Tuesday, September 22, 2015
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Panel Allows Suit by Lawyer Once Suspected of Child Abuse
By KENNETH OFGANG, Staff Writer
A Los Angeles attorney and her husband may sue the doctor whose suspicions of abuse led to their infant son being placed in alternative care for months, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In a 2-1 decision, the panel upheld a district judge’s ruling that Jill Jones, a deputy county counsel, and her husband Michael presented sufficient evidence that Dr. Claudia Wang violated clearly established constitutional rights. Wang, medical director of UCLA’s Suspected Child Abuse and Negligence Team, allegedly had the child unnecessarily admitted to the hospital and then persuaded a social worker to have a hold placed on the child so that the parents could not take him home.
The case stems from a 2010 fall that the child, called G.J., suffered at home in Santa Monica. Jill Jones’ testimony, which the courts accepted as true for summary judgment purposes, was that she was holding the sleeping infant in her arms, when she tripped and the baby tumbled down some stairs and hit his head on the hardwood floor.
Jones rushed the child to Santa Monica UCLA Emergency Medical Center, where a CT scan revealed a skull fracture. A chest x-ray did not reveal any rib fractures at that time.
The hospital made a routine report to the Department of Children and Family Services, noting that the injuries were consistent with the mother’s explanation of the fall, and G.J. was sent home with his parents two days later.
About a week after that, Wang reviewed the case and concluded that the injuries might be inconsistent with the mother’s explanation and called the child’s pediatrician and asked her to coordinate with the mother in order to have the child brought back for further tests.
Test Called Routine
Jones testified that both Wang and the pediatrician told her the tests were routine. Jones said she was familiar with the test procedures based on her work for the county Department of Social Services.
The child was tested at UCLA’s Westwood campus. The tests did not show retinal hemorrhaging consistent with abusive head trauma, but the radiologist said she saw rib fractures that were not on the first set of x-rays.
A second radiologist agreed that there were two rib fractures, which Wang concluded occurred after the original accident. While Jones, eventually joined by her husband, waited, Wang contacted a manager for the abuse team and the UCLA police.
Wang asked Jones to admit her son to the hospital for a bone specialist consult, which Jones subsequently described as a ruse to prevent her from taking the child home, even though there were no grounds to detain him. Wang testified that she suspected abuse at that time, otherwise she would have told the parents to take the child home and return for outpatient testing in the future, but that she wanted the child kept in the hospital over the weekend—this occurred on a Friday—for the child’s own safety.
The child was eventually taken to the emergency room for admission by the parents, accompanied by two police officers, the case manager, and a pediatric resident. But when the attending physician told her the child did not need to be admitted in order for the bloodwork requested by Wang to be done, Jones was later to testify, she concluded she had been misled by Wang and the couple decided to take G.J. home.
The Joneses, after talking to a DCFS worker contacted by Wang, who had been paged by the resident, finally consented to the child’s admission during the early morning hours of Saturday. Wang ordered that a “sitter” remain in the child’s room to prevent the parents from being alone with the child.
‘Highly Suspicious’
On Monday, after Wang told the social worker the child’s injuries were “highly suspicious,” DCFS issued a hold. Months later, after the parents presented evidence that the rib injuries had been present all along but were not picked up on the original x-ray because the bones were still aligned, a Superior Court commissioner ruled the child had not been abused and was not at risk, and dismissed the case.
The Joneses then sued Wang, the county, and others on behalf of themselves and their son. U.S. District Judge S. James Otero denied Wang’s qualified immunity summary judgment motion, ruling there was sufficient evidence to support the plaintiffs’ claim that their Fourth and Fourteenth Amendment rights had been violated.
Judge Mary H. Murguia, writing for the Ninth Circuit, said the district judge was correct.
Under the parents’ version of the facts, the judge wrote, they would not reasonably have felt free to leave, so there was a “seizure” of the child in the Fourth Amendment sense. For that seizure to be reasonable, there would have had to have been exigent circumstances, Murguia said.
While the situation was serious, the judge concluded, a jury should decide whether the threat of harm to the child was so imminent that there was no time to get a warrant.
The judge cited the social worker’s initial belief that there was insufficient evidence to place a hold on the child; the lack of evidence of prior abuse; Wang’s knowledge that there was no evidence of retinal hemorrhaging, a new skull fracture, or leg fractures; and Wang’s having told the resident that the police and security could not stop the Joneses from leaving the child, suggesting she did not believe at the time that an imminent threat existed.
Concurrence and Dissent
Judge N. Randy Smith concurred in the opinion. Judge Stephen M. McNamee, a U.S. district judge from Arizona sitting by designation, dissented.
The dissenting jurist argued that there was no Fourth Amendment violation because Wang’s “actions were anything but malicious or incompetent.” The veteran physician’s findings of immediate harm were entitled to deference, McNamee declared.
He added that even if there was a Fourth Amendment violation, the doctor was entitled to qualified immunity because the Supreme Court cases cited by the majority dealt with social workers and police officers as defendants, and “the facts of this case differ materially from our existing case law in 2010.”
Attorneys who argued in the Ninth Circuit were Donald A. Garrard of Garrard & Davis LLP for the defendant and Robyn C. Crowther of Caldwell Leslie & Proctor, PC for the plaintiffs.
The case is Jones v. County of Los Angeles, 12-55995.
Copyright 2015, Metropolitan News Company