This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-45

 

Nancy Becker and Michael Becker, individually and as parents and guardians for Nykkole E. Becker, f/k/a Nykkole E. Rossini,

Appellants,

and

Minnesota Department of Human Services,

plaintiff intervenor,

Appellant,

 

vs.

 

Mayo Foundation,

Respondent.

 

Filed December 27, 2005

Affirmed

Randall, Judge

 

Olmsted County District Court

File No. CO-01-3453

 

Chris A. Messerly, Brooke B. Tassoni, Robins, Kaplan, Miller & Ciresi, L.L.P., 2800 La Salle Plaza, 800 La Salle Avenue, Minneapolis, MN 55402 (for appellants);

 

Paul B. Klaas, Gillian Brennan, Dorsey & Whitney, L.L.P., 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402; and

 

Ann E. Decker, Fredrikson & Byron, P.A., 200 South Sixth Street, Suite 4000, Minneapolis, MN 55402 (for respondent)

            Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge               

            The appellants, adoptive parents of a child who was abused by her biological parents, sued the hospital for its failure to diagnose and treat her for child abuse, including failing to report suspicions of abuse to governmental authorities.  In this appeal from the district court’s judgment and denial of a motion for a new trial, appellants argue:  (a) the court erroneously excluded evidence that would have established that pursuant to accepted standards of medical practice and diagnosis of abuse, the physician was obliged to treat the child by, in relevant part, reporting suspected child abuse; (b) the court erred in concluding that because the child was not an inpatient and was not injured in respondent’s facility, respondent did not owe the child a special duty to protect her from future harm; and (c) the court’s exclusion of evidence prejudiced appellants’ ability to establish causation.  We affirm.

FACTS

            Nykkole Becker was born on July 26, 1997 to Sabryna Koob and Brian Rossini.  As a result of physical abuse, she is unable to walk, talk, feed, or dress herself.  She requires continuous supervision and special equipment in order to function.  Nykkole’s medical treatment as a result of abuse is the subject of this dispute.

            On August 17, 1997, just 22 days after her birth, Nykkole was treated at the emergency room at St. Mary’s Hospital and diagnosed with a comminuted spiral fracture of the mid-left humerus.  Rossini explained Nykkole’s injury as an accident, stating that she most likely broke her left humerus when he tried to catch her as she spasmed out of his arms.  Although the humerus is the most commonly fractured bone in child abuse cases and this type of fracture was uncommon for newborns, Dr. Julia Rosekrans, the treating doctor, did not suspect child abuse.  Rosekrans did not corroborate Rossini’s story with additional sources.  However, two other doctors were also of the opinion that the injury was the result of an accident.  Nykkole was treated and sent home.   

            On September 3, 1997, Nykkole returned to the hospital for follow-up care for her broken arm with Dr. William Shaughnessy.  Nykkole’s splint was removed and she was sent home with her parents. 

            Eight days later, on September 11, 1997, Koob brought Nykkole into the emergency room at St. Mary’s Hospital concerned about her vomiting.  Throughout the day, Nykkole had vomited ten times and slept most of the day.  Dr. Rosekrans examined and fed Nykkole.  Nykkole exhibited no symptoms and was sent home.

            On September 15, 1997, Koob brought Nykkole to the emergency room at St. Mary’s Hospital with a bruise on the left side of her head.  Nykkole was acting spacey, pale, listless, smacking her lips, and jerking her left arm and leg.  Nykkole was diagnosed with multiple skull fractures, bleeding in the brain, brain infarctions, avulsion fracture to her left leg, and a suspected fracture to the right leg.  Doctors believed that Nykkole was a victim of physical abuse and notified the proper authorities.   

            Rossini was convicted of first and third degree assault for the injuries to Nykkole and was sentenced to prison.  Nykkole was placed in foster care and the parental rights of Koob and Rossini were terminated.   

            Nykkole was adopted by Nancy and Michael Becker who brought suit against the Mayo Foundation alleging that negligence on the part of Nykkole’s treating doctors caused her injuries.  They alleged that part of her doctors’ duty to treat Nykkole included a duty to report suspicions of abuse to the proper authorities.  They argued that the doctors breached their standard of care in five specific ways:

(a) failure to adequately assess and document injuries associated with intentionally afflicted trauma; (b) failure to recognize and treat signs and symptoms of head trauma in an infant with a history of suspicious traumatic injury; (c) failure as a mandatory reporter to report suspected child abuse; (d) failure to have in place hospital policies requiring hospital personnel to comply with mandatory reporting requirements; and (e) failure to monitor activities of hospital staff to assure compliance with reporting of suspected child abuse. 

 

            Respondent moved to strike (c), (d), and (e), arguing there is no private cause of action for the doctors’ failure to report abuse.  The district court granted the motion, concluding that appellants did not have a right to bring a claim for failure to report abuse under Minn. Stat. § 626.556 (2004), the Minnesota Child Abuse Reporting Act (CARA).  The court also found that doctors have no common-law duty to report child abuse to local authorities.  Appellants were allowed to proceed with the medical malpractice claims alleged in the complaint.      Appellants challenged the district court’s decision to this court in a petition for discretionary review.  Appellants argued that a common-law duty to report abuse to local authorities existed separate and apart from CARA and that the exclusion of reporting related evidence prohibited them from presenting a critical aspect of their case, that reporting was an essential means of treating Nykkole’s injuries.  This court denied discretionary review.

            The case proceeded to trial.  As a result of respondent’s motion in limine, all reporting-related evidence and evidence regarding respondent’s duties as a mandatory reporter under CARA was excluded. 

            At the end of a two-week trial, the jury found respondent had been negligent but failed to find that respondent’s negligence was a direct cause of Nykkole’s injuries.  Appellants moved for a new trial which was denied.  This appeal followed.         

D E C I S I O N

I.

            Appellant argues the district court erred in using the Minnesota Child Abuse Reporting Act (CARA), Minn. Stat. § 626.556, to preclude evidence that respondent chose not to report the abuse of Nykkole to local authorities, thereby using CARA to abolish appellant’s common law claim that the defendant breached its duty to treat Nykkole’s abuse.

            The admission of “evidence rests within the sound discretion of the trial court and its ruling will not be reversed unless it is based on an erroneous view of the law or constitutes an abuse of discretion.”  Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).  Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.  Midway Center Assoc. v. Midway Center, Inc., 306 Minn. 351, 356, 237 N.W.2d 76, 78 (Minn. 1975).  In the absence of some indication that the trial court exercised its discretion arbitrarily, capriciously, or contrary to legal usage, the appellate court is bound by the result.  Plunkett v. Lampert, 231 Minn. 484, 492, 43 N.W.2d 489, 494 (1950).  The moving party has the burden of demonstrating that the error complained of was prejudicial.  Kissoondath v. U.S. Fire Ins. Co., 620 N.W.2d 909, 917 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001).

            Appellants argue the district court erroneously excluded evidence vital to their ability to establish causation.  It is their position that if the evidence would have been allowed, the jury would have concluded that respondent’s negligence caused Nykkole’s injuries.  It is their position that under common law, respondent’s were obligated and failed to diagnose and treat Nykkole for child abuse.  Further, they argue that part of respondent’s obligation to treat Nykkole includes reporting the abuse to proper authorities.  Because respondent did not report the abuse, appellants argue respondent’s failure to report the abuse was the cause of Nykkole’s injuries. 

The tragic facts of this case are hard to swallow.  Nykkole is a child who “slipped through the cracks.”  But we cannot conclude that, as a matter of law, the district court erred. 

            In denying appellant’s motion for a new trial, the district court stated that no cause of action under common law existed for failure to report abuse in Minnesota.  The district court noted, “not a single Minnesota case is cited for the proposition that a common law cause of action exist[s] . . . for a doctor’s failure to report abuse to a public authority.”  In support of its holding, the district court relied on Radke v. County of Freeborn,which held that no private cause of action existed under CARA.  676 N.W.2d 295, 301 (Minn. App. 2004).  Radke does not speak to the failure to initially report abuse.   

            Radke has since been overruled.  Radke v. City of Freeborn, 694 N.W.2d 788, 791 (Minn. 2005) (Radke II).  In Radke II, the Minnesota Supreme Court held that a civil cause of action is allowed under CARA.  Id.  In Radke II, plaintiff sued the county for negligence in the investigation and intervention of child abuse and neglect reports as required by CARA.  Id.at 792.  In holding that a civil cause of action existed under CARA, the court stressed the importance of the heart of CARA, which is ensuring a safe environment for children.  Id. at 796.  The court noted that the statute clearly and repeatedly requires mandatory acts by certain professions who know or have reason to know of abuse to report the activity to the proper authorities.  Id.; Minn. Stat. § 626.556, subd. 3(a).[1]  Radke II addresses the failure to investigate and intervene after abuse has been reported.  The court also noted that the statute expressly states the policy behind the statute is to protect children who may be at risk of physical abuse, neglect, or sexual abuse.  Radke II, 694 N.W.2d at 797.  Based upon the language of the statute and the expressed policy behind the statute, the court determined that the acts mandated in CARA are for the protection of children who are accessible to abuse and are “uniquely vulnerable persons.”  Id.  The court then concluded, “[g]iven [the statute’s] express intent, it is incongruous to conclude that the legislature intended to impose criminal penalties on those persons who fail to report as mandated under the statute, but intended that there be no duty . . . to investigate or act on the reports.”  Id. at 798. (emphasis in original).  The duty to report is supported by the fact that the statute grants immunity to those responsible under the statute to report.  Id.  Based upon the Minnesota Supreme Court’s decision in Radke II, a private cause of action does exist for the failure to properly act after abuse has been reported under CARA.  Although Radke and Radke II have similarities, there is a difference between affirmative negligence, the failure to report abuse after it has been reported, and omission, the failure to report abuse.   

            Although a private cause of action exists for failure to properly act after abuse has been reported, there is yet no Minnesota caselaw finding that common law created a cause of action for the failure to report abuse. 

            Appellants rely on expert testimony and journal articles, dating back to 1962, in  support of their position that a physician’s standard of care includes diagnosing and reporting abuse to outside authorities and this in turn establishes a common-law duty independent of Minn. Stat. § 626.556.  We cannot find a common-law duty independent of Minn. Stat. § 626.556.

            Appellants did present evidence to prove that respondent was negligent in the care it provided Nykkole by showing that respondent did not follow the standard of care physicians owe to patients in Nykkole’s situation, but the jury did not find causation. 

            Appellants also cite to several cases from other jurisdictions which they claim lend support for their argument that a cause of action for medical malpractice based on a physician’s failure to diagnose and treat child abuse exists independently from Minn. Stat. § 626.556.  None of the cases cited are persuasive.[2] 

Special duty

 

            Appellants argue that respondent had “a special relationship” with Nykkole and therefore a common law duty to protect Nykkole from abuse.

            Although the district court addressed the argument, it correctly observed that appellants did not argue or plead the existence of a special relationship in their complaint or raise the issue in response to a previous motion by respondent.  Also, it was not argued at trial, but was raised for the first time in appellants’ memorandum of law in support for a new trial.  Respondent argues the issue is not properly before this court and this court is precluded from reviewing it because appellants argue a different theory for the first time on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (issue raised below but argued under new theory on appeal generally not reviewable).  We generally consider only issues that the record shows were presented to, and considered by, the district court. Id.  Here however, the issue of whether there was a special relationship between respondent and Nykkole was brought up before this appeal in appellants’ memorandum of law in support for a new trial.  Under the rules of appellate procedure, the “papers filed in the trial court, the exhibits, and the transcript of the proceedings” comprise the record on appeal.  Minn. R. Civ.App. P. 110.01.  The issue is before this court. 

            Appellants admit there is no common law holding that a person has a duty to act for the protection of others, or to protect others from the criminal acts of third parties.  See, e.g., Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1979).  However, appellants note the law imposes an exception to this general rule when a special relationship exists.

            To determine if a relationship creates a legal duty to act for the protection of another, this court must look to the relationship of the parties and the foreseeability of the risk involved.  Donaldson v. Young Women’s Christian Assoc. of Duluth, 539 N.W.2d 789, 792 (Minn. 1995).  The existence of a legal duty to act for the protection of another person is an issue to be decided as a matter of law.  Id. 

            The duty to act for the protection of another person is usually limited to common carriers, innkeepers, possessors of land held out to public use, and persons who have custody of another who is deprived of normal opportunities of self-protection.  Id.   When determining whether a special relationship exists, this court should consider whether the harm to be prevented by respondent was a harm which respondent was in a position to and expected to protect against.  Id.  

            Whether a special relationship exists here is no easy decision.  Although respondent was in a position to provide immediate protection, Nykkole was not an inpatient.  Cases holding that a hospital has a special relationship with a patient are limited to situations where the patient was omitted and harmed by others while in the custody of the hospital.[3]  Here, Nykkole was not harmed while in custody of the hospital but was harmed while in the custody of her parents.  We cannot find the special relationship.

            In addition to a special relationship, to find a duty to act for the protection of another, this court must also find that the harm caused by Rossini was foreseeable to respondent.  On each visit, doctors completed a medical examination and were of the opinion that abuse was not the cause.  When they did suspect abuse, they notified authorities.  With hindsight, the doctors could have reported the abuse earlier, but the central issue is, did the lack of reporting affect causation.  The jury did find negligence, but no causation.

II.

            Appellants argue that because the district ruled that Minn. Stat. § 626.556 did not allow a private cause of action and prohibited reporting-related evidence, this prejudiced their ability to establish the causation element of their medical malpractice claim. 

            They argue that the district court’s numerous rulings excluding reporting-related evidence precluded them from developing reporting-related evidence in discovery and presenting such evidence at trial.  Appellants state that reporting the suspected abuse was essentially the only treatment that likely would have prevented Nykkole’s injuries.  They argue that reporting evidence (the lack thereof) was their best causation evidence and without it, they could not prove that respondent substantially contributed to Nykkole’s injuries.             

            Appellants argue that absent the evidentiary bar, they would have been able to introduce expert testimony establishing, more likely than not, that reporting Nykkole’s abuse would have resulted in her being placed in a safe environment away from further harm.  They also argue they would have been able to introduce testimony of child protection employees as to what steps local welfare authorities would have taken to help Nykkole.  And finally, they argue that they were precluded from questioning respondent about steps its’ doctors would have taken if it had determined that Nykkole was adequately diagnosed. 

            The district court held that appellants were not prejudiced because the jury heard “virtually all the evidence outlined by [appellants] in their submission on [the] motion.”  The jury heard appellants’ expert testimony on how respondent departed from the standards of care, including (1) over-reliance on the parents’ remorse and explanation, (2) failure to interview the parents separately, (3) failure to make adequate use of respondent’s in-house services to evaluate and diagnose child abuse, (4) failure to perform diagnostic testing, (5) failure to diagnose a lack of weight gain, and (6) failure to protect Nykkole while a child abuse assessment was being conducted.  The only thing that was excluded was the fact that respondent did not alert outside authorities, i.e. child-protection authorities.  The district court found the evidence presented was adequate for the jury to conclude that respondent’s negligence was the cause of Nykkole’s injuries but the jury found otherwise.  The district court reasoned that even if the evidence excluded were allowed, it would not have changed the outcome.  On a “discretionary call” basis, we affirm the district court on this issue.  We make it clear that the jury could have been told about the reporting evidence, or the lack thereof, as relevant.  The jury would have gotten a fuller picture and respondent would not have been prejudiced.  The jury simply would have had a picture of “what is,” meaning, what happened.  Having said that, we do not find reversible error.  The jury did find negligence, just not causation.

            The district court’s reasoning is sound.  The supreme court has stated that “causation, like negligence itself, is a fact issue . . . except when the facts are undisputed and are reasonably susceptible of but one inference.”  Smith v. Kahler Corp., 297 Minn. 272, 279, 211 N.W.2d 146, 151 (1973).  And “[i]t is only in those cases where the evidence is so clear and conclusive as to leave no room for differences of opinion among reasonable men that the issue of causation becomes one of law to be decided by the court.” Id. (quotation omitted).   Proximate cause is a fact issue ordinarily left to the jury and its decision will stand unless viewing the evidence in the light most favorable to the verdict, the verdict is manifestly and palpably contrary to the evidence viewed as a whole.  Vanderweyst v. Langford, 303 Minn. 575, 576, 228 N.W.2d 271, 272 (1975).  Here, the jury’s decision regarding causation is not contrary to the evidence as a whole.  The jury could have found the negligence in not reporting or spotting the abuse sooner, but then, reasonably gone on to find that the doctors and nurses did not “cause the injuries,” they were caused by the parents.

            Appellants argue that the excluded evidence would have changed the jury’s finding because it shows that respondent had other avenues to prevent Nykkole’s injuries and failed to take advantage of these opportunities.  The argument is speculative.  The jury knew that Rossini (1) was convicted for Nykkole’s assault, (2) heard expert testimony about the standard of care, and (3) various other evidence of alleged failures to properly diagnose and treat the abuse.  The ruling that the jury would not be allowed to hear evidence of respondent’s failure to early on contact outside authorities does not mandate a new trial.

            Affirmed.