By Rachelle Rubinow, Esq.
In Robert Roe, et al vs. Children’s Hospital Medical Center,[i] the Supreme Judicial Court (SJC) ruled that a hospital employer does not owe a duty of care to the future patients of a former physician employee who had left its employ and was working for a different employer when that physician allegedly abused the plaintiffs.
In 1966, Children’s Hospital Medical Center (Children’s Hospital) hired Melvin Levine as a pediatric physician, a position he held until 1985, when he relocated to North Carolina and began working as a pediatrician at the University of North Carolina School of Medicine (UNC). In 2009, he surrendered his medical license amid allegations that he performed medically unnecessary genital examinations on several UNC patients. Two years later, eleven former UNC patients of Dr. Levine’s brought suit against Children’s Hospital in Superior Court. They alleged that Children’s Hospital failed to properly train, supervise, or discipline Levine during his employment at Children’s Hospital; knew or should have known that Levine was conducting inappropriate genital examinations of minors during that employment; and failed to report Levine’s conduct to various licensing authorities and UNC. The evidence used in support of the complaint included an allegation made by the mother of a former patient in 1967, as well as litigation brought in 1988, 2005, 2006, 2007, 2008, alleging similar conduct by Dr. Levine toward minor patients during his employment at Children’s Hospital.
Children’s Hospital moved to dismiss the plaintiffs’ complaint for failure to state a claim upon which relief could be granted. In response, the plaintiffs moved to amend, seeking to add an allegation that Children’s Hospital owed them a duty of care because it had a “special relationship” with Levine, and it knew or should have known that he posed a foreseeable risk of harm to future patients. In July 2012, the Superior Court granted Children’s Hospital’s motion to dismiss and denied the plaintiffs’ motion to amend. The plaintiffs appealed, and the SJC granted direct appellate review, with the only issue on appeal being whether Children’s Hospital owed a duty of reasonable care to the plaintiffs.
The SJC affirmed, holding that Children’s Hospital owed no duty of care to Dr. Levine’s UNC patients because no special relationship existed between Children’s Hospital and Dr. Levine while he was employed at UNC, and therefore no duty of care extended to his UNC patients. Starting with the doctrine of negligence, the SJC reasoned that to recover for negligence, a defendant must violate a duty of care owed to the plaintiff, and whether that duty exists is a question of law that is decided by reference to existing social values and customs.[ii] While an individual has a duty to exercise reasonable care in their own conduct, the duty typically does not extend to controlling the conduct of a third party, unless a “special relationship” exists, such as between an employer and an employee. Under Massachusetts tort law, employers must exercise reasonable care to ensure their employees do not cause foreseeable harm to a foreseeable class of plaintiffs.[iii]
The SJC noted, however, that the plaintiffs in this case were asking the Court to recognize a more expansive duty: to prevent a former employee from causing harm to an unknown class of plaintiffs, plaintiffs with virtually no relationship with or connection to the employer. The Court refused to do so, for reasons based both on precedence and practicality.
The Court reasoned that no other jurisdiction has recognized this type of duty, and in fact, the Supreme Court of Wisconsin had explicitly refused to establish a duty of employers to actively locate and warn future employers of dangerous former employees.[iv] The imposition of such a duty would place an onerous burden on employers, requiring them to monitor former employees and then seek out and warn any potential future employers of the alleged past actions the employees. Moreover, special relationships between defendants and prospective plaintiffs are typically recognized only when a defendant can reasonably anticipate that his or her actions (or failure to take action) could cause harm to a foreseeable and clearly defined class of plaintiffs. In this case, the plaintiffs had virtually no temporal or geographic connection with Children’s Hospital, and so to find a special relationship in this case would expose the hospital to liability for a limitless class of unknown plaintiffs. Therefore, the Court declined to find a special relationship between the parties that would give rise to a duty of care.
The plaintiffs presented three arguments in favor of finding a duty of care in this case: (1) the medical community has imposed a duty on itself to report alleged abuse to protect future patients from predatory physicians; (2) the general public has demonstrated, through the enactment of statutes and regulations, that such a duty exists, and (3) public policy is served by the recognition of such a duty. The Court addressed the first two arguments and dismissed them in turn.
First, the Court agreed that while the medical community has imposed a duty on itself to protect children from sexual abuse, and has created mechanisms for reporting such abuse, the plaintiffs did not present evidence sufficient enough to show that the medical community has imposed a duty to report alleged abuse, and to protect unknowable future plaintiffs from harm by former employees. Second, the Court concluded that the Massachusetts laws[v] referenced by plaintiffs imposed a duty on Children’s Hospital to report any abuse experienced by Dr. Levine’s patients while he was employed by Children’s Hospital, but did not create a duty to protect potential future plaintiffs in other states, or to alert prospective employers that Dr. Levine had been accused of abuse.
Since Children’s Hospital did not have a special relationship with Dr. Levine’s UNC patients, and therefore did not owe his former UNC patients a duty of care, the plaintiffs’ complaint did not state a claim upon which relief could be granted. Therefore, the judgment of the Superior Court to dismiss the complaint was affirmed by the SJC.
Rachelle Rubinow, Esq. is a Program and Policy Associate at Community Catalyst, where she assists with providing technical assistance to consumer health advocates on Affordable Care Act implementation issues. She received her law degree from Boston College Law School, where she also worked as a staff attorney for the Boston College Legal Assistance Bureau after graduating. During law school, she interned for the Massachusetts Executive Office of Health and Human Services and the Tenant Advocacy Project. She received her undergraduate degree from Cornell University.
[i] SJC-11533 (Mass. Oct. 1, 2014).
[ii] See Coombes v. Florio, 450 Mass. 182, 187 (2007), quoting Cremins v. Clancy, 415 Mass. 289, 292 (1993).
[iii] See Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234, 242 (2010). See also Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41 (2012).
[iv] Hornback v. Archdiocese of Milwaukee, 313 Wis. 2d 294 (2008).
[v] M.G. L. c. 119, § 51A; M.G. L. c. 111, § 53B; M.G. L. c. 112, § 5F.