Order Michigan Supreme Court
Lansing, Michigan
March 26, 2010 Marilyn Kelly,
Chief Justice
139814 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
ADRIANA LEE, Personal Representative of Robert P. Young, Jr.
the Estate of RUFUS YOUNG, JR., Stephen J. Markman
Plaintiff-Appellee, Diane M. Hathaway,
Justices
v SC: 139814
COA: 282268
Wayne CC: 04-438626-NO
DETROIT MEDICAL CENTER, CHILDREN’S
HOSPITAL, DR. ALHM MAHBOBUL HUQ,
and DR. JAYSHREE RAO,
Defendants-Appellees,
and
DR. VINCE TRUONG,
Defendant-Appellant,
and
LIFE SPAN CLINICAL SERVICES, KRISTIN
RYESON DZAHRISTOS, TARA HALL,
JENNIFER WRAYNO, BARBARA FRIEDEL,
and FAY FLUELLEN,
Defendants.
________________________________________/
On order of the Court, the application for leave to appeal the July 14, 2009
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
CORRIGAN, J. (dissenting).
I would grant leave to appeal the jurisprudentially significant Court of Appeals
opinion in this case. First, as Justice Markman observes, the Court of Appeals majority
concluded that a hospital may be held vicariously liable for a doctor’s failure to report
suspected abuse or neglect under the Child Protection Law, MCL 722.623 and MCL
722.633. Because MCL 722.623 created a new statutory duty to report suspected abuse
or neglect, defendants make a good argument that the Child Protection Law provides
exclusive remedies for violation of the duty. See e.g. Monroe Beverage Co v Stroh
2
Brewery Co, Inc, 454 Mich 41, 45 (1997), quoting Lafayette Transfer & Storage Co v
Public Utilities Comm, 287 Mich 488, 491 (1939) (“‘[W]here a statute gives new rights
and prescribes new remedies, such remedies must be strictly pursued; and a party seeking
a remedy under the act is confined to the remedy conferred thereby and to that only.’”)
Under the Child Protection Law, only individuals, not institutions, are required to report.
MCL 722.623(1). And only a “person who is required . . . to report an instance of
suspected child abuse or neglect and who fails to do so” is liable for resulting civil
damages, MCL 722.633(1).1 Accordingly, I question whether an institution may be held
liable for a reporting violation.
Second, the Court of Appeals held that a complaint against physicians for alleged
failure to report abuse sounds in ordinary negligence rather than medical malpractice.
But, as the dissenting Court of Appeals judge aptly explained, doctors use medical
judgment to determine whether a child has been abused and, therefore, whether abuse
should be reported. Accordingly, a doctor often will have “reasonable cause to suspect
child abuse” that triggers the reporting requirement, MCL 722.623(1)(a), on the basis of
different facts and knowledge than would a layperson who is required to report abuse
pursuant to the statute. Thus, although laypersons may be held to ordinary negligence
standards when they fail to report potential abuse, when a doctor fails to report his
medical expertise is called directly into question.
This case illustrates the point well. Here, the subject child had marks on his skin
that appeared to be either scars from a skin condition (eczema) or bruises. Thus, the
defendant doctors were required to determine, based on their medical expertise, whether
the marks resulted from a mere skin condition or might indicate bruising caused by
abuse. Although such marks might appear to be bruises to a layperson who is not
medically trained—thus creating a reasonable suspicion of abuse—a reasonable doctor
might not expect abuse if, on the basis of his medical expertise, he concludes that the
marks are eczema scars. Conversely, under other facts, a child might exhibit symptoms
that would not cause a layperson to suspect abuse but that a doctor should recognize as
the likely result of trauma.
Thus, this case involves jurisprudentially significant issues that present difficult
questions of law, as is illustrated by the split decision in the Court of Appeals.
Accordingly, I would grant leave to appeal in order to consider these issues with the aid
of full briefing and oral arguments.
YOUNG, J., joins the statement of CORRIGAN, J.
1
Such a person is also guilty of a misdemeanor if he “knowingly” fails in his duty to
report. MCL 722.633(2).
3
MARKMAN, J. (dissenting).
I respectfully dissent from the order denying defendant’s application for leave to
appeal. Because the issues presented are jurisprudentially significant, in my judgment, I
would grant leave to appeal.
The Child Protection Law, MCL 722.623 requires individuals of various
professions, including physicians, who have “reasonable cause to suspect child abuse or
neglect” to report such abuse or neglect to the Family Independence Agency. MCL
722.633(1) imposes civil liability on any “person who is required . . . to report an instance
of suspected child abuse or neglect and who fails to do so . . . .” Specifically at issue here
is: (a) whether a claim against a physician based on a violation of the statute sounds in
medical malpractice or ordinary negligence; and (b) whether a hospital may be subject to
vicarious liability under the statute. In what are clearly thoughtful majority and
dissenting opinions, the Court of Appeals held that a claim based on the Child Protection
Law sounds in ordinary negligence and that vicarious liability is applicable.
CORRIGAN, J., joins the statement of MARKMAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 26, 2010 _________________________________________
d0323 Clerk