Mother v. Bradley

• Decision Date: 21 January 2011
• Docket Number: C.A. No. N10C-10-317 JRS,C.A. No. N10C-05-023 JRS
• Parties: JANE DOE 30's Mother, Individually, and as Parent Guardian, and Next Friend of JANE DOE 30, a Minor Child, Individually, and on behalf of all others similarly situated, Plaintiffs, v. EARL B. BRADLEY, M.D.; BAY BEES PEDIATRICS, P.A., a Delaware Corporation; BEEBE MEDICAL CENTER, INC., a Delaware Corporation; MEDICAL SOCIETY OF DELAWARE, a Delaware Corporation; MEDICAL SOCIETY OF DELAWARE INSURANCE SERVICES, INC., a Delaware Corporation; JAMES P. MARVEL, JR., M.D.; CAROL A. TAVANI, M.D.; LOWELL F. SCOTT, JR., M.D.; and LOWELL F. SCOTT, M.D., P.A., Defendants.
• Court: Delaware Superior Court

JANE DOE 30's Mother, Individually, and as Parent Guardian, and Next Friend of JANE DOE 30, a Minor Child, Individually, and on behalf of all others similarly situated, Plaintiffs, v. EARL B. BRADLEY, M.D.; BAY BEES PEDIATRICS, P.A., a Delaware Corporation;

BEEBE MEDICAL CENTER, INC., a Delaware Corporation;

MEDICAL SOCIETY OF DELAWARE, a Delaware Corporation;

MEDICAL SOCIETY OF DELAWARE INSURANCE SERVICES, INC.,

a Delaware Corporation; JAMES P. MARVEL, JR., M.D.; CAROL A. TAVANI, M.D.;

LOWELL F. SCOTT, JR., M.D.; and LOWELL F. SCOTT, M.D., P.A., Defendants.

C.A. No. N10C-05-023 JRS

C.A. No. N10C-10-317 JRS

SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

Date Submitted: October 21, 2010

Date Decided: January 21, 2011

MEMORANDUM OPINION.

Upon Consideration of

Motion for Judgment on the Pleadings

Brought By Defendants Medical Society of Delaware,

Medical Society of Delaware Insurance Services, Inc.,

James P. Marvel, Jr., M.D., and Carol A. Tavani, M.D.

GRANTED.

Bruce L. Hudson, Esquire, LAW OFFICES OF BRUCE L. HUDSON, Wilmington, Delaware; Ben T. Castle, Esquire and Craig A. Karsnitz, Esquire, YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware. Attorneys for Plaintiffs.

Collins J. Seitz, Jr., Esquire and Matthew F. Boyer, Esquire, CONNOLLY BOVE

LODGE & HUTZ, LLP, Wilmington, Delaware. Attorneys for Defendants Medical Society of Delaware, Medical Society of Delaware Insurance Services, Inc., James P. Marvel, Jr., M.D. and Carol A. Tavani, M.D.

SLIGHTS, J.

I.

In this opinion, the Court considers the scope of a physician's duty to report to appropriate authorities that another physician might be engaged in conduct that could endanger the health, welfare or safety of that physician's patients or the public at large. The issue arises in the context of highly disturbing allegations that a Delaware physician, Earl B. Bradley, M.D. ("Dr. Bradley"), engaged in physical and sexual abuse of possibly hundreds of his pediatric patients at his medical practice in Lewes, Delaware. Plaintiffs, Jane Doe 30 (a minor child) and Jane Doe 30's mother, bring this action on behalf of a putative class comprising "hundreds" of Dr. Bradley's patients and their parents who seek compensatory and exemplary damages against not only Dr. Bradley and his medical practice, Bay Bees Pediatrics, P.A., but also Beebe Medical Center ("Beebe"), where Dr. Bradley allegedly had privileges and was employed to practice medicine, the Medical Society of Delaware ("the Medical Society") and its affiliate, Medical Society of Delaware Insurance Services, Inc., ¹

James P. Marvel, Jr., M.D., Carol A. Tavani, M.D., Lowell F. Scott, Jr. M.D. and Dr. Scott's medical practice. As to those defendants other than Dr. Bradley, plaintiffs allege that each defendant owed the members of the class both a common law and statutory duty to report information they each knew or should have known about Dr. Bradley's unprofessional conduct to appropriate state regulatory and/or law enforcement agencies. According to the plaintiffs, the defendants' breach of this duty was a proximate cause of their injuries.

The Medical Society and two of its members, Drs. Marvel and Tavani (collectively "the Medical Society defendants"), move for judgment on the pleadings ("the motion") on the grounds that they owed no common law or actionable statutory duty to the plaintiffs to take any action to report Dr. Bradley's misconduct to appropriate authorities. They argue that plaintiffs' allegations against them boil down to an alleged failure to act (more precisely a failure to report) and that such nonfeasance will give rise to an actionable common law claim only in instances where they maintain a so-called "special relationship" (as defined in the law) with either the plaintiffs or with Dr. Bradley. According to the Medical Society defendants, no such "special relationship" exists here.

With regard to the alleged violation of statutory duties, the Medical Society defendants acknowledge, for this motion only, that the failure to report a fellow physician suspected of abusing patients might constitute a violation of certain Delaware statutes and subject them to the sanctions set forth therein. But they contend that such violations cannot, as a matter of Delaware law, give rise to a private right of action against them on behalf of Dr. Bradley's patients since no such right was contemplated by the General Assembly.

The Court has carefully considered the Medical Society defendants' motion and the plaintiffs' response. Because the Court finds that the Medical Society defendants have correctly stated Delaware law, and that under Delaware law they owe neither a common law nor an actionable statutory duty to these plaintiffs to report Dr. Bradley's alleged misconduct, the Motion for Judgment on the Pleadings must be GRANTED.

II.

Plaintiff, Jane Doe 30, is twelve years old and a former patient of Dr. Bradley.²She has sustained physical, mental and emotional damages as a result of abuseperpetrated against her by Dr. Bradley at his medical practice in Sussex County, Delaware. She and her mother seek to represent a class of potentially hundreds of former patients of Dr. Bradley and their parents in pursuing compensatory and exemplary damages against Dr. Bradley, his medical practice and other defendants for harm proximately caused by Dr. Bradley's abusive conduct.

Defendant, Beebe, is a hospital operating in Lewes, Delaware. Dr. Bradley maintained privileges to practice medicine at Beebe, was a member of the Beebe hospital staff and, at times relevant to the plaintiffs' claims, acted as an agent of Beebe in the practice of medicine. "Between 1994 and 2009, [] Beebe had information and reports of unprofessional conduct concerning defendant Bradley which endangered the public health, safety and welfare [] which were not reported either to [the Delaware Board of Medical Licensure and Discipline (the "Board") or the Delaware Division of Child Protective Services ("CPS")]."³

According to its Opening Brief, the Medical Society is a non-profit organization of physicians in Delaware the primary purpose of which is to "guide, serve and support Delaware Physicians, promoting the practice and profession ofmedicine to enhance the health of our communities."⁴ The Medical Society has no statutory or regulatory authority to sanction or discipline Delaware physicians. Such authority rests solely with the Board.⁵

Drs. Marvel and Tavani are Delaware physicians who, according to the Opening Brief, are members of the Medical Society and serve on the Medical Society's Physicians' Health Committee. "The mission of the Delaware Physicians' Health Program is to assist physicians, residents, medical students, physician assistants and physician assistant students who may have health problems which if left untreated, could adversely affect their ability to practice medicine safely."⁶ The program "provides confidential consultation and support" to eligible medicalprofessionals "facing health concerns."⁷

Either in the course of their work with the Physicians' Health Committee, or otherwise in the course of their professional activities, between 2004 and 2009, Drs. Marvel and Tavani obtained "information and reports of unprofessional conduct concerning defendant Bradley which endangered the public health, safety and welfare" and "information or reports... of suspected abuse against children...."⁸They failed to report this information to either the Board or CPS.⁹

Plaintiffs allege that as a proximate result of Beebe's and the Medical Society defendants' failure to report Dr. Bradley's unprofessional and/or abusive conduct to appropriate authorities, Dr. Bradley "was permitted to continue in the practice of medicine in the State of Delaware... which put him in a position of intimate contact and trust with his child patients whom he repeatedly abused, including Jane Doe 30."¹⁰ Needless to say, plaintiffs allege that Dr. Bradley's conduct has causedsubstantial physical and emotional harm to his patients and their families.¹¹

III.

The Medical Society defendants make three arguments in support of their motion: (1) they cannot be held liable for the tortious acts of Dr. Bradley because they owed no common law duty to the plaintiffs in that they did not maintain a legally cognizable special relationship with either Dr. Bradley or any of his alleged victims; (2) they cannot be held civilly liable under either the Medical Practice Act (the "MPA")¹² or the Child Abuse Prevention Act (the "CAPA")¹³ because neither of these statutory schemes creates a private right of action for the benefit of these plaintiffs against health care professionals who might be in violation of the reporting statutes contained therein; and (3) even if they owe a common law or statutory duty to the plaintiffs, they are immune from suit in this case per the immunity provisions of the MPA.¹⁴

In response, plaintiffs argue that: (1) the facts presented here justify an extension of existing common law principles to recognize that a special relationshipdoes exist between the Medical Society defendants and a Delaware-licensed physician that would justify the imposition of a duty upon them to take reasonable steps (including reporting the physician to appropriate authorities) to prevent that physician from causing harm to his patients or the public in instances where they know or should know that a risk of such harm exists; (2) the reporting obligations imposed upon the Medical Society defendants by the MPA and CPA impose upon the Medical Society defendants a legal duty to Dr. Bradley's patients, the violation of which can create a private right of action against the Medical Society defendants for the benefit of Dr. Bradley's patients who were harmed by his abuse; and (3) the Medical Society defendants cannot avail themselves of the statutory immunity provision of the MPA because: (a) they were not acting as "medical peer reviewers" when they failed...