Foster by Foster v. Bass

• Decision Date: 19 December 1990
• Docket Number: No. 07-CA-58991,07-CA-58991
• Parties: Geoffrey Dufton FOSTER, a Minor, by Kevin C. FOSTER, as Father and Next Friend v. John L. BASS, M.D., Howard H. Nichols, M.D., University Hospital and Catholic Charities, Inc.
• Court: Mississippi Supreme Court

Page 967

575 So.2d 967

Geoffrey Dufton FOSTER, a Minor, by Kevin C. FOSTER, as Father and Next Friend v. John L. BASS, M.D., Howard H. Nichols, M.D., University

Hospital and Catholic Charities, Inc.

No. 07-CA-58991.

Supreme Court of Mississippi.

Dec. 19, 1990.

Rehearing Denied March 6, 1991.

James P. Cothren, Robert G. Germany, Cothren & Pittman, Jackson, Vernon F. Glenn, McCoy Taylor & Glenn, Charleston, S.C., for appellant.

Rebecca Lee Wiggs, Steven D. Orlansky, Watkins & Eager, Jackson, for appellee.

EN BANC.

ANDERSON, Justice, for the Court:

This case allows this Court to grapple with the duties and responsibilities of a private adoption agency in placing children. Having determined that summary judgment was appropriate in the lower court, the Hinds County Circuit Court dismissed with prejudice the appellant's claim against the appellee. In the end we conclude that the trial court acted properly. Because of the significance of this case, we address the following issues presented to this Court:

CATHOLIC CHARITIES, INC. OWED A DUTY TO EXERCISE REASONABLE

CARE IN INVESTIGATING THE HEALTH OF GEOFFREY FOSTER AND IN ADVISING HIS PROSPECTIVE ADOPTIVE PARENTS OF ANY HEALTH PROBLEMS

CATHOLIC CHARITIES['] VIOLATION OF ITS DUTY TO THE FOSTERS WAS A PROXIMATE CAUSE OF THE INJURIES TO GEOFFREY

CATHOLIC CHARITIES SHOULD NOT HAVE BEEN GRANTED A SUMMARY JUDGMENT

Prior Proceedings

On May 5, 1986, Geoffrey Foster, by his father, Kevin C. Foster (hereinafter collectively Foster) ¹ filed a complaint in the Hinds County Circuit Court. This complaint was filed against Drs. John L. Bass and Howard H. Nichols, University Hospital and Catholic Charities, Inc. In this complaint Foster alleged that the defendants were negligent in failing to have him tested for Phenylketonuria (PKU) either at the time of his birth or during the days following his birth. He also complained that the defendants failed to order and require PKU testing for him prior to his adoption when the medical information form attached to his adoption papers recognized the need for such testing and provided a place to record the results of the testing. In addition, Foster alleged that the defendants violated and deviated from the proper standards of care in his treatment and in providing necessary medical information concerning his condition prior to his adoption. In the end, according to Foster, these acts were negligent, and they were the proximate cause of his mental retardation, which is permanent and irreversible.

Answers and Defenses were filed by the various defendants. In particular, Catholic Charities denied that it was negligent and asserted that Foster's "complaint fail[ed] to state a claim upon which relief may be granted against [it.]" Catholic Charities, additionally, denied any negligence on its part which proximately contributed to Foster's mental retardation.

Extensive discovery subsequently was conducted, and on October 22, 1986, the trial court entered an order sustaining University Hospital's Motion to Dismiss based upon its defense of sovereign immunity and dismissing the hospital from the case with prejudice.

On January 22, 1988, the lower court entered a Final Judgment of Dismissal with Prejudice. This dismissal recognized that Foster had entered a settlement with Drs. Bass and Nichols. Prior to that, however, on October 29, 1987, Catholic Charities filed its motion for summary judgment stating, inter alia, "As an adoption agency and not a medical provider, Catholic Charities had no duty to test the plaintiff for PKU."

In his response to the summary judgment motion, Foster not only insisted that his complaint alleged negligence for failure to test, but it also alleged that Catholic Charities was "guilty of negligence in failing to require PKU testing, in failing to provide proper and necessary medical information and other acts of negligence."

After the parties were allowed to submit briefs on this motion and an extensive hearing was held, the trial court entered its order granting the motion for Catholic Charities based upon a finding:

that plaintiff has made no showing of evidence sufficient to create a genuine dispute of material fact as to whether Catholic Charities breached any duty it owed to the Foster's or that any breach proximately caused or contributed to the injuries complained of and, Catholic Charities, is therefore entitled to judgment as a matter of law.

Foster timely filed a motion to vacate or set aside the order granting the summary judgment motion. In this motion, Foster asked the trial court to set aside its order because [t]he Motion did not raise the issues of whether Catholic Charities, Inc. had the duty to investigate the health of Geoffrey Dufton Foster, accurately record medical information regarding [Geoffrey], properly advise [his] treating physicians of his health history, including whether he had been tested for PKU and the results of such testing, if any, and to advise the prospective adoptive parents of the health of Geoffrey Dufton Foster ...

Also included with this motion was an affidavit of Elizabeth S. Cole, which stated that a "standard of care does exist for the fee paid private adoption agencies such as Catholic Charities ... [, and] in her opinion [this breach by Catholic Charities] was a proximate cause of injuries sustained by [Foster.]"

In response to this motion, the trial court entered an order upholding its order granting summary judgment stating its view that there is no evidence which would allow a reasonable jury to conclude that Catholic Charities breached a duty proximately causing Foster's injury. The court entered its Final Judgment in favor of Catholic Charities and dismissed Foster's complaint with prejudice. Foster timely filed his notice of appeal to this Court.

PRELIMINARY FACTS

What is PKU? ²

Phenylketonuria (PKU) is a metabolic disease caused by an inherited defect in the enzyme, phenylalanine hydroxylase, which converts phenylalanine to tyrosine. Phenylalanine and tyrosine are important amino acids in body metabolism. For example, tyrosine is important in thyroid function, neurotransmitter function and melanin formation. In a normal person, 95% of the phenylalanine in his diet is converted to tyrosine. As soon as an infant begins to take in protein by mouth, its blood phenylalanine concentration rises.

PKU is an inherited, recessive condition, which means that both parents must be carriers of the PKU gene, thus creating a one-fourth chance of producing a PKU child. Approximately 1/10,000 births are PKU in European populations; therefore, 1/2,500 such couples exist, or 1/50 members of the population carry the PKU gene. ³ This is a very rare disorder, and the birth of a PKU child is nearly always unpredictable. There is no way to discover if the parents are carriers of the gene because there are no symptoms or indication of the disease and the children are born healthy. The most effective way to detect the disease is to organize programs that can test every infant shortly after birth.

In PKU, phenylalanine accumulates in the blood and body tissues because it cannot be converted to tyrosine. The excess phenylalanine causes severe brain damage resulting in severe mental retardation, and at times seizures, cerebral palsy and microcephaly. In the 1950's, Dr. Robert Guthrie developed a newborn test procedure which detects PKU. The test is a standardized simple method of detecting PKU, and it has been administered on a routine basis at the Mississippi Baptist Medical Center since 1965. Although the state recognized the need for conducting screening tests as early as 1979, the tests were not required until 1985. Cf. MISS. CODE ANN. Sec. 41-21-203 (1972) (physician may provide) with Sec. 41-21-203 (Supp.1989) (physician shall provide).

Untreated PKU persons usually have intelligence quotients between 25-50, and many of these reside in state institutions for the retarded because of associative behavioral problems. "Early diagnosis and treatment, consisting merely of a change in the infants' diet can successfully prevent

                all the clinical manifestation of the disease."   Wachbroit, Making the Grade:  Testing for Human Genetic Disorders, 16 Hofstra L.Rev. 583, 594 (1988)
                

STATEMENT OF THE FACTS

Kevin and Jean Foster were married in 1961. In 1963 they had their first child. Mrs. Foster had one miscarriage earlier and in 1969 she became pregnant again. This child, however, died at birth or shortly thereafter. Again Mrs. Foster became pregnant, and yet again, this pregnancy ended in a miscarriage. The Fosters then turned to adoption. On March 19, 1971, the Fosters made inquiry with Catholic Charities about the possibility of adopting a child. An intake interview was conducted by a staff social worker at Catholic Charities, and the Fosters submitted to Catholic Charities a written application to adopt a child. Thereafter, individual interviews were conducted with each of the Fosters. An Adoptive Home Study Report was compiled, and Catholic Charities concluded that the Foster's "seem very capable of providing a good home for an adoptive child."

Geoffrey was born on February 22, 1972, at the University Hospital in Jackson. Three days later, Geoffrey's natural mother executed a parent's or guardian's surrender to Catholic Charities. He remained in the hospital until February 28, 1972, when the Fosters obtained custody of him. While Geoffrey was in the hospital, Dr. John L. Bass was the resident in charge of care in the nursery. He was primarily and ultimately responsible for Geoffrey's care. Dr. Bass did not order a PKU test for Geoffrey because at that time there was no policy at University Hospital for performing PKU as a routine screening procedure.

Catholic Charities has never had a medical director or doctor on its staff. It has relied upon the physicians, who treat the children it places for adoption, to alert it to any medical problems or the needs the children may...