Suits for Failure to Report Abuse May Balloon
By JOHN O. CUNNINGHAM
In the wake of recent claims against the Catholic Church, some local lawyers say that the state statute mandating reports of all abuse could be at the center of many future suits involving victims, parents, employees and institutional clients such as schools and hospitals.Experts assert that the suits could include:
- suits against individuals or institutions arising out of harm resulting from failure to report abuse or harm resulting from wrongful reporting;
- claims for failure to report abuse brought against public institutions under the Massachusetts Tort Claims Act;
- civil-rights suits brought by abuse victims under Sect. 1983 of the Civil Rights Act;
- claims of wrongful termination or discrimination for reporting abuse; and
- parental custody cases.
According to experts, lawyers should carefully scrutinize the state’s mandatory-reporting statute, G.L.c.119, Sect. 51A, since it may provide grounds for a lawsuit but also might create misguided accusations.
Former prosecutor R. Bradford Bailey of Boston said that “because of the current climate, there will be more focus on the comprehensive policy of Sect. 51A reporting.”
Bailey suggested that private and public institutions might have exposures for failure to take actions required by statute if those failures are the proximate cause of injury to victims of abuse.
Carmen L. Durso of Boston, who is handling a number of claims against the Catholic Church, said that “we’re just seeing a cluster of abuse cases involving priests, but we have only scratched the surface.”
Durso noted that there are cases of abuse involving medical providers, therapists, caretakers, schools, and other institutions and individuals.
He said the publicity of these matters has caused more victims to step forward because “they are overwhelmed to the point that they feel an overpowering need to do something about what happened to them.”
Douglas K. Sheff of Boston, former president of the Massachusetts Academy of Trial Attorneys, added that “schools and institutions other than the church need to take this very seriously.”
But Kevin Patrick Seaver of Boston, who has reviewed hundreds of Sect. 51A reports, warned against an over-reporting panic that would create a witch-hunt atmosphere.
“The institutional problems of the church are a major red herring,” he said, noting that he already defends many cases of wrongful accusation now.
Potential Liabilities
Bailey noted that the list of mandated reporters under Sect. 51A includes a broad array of individuals who work for many institutions.
Physicians, hospital personnel, psychologists, teachers, counselors, day care workers, parole officers, social workers, firefighters, policemen and others who work with children in public or private settings are among the many individuals who are subject to mandatory reporting.
Bailey said that public institutions should be wary of the 1987 Appeals Court opinion rendered in Mattingly v. Casey, which involved a child who died from abuse in her home.
According to Bailey, the court found the school’s failure to report the abuse was a form of non-feasance for which there was no potential liability prior to the Massachusetts Tort Claims Act.
But Bailey suggested the decision opened the door for similar liability suits after the passage of the MTCA.
He said that schools and other institutions that cause harm to children by failing to act or taking the wrong actions under Sect. 51A could be looking at major exposures.
Sheff agreed that “there is a potential liability by respondent superior if there is probable cause and a failure to report,” but cautioned that “you have to look at other statutory provisions that apply to each institution.”
Seaver said that “it’s an interesting theory, but you would probably need an extremely egregious situation to recover against the state.”
But Bailey noted that all public and private institutions working with children should be aware of this exposure, and he noted that clients are already bringing him inquiries.
He cited one school that had inquired about its statutory obligations and exposures and another case in which an employee alleged she was terminated for reporting abuse.
In fact, Sect. 51A explicitly provides a treble damage remedy for discharging or discriminating against a person for making a good faith report, and it also provides that no person shall suffer civil or criminal liability for making the report.
Bailey also noted that there is a $1,000 fine for failure to make a report, although Seaver advised that “as a practical matter, this has rarely come up” in the past.
Bailey advised that a mandated reporter should act if there is “reasonable cause to believe a child has been abused or neglected” and he pointed out that “this is a lighter standard than probable cause — it can be supported by any reasonable basis.”
Pitfalls For Lawyers
While Durso agreed that the claims act might be used to reach state agencies, he warned that there are many hurdles for plaintiffs’ lawyers to cross.
First, he noted that “the discovery rule in abuse cases does not begin to run until the victim makes connections between the harm and the conduct that caused it.”
Durso said that, by contrast, the MTCA has its own two-year notice provision “which is not so forgiving” as interpreted by the courts.
He added that the 1999 Supreme Judicial Court decision of Brum v. Town of Dartmouth “excluded claims under the tort claims act and Sect. 1983 for the wrongful acts of third parties.”
Durso suggested that child predators could be construed by the SJC as third parties for whom a state employer is not responsible, but he suggested that giving incomplete employment references or even retention of predators might constitute wrongful acts of the employer.
He said that some victims might be left only with Sect. 1983 actions against individuals.
Seaver added that any legal actions for failure to report would face another obstacle.
“The ‘reasonable cause’ standard is subjective, and it is up to an individual to determine when it was reasonable to report,” he said.
Durso also conjectured that charitable immunity would limit the recoveries possible against many non-profit and charitable institutions not covered by the claims act.
He warned that “many lawyers are also not equipped by life experience or legal experience to deal with these problems.”
Durso says he works to link clients with appropriate therapists because “there are suicidal issues, and the pressures of trial will only aggravate those issues.”
He said lawyers should understand that “some people will quit because of intimidation, so you have to be prepared to try the case and you have to know how to prepare your client psychologically.”
Seaver, who has defended cases of false accusation, said that the same concerns apply to the accused.
“There’s no question you need to help people with the psychological aspects of abuse cases. There is a real fear of losing their kids and everything they have to the point where they will cave in sometimes,” he said.
Sensitive Issues
Practitioners agree that clients should be trained to deal with the legal and psychological sensitivity of abuse.
Bailey said that “institutional clients need training and protocols so that managers understand ‘reasonable cause’ for reporting, who is a mandated reporter, to whom and when they must report, and their potential liabilities under the law. ”
Sheff, who is handling a dozen cases of abuse and reviewing over 50 others, agreed. “There is no excuse for not doing comprehensive training on Sect. 51A now,” he said.
Durso added that the problem is particularly acute for sexual abuse matters.
“People just don’t want to believe in sexual abuse and they are uncomfortable dealing with it,” he said.
But he warned that “you can’t ignore it anymore because the pain is so overwhelming that people are stepping forward now.”
By contrast, Durso noted that people have confronted situations of physical abuse and made Sect. 51A reports for several years now.
He recalled an incident when he took his wife to the hospital for a steam burn she suffered while cooking.
“The doctors separated us and repeatedly asked her to explain what happened. At first, they didn’t believe her story,” he recalled. “But this is the kind of thing that cops report all the time.”
That is exactly what has worried some lawyers like Seaver.
He warned that reports can be anonymous and can be subject to abuse. If anything, Seaver is concerned about over-reporting.
Bailey conceded that “there is a real danger that the pendulum will swing too far the other way.”
Seaver pointed to two recent cases he successfully defended involving abuse and neglect allegations. In one, a mother left her children, ages 3 and 5 years, in her car for a matter of minutes, and she had to fight a Sect. 51A accusation.
In another case, Seaver defended parents who adopted a deprived child out of a foreign orphanage. He said the mother firmly and physically removed the child from a steep stairway for her own protection, but a state agency filed a legal action for abuse because of the incident.
“Hopefully, the problems of the Catholic Church will lead to more positive and open discussions about abuse,” he said, but Seaver cautioned against irresponsible over-reactions and false reporting that “may ruin people’s lives.”
