Robert Roe No. 1 v. Children's Hosp. Med. Ctr.

• Decision Date: 01 October 2014
• Docket Number: SJC–11533.
• Citation: 469 Mass. 710,16 N.E.3d 1044
• Parties: Robert ROE NO. 1 & others v. CHILDREN'S HOSPITAL MEDICAL CENTER & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

469 Mass. 710

16 N.E.3d 1044

Robert ROE NO. 1 & others¹

v.CHILDREN'S HOSPITAL MEDICAL CENTER & others.²

SJC–11533.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted April 8, 2014.

Decided Oct. 1, 2014.

Mark F. Itzkowitz, Boston, (Carmen L. Durso with him) for the plaintiffs.

Gail M. Ryan (John P. Ryan with her), Boston, for Children's Hospital Medical Center.

The following submitted briefs for amici curiae:

John J. Barter, Boston, for Professional Liability Foundation, Ltd.

Darrell L. Heckman, of Ohio, & Ninamary Buba Maginnis, of Kentucky, for National Center for Victims of Crime.

J. Michael Conley, Braintree, Jeffrey S. Beeler, Natick, Thomas R. Murphy, Salem, & Kimberly A. Alley for Massachusetts Academy of Trial Attorneys.

Present: SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

Opinion

CORDY, J.

This case requires us to decide whether a Massachusetts hospital employer owes a legally cognizable duty of care to future patients of a doctor who has left the hospital's employ and

resumed practicing medicine in the employ of a different hospital in another State. We conclude that such a duty is not cognizable in the circumstances presented here, where the hospital does not have the type of special relationship either with its former employee, or with any of his prospective patients, that would create such a duty. Consequently, we affirm the judgment entered in the Superior Court dismissing the complaint for failing to state a claim on which relief may be granted.

1. Background. We recite the relevant facts as drawn from the plaintiffs' complaint, which we assume to be true for the purposes of our review. Nader v. Citron, 372 Mass. 96, 98, 360 N.E.2d 870 (1977).

The defendant, Children's Hospital Medical Center (Children's Hospital), is a fully licensed hospital located in Boston. In 1966 it hired Melvin Levine as a pediatric physician. Levine held that position until leaving Children's Hospital's employ in 1985.³ On leaving Children's Hospital, Levine relocated to North Carolina, where he obtained a license to practice medicine and became employed as a pediatrician at the University of North Carolina School of Medicine (UNC). Twenty-four years later, in 2009, amid allegations that he had performed medically unnecessary genital examinations on a number of his patients at UNC, Levine signed a consent order surrendering his license to practice medicine in North Carolina and agreeing not to practice medicine in any other jurisdiction.

In 2011, the plaintiffs, eleven former patients of Levine at UNC, brought this suit against Children's Hospital in the Superior Court. Essentially, they allege that Children's Hospital failed to properly train, supervise, or discipline Levine during his employment at Children's Hospital; knew or should have known that Levine was conducting inappropriate genital examinations of minors during that employment; and failed to report Levine's conduct to various licensing authorities and UNC. Further, they allege that, as a consequence of this negligence on the part of Children's Hospital, Levine was able to continue his abuse of patients, including the plaintiffs, during his employment at UNC.⁴

More specifically, the plaintiffs allege that, in 1967, the mother of a minor male patient informed Children's Hospital that Levine had sexually abused her son during an examination,⁵ and that the plaintiffs are “informed and believe” that other patients may have made similar complaints to Children's Hospital during the term of Levine's employment. Further to this allegation, the complaint identifies litigation initiated in Massachusetts by former patients treated by Levine when he worked at Children's Hospital—litigation brought after Levine left Children's Hospital's employ. For example, in 1988, a patient identified as John Doe No. 6 filed suit against Levine in the United States District Court for the District of Massachusetts, alleging that Levine repeatedly performed medically unnecessary examinations of his genitals between 1978 and 1984; and, in 1993, a former patient identified as John Doe No. 7 complained of similar abuse to the Board of Registration in Medicine (board).⁶ The complaint also references four additional suits that were filed in the Superior Court in 2005, 2006, 2008, and 2011, alleging substantially the same type of conduct by Levine during his employment at Children's Hospital.

In July, 2011, Children's Hospital moved to dismiss the plaintiffs' complaint pursuant to Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974), for failure to state a claim. Children's Hospital argued, among other things, that it did not owe any cognizable duty of care to the plaintiffs, as the alleged abuse happened after Levine left its employ and during his work for an unrelated hospital in another State. In response, the plaintiffs moved to amend their complaint in August, 2011, to add a paragraph alleging that Children's Hospital owed them a duty of care because it had a “special relationship” with Levine, and it knew or should have known that he posed a foreseeable risk of harm to

future patients. Children's Hospital opposed the motion, arguing that the proposed amended complaint would still not state a claim on which relief could be granted.

In July, 2012, a Superior Court judge, in a detailed memorandum of decision and order, allowed Children's Hospital's motion to dismiss and denied the plaintiffs' motion to amend. She concluded that Children's Hospital did not owe a recognized duty of care to the plaintiffs—victims of abuse at a hospital in North Carolina—given that the alleged abuse occurred after Levine left Children's Hospital's employ. The judge added that public policy did not dictate the creation of a duty to the plaintiffs that would expose an employer to liability for future potential abuse on unknown persons by a former employee anywhere in the country. As a result, she denied the motion for leave to amend, as the proposed amendment would not “cure the defect in the original complaint: the lack of a cognizable legal duty to these particular plaintiffs.” The plaintiffs timely appealed the judge's decision, and we granted their application for direct appellate review.

2. Discussion. The only issue on appeal is whether Children's Hospital owed a duty of reasonable care to the plaintiffs requiring it to take affirmative action to protect them from Levine, including informing UNC or other appropriate authorities of allegations of sexual abuse made against him. Our review of the judge's decision to dismiss the claim pursuant to Mass. R. Civ. P. 12(b)(6) is de novo. Dartmouth v. Greater New Bedford Regional Vocational Tech. High Sch. Dist., 461 Mass. 366, 373, 961 N.E.2d 83 (2012). On review, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle [ment] to relief’ requires more than labels and con clusions.... Factual allegations must be enough to raise a right to relief above the speculative level ... [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact)....” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554–555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

“To recover for negligence, a plaintiff must show ‘the existence of an act or omission in violation of a ... duty owed to the plaintiff[s] by the defendant.’ ” Cottam v. CVS Pharmacy, 436 Mass. 316, 320, 764 N.E.2d 814 (2002), quoting Dinsky v. Framingham, 386 Mass. 801, 804, 438 N.E.2d 51 (1982). “Whether a defendant owes a plaintiff a duty of reasonable care is a question of law that is decided ‘by reference to existing social values and customs and appropriate

social policy.’ ” Coombes v. Florio, 450 Mass. 182, 187, 877 N.E.2d 567 (2007), quoting Cremins v. Clancy, 415 Mass. 289, 292, 612 N.E.2d 1183 (1993). “If no such duty exists, a claim of negligence cannot be brought.” Remy v. MacDonald, 440 Mass. 675, 677, 801 N.E.2d 260 (2004).

As a general rule, all persons have a duty to exercise reasonable care in their own conduct to avoid harming others where the risk of harm is foreseeable to the actor. Id. That duty does not typically extend to controlling the conduct of a third party—here, Levine—unless a “special relationship” exists between the party posing a risk to others and the party who can prevent that harm from occurring by taking action. Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234, 242, 929 N.E.2d 303 (2010).

We have recognized the relationship between an employer and employee as a type of special relationship “that potentially would give rise to a duty of care [to third parties] ... when ‘the employment facilitates the employee's causing harm’ ” to them (citation omitted). Lev, 457 Mass. at 243–244, 929 N.E.2d 303. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41 (2012) (“Duty to Third Parties Based on Special Relationship with Person Posing Risks”).⁷ In such circumstances, employers are responsible for exercising reasonable care to ensure that their employees do not cause foreseeable harm to a foreseeable class of plaintiffs. For example, an employer whose employees have contact with members of the public in the course of conducting the employer's business has a duty to exercise reasonable care in selecting and supervising its employees. See Coughlin v. Titus & Bean Graphics, Inc., 54 Mass.App.Ct. 633, 639, 767 N.E.2d 106 (2002).

Although there is little doubt that Children's Hospital had a duty to supervise and monitor Levine's conduct while he was employed as a physician there, and owed a duty of reasonable care to his minor patients to prevent foreseeable harm to them, that is

not this case. We have never recognized or imposed a duty on an employer to prevent the future behavior of a former employee, with respect to unknown customers and clients of unknown future employers. While the responsibilities of medical providers to vulnerable patients...