. 1995). In fact, Matter of Anesia E. specifically finds that a child who undergoes a lumbar puncture, and is put under sedation, has been exposed to harm and risk of harm sufficient to meet the definition of a neglected (and even abused) child. It is undisputed that Tessa was exposed to a much greater number of similar procedures, as well as others to which the child in Matter of Anesia E. was not exposed. Thus, the undisputed facts established here as to the procedures undergone by Tessa, definitely meet the Department's burden of showing that Tessa's "physical, mental, or emotional condition has been impaired or is in imminent danger of being impaired."
The remaining question, therefore, is whether or not this impairment or risk of impairment occurred "as a result of the failure of [her] parent. . . to exercise a minimum degree of care."
In order to establish this, D.S.S. presented the testimony of Dennis Zane Kuo, MD, MHS, to review the voluminous medical records of Tessa S. and offer his opinion concerning the health care decisions made by the Respondent Laura T. and the consequences of those decisions. Currently Dr. Kuo is an Associate Professor of Pediatrics at the University of Buffalo, Chief of the Division of General Pediatrics at UBMD Pediatrics, and Medical Director of Primary Care Services at Oishei Children's Hospital. Ms. T. and the attorney for Gemma argue that Dr. Kuo was not qualified to testify as to "medical child abuse." As this Court explained in the Decision & Order of March 19, 2019, denying their motion to dismiss at the close of proof, however, the issue in this case is not whether a medical diagnosis of "medical child abuse" is applicable, but, rather, whether Ms. T. failed to exercise a minimum degree of care by engaging in a pattern of obtaining and seeking to obtain unnecessary medical procedures for Tessa, and whether this failure caused Tessa to be impaired or to be at imminent risk of impairment.
While all of his credentials are impressive, this Court found that Dr. Kuo's focus on complex and chronic care cases made him exceptionally well qualified to offer an expert opinion in this case. Dr. Kuo has done extensive research involving cases of chronic care and complex care. He defines chronic care cases as those relating to a child who has an ongoing medical condition that will last at least 12 months. Complex care cases are defined as those referring to a child with multiple chronic conditions requiring multiple specialists.
Based his review of the medical records, Dr. Kuo stated that he believed that Tessa had a chronic condition; a condition that would require on going care for a year or longer. He distinguished that from a complex medical condition that would require multiple referrals to different specialists. He identified one issue of primary concern — autoimmune neutropenia that would require ongoing monitoring by a hematologist. Dr. Kuo explained that autoimmune neutropenia has a median age of onset of eight months and is most often completely resolved by the time the child is school age. Dr. Kuo does not consider autoimmune neutropenia to be life threatening but acknowledges a need to be vigilant in monitoring the disease. He explained that a child with autoimmune neutropenia should have a local hematologist to monitor the white cell count in her blood. He advised that blood draws would be required approximately every three months to determine if the disease is behaving as predicted. If the child shows signs of an infection, more specifically a fever of 101 degrees or higher, she should be taken to the hospital where blood tests can be taken to determine her white blood cell count. Based on the blood tests administered at the hospital, decisions can be made as to whether the child needs intravenous antibiotics, should be admitted, or can be sent home with a prescription. Dr. Kuo also noted the diagnosis of a mild von Willebrand factor deficiency. He believed that the only needed treatment for this condition would be the administration of a medicine called DDAVP prior to any medical procedure that t e child might undergo.
Dr. Kuo testified that, based on his review of the medical records, Tessa is "inherently a normal, healthy child." It was his opinion, based on a reasonable degree of medical certainty, that Tessa did not require all of the multiple lumbar punctures, bone marrow biopsies, catheterizations, MRIs and hospital visits to which she was subjected by Ms. T.. Although Ms. T. argues that these procedures must have been reasonable because they were ordered by physicians, Dr. Kuo explained that doctors are dependent upon the parent to present an accurate medical history and explanation of current symptoms, which Ms. T. did not provide. He also referred to Ms. T.'s efforts to prevent Tessa's doctors from receiving medical records from prior treating providers, so that they would not be able to see the repeated behaviors of demanding procedures that were not necessary. In addition, he testified that doctors, when faced with the sort of belligerent, confrontational and threatening behavior exhibited by Ms. T., including threats of litigation, are likely to engage in "defensive medicine," resulting in the ordering of procedures demanded by the parent, even though they might not be medically required. Dr. Kuo also testified to the risks and harms suffered by Tessa as the result of Ms. T.'s behavior. As discussed above, Matter of Anesia E. conclusively establishes that an unnecessary lumbar puncture and use of sedation are, by themselves, sufficient to support a finding of abuse or neglect. Here, Dr. Kuo also testified to the risks from bone marrow biopsies, catheterizations, and multiple unnecessary hospital visits, all of which carry increased risks of infection, bleeding, and other complications. In addition, he testified that Ms. T.'s refusal to accept the diagnoses given to Tessa, together with her belligerent behavior, prevented Tessa from establishing the regular, ongoing relationship with a pediatrician and hematologist that were required to prevent her autoimmune neutropenia from developing into a danger to her health.
The fact that Ms. T.'s behavior resulted in unnecessary medical procedures and presented risks to her health were also supported by Dr. Jessica Donhauser, the treating physician who contacted Child Protective Services about Tessa, and even Dr. Hicks and Dr. Cervantes, who were called as expert witnesses by Ms. T., admitted that some of the treatment was unnecessary.
Dr. Hicks, who is a psychiatrist, was questioned about many of the visits to different facilities and whether the tests ordered were "indicated," which she mostly believed they were. First, the Court notes that Dr. Hick's qualifications to testify as to Tessa's medical condition and treatment were far below those of Dr. Kuo. Her only training in the area of general medicine was during medical school and as a unit during her psychiatric training. Although the Court did qualify her as an expert, in weighing the contradictions between her testimony and that of Dr. Kuo, the Court found Dr. Kuo's testimony to be much more reliable.
Dr. Hicks was questioned specifically as to whether or not various procedures were"indicated." She was not, however, questioned by Ms. T.'s counsel about the overall effect of the repeated consultations and procedures which all basically confirmed the initial diagnosis that Tessa did not suffer from any medical condition that required any more treatment than careful monitoring. Thus, her testimony was not very instructive as to the central issue in the case. On cross-examination, she admitted that her report, which was admitted into evidence by consent, stated that Ms. T. caused multiple medical procedures to be performed that were at times unnecessary. She also admitted on cross-examination that some of the procedures ordered were at the insistence of Ms. T., despite hesitation by the ordering physician.
Ms. T. also called Dr. Cervantes, a forensic psychiatrist. Dr. Hicks is currently doing a fellowship under the supervision of Dr. Cervantes, and the two authored the report together. Dr. Cervantes was hired in large part to perform a psychiatric evaluation of Ms. T., but that evaluation is irrelevant to the issues before the Court. She did testify that she found nothing in the records indicating that Tessa had suffered harm as the result of the medical treatment obtained by Ms. T., but admitted that she never evaluated Tessa. She also admitted that Ms. T.'s own psychological issues impacted the care that Tessa received. The Court did not find her testimony to be very enlightening as to the issues presented.
Finally, Ms. T. presented her own testimony. The Court found that testimony to be self-serving, contradictory, and generally unreliable.
The standard of proof required of D.S.S. in this case is a preponderance of the evidence. Although Ms. T. presented some evidence that contradicts the case presented by D.S.S., on the whole the Court found the evidence presented by D.S.S., particularly the testimony of Dr.
Kuo, to outweigh that presented in defense.
Accordingly, the Court finds that Tessa's physical, mental and emotional condition has been impaired and was in imminent danger of becoming impaired as a result of the failure of Ms. T. to exercise a minimum degree of care. Ms. T.'s behavior in continually seeking additional evaluations and invasive procedures, despite the relatively minor medical conditions found in Tessa, and her failure to obtain the continued, regular relationship necessary with Tessa's local treating physicians, constituted a failure to exercise a minimum degree of care. The heightened risk of infections, bleeding and other complications, as well as the fact of undergoing repeated, unnecessary procedures that caused pain, discomfort and the need for sedation and anesthesia, constituted both actual impairment and imminent risk of further impairment.
The Court finds that Tessa is a neglected child.
In addition, Ms. T.'s behavior in repeatedly subjecting her child to unnecessary medical treatment demonstrated fundamental flaws in her understanding of her duties as a parent. See, Matter of B., 49 AD3d 638, 854 N.Y.S.2d 157, (2 nd Dept. 2008). The attorney for Gemma argues that D.S.S. did not present any direct evidence as to Gemma, but such is not necessary to sustain the claim of derivative neglect. In addition, the evidence submitted regarding the extensive time Ms. T. spent travelling to take Tessa to medical providers across several states allows the Court to infer that Gemma, who did not accompany them, was not receiving the care she should have. The evidence of Ms. T.'s behavior regarding Tessa is sufficient to demonstrate that Gemma is a derivatively neglected child.
A dispositional hearing is scheduled for the morning of July 18, 2019, beginning at 9:00 a.m., to continue as necessary on July 19 and 22, 2019, again beginning at 9:00 a.m. A pre-trial conference is scheduled on July 1, 2019, at 11:00 a.m. Dated: July l, 2019 Buffalo, New York Sharon M. LoVallo Family Court Judge