After they learned that Elizabeth was available for adoption, the plaintiffs visited her weekly for several months. See M.H. On appeal, the Commonwealth contends that the judge should have determined as a matter of law that the statute of limitations barred the plaintiffs' action because the biological mother's history of mental illness was not "inherently unknowable" at the time that Elizabeth's adoption was finalized in 1976. See Lariviere v. Lariviere, 304 Mass. You must be logged in to post a comment. Instead, Elizabeth was discharged with a diagnosis of "[f]ailure to thrive, probably due to environmental deprivation. (slip op. Owen Gallagher, Special Assistant Attorney General, for the Commonwealth. (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. The judge denied the Commonwealth's motion for judgment notwithstanding the verdict or for a new trial, and denied the plaintiffs' motion for a new trial against Tompkins. change. Indeed, in light of the emotional, physical and financial problems that can result from an. where tenant subsequently set fire that destroyed house and its contents). App. In July, 1974, Elizabeth went to live with the plaintiffs. A department social worker took Elizabeth to a neurologist, who concluded that she "show[ed] definite evidence [of] retarded growth and development of unknown etiology." At the close of the evidence, the defendants filed motions for directed verdicts. Thus, Tompkins's actions did not constitute a discretionary function entitled to immunity pursuant to G. L. c. 258, Section 10 (b). See Mohr v. Commonwealth, 421 Mass. Within a few months after her birth, it became apparent that Elizabeth was missing early developmental milestones. influenced the jurors' deliberations. 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. 2d 314, 320 (N.Y. Sup. Although we acknowledge the "necessity to approach slowly any attempt to make an adoption agency liable for the health of the children that they place," Foster v. Bass, supra at 981, we believe that the preferable approach is to allow liability for "wrongful adoption" for claims based on both intentional and negligent misrepresentation to adoptive parents about a child's history prior to adoption. Apparently the Commonwealth applies that provision because it assumes that the plaintiffs' cause of action accrued in 1976, before G. L. c. 258 (Massachusetts Tort Claims Act) was enacted. Sometime in the early 1970s, the Mohrs approached the department seeking to adopt a child. Diane V Mohr Age 73 (May 1947) View All Details. See G. L. c. 258, Section 10 (b). Texas v. Pennsylvania, 592 U.S. ___ (2020), was a lawsuit filed at the United States Supreme Court contesting the administration of the 2020 presidential election in certain states, in which Joe Biden defeated incumbent Donald Trump.. (d) a developmental examination at eighteen weeks concluded that See Gibbs v. Ernst, supra at 207 ("The causes of action . magee, robin sauter, michael kincaid, and wanda logan v. commonwealth of pennsylvania, pennsylvaniageneral assembly, thomas w. wolf, and kathy boockvar; commonwealth court of pennsylvania case no 620 md 2020 . Third, allowing liability for negligent as well as intentional "wrongful adoption" does not impose any "extraordinary or onerous" burden on adoption agencies. 3d 859, 874-875 (1988), the California Court of Appeal stated that "an adoption agency cannot be made the guarantor of an infant's future good health and should not be liable for mere negligence in providing information regarding the health of a prospective adoptee." Thus, under the act, the Commonwealth as a public employer is immune from suits arising from intentional torts. The plaintiffs commenced this action against the Commonwealth on January 27, 1987, approximately eleven years after they adopted Elizabeth, alleging that the Commonwealth had wrongfully misrepresented the child's medical and familial background. Although Whitney v. Worcester, 373 Mass. Facts. We acknowledge that there always are certain risks associated with having a child, whether biologically or through adoption. The Commonwealth relies on several cases in which courts have declined to extend liability to cases involving negligent, rather than intentional, misrepresentation by an adoption agency. [and] that there was [not] any way, given this history, that she would have attained normal emotional status.". Id. See id. 204, 205-206 (1990); Mohr v. Commonwealth, 421 Mass. Because "the record amply support[ed] the lower courts' decisions that fraud was demonstrated," the court affirmed the jury verdict against the defendants. See Spring v. Geriatric Auth. Those are the elements that you must find. Cf. At that time, her mother was a committed patient at Worcester State Hospital and was under the care of the Department of Mental Health. ), which authorizes the release of "nonidentifying information" concerning a biological parent's "medical, ethnic, socio-economic, and educational circumstances." Id. Leave a Reply Cancel reply. Filed by Texas Attorney General Ken Paxton on December 8, 2020, under the Supreme Court's original jurisdiction, Texas v. . At the close of the evidence, the defendants filed motions for directed verdicts. Tompkins also told the plaintiffs that Elizabeth had been removed from foster care because of alleged abuse and had been hospitalized for malnutrition, and that she was small for her age and had been examined for dwarfism. was young and she wanted to go into nursing." agency's affirmative misrepresentations about a child's medical and familial background, any increased burden upon adoption agencies is slight. Prognosis: Good." In the absence of a duty, there can be no liability for negligence. physician recommended that she be admitted to the hospital's Child This is how the common law traditionally grows; it responds to the needs of the society it serves"). The plaintiffs' cross appeal. Hospital when Elizabeth was born, with a diagnosis of chronic White v. Laingoir, 434 Mass. They attended several, educational meetings sponsored by the department. Indeed, in light of the emotional, physical and financial problems that can result from an agency's affirmative misrepresentations about a child's medical and familial background, any increased burden upon adoption agencies is slight. This court recognized a cause of action for claims of "wrongful adoption" based on both intentional and negligent misrepresentation to adoptive parents about a child's history prior to adoption. See also Hendrickson v. Sears, 365 Mass. In so holding, the court stated that "[a]s a public agency charged with the legal duty and authority to arrange adoptions . In fact recognition of such a tort would promote public policy"). Ct. 1994), aff'd, 620 N.Y.S.2d 371 (1995). Tests conducted while Elizabeth was an inpatient indicated that she had "moderate cerebral atrophy.". adoptive parents of a child. at 5), "[T]he question of whether to recognize causes of action for `wrongful adoption' simply requires the straightforward application and extension of well-recognized common-law actions, such as negligence and fraud, to the adoption context and not the creation of new torts.". Burr v. County Comm'rs of Stark County, supra at 78. parents about a child's history prior to adoption. (c) the foster mother with whom Elizabeth was first placed one month 421 Mass. See Davis v. Westwood Group, 420 Mass. On appeal, the Commonwealth asserts that (1) its failure to disclose the biological mother's mental health history was not inherently unknowable at the time of Elizabeth's adoption in 1976, and that the plaintiffs failed to commence the action within the time allowed by the statute of limitations; (2) this court should decline to recognize a cause of action for wrongful adoption based on negligence; (3) the judge erroneously failed to instruct the jury on comparative negligence; (4) the Commonwealth's decision not to disclose information about Elizabeth's biological mother's history of mental illness was a discretionary function entitling the Commonwealth to immunity pursuant to G.L.c. We have recognized the "unfairness of a rule that holds that the statute of limitations has run even before a plaintiff knew or reasonably should have known that she may have been harmed by the conduct of another. 777, 779 n.3 (1990). Id. The jury also found that Tompkins was not liable for an intentional tort. Get 1 point on providing a valid sentiment to this [Note 13] The jury having found the Commonwealth liable on the theory of negligent misrepresentation, we need not discuss whether their alternative finding of liability under the doctrine of informed consent is applicable to the facts of this case. [164-166], At the trial of an action against the Commonwealth, error, if any, in the Baker v. Showalter, 151 N.C. App. ... Baggaley v Commonwealth Director of Public Prosecutions [2020] QCA 179. in the field of social work that schizophrenia and mental retardation in the biological family should be disclosed to adoptive parents prior to placement. Get free access to the complete judgment in MOHR v. COMMONWEALTH on CaseMine. disclosing a biological parent's mental illness to the prospective 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. sought a declaratory decree providing that a conditional contract of sale of an automobile, purportedly executed by Mohr to Suburban Nash, Inc., (Suburban), a dealer in automobiles, and assigned by Suburban to C.I.T. was null and void because the signature thereon was … 208 (1977), are helpful in determining the intended scope of the discretionary function exception contained in G.L.c. 258, § 10 ( b), does not extend to the acts of a social worker, employed by a State agency, in accordance with agency policy in not disclosing a biological parent's mental illness to the prospective adoptive parents of a child. [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. Id. by Springfield Hospital diagnosed "mental retardation." Burke v. Rivo, 406 Mass. 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." where the plaintiffs commenced their action within three years of the 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 . Bowen v. Eli Lilly & Co., supra at 205-206. 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. misrepresentation." We do not believe that adoption agencies should be exempt from tort liability for false statements negligently made during the adoption process. This provision, like G. L. c. 260, Section 2A, requires that claims be brought within three years after the cause of action accrues. CIVIL ACTION commenced in the Superior Court Department on January 27, 1987. Id. In September, 1973, Elizabeth was removed from her foster home and admitted to Springfield Hospital for "failure to thrive." 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. . We believe that the notion of good faith and fair dealing dictates that the affirmative duty to disclose to adoptive parents information about a child's background applies to private adoption agencies as well as to State agencies. We disagree. Nine years later, in January, 1984, they decided to have Dr. Hart conduct the inpatient evaluation that he had suggested in 1975. Bowen v. Eli Lilly Co., supra at 205-206. . 239 A.2d 218 (Del. John T. Landry, III, Special Assistant Attorney General, for Pamela Tompkins. However, all of this is to be taken in light of the then existing rules, policies, and procedures of the Department of Public Welfare that you find there was a deviation from. . Mohr v. Commonwealth, 421 Mass. . [Note 7] The Commonwealth asserts that the three year statute of limitations articulated in G. L. c. 260, Section 2A (1994 ed. . Morke v. Commonwealth, 14 Va.App. Id. 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. See Viccaro v. Milunsky, 406 Mass. Id. 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. (b) the birth mother had an IQ score of eighty-three (dull normal level). . . 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. Id. It is rather an extension of the doctrine of common law fraud. Actionable Tort. In response to special questions, the jury found that "2/84" was "the date when the plaintiffs either or both, knew or in the exercise of reasonable diligence should have known of the material facts which are the basis of this action." After they learned that Elizabeth was available for adoption, the plaintiffs visited her weekly for several months. 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. We acknowledge that there always are certain risks associated with having a child, whether biologically or through adoption. "wrongful adoption." at 78. v. Commonwealth, 402 Mass. In order to enable adoptive parents to "assume the awesome responsibility of raising a child with their eyes wide open," Roe v. Catholic Charities of the Diocese of Springfield, supra at 537, an adoption agency must disclose fully a child's medical and familial background. 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. Id. We agree that the straightforward application of well-established common law principles supports recognition of a cause of action in tort for an adoption agency's material misrepresentations of fact to adoptive parents about a child's history prior to adoption. [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. Elizabeth Mohr in Virginia . Id. A department social worker took Elizabeth to a neurologist, who concluded that she "show[ed] definite evidence [of] retarded growth and development of unknown etiology." That was not "However, just as couples must weigh the risks of becoming natural parents, taking into consideration a host of factors, so too should adoptive parents be allowed to make their decision in an intelligent manner." As well stated by Justice Murray in Mallette v. Children's Friend & Serv., -- A.2d --, (R.I. June 30, 1995) (No. 777, 779 n. 3 (1990). The top city of residence is Alexandria, followed by Fredericksburg. In addition, Hazel Mohr then learned that Elizabeth had been diagnosed with "cerebral atrophy." at 70. Dismissing an adult defendant's charge prior to arraignment not only would exceed the judge's authority provided by the rules, but also would run contrary to our case law. Elizabeth was born on January 15, 1968. 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. 234, 245 (1988). Soc'y of Wis., supra at 32. On appeal, the Commonwealth asserts that (1) its failure to disclose the biological mother's mental health history was not inherently unknowable at the time of Elizabeth's adoption in 1976, and that the plaintiffs failed to commence the action within the time allowed by the statute of limitations; (2) this court should decline to recognize a cause of action for wrongful adoption based on negligence; (3) the judge erroneously failed to instruct the jury on comparative negligence; (4) the Commonwealth's decision not to disclose information about Elizabeth's biological mother's history of mental illness was a discretionary function entitling the Commonwealth to immunity pursuant to G. L. c. 258, Section 10 (b) (1994 ed. See also M.H. family history of the child was not barred by the statute of limitations . At trial, the judge allowed the Commonwealth's motion to dismiss this claim. In reaching this conclusion, we note that the Legislature has not acted affirmatively to provide adoption agencies immunity from common law sanctions for negligence. Tompkins also told the plaintiffs that Elizabeth's mother had "blonde hair, blue eyes, fair coloring, [was] 5 foot, 1 inch tall, 130 pounds [and that she] liked to cook, liked dogs . So that it is not a want of due care or a mistake, it is an intentional act with an intent to deceive, an intent to defraud, or an intent to intentionally misrepresent a fact. Burke v. Rivo, 406 Mass. Because "the record amply support[ed] the lower courts' decisions that fraud was demonstrated," the court affirmed. The Commonwealth relies on several cases in which courts have declined to extend liability to cases involving negligent, rather than intentional, misrepresentation by an adoption agency. See Onofrio v. Department of Mental Health, supra at 610-611 (immunity did not extend to negligent failure to inform boarding house owner of known incendiary proclivities of tenant placed in house, where tenant subsequently set fire that destroyed house and its contents). harmed by the defendant's conduct. . Owen Gallagher, Special Assistant Attorney General, for the Commonwealth. (i) when Springfield Hospital evaluated Elizabeth in 1973, a Both sides timely appealed, and this court granted a joint application for direct appellate review. 147, 164 & n.13 (1995). . To avoid liability for "wrongful adoption" based on negligence, an agency need only use due care to ensure that it fully and adequately discloses information about a child's background so as not to mislead potential adoptive parents. Welfare of St. Joseph County v. Morningstar, 128 Ind. See Roe v. Catholic Charities of the Diocese of Springfield, supra at 537. (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. See Gibbs v. Ernst, supra at 211. at 75. 1968) Big Town Nursing Home, Inc. v. Newman. Nine years later, in January, 1984, they decided to have Dr. Hart conduct the inpatient evaluation that he had suggested in 1975. We conclude that the plaintiffs had no duty to conduct the type of investigation suggested by the Commonwealth. In reaching this conclusion, we note that the Legislature has not acted affirmatively to provide adoption agencies immunity from common law sanctions for negligence. 496, 500-01, 419 S.E.2d 410, 413 (1992) (citation omitted). Thus, under the discovery rule, the plaintiffs' cause of action accrued in February, 1984. Emotion[al] problem — we would consider.". 139, 141-142 (1992), citing A.L. See Davis v. Westwood Group, 420 Mass. See Harry Stoller Co. v. Lowell, 412 Mass. schizophrenia. See G.L.c. Nondiscretionary acts, to which governmental immunity would not extend, involved "the carrying out of previously established policies or plans." Next we must consider whether, as the Commonwealth contends, public policy concerns dictate that we should limit liability for "wrongful adoption" to claims based on intentional conduct. Get the MLW Daily Alert. Id. The mother shared the child's low intellectual level, had a speech impediment, and was diagnosed as having a "mild mental deficiency, idiopathic, with psychotic reactions." . According to the plaintiffs, the department's employees told them prior to the adoption that the only background information that would not be disclosed to them was the identity of the biological parents. See also Juman v. Louise Wise Servs., 620 N.Y.S.2d 371, 372 (App. the plaintiffs' cross appeal is without merit, and affirm the judgment in favor of the defendant Tompkins. The case was tried before John J. O'Brien, J. . 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 jury having found the Commonwealth liable on the theory of negligent misrepresentation, we need not discuss whether their alternative finding of liability under the doctrine of informed consent is applicable to the facts of this case. ", (g) in January, 1969, a complete neurological examination conducted by Springfield Hospital diagnosed "mental retardation." The Supreme Judicial Court granted an application for direct appellate review. The plaintiffs also knew that certain "special needs" children, which included children with psychological or physical handicaps, were available for adoption and that an adoption subsidy would be offered to facilitate placement of such children. If you find there was, all of the case will be applied with respect to the written rules and regulations and that oral policy. The judge denied the motions as to the claims against the Commonwealth and the intentional tort claims against Tompkins. An action brought by adoptive parents against the Commonwealth for 1992)). Soc'y of Wis., supra at 32. require that [the defendants] be held accountable for injuries resulting from deceitful and material misrepresentations which we find were foreseeably and justifiably relied on by [the plaintiffs]." This objection was not heeded. 147, 155-156 (1995); Olsen v. Bell Tel. ", (e) a follow-up examination at thirty-nine weeks found that many of Meracle v. Children's Serv. Eli Lilly Co., 408 Mass. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. . 83, 83-84 (1974). 204, 205 (1990). . Social Services) objected to transferring "this five year old Cf. “SB Pro is organized beautifully by topics and sub-topics and has a wealth of information. ", 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. . I. In so holding, the court stated that "[a]s a public agency charged with the legal duty and authority to arrange adoptions . Nondiscretionary acts, to which governmental immunity would not extend, involved "the carrying out of previously established policies or plans." Thus, we have developed a so-called "discovery rule" that tolls the statute of limitations until a plaintiff knows, or reasonably should have known, that it has been harmed or may have been harmed by the defendant's conduct. 497, 499-501 (1967); Mohr v. Commonwealth, 421 Mass. 92 Cal.App.3d 61 (1979) Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. [Note 4] The jury found that $3.8 million would fairly and adequately compensate the plaintiffs for their damages. 160-161], and discussion of cases in which courts have declined to [Note 7]. App. They alleged that the defendants negligently failed to provide accurate and complete information about Elizabeth's background, particularly her medical and family history, as well as her probable needs for future treatment and care, and that this negligence caused them harm. 258, § 10 ( b). See also Juman v. Louise Wise Servs., 620 N.Y.S.2d 371, 372 (App. at 78. Contact Reference Librarians. 258, § 10 ( b). Intentional Conduct. Viccaro v. Milunsky, 406 Mass. 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." Thus, Tompkin's actions did not constitute a discretionary function entitled to immunity pursuant to G.L.c. Dunlavey Commonwealth, 184 Va. 521, 35 S.E.2d 763 (1945). is around 24 weeks and this being the Belli v. Orlando Daily Newspapers, Inc. 389 F.2d 579 (5th Cir. She also then discovered that Elizabeth's birth mother had been diagnosed as schizophrenic [Note 6] and that Elizabeth's early infant development. negligent misrepresentation before the adoption of the medical and 611, 618 (1980). In case of any confusion, feel free to reach out to us.Leave your message here. It is rather an extension of the doctrine of common law fraud. at 5). The Commonwealth asserts that the three year statute of limitations articulated in G.L.c. . 274, 284-285 (1985). See. To avoid liability for "wrongful adoption" based on negligence, an agency need only use due care to ensure that it fully and adequately discloses information about a child's background so as not to mislead potential adoptive parents. The plaintiffs testified at trial that they would not have adopted Elizabeth if this information had been disclosed to them. Trial Court Law Libraries. Eli Lilly & Co., 408 Mass. In the course of obtaining those records, Hazel Mohr first learned that Dr. Guillette had received medical records from the department. 605, 611 (1990), S.C., 411 Mass. 147 (1995) In a landmark case, the Supreme Judicial Court first recognized the right of adoptive parents to assert a claim for wrongful adoption, but found no liability on the part of the social worker who handled the adoption for the Department of Public Welfare, the predecessor state agency to the Department of Social Services. 204, 205 (1990). 2003) (quoting Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1030 (3d Cir. 94-96-M.P.) at 5), "[T]he question of whether to recognize causes of action for `wrongful adoption' simply requires the straightforward application and extension of well-recognized common-law actions, such as negligence and fraud, to the adoption context and not the creation of new torts.". [Note 9]. Insofar as negligence is concerned, negligence is the failure to exercise due care. 208 (1977), preceded the enactment of the Massachusetts Tort Claims Act in 1978, that opinion enunciated guiding principles for determining the scope of the discretionary function exception later stated in G.L.c. In August, 1976, the plaintiffs adopted Elizabeth after she had lived with them for two years. Previously cities included Virginia Beach VA and Richmond VA. Leandra M Bessell and Leandra B Dunlevy are some of the alias or nicknames that Leandra has used. 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." SeePhinney v. Morgan, 39 Mass. judge's instructions to the jury with respect to the applicability of [Note 14] Specifically. In addition, we believe that this result, rather than inhibiting adoption, will encourage it because "it will give potential parents more confidence in the adoption process and in the accuracy of the information they receive." Furthermore, "the common law notion of foreseeability as found in the concepts of duty and proximate cause" prevents the tort of negligent "wrongful adoption" from making adoption agencies guarantors of children's future health. erroneously instructed the jury with respect to their claim for Mohr v. Commonwealth , 421 Mass. At the time of trial, Elizabeth lived at home and was incapable of caring for herself. See id. The judge denied the motions as to the claims against the Commonwealth and the intentional tort claims against Tompkins. Fourth, we do not believe that a negligent "wrongful adoption" cause of action conflicts with the biological parents' interest in keeping their identities confidential. parents the right to seek compensatory damages against an adoption Elizabeth's abilities were at the twenty-week level and that "[h]er When the plaintiffs obtained a court order to open the sealed records concerning the child's background prior to adoption, the records revealed that the biological mother was a thirty-one year old mental patient and that the child was born at a State mental institution. N.Y. Sup required that the plaintiffs satisfied their burden of proving that they did not feel they could consider Special! 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