Marquez v. Presbyterian Hosp. in City of New York

• Decision Date: 02 March 1994
• Citation: 159 Misc.2d 617,608 N.Y.S.2d 1012
• Parties: Angel MARQUEZ and Jenny Marquez, individually and as parents and natural guardians of Jennifer Marquez, an infant, Plaintiffs, v. PRESBYTERIAN HOSPITAL IN the CITY OF NEW YORK, Joan Bregstein, L. Silverstein, S.B. Hauger, David Bichell, the City of New York, Ricky Ann Feldman, the Legal Aid Society, Lenore Gittis, Mary Jo Dahlbloom, Sidney D. Kurtzman, James A. Murphy, Fred Agre and Thomas W. Bergall, Defendants.
• Court: New York Supreme Court

Page 1012

608 N.Y.S.2d 1012

159 Misc.2d 617

Angel MARQUEZ and Jenny Marquez, individually and as parents and natural guardians of Jennifer Marquez, an infant, Plaintiffs, v. PRESBYTERIAN HOSPITAL IN the CITY OF NEW YORK, Joan Bregstein, L. Silverstein, S.B. Hauger, David Bichell, the City of New York, Ricky Ann Feldman, the Legal Aid Society Lenore Gittis, Mary Jo Dahlbloom, Sidney D. Kurtzman, James A. Murphy, Fred Agre and Thomas W. Bergall, Defendants.

Supreme Court, Bronx County Part IA 6.

March 2, 1994.

Seymour H. Eidman, New York City, for plaintiffs.

Ross & Hardies, New York City, for Legal Aid Society defendants (Peter L. Livingston and Philip Goldstein, of counsel).

O. Peter Sherwood, Corp. Counsel, Bronx, for City of New York defendants.

Rochman Platzer Fallick & Rosmarin, New York City, for Presbyterian Hosp. defendants (Sam Rosmarin, of counsel).

LEWIS R. FRIEDMAN, Justice.

The outrage of the sexual abuse of minors and the equally outrageous false allegation of sexual abuse, are both increasingly common, but can hardly be called "routine". This complex legal and medical malpractice case arises out of a "routine" charge of sexual abuse litigated in Family Court.

On this summary judgment motion the operative facts are not in dispute. In August 1987 Jennifer Marquez was 5 years old. Her mother, plaintiff Jenny Marquez, brought her to Presbyterian Hospital with complaints of constipation and occasional bloody stools. Defendant Dr. Bregstein examined her in the presence of Dr. Hauger and suspected sexual abuse. This was reported to the Bureau of Child Welfare. The child was taken from her parents' custody, remained in the hospital for two weeks, and was ultimately placed in the care of her maternal grandmother. The City filed a sexual abuse petition in Family Court, Bronx County (Index No. NA 6344/87). The Legal Aid Society, and its staff attorneys Lenore Gittis and Mary Jo Dahlbloom ("the Legal Aid defendants"), was assigned as the law guardian for the child. The parents denied involvement in any sexual abuse. On December 15, 1987, Judge Rhoda Cohen held a fact finding hearing. The law guardian took the position that the physical findings were inconsistent with the explanations offered by the parents and were consistent with sexual abuse of the child. The court found, by a preponderance of the credible evidence, that the child was sexually abused. After a dispositional hearing held on June 23, 1986, the court placed the child with the Department of Social Services for 18 months. Eventually Jennifer was returned to her parents' custody.

The parents are suing in their own right and as the "parents and natural guardians" of the infant. The first cause of action on behalf of Jennifer sounds in legal and medical malpractice. It alleges that the Legal Aid defendants should have called Dr. Jose Moulier, a Presbyterian Hospital doctor, to testify at the fact finding hearing. He had dealt with the parties and had concluded, without a physical examination of the child, that there was no sexual abuse. Dr. Moulier did testify at the dispositional hearing. Plaintiffs also assert that Presbyterian Hospital and its doctors committed malpractice by misdiagnosing the case and by submitting an erroneous report of sexual abuse. The City and its attorneys, defendants Bergall and Feldman, prosecuted the matter in Family Court; allegedly they too failed to subpoena Dr. Moulier. The second cause of action is by Jenny Marquez against her attorney in Family Court, defendant Kurtzman. The third cause of action is by Angel Marquez against his attorney in Family Court, defendant Murphy.

The Legal Aid defendants move for summary judgment on the grounds that plaintiffs fail to state a claim for malpractice. The Presbyterian Hospital, Dr. Bregstein, Dr. Hauger, together with Drs. Silverstein and Agre, who had examined the child at the hospital ("the Hospital defendants"), move for summary judgment on the ground that they are immune from a suit for reporting acts of sexual abuse.

The Legal Aid Motion

The motion by the Legal Aid defendants requires the court to determine an issue of first impression: the standard under which legal malpractice actions can be brought against law guardians. In order to reach a determination, the court must first examine a number of issues as to the role of law guardians in the Family Court.

Today law guardians are essential to the functioning of the Family Court and serve vital roles in all types of cases in that court and in Supreme Court matrimonial and custody cases. Yet, there is, and has been, no clear definition of the role of a law guardian. The term "law guardian" first appeared in 1962 when New York began to provide appointed counsel for juveniles in Family Court proceedings brought pursuant to Family Court Act Article 3 (neglect) and Article 7 (delinquency and persons in need of supervision) (L.1962, ch. 686; Family Court Act § 241). The drafters of the statute did not themselves have a precise concept of the role counsel should play in Family Court proceedings. They had difficulty in reconciling an appointed attorney's role as advocate and that same attorney's role as a "guardian"; this ambiguity no doubt resulted from their view that Family Court proceedings should not be truly adversarial (see, Report of the Joint Legislative Committee on Court Reorganization, 1962 McKinney's Session Laws 3428, 3431). Indeed, the term "law guardian," implying lawyer and guardian, is ambiguous. The Legislature could easily have used the term "counsel," if that role alone had been intended. The Legislature declared "that counsel is often indispensable to a practical realization of due process of law" and "may be helpful in making reasoned determinations of fact and proper orders of disposition." An early interpreter of the statute, who had been heavily involved in its drafting, noted that in his view there may well be three roles for a law guardian--advocate (serve as defense counsel), guardian (act in the "best interests of the child"), and officer of the court (interpret the court to parent and child) (Isaacs, "The Role of the Lawyer in Representing Minors in the New Family Court", 12 Buffalo L.Rev. 501, 506-7 [1963].

There is consensus in the legal community that there is an essential duality of the law guardian's role--defense attorney and guardian. The ambiguity in the role was further complicated when the Supreme Court held that counsel was required in certain Family Court proceedings (In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 [1967]. Shortly after Gault, the Court of Appeals found that the unsought-after advent of adversarial proceedings in the Family Court created a conflict between the traditional role of counsel and the law guardian's role as "impartial adviser to the court on the social problem involved" (W. v. Family Court, 24 N.Y.2d 196, 199, 299 N.Y.S.2d 414, 247 N.E.2d 253, revd. on other grounds 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368). In 1970 the Legislature expanded Family Court § 241 to provide that law guardians may be appointed for all minors "who are the subject of family court proceedings" (L.1970, ch. 962). The amended statute, however, provides no further guidance in refining the dual role of law guardians; the 1970 legislative declaration finds them needed as "counsel [1] to help protect [the minor's] interests and [2] to help them express their wishes to the court" (Family Ct. Act § 241). ¹

The Code of Professional Responsibility defines the basic responsibility of counsel--to "Represent a Client Zealously Within the Bounds of the Law" (Canon 7). In the traditional criminal defense setting counsel's role is well understood. "When a defendant engages a lawyer or has one assigned to him he has but one simple and understandable object; he wants to be free. He does not want to be edified with moral precepts, or be told that he should subordinate his selfish interests to the public good by pleading guilty and atoning for his sins" (Levy, 9 Record of the Assn of the Bar of the City of New York 215, 220). Indeed, this court is aware that in Family Court, "counsel" is the role that most law guardians have adopted, at least in proceedings under Family Court Act Articles 3 and 7. The Legal Aid Society, which has long provided law guardian services in New York City, has, from the first of its contracts with the City, taken the firm position that it will zealously represent its clients as though the children were adults.

The adversarial role for law guardians has, quite properly, predominated. As the Second Department noted it is "the right and duty of such counsel [law guardian] to proceed in the same manner as counsel representing a defendant in a criminal proceeding" (Rapoport v. Berman, 49 A.D.2d 930, 931, 373 N.Y.S.2d 652). In the routine case "the authority to make decisions is exclusively that of the client and * * * are binding on his lawyer" (Code of Professional Responsibility, EC 7-7). The same principle applies to juveniles (see, American Bar Assn, Juvenile Justice Standards Relating to Counsel for Private Parties, Standard 3.1[b][ii][b][1980]. Recent cases, without any discussion of the issue, routinely treat law guardians as though they were counsel in a criminal case. (See, e.g., Matter of Elianne M., 196 A.D.2d 439, 601 N.Y.S.2d 481 [substitution of counsel of the child's choosing for the law guardian]; Matter of Jamie TT., 191 A.D.2d 132, 599 N.Y.S.2d 892 [law guardian held to the same standard of competent representation as counsel in a criminal case]; Matter of Lauren KK., 175 A.D.2d 393, 572 N.Y.S.2d 464 [objections at trial]; Matter of Detrece H., 164 A.D.2d 306, 563 N.Y.S.2d 797 [objection to absence of the juvenile]; Bentley v. Bentley, 86 A.D.2d 926, 927, 448 N.Y.S.2d 559 ["the relationship (between) the Law Guardian and the child * * * is one of 'attorney-client' " and communications are clearly clothed with the...