See Bowen v. Eli Lilly & Co., supra at 207, citing Franklin v. Albert, 381 Mass. . is around 24 weeks and this being the second examination to show retardation, it takes on a more serious import. 777, 779 n.3 (1990). 1992)). (c) the foster mother with whom Elizabeth was first placed one month (b) the birth mother had an IQ score of eighty-three (dull normal In response to special questions, the jury found that "2/ 84" was "the date when the plaintiffs either or both, knew or in the exercise of reasonable diligence should have known of the material facts which are the basis of this action." Within a few months after her birth, it became apparent that Elizabeth was missing early developmental milestones. In the course of obtaining those records, Hazel Mohr first learned that Dr. Guillette had received medical records from the department. In 1986, in Burr v. County Comm'rs of Stark County, 23 Ohio St. 3d 69, 75 (1986), the Supreme Court of Ohio became the first State supreme court to recognize the tort of. We cannot sanction such a result. Because "the record amply support[ed] the lower courts' decisions that fraud was demonstrated," the court affirmed the jury verdict against the defendants. The plaintiffs' cross appeal. The judge denied the motions as to the claims against the Commonwealth and the intentional tort claims against Tompkins. Adoption agencies could provide information about a child's medical and familial background without disclosing the biological parents' identities. Id. Both sides timely appealed, and this court granted a joint application for direct appellate review. Baker v. Showalter, 151 N.C. App. Leave a Reply Cancel reply. 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. [166], There was no merit to plaintiffs' assertion on appeal that the judge Id. . governing principles of justice . 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. 204, 205 (1990). Meracle v. Children's Serv. We decide today whether we should recognize a cause of action in tort which would allow adoptive parents the right to seek compensatory damages against an adoption agency for the agency's negligent material misrepresentations of fact prior to adoption concerning the adopted child's history. date when the plaintiffs knew or should have known that they had been parents about a child's history prior to adoption. Although. certain State regulations was harmless where it could not have (slip op. “SB Pro is organized beautifully by topics and sub-topics and has a wealth of information. See, e.g., Roe v. Catholic Charities of the Diocese of Springfield, 225 Ill. App.3d 519, 524, 538 (1992) (agency told three sets of adoptive parents that the particular children they planned to adopt were normal in physical and mental condition as well as level of development, despite its knowledge that children had exhibited violent and uncontrollable behavior while in foster care, and that two children suffered from social and emotional retardation); M.H. second examination to show retardation, it takes on a more serious The average Elizabeth Mohr is around 74 years of age with around 43% falling in to the age group of 61-80. 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. See Roe v. Catholic Charities of the Diocese of Springfield, supra at 524 ("Recognition of this cause of action is not a dramatic, radical departure from the well-established common law . The plaintiffs claimed that they would not have adopted the child had it not been for the defendants' fraudulent conduct. The plaintiffs testified that they would not have adopted or even agreed to meet Elizabeth if facts concerning her retardation during infancy or her mother's schizophrenia had been disclosed. See Richard P. v. Vista Del Mar Child Care Serv., 106 Cal.App.3d 860, 866-867 (1980) (court stated that "no cause of action for negligence should be recognized based on considerations of public policy"); Foster v. Bass, 575 So.2d 967, 981 (Miss. at 287. (Massachusetts Tort Claims Act), provides that the statute does not apply to "any claim arising out of an intentional tort, including . As well stated by Justice Murray in Mallette v. Children's Friend & Serv., -- A.2d --, (R.I. June 30, 1995) (No. It must have been an intentional failure to disclose where there was a duty to disclose intending reliance; reliance and subsequent damage.". [Note 1] Hazel Mohr, individually and as guardian of the person and estate of Elizabeth Ann Mohr. At that time, her mother was a committed patient at Worcester State Hospital and was under the care of the Department of Mental Health. During this hospitalization, a physician recommended that Elizabeth undergo a more complete psychological evaluation. (b) the birth mother had an IQ score of eighty-three (dull normal level). to thrive. He further testified that Elizabeth suffers from borderline or latent schizophrenia, and that the facts concerning her biological mother's schizophrenia would have been very important for a correct assessment of Elizabeth's prognosis when she was presented to the plaintiffs in 1974. . White v. Laingoir, 434 Mass. Insofar as negligence is concerned, negligence is the failure to exercise due care. Facts. Get 1 point on adding a valid citation to this judgment. 234, 245 (1988). at 13) ("We are in complete agreement with these cases in holding that public policy does not preclude the [plaintiffs] from maintaining a claim for negligent misrepresentation . They attended several, educational meetings sponsored by the department. Also, the negligence claim against Tompkins individually was not submitted to the jury. Nine years later, in January, 1984, they decided to have Dr. Hart conduct the inpatient evaluation that he had suggested in 1975. 2d 314, 320 (N.Y. Sup. Id. [Note 7] The Commonwealth asserts that the three year statute of limitations articulated in G. L. c. 260, Section 2A (1994 ed. 176 - COMMONWEALTH v. ROBICHEAU, Supreme Judicial Court of Massachusetts, Suffolk. 222, 228 (1932). Thus, under the discovery rule, the plaintiffs' cause of action accrued in February, 1984. In fact recognition of such a tort would promote public policy"). This court has concluded that principles articulated in Whitney v. Worcester, 373 Mass. 611, 618 (1980). Mohr -Edgar v State of Queensland (Legal Aid Queensland) [2020] QIRC 136. See Davis v. Westwood Group, 420 Mass. [Note 8] In that case, the court affirmed a jury verdict finding an adoption agency liable in tort for making material misrepresentations to adoptive parents about a child's background and physical condition. . had been stunted. 260, § 2A, requires that claims be brought within three years after the cause of action accrues. See Roe v. Catholic Charities of the Diocese of Springfield, supra at 537. 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. We recite some of the facts that the jury could have found from the evidence admitted. The case was tried before John J. O'Brien, J. In their adoption application, the plaintiffs indicated that they would accept a child with a "[c]orrectable medical problem. A review of the charge, however, demonstrates that the judge did not give any such instruction. done. In addition, these courts have maintained that allowing negligent misrepresentation claims against adoption agencies does not subject agencies to potentially limitless liability or make them guarantors of adopted children's health. Other courts, however, have held that, apart from claims based on allegations of fraud or intentional misrepresentation of material fact, public policy also supports recognizing the tort of negligent misrepresentation in the adoption context. Another expert testified that it would have been possible to determine in 1974 that there was not "any way that this young woman would have attained normal cognitive development; have been able to function the way the vast majority of children do . . Owen Gallagher, Special Assistant Attorney General, for the Commonwealth. We agree. [Note 7]. The judge denied the motions as to the claims against the Commonwealth and the intentional tort claims against Tompkins. at 5). After they learned that Elizabeth was available for adoption, the plaintiffs visited her weekly for several months. John T. Landry, III, Special Assistant Attorney General, for Pamela Tompkins. Appeals Court, March 22, 2018. In addition, other information provided by the adoption agency about the child apart from his age and sex was untrue. [Note 16] The judge's instructions on the intentional tort claims against Tompkins were as follows: "The last cause of action that has been brought in this case is one of fraud, deceit, and intentional tort, misrepresentation of a material fact. Soc'y of Wis., supra at 32-33. 461 S.W.2d 195 (1970) Bindrim v. Mitchell. M. Brooks Co., 351 Mass. the fiftieth to the third percentile. . Prognosis: Good." Other jurisdictions subsequently have followed the Ohio Supreme Court in recognizing a cause of action for "wrongful adoption" based upon an adoption agency's misrepresentations to parents prior to adoption. 94-96-M.P.) . See also Juman v. Louise Wise Servs., 159 Misc.2d 314, 320 (N.Y. Sup. 2003) (quoting Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1030 (3d Cir. We do not believe that adoption agencies should be exempt from tort liability for false statements negligently made during the adoption process. [Note 5] The plaintiffs responded that they did not feel they could consider "special needs" children. Statute of limitations. See Onofrio v. Department of Mental Health, supra at 610-611 (immunity did not extend to negligent failure to inform boarding house owner of known incendiary proclivities of tenant placed in house. 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. Burke v. Rivo, 406 Mass. 421 Mass. In August, 1976, the plaintiffs adopted Elizabeth after she had lived with them for two years. The plaintiffs testified that they would not have adopted or even agreed to meet Elizabeth if facts concerning her retardation during infancy or her mother's schizophrenia had been disclosed. Elizabeth's "development is not satisfactory. The records revealed Elizabeth's medical history, including physicians' concerns about retardation. [Note 8] The term "wrongful adoption" is commonly used, but it adds no more to a proper analysis than the counterpart term of "wrongful birth." The jury found that $3.8 million would fairly and adequately compensate the plaintiffs for their damages. at 8-9), "[w]hen [the defendant] began allegedly volunteering information concerning [the child's] and his biological mother's medical and genetic background, the agency assumed a duty to refrain from making negligent misrepresentations." See Underwood v. Risman, 414 Mass. See G.L.c. (h) by October, 1973, Elizabeth's height and weight had declined from COMMONWEALTH OF KENTUCKY, BY AND THROUGH GOVERNOR MATTHEW G. BEVIN, AND PAUL R. LEPAGE, GOVERNOR OF MAINE, AS AMICI CURIAE IN SUPPORT OF . We conclude that the plaintiffs satisfied their burden of proving that they commenced this action within the three year statutory period. Next we must consider whether, as the Commonwealth contends, public policy concerns dictate that we should limit liability for "wrongful adoption" to claims based on intentional conduct. in the field of social work that schizophrenia and mental retardation in the biological family should be disclosed to adoptive parents prior to placement. In the absence of a duty, there can be no liability for negligence. 160-161], and discussion of cases in which courts have declined to 657 (1992). where the plaintiffs commenced their action within three years of the erroneously instructed the jury with respect to their claim for The top city of residence is Alexandria, followed by Fredericksburg. Benson v. Commonwealth, 190 Va. 744 (Va. 1950) (3 times) Serfass v. United States, 420 U.S. 377 (1 time) View All Authorities Share Support FLP . agency for the agency's negligent material misrepresentations of fact 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. Owen Gallagher, Special Assistant Attorney General, for the Commonwealth. than inhibiting adoption, will encourage it because "it will give potential parents more confidence in the adoption process and in the accuracy of the information they receive." . Eli Lilly & Co., 408 Mass. . We recite some of the facts that the jury could have found from the evidence admitted. The admission procedures required that the plaintiffs obtain Elizabeth's immunization records. 210, § 5D (1994 ed. After they learned that Elizabeth was available for adoption, the plaintiffs visited her weekly for several months. Interact directly with CaseMine users looking for advocates in your area of specialization. Similarly, in Michael J. v. Los Angeles County Dep't of Adoptions, 201 Cal.App.3d 859, 874-875 (1988), the California Court of Appeal stated that "an adoption agency cannot be made the guarantor of an infant's future good health and should not be liable for mere negligence in providing information regarding the health of a prospective adoptee." information to the plaintiffs; and (6) the doctrine of informed consent does not apply to a wrongful adoption action. On appeal, the Commonwealth contends that the judge should have determined as a matter of law that the statute of limitations barred the plaintiffs' action because the biological mother's history of mental illness was not "inherently unknowable" at the time that Elizabeth's adoption was finalized in 1976. Although we acknowledge the "necessity to approach slowly any attempt to make an adoption agency liable for the health of the children that they place," Foster v. Bass, supra at 981, we believe that the preferable approach is to allow liability for "wrongful adoption" for claims based on both intentional and negligent misrepresentation to adoptive parents about a child's history prior to adoption. level). In reaching this conclusion, we note that the Legislature has not acted affirmatively to provide adoption agencies immunity from common law sanctions for negligence. We conclude therefore that the plaintiffs' cross appeal is without merit, and affirm the judgment in favor of the defendant Tompkins. Such separation agreements "are not final and binding as to the custody of minor children or as to the amount to be provided for the support and education of such minor children." And again, there is one caveat, and that is the evidence that was presented to you relative to an oral policy, you have to make a judgment and find was there or was there not. Tests conducted while Elizabeth was an inpatient indicated that she had "moderate cerebral atrophy.". However, all of this is to be taken in light of the then existing rules, policies, and procedures of the Department of Public Welfare that you find there was a deviation from. App. See 110 Code Mass. change. Div. Rather, according to Tompkins, she acted in accordance with an agency policy not to disclose a biological parent's mental illness to prospective adoptive parents. The plaintiffs testified at trial that they would not have adopted Elizabeth if this information had been disclosed to them. They commenced this action in order to recover sufficient damages to enable them to provide for the structured, residential placement that Elizabeth will need throughout her lifetime. The case was tried to a jury in October, 1991. . intentional misrepresentation. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. Get the MLW Daily Alert. v. Caritas Family Servs., supra at 288 (allowing negligent misrepresentation action against adoption agency which, having undertaken to disclose information about child's biological parents and medical background to adoptive parents, "negligently withholds information in such a way that the adoptive parents were misled as to the truth"). [Note 13]. Viccaro v. Milunsky, 406 Mass. The Commonwealth relies on several cases in which courts have declined to extend liability to cases involving negligent, rather than intentional, misrepresentation by an adoption agency. at 13) ("We are in complete agreement with these cases in holding that public policy does not preclude the [plaintiffs] from maintaining a claim for negligent misrepresentation. Although we acknowledge the "necessity to approach slowly any attempt to make an adoption agency liable for the health of the children that they place," Foster v. Bass, supra at 981, we believe that the preferable approach is to allow liability for "wrongful adoption" for claims based on both intentional and negligent misrepresentation to adoptive parents about a child's history prior to adoption. . 147, 156 (1995). He also testified that a child born to a schizophrenic mother would be fifteen times as likely to develop schizophrenia as a child in the general population. Apparently the Commonwealth applies that provision because it assumes that the plaintiffs' cause of action accrued in 1976, before G.L.c. misrepresentation." development of unknown etiology. Id. . 664, 665 (1958); In re Lisa Diane G., 537 A.2d 131, 132 (R.I. 1988). Id. Third, allowing liability for negligent as well as intentional "wrongful adoption" does not impose any "extraordinary or onerous" burden on adoption agencies. See Gibbs v. Ernst, supra at 211. It is rather an extension of the doctrine of common law fraud. Fourth, we do not believe that a negligent "wrongful adoption" cause of action conflicts with the biological parents' interest in keeping their identities confidential. The department did not follow this recommendation. Although Tompkins knew of a record stating that Elizabeth's birth mother was schizophrenic, she did not disclose that information to the plaintiffs. 258, § 10 (. . prior to adoption concerning the adopted child's history [156-159, We add that an adoption agency does have an affirmative duty to disclose to adoptive parents information about a child that will enable them to make a knowledgeable decision about whether to accept the child for adoption. [Note 4] The jury also found that Tompkins was not liable for an intentional tort. schizophrenia. Most recently, in regard to adoption, in a case almost on all fours with the case at bar, the Supreme Court of Rhode Island has stated in Mallette v. Children's Friend Serv., supra at (slip op. [161-164], The discretionary function exception to governmental tort liability, G. L. 83, 83-84 (1974). Tests conducted while Elizabeth was an inpatient indicated that she had "moderate cerebral atrophy.". Carl H. Mohr (Mohr) in an action against Universal C.I.T. Credit Corporation (C.I.T.), in the Circuit Court of Baltimore City (Oppenheimer, J.) Assuming only for the purposes of discussion that the judge erred, we conclude that the error was harmless because the language from the regulations was essentially the same and thus could not have influenced the jurors' deliberations. Id. 739, 742-743 (1995). where tenant subsequently set fire that destroyed house and its contents). 1967) Bierczynski v. Rogers. 8 records in 9 cities for Elizabeth Mohr in Virginia. ", (e) a follow-up examination at thirty-nine weeks found that many of The jury having found the Commonwealth liable on the theory of negligent misrepresentation, we need not discuss whether their alternative finding of liability under the doctrine of informed consent is applicable to the facts of this case. 4 Dep’t of State Revenue v.Caylor-Nickel Clinic, P.C., 587 N.E.2d 1311, 1312-13 (Ind. See Roe v. Catholic Charities of the Diocese of Springfield, supra at 537. The records revealed Elizabeth's medical history, including physicians' concerns about retardation. Bowen v. Eli Lilly & Co., 408 Mass. These courts have emphasized "the compelling need of adoptive parents for full disclosure of medical background information that may be known to the agency on both the child they may adopt and the child's genetic parents, not only to secure timely and appropriate medical care for the child, but also to make vital personal, health and family decisions." 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. Thus, the judge did not err in declining to give an instruction on comparative negligence. It is an intentional tort. 1, 3-4, 654 S.E.2d 305, 306 (2007). Elizabeth Mohr in Virginia . He further testified that Elizabeth suffers from borderline or latent schizophrenia, and that the facts concerning her biological mother's schizophrenia would have been very important for a correct assessment of Elizabeth's prognosis when she was presented to the plaintiffs in 1974. See Lariviere v. Lariviere, 304 Mass. Facts. [and] that there was [not] any way, given this history, that she would have attained normal emotional status.". * Enter a valid Journal (must 535, 536 (1939); Breen v. Burns, 280 Mass. See also M.H. . [Note 12] In addition, we believe that this result, rather. 94-96-M.P.) Thus, we have developed a "discovery rule" for determining, in the absence of a governing statute, when a cause of action accrues and triggers the beginning of the statutory period. At the time of trial, Elizabeth lived at home and was incapable of caring for herself. We cannot sanction such a result. 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. Elizabeth was born on January 15, 1968. any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused. 139, 141-142 (1992), citing A.L. . at 5). id. [Note 14] Section 10 (b) provides as follows: "The provisions of sections one to eight, inclusive, shall not apply to . The case was tried before John J. O'Brien, J. Thus, we need not and do not address whether and to what extent an agency has a duty to investigate a child's background. See Mallette, supra at (slip op. 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. In their cross appeal, the plaintiffs assert that the judge erroneously instructed the jury that "Tompkins is not liable for intentional tort if the nondisclosure was pursuant to the orders of her superiors." Get free access to the complete judgment in MOHR v. COMMONWEALTH on CaseMine. sought a declaratory decree providing that a conditional contract of sale of an automobile, purportedly executed by Mohr to Suburban Nash, Inc., (Suburban), a dealer in automobiles, and assigned by Suburban to C.I.T. was null and void because the signature thereon was … 1968 ) Big Town nursing home, Inc. 389 F.2d 579 ( 5th Cir Ken Paxton on December 8 2020!, to which governmental immunity would not have adopted the child suffered a! 161-164 ] the discretionary function exception to governmental tort liability, G.L.c similarly, in light of the.. Could not be adopted Louise Wise Servs., 159 Misc, 1976, before G.L.c 1025, 1030 3d. 30, 1995 ) ( citation omitted ) jury could have found from fiftieth. Commonwealth of Pennsylvania, 662 F.2d 1025, 1030 ( 3d Cir choose to follow recommendation. Valid citation to this judgment GEBELIN HACKER have adopted Elizabeth if this information had been stunted 3-4, 654 305... 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