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Wednesday, November 28, 2012

When a child drinks cologne, by all means, sue the doctor...

It’s a story that’s easy to miss in the post-Sandy, post-Election Day, “fiscal cliff” news cycle, but one that will stick with you for a while after learning about it. 

A New Jersey appeals court has determined that an emergency room doctor must stand trial for failing to report to the Division of Youth and Family Services that he treated a child who ingested cologne. 

The 3-year-old patient, identified in court papers as “S.A.,” was abandoned by her mother soon after birth in 1998.  The Division (DYFS) placed her in the care of her father two years later.  She was brought to Jersey Shore University Medical Center in Neptune in early 2001 by other relatives, who said that she was “walking with an unsteady gait and was observed as lethargic and weak with an unusual odor on her breath.”

From a layman’s standpoint, it appears that the emergency room doctor, Daniel Yu, performed a thorough examination, leading him to conclude (correctly) that the young child ingested cologne.  She was treated and her extended family was on its way. 

Two months after the cologne incident, DYFS received a disturbing report: S.A., still under her father’s care, had been severely burned and beaten.  She had chemical burns on various parts of her body, including her vagina.  At this point S.A. was removed from her father’s custody by the Division.  She was later adopted by the plaintiff in this case, L.A. v. DYFS, A-2726-11, who is identified as L.A. in court papers. 

 

And in 2007, L.A. filed suit – not just against the Division, which evidently had some history with the child’s family – but against Dr. Yu and Jersey Shore University Medical Center.  DYFS settled with L.A. for $5 million.  No suit was filed against the child’s abuser.  

N.J.S.A. 9:6-8.10 requires anyone who believes a child is being abused or neglected to contact DYFS.  Mercer County Superior Court Judge Paul Innes didn’t believe that a toddler ingesting a foreign substance was indicative of abuse.  It’s the sort of thing that happens in the happiest of homes from time to time, to the tune of at least 100,000 childhood emergency room visits each year.  The appellate court, however, disagreed with his assessment, and the case will be going forward. 

The medical community fears that if Dr. Yu and the hospital are found liable, doctors and hospital staff will be pressured to report abuse for tiniest of infractions, overwhelming a DYFS system that is already overwhelmed and creating an adverse affect on children’s health and well-being.  The threat of DYFS involvement may discourage parents from seeking immediate care when children swallow things they shouldn’t, mask their child’s symptoms, or even deter them from bringing their child to the emergency room altogether in order to avoid the legal scrutiny and uncertainty to follow. 

The need to reform our legal system isn’t just about the taxes we pay or improving New Jersey’s economy.  It’s also about injecting common sense into real-life situations we all face. 

So, should the doctor and hospital be found liable of malpractice for not reporting that a toddler drank cologne to DYFS, you may want to prepare yourself for a barrage of questions the next time you take your kid to the E.R. for sticking a LEGO in his ear.     

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If doctors are required to report accidental ingestion, parents will be less likely to take their children in if something is wrong. If you want to encourage parents to get medical care, you cannot create a situation where they do not trust their doctors.

This is crazy. This needs to be thrown out. Judges need to take into account how a ruling like this will affect the entire society.

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