Halper v. Jewish Family & Children's Service

Justice SAYLOR,

concurring.

I join the majority opinion, subject to the following observations.

In Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882 (1994), this Court recognized the validity of a cause of action for negligent failure to disclose pertinent information on the part of an adoption agency, in the context of the initial adoption.1 The present holding extends the scope of that cause of action to include the post-adoptive timeframe, at least under the facts of this case. In my view, after an adoption has occurred, the *159dynamics of the agency/adoptive-parent relationship differ somewhat from those obtaining in the pre-adoptive period, as the adoptive parents have already made and finalized their decision, the duration of the post-adoptive timeframe is much longer, and different legislative directives may apply. Thus, I would not find that Gibbs authorizes a negligent-failure-to-disclose claim in all post-ádoptive situations.

Under the present facts, however, I am comfortable with the outcome for several reasons. First, the agency negligently failed to locate information about the birth mother’s medical history that it had in its possession when specific requests for such information were made in the post-adoptive timeframe.2 Second, by the time such requests were made, the genetic basis for the mother’s mental illness was recognized in the medical community, thus undermining any contention that Gibbs’ foreseeability requirement was not met.3 Finally, it seems evident (at least to me) that, any time a parent whose adopted child is experiencing mental difficulties contacts the adoption agency seeking information about the birth mother’s history of mental illness, failure to disclose relevant data that is on file at the agency may result in harm.

. Although Appellee argues that Gibbs interpreted a later adoption act than the one in effect at the time of the present adoption, the recognition of the duty to disclose was not based solely on the statute; it was predicated on the inherent nature of the relationship between the agency and the adoptive parents. See id. at 214-15, 647 A.2d at 892-93.

. It appears to have been assumed at the common pleas level that the Agency had a continuing duty to maintain indefinitely records of the type that it misplaced. As this supposition is not contradicted by the Agency, the issue is not before the Court; thus, I do not understand today’s holding to reflect the proposition that such a duty necessarily exists relative to all children whose adoption the agency has facilitated.

. The first post-adoptive request for information was made in 1980, and even the Agency effectively concedes that, by that time, a genetic predisposition relative to the disorder was widely recognized. For example, on cross-examination of one of the plaintiff's expert witnesses, counsel for the Agency elicited that a major study suggesting such a genetic component had been published in 1967, thirteen years before the first request for information. See N.T. Feb. 23, 2004 at 177-78; RR. at 104a. Additionally, in its brief to this Court, the Agency only contends that the prevailing view that such illnesses were caused by environmental factors persisted throughout the 1960s and into the 1970s, see Brief for Appellee at 5 n. 2, but not the 1980s. See also N.T. Feb. 23, 2004 at 184; RR. at 105a (eliciting that, by 1980 at least nine major psychiatric studies had shown a substantially greater risk for schizophrenia in the close relatives of persons with schizophrenia than in the population at large).