Mohr v. Com.
| Decision Date | 14 August 1995 |
| Citation | 421 Mass. 147,653 N.E.2d 1104 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | , 64 USLW 2148 Theodore MOHR & others 1 v. COMMONWEALTH & another. 2 |
Owen Gallagher, Sp. Asst. Atty. Gen., for the Com.
Stephen P. Sheehan, of Rhode Island, for plaintiffs.
John T. Landry, III, Sp. Asst. Atty. Gen., for Pamela Tompkins.
Before LIACOS, C.J., and WILKINS, ABRAMS and GREANEY, JJ.
The Commonwealth appeals from a judgment awarding the plaintiffs $200,000 based on jury findings that the Commonwealth negligently misrepresented the medical and family history of a child (Elizabeth) adopted by the plaintiffs, and that the Commonwealth was liable for the plaintiffs' uninformed consent to adopt Elizabeth. The plaintiffs cross appeal from a judgment entered in favor of the codefendant, Pamela Tompkins (a social worker in the adoption placement unit of the Department of Public Welfare), on the plaintiffs' claim that Tompkins intentionally failed to disclose to them the mental illness of the child's biological mother.
The plaintiffs commenced this action in January, 1987. 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. The plaintiffs also alleged that Tompkins made misrepresentations and fraudulently concealed from them certain background information about Elizabeth.
The case was tried to a jury in October, 1991. At the close of the evidence, the defendants filed motions for directed verdicts. The judge denied the motions as to the claims against the Commonwealth and the intentional tort claims against Tompkins. 3 In response to special questions, the jury found that the Commonwealth's negligence proximately caused the plaintiffs' injuries, and that the Commonwealth was liable for the plaintiffs' uninformed consent. 4 The jury also found that Tompkins was not liable for an intentional tort. 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. Both sides timely appealed, and this court granted a joint application for direct appellate review.
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, § 10(b ) (1994 ed.); (5) the judge erred in instructing the jury to determine whether regulations promulgated in 1972, 1974, or 1976 governed the Commonwealth's duty to disclose certain information to the plaintiffs; and (6) the doctrine of informed consent does not apply to a wrongful adoption action.
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.
Facts. We recite some of the facts that the jury could have found from the evidence admitted.
Elizabeth was born on January 15, 1968. 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 mother agreed to give up Elizabeth for adoption. Elizabeth was placed in foster care by the Department of Public Welfare (department) for five years. Within a few months after her birth, it became apparent that Elizabeth was missing early developmental milestones. 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." In January, 1969, Elizabeth was admitted to Springfield Hospital for a complete neurological evaluation. Her admission and discharge diagnoses were "mental retardation." Tests conducted while Elizabeth was an inpatient indicated that she had "moderate cerebral atrophy."
In September, 1973, Elizabeth was removed from her foster home and admitted to Springfield Hospital for "failure to thrive." During this hospitalization, a physician recommended that Elizabeth undergo a more complete psychological evaluation. The department did not follow this recommendation. Instead, Elizabeth was discharged with a diagnosis of On discharge, responsibility for Elizabeth's care was transferred from the Springfield regional office of the department to its adoption placement unit in Boston, which placed her in the Nazareth Child Care Center for adoption preparation.
Sometime in the early 1970s, the Mohrs approached the department seeking to adopt a child. They attended several educational meetings sponsored by the department. They knew that the children available for adoption were older children, some of whom had suffered emotional trauma as a result of disruption in their biological families, inadequate foster care, and other factors. 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. 5 Hazel Mohr acknowledged attending meetings at which the available children's emotional and behavioral problems were discussed. She also understood that there was a potential risk of mental illness or retardation, but did not remember any specific discussion of such issues. In their adoption application, the plaintiffs indicated that they would accept a child with a
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. 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. 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 ... was young and she wanted to go into nursing." 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. Hazel Mohr testified that Tompkins provided no other information about Elizabeth's medical history or familial background at any time, and that she told the plaintiffs that no medical records concerning Elizabeth were available. Although Tompkins knew of a record stating that Elizabeth's birth mother was schizophrenic, she did not disclose that information to the plaintiffs.
After they learned that Elizabeth was available for adoption, the plaintiffs visited her weekly for several months. In July, 1974, Elizabeth went to live with the plaintiffs. The next month, Tompkins sent Elizabeth's medical records to Dr. Raymond Guillette, whom the plaintiffs had selected to be Elizabeth's pediatrician. The records revealed Elizabeth's medical history, including physicians' concerns about retardation. The records also detailed the birth mother's diagnosis of "Schi[z]ophrenic Reaction Chronic Undifferentiated Type manifested by emotional immaturity and instability."
In November, 1975, the plaintiffs took Elizabeth to Joseph P. Kennedy Jr. Memorial Hospital for neurological testing. Dr. Edward J. Hart, the evaluating physician, described Elizabeth as having a "considerable behavioral disruption" and as "a child of probably low average intelligence" who was two years behind her developmental level. Dr. Hart recommended therapy with the whole family and an inpatient evaluation to determine whether Elizabeth's problems were organic or related to early emotional deprivations. The plaintiffs did not choose to follow this recommendation.
In August, 1976, the plaintiffs adopted Elizabeth after she had lived with them for two years. Nine years later, in January, 1984, they decided to have Dr. Hart conduct the inpatient evaluation that he had suggested in 1975. The admission procedures required that the plaintiffs obtain Elizabeth's immunization records. In the course of obtaining those records, Hazel Mohr first learned that Dr. Guillette had received medical records from the department. She also then discovered that Elizabeth's birth mother had been diagnosed as schizophrenic 6 and that Elizabeth's early infant development had been stunted. In addition, Hazel Mohr then learned that Elizabeth had been diagnosed with "cerebral atrophy." The plaintiffs testified at trial that they would not have adopted Elizabeth if this information had been disclosed to them.
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. They assert that Tompkins knew, but did not disclose to them, that:
(a) the birth mother was a committed patient at Worcester State Hospital when Elizabeth was born, with a diagnosis of chronic schizophrenia.
(b) the birth...
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