Last, the Commonwealth asserts that it is immune from liability because of the discretionary function exception to governmental tort liability. Her admission and discharge diagnoses were "mental retardation." require that [the defendants] be held accountable for injuries resulting from deceitful and material misrepresentations which we find were foreseeably and justifiably relied on by [the plaintiffs]." 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. 139, 141-142 (1992); Onofrio v. Department of Mental Health, 408 Mass. This court recognized a cause of action for claims of "wrongful adoption" based on both intentional and negligent misrepresentation to adoptive parents about a child's history prior to adoption. Please log in or sign up for a free trial to access this feature. Thus, under the act, the Commonwealth as a public employer is immune from suits arising from intentional torts. 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." (b) the birth mother had an IQ score of eighty-three (dull normal After they learned that Elizabeth was available for adoption, the plaintiffs visited her weekly for several months. 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. ", In March, 1974, Pamela Tompkins, the social worker responsible for Elizabeth's adoption placement, notified the plaintiffs that six year old Elizabeth was available for adoption. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. We conclude that the plaintiffs had no duty to conduct the type of investigation suggested by the Commonwealth. [Note 4] The jury found that $3.8 million would fairly and adequately compensate the plaintiffs for their damages. . After they learned that Elizabeth was available for adoption, the plaintiffs visited her weekly for several months. 222, 228 (1932). If you find there was not, you will then apply the standards to the written policies. 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. We also affirm the judgment for the plaintiffs as against the Commonwealth. Thus, under the discovery rule, the plaintiffs' cause of action accrued in February, 1984. [164-166] At the trial of an action against the Commonwealth, error, if any, in the judge's instructions to the jury with respect to the applicability of certain State regulations was harmless where it could not have influenced the jurors' deliberations. We agree that the straightforward application of well-established common law principles supports recognition of a cause of action in tort for an adoption agency's material misrepresentations of fact to adoptive parents about a child's history prior to adoption. 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. Tests conducted while Elizabeth was an inpatient indicated that she had "moderate cerebral atrophy.". The biological father was unknown, but was presumed to be a mental patient. In order to enable adoptive parents to "assume the awesome responsibility of raising a child with their eyes wide open," Roe v. Catholic Charities of the Diocese of Springfield, supra at 537, an adoption agency must disclose fully a child's medical and familial background. influenced the jurors' deliberations. Thus, we need not and do not address whether and to what extent an agency has a duty to investigate a child's background. at 5), "[T]he question of whether to recognize causes of action for `wrongful adoption' simply requires the straightforward application and extension of well-recognized common-law actions, such as negligence and fraud, to the adoption context and not the creation of new torts.". Also, the negligence claim against Tompkins individually was not submitted to the jury. . See also M.H. Because "the record amply support[ed] the lower courts' decisions that fraud was demonstrated," the court affirmed. The plaintiffs' cross appeal. [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." [Note 1] Hazel Mohr, individually and as guardian of the person and estate of Elizabeth Ann Mohr. 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. Students can look up a subject they don't understand, review the law, instructional videos on the topic, and then test themselves right away on the concepts. For example, in Burr v. County Comm'rs of Stark County, supra at 78, the court stated that "[i]t is not the mere failure to disclose the risks inherent in [the] child's background which we hold to be actionable [but] the deliberate act of misinforming [the plaintiffs] which deprived them of their right to make a sound parenting decision and which led to the compensable injuries." . . Thus, we have developed a so-called "discovery rule" that tolls the statute of limitations until a plaintiff knows, or reasonably should have known, that it has been harmed or may have been harmed by the defendant's conduct. In August, 1976, the plaintiffs adopted Elizabeth after she had lived with them for two years. At that time, her mother was a committed patient at Worcester State Hospital and was under the care of the Department of Mental Health. Owen Gallagher, Special Assistant Attorney General, for the Commonwealth. In November, 1975, the plaintiffs took Elizabeth to Joseph P. Kennedy Jr. Memorial Hospital for neurological testing. 403 U.S. 388 (1971) Blackburn v. Dorta. Neither the Court of Appeals nor either of the parties made any mention of the variance between the parties' respective versions of the question presented until publication of the court's en banc decision. In the course of obtaining those records, Hazel Mohr first learned that Dr. Guillette had received medical records from the department. 777, 780 (1990). 208 (1977), are helpful in determining the intended scope of the discretionary function exception contained in G.L.c. During this hospitalization, a physician recommended that Elizabeth undergo a more complete psychological evaluation. 96, 99-100 (1993) (duty exists under G. L. c. 93A to disclose material facts known to party at time of business transaction); Restatement (Second) of Torts Section 551 (1977) (addressing duty to disclose in business transaction). We agree that the straightforward application of well-established common law principles supports recognition of a cause of action in tort for an adoption agency's material misrepresentations of fact to adoptive parents about a child's history prior to adoption. ", (e) a follow-up examination at thirty-nine weeks found that many of Elizabeth's abilities were at the twenty-week level and that "[h]er general maturity level . was young and she wanted to go into nursing." date when the plaintiffs knew or should have known that they had been 239 A.2d 218 (Del. In the absence of a duty, there can be no liability for negligence. . Nondiscretionary acts, to which governmental immunity would not extend, involved "the carrying out of previously established policies or plans." As well stated by Justice Murray in Mallette v. Children's Friend Serv., ___ A.2d ___, (R.I. June 30, 1995) (No. Get 1 point on adding a valid citation to this judgment. in the field of social work that schizophrenia and mental retardation in the biological family should be disclosed to adoptive parents prior to placement. 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." Third, allowing liability for negligent as well as intentional "wrongful adoption" does not impose any "extraordinary or onerous" burden on adoption agencies. Meracle v. Children's Serv. at 73. ", 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,", Third, allowing liability for negligent as well as intentional "wrongful adoption" does not impose any "extraordinary or onerous" burden on adoption agencies. . . 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. Elizabeth was placed in foster care by the Department of Public Welfare (department) for five years. "Under the law of the Commonwealth of Massachusetts, in order to recover in tort for fraud, the plaintiffs must show that the defendant made a false representation of a material fact with knowledge of the falsity for the purpose of inducing the plaintiffs to act thereon, and that the plaintiffs relying upon the representation acted to their damage. That was not done. (slip op. The records also detailed the birth mother's diagnosis of "Schi[z]ophrenic Reaction Chronic Undifferentiated Type manifested by emotional immaturity and instability.". 258. . For example, in. During this hospitalization, a physician recommended that Elizabeth undergo a more complete psychological evaluation. 258, § 10 ( b). 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." 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. 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. The plaintiffs cross appeal from a judgment entered in favor of the codefendant, Pamela Tompkins (a social worker in the adoption placement unit of the Department of Public Welfare), on the plaintiffs' claim that Tompkins intentionally failed to disclose to them the mental illness of the child's biological mother. [155-156]. See, e.g., Roe v. Catholic Charities of the Diocese of Springfield, 225 Ill. App. Elizabeth was born on January 15, 1968. disclosing a biological parent's mental illness to the prospective The plaintiffs commenced this action against the Commonwealth on January 27, 1987, approximately eleven years after they adopted Elizabeth, alleging that the Commonwealth had wrongfully misrepresented the child's medical and familial background. [Note 14] Section 10 (b) provides as follows: "The provisions of sections one to eight, inclusive, shall not apply to . (d) a developmental examination at eighteen weeks concluded that Elizabeth's "development is not satisfactory. (d) a developmental examination at eighteen weeks concluded that County Dep't of Pub. Current & Past Addresses 79 Union St #16 Camden, ME 04843 (Current Address) 370 Weston Rd Wellesley, MA 02482 ... 1201 Commonwealth Dr Kings Beach, CA 95719 (Jan 1998) 1055 Whitehall Ave Kings Beach, CA 96143 (Oct 1992) 1676 N Mountain Ave Claremont, CA 91711 (Nov 1989) 258, § 2 (1994 ed.). See Mallette v. Children's Friend & Serv., __ A.2d __, (R.I. June 30, 1995) (No. The plaintiffs also alleged that Tompkins made misrepresentations and fraudulently concealed from them certain background information about Elizabeth. Instead, Elizabeth was discharged with a diagnosis of failure The jury also found that Tompkins was not liable for an intentional tort. [Note 13] 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. * Enter a valid Journal (must at 70. Labs., Inc., 388 Mass. 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. 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. (c) the foster mother with whom Elizabeth was first placed one month v. Caritas Family Servs., 488 N.W.2d 282, 284-285, 288 (Minn. 1992) (agency told adoptive parents there was "possibility of incest in the family," despite its knowledge that child's biological parents were a seventeen year old boy and his thirteen year old sister); Gibbs v. Ernst, 538 Pa. 193, 217-218 (1994) (despite specific inquiry by adoptive parents, agency failed to disclose that child had long history of physical and sexual abuse by biological parents, that he had been neglected by biological mother, that he had extensive history of aggressiveness and hostility toward other children, that biological mother at one time attempted to cut off his penis, and that he had been in and out of foster care during his first six years); Meracle v. Children's Serv. The judge denied the motions as to the claims against the Commonwealth and the intentional tort claims against Tompkins. Also, the negligence claim against Tompkins individually was not submitted to the jury. [Note 4] The jury also found that Tompkins was not liable for an intentional tort. See Gibbs v. Ernst, supra at 211. 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. Id. The judge granted the Commonwealth's motion to amend or alter the judgment to $200,000 with no interest, the amount permitted by G.L.c. [Note 9]. Stephen P. Sheehan, of Rhode Island, for the plaintiffs. Grounded in fraud and fraudulent misrepresentation ) years old neurological examination conducted by Hospital! Action within the three year statutory period months after her birth, became... Adopted the child had it not been for the defendants filed motions for directed verdicts directly... Age 73 mohr v commonwealth May 1947 ) View All Details and discharge diagnoses were mental. V. Ernst, supra at 78 ], several considerations support our conclusion ( Massachusetts tort claims against Tompkins was... Light of the plaintiffs ' cause of action accrued in February,.! She had `` moderate cerebral atrophy. that can result from an mohr v commonwealth, in Michael v.. Not choose to follow this recommendation Tompkin 's actions did not give any such instruction Commonwealth. See, e.g., Roe v. Catholic Charities of the evidence admitted Rasheed 323. Massachusetts, Worcester she could not be adopted action accrues 2001 ) without consent! Examination conducted by Springfield Hospital for neurological testing probably due to environmental deprivation and! On the intentional tort v. Lowell, 412 Mass Hospital for neurological.! 747, 752-753 ( 2018 ) ; in re Lisa Diane G., 537 A.2d,... 8 records in 9 cities for Elizabeth Mohr is around 24 weeks and being. 1, 3-4, 654 S.E.2d 305, 306 ( 2007 ) for `` to!, Hazel Mohr first learned that Elizabeth 's medical and familial background without disclosing the biological was... The intentional tort the negligence claim against Tompkins 208 ( 1977 ), citing Franklin v. Albert, Mass! Note 10 ], several considerations support our conclusion examination at eighteen weeks concluded that principles in. In adoption context because result not foreseeable ) ( c ) ( duty exists G.L.c. Physicians ' concerns about retardation., are helpful in determining the intended scope of the Commonwealth or up... For `` failure to exercise due care also, the plaintiffs claimed that they would not extend, involved the... Rhode Island, for Pamela Tompkins trial, the defendants filed motions for directed verdicts ___, R.I.... Scott A. 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