Blythe v. Schlievert
| Decision Date | 28 March 2017 |
| Docket Number | Case No. 3:16CV97 |
| Citation | 245 F.Supp.3d 959 |
| Parties | Molly S. BLYTHE, et al., Plaintiffs, v. Dr. Randall S. SCHLIEVERT, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Lorin J. Zaner, Law Office of Lorin J. Zaner, Toledo, OH, Shannon M. Smith, Bloomfield Hills, MI, for Plaintiffs.
Chad M. Thompson, James E. Brazeau, Robison, Curphey & O'Connell, Evy M. Jarrett, Elaine Berendsen Szuch, Maureen O. Atkins, John A. Borell, Sr., Office of the Prosecuting Attorney—Lucas County, Toledo, OH, Michael C. McPhillips, Marissa J. Palumbo, Office of the Attorney General, Columbus, OH, for Defendants.
This is a suit under 42 U.S.C. § 1983 by a mother, Molly Blythe, on behalf of herself and her twin daughters, co-plaintiffs KB and LB. The plaintiffs allege that the defendants, who include five physicians and John Doe employees affiliated with ProMedica Toledo Children's Hospital, a doctor affiliated with Toledo Mercy St. Vincent Medical Center, employees of the Lucas County, Ohio Children's Service Board (CSB), and the CSB, violated the plaintiffs' individual and collective rights to substantive due process and the First and Fourth Amendments.
The defendants did so, plaintiffs allege, through conscience-shocking actions after Molly brought KB to Toledo Hospital. The five Toledo Hospital doctors diagnosed and/or confirmed that KB was, under O.R.C. § 2151.031,1 an "abused child," who had suffered non-accidental head trauma
known as Shaken Baby Syndrome.
This diagnosis triggered a mandatory duty under O.R.C. § 2151.421 for the medical providers to notify the CSB that KB was a suspected victim of child abuse.2
On receiving the § 2151.421 notification, a CSB caseworker obtained Molly's agreement that her sisters, Amy and Erin Blythe, would become the twin's custodians. Thereafter, the CSB sought, and the Lucas County Common Pleas Court, Juvenile Division issued, a temporary custody order removing the twins from Molly's custody and placing them in the custody of Amy and Erin.
After several months, during which Amy and Erin had legal custody of the twins, Molly agreed to the twins being placed in the permanent custody of her mother, Claire Blythe.
Pending, and the subject of this opinion, are motions to dismiss and a motion for judgment on the pleadings by the five doctors affiliated with the Toledo Hospital: jointly, Tiffany A. Lisk, Susan P. Tourner, and Jamie L. Dargart (Doc. 22), Rayyan M. Anwer (Doc. 27), and John Gregory Rosenthal (Doc. 39). For the reasons that follow, I grant the motions.3
On November 12, 2013, plaintiff Molly Blythe gave birth five weeks prematurely to plaintiffs KB and LB. KB's birth, which followed that of her twin sister, presented substantial problems. KB's position had to be turned from the outside, and doctors had to use a silastic vacuum extractor
, which involved attachment of a vacuum cup to KB's head to pull her from the birth canal. This procedure can cause cerebral injuries
. Nurses and doctors noted significant bruising to KB's scalp after delivery, but no images were taken to determine the effect, if any, of how doctors accomplished KB's delivery.
During the two-month period following KB's post-natal release from the hospital, Molly took KB to her pediatrician eight times. Molly told the doctor that KB was vomiting after feeding and that the frequency of vomiting was increasing. Though by a month after her birth KB had gained two pounds, Molly expressed concern that she was not filing out her sleepers as much as LB. Molly also reported concerns about KB's sleep patterns.
On December 26, 2013, Molly noticed a faint discoloration where KB's left buttock and leg joined. Her pediatrician thought that a buckle on KB's car seat, where, in accordance with the doctor's instructions, Molly placed KB after feeding to keep her upright to help with her episodes of vomiting, could have caused the mark. Molly continued to be concerned and expressed her concerns to the doctor before a visit on January 10, 2014. At that time, Molly pointed out that KB's head was noticeably larger than LB's. Molly also told the doctor that KB was, as she had been during previously visits, pale and continuing to vomit. Finally, on January 16, 2014, the pediatrician recommended taking KB to the hospital.
Later on January 16, 2014, Molly took KB to ProMedica Toledo Hospital, where a cranial ultrasound was conducted. The ultrasound revealed an indication of bilateral subdural hygromas
, perhaps due to chronic subdural hematomas. In addition, an MRI and CT scan revealed large extra-axial fluid collections of mixed signal attenuation under some degree of tension and downward displacement of cerebral hemispheres. The hospital admitted KB and placed her in the pediatric intensive care unit.
Molly offered no explanation for KB's injuries. In light of that fact and in view of KB's objective clinical presentation with severe head trauma
, non-defendant Dr. Jennifer Grogan decided, and so informed Molly, that the hospital would make the referral to CSB.4
Before KB's discharge from the hospital on January 22, 2014, the defendant physicians continued to view and evaluate the cause of KB's condition as non-accidental trauma due to apparent child abuse. Plaintiffs claim that in doing so, the defendant doctors engaged in evidence gathering that went beyond their duties as physicians. As a result, plaintiffs allege, the defendant doctors improperly, and in a conscience-shocking way, supplanted CSB's statutory duty to investigate suspected child abuse.
On January 17, 2014, the day after KB's admission, non-defendant neurosurgeon Dr. Brian Hoeflinger surgically drained cranial fluid from KB. During that procedure, Dr. Hoeflinger noted a spontaneous return of chronic to subacute subdural hematoma
under fairly high pressure. Dr. Hoeflinger also noted that KB's brain appeared to expand toward her skull during the surgery.
While undergoing a post-surgical transfusion, KB suffered a seizure. An immediately performed cranial CT scan
showed large areas of extra-axial gas and unexpected bilateral hemorrhages.
A skeletal survey
revealed no other indicia of trauma elsewhere on KB's body. Pediatric hematologist defendant Dr. Jamie Dargart conducted blood tests to ascertain if KB had a bleeding disorder.5 Dr. Dargart, whose panel of tests was, according to plaintiffs, incomplete, ruled out a blood disorder as a cause of the subdural bleeding.
Non-defendant Dr. Matthew Currie, a non-board-certified ophthalmologist, examined KB on January 19, 2014 for retinal hemorrhages
, which are thought to be associated with child abuse. He observed intra- and subretinal hemorrhages bilaterally. Dr. Currie took no images during his examination; afterwards, he neither speculated as to the cause of what he had observed nor documented any differential diagnosis considered. According to plaintiffs, a retinal examination should have occurred within twenty-four hours of KB's admission and, in any event, before KB underwent cranial surgery on January 17, 2014. That surgery, plaintiffs assert, could have resulted in the intra-retinal bleeding that Dr. Currie observed. The absence of a post-admission, pre-surgery baseline, plaintiffs assert, negates and renders recklessly useless later observations of intra-retinal bleeding as an indicator of pre-admission child abuse.
Also on January 19, 2014, defendant Dr. Rayyan Anwer, then in his third month of residency, examined KB. Dr. Anwer attributed KB's subdural hematoma
to non-accidental trauma. This determination, plaintiffs claim, constituted the intentional, deliberate, and reckless fabrication of inculpatory evidence for later use by CSB to interfere with the constitutional right to family integrity and mutual care, custody, and control.
After Dr. Currie's retinal examination and findings, pediatric intensivist defendant Dr. Susan P. Tourner determined that KB appeared to be a shaken baby and, thus, an abused child under § 2151.031 (). On the basis of that diagnosis, Dr. Tourner, in compliance with the mandate of § 2151.421, notified CSB on January 19, 2014 that KB was a suspected child abuse victim.6
The complaint asserts that contrary to the report to CSB, KB's clinical presentation did not support the diagnosis of non-accidental trauma and the conclusion that KB was a shaken baby. Plaintiffs assert that KB's clinical presentation was, instead, consistent with trauma occurring during her birth.
Later on January 19, 2014, after CSB had received Dr. Tourner's § 2151.421 notice of suspected child abuse, CSB casework Jason Wegman, acting at the direction of his supervisor, Chandra Beal, informed Molly that he wanted her to consent to having her sisters, Amy and Erin Blythe, become the twin's custodian. Unless she agreed, Wegman told her, he would obtain a temporary custody order from the Juvenile Court and place the twins in a foster home. Molly agreed that her sisters could assume custody of the twins.
Later that evening, Wegman contacted Molly's sisters, who had assumed temporary care, and asked them to bring LB to the hospital for an examination to determine whether she manifested any injuries. That examination disclosed no indicia of injury or child abuse.
Molly confirmed her decision that her sisters would be the twin's custodian in a "safety plan" that she signed on January 20, 2014.
Also on January 20, 2014, Dr. Dargart provided her report (which, as noted, plaintiffs contend was based on insufficient data) that she could not attribute KB's injuries to a bleeding disorder.
On January 21, 2014, defendant Dr. Gregory Rosenthal, board certified ophthalmologist, conducted a second ophthalmological examination of KB. Dr. Rosenthal...
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