ADRIANA LEE V DETROIT MEDICAL CENTERAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
ADRIANA LEE, Personal Representative of The
Estate of RUFUS YOUNG, JR., Deceased,
July 14, 2009
Wayne Circuit Court
LC No. 04-438626-NO
DETROIT MEDICAL CENTER and
Advance Sheets Version
DR. AHM MAHBOBUL HUQ, DR. JAYSHREE
RAO, and DR. VINCE TRUONG,
LIFE SPAN CLINICAL SERVICES, KRISTIN
RYESON DZAHRISTOS, TARA HALL,
JENNIFER WRAYNO, BARBARA FRIEDEL,
and FAY FLUELLEN,
Before: Whitbeck, P.J., and O’Connell and Owens, JJ.
O’CONNELL, J. (dissenting).
I respectfully dissent. Although I appreciate the altruistic nature and concern for
children’s health and welfare that the majority displays in its opinion, the unintended
consequences of the majority’s opinion are untenable. The majority opinion creates a scenario
that, in effect, requires doctors to report to the Department of Human Services (DHS) all injuries
to any children in their care if there exists “reasonable cause to suspect abuse” according to an
abstract, nonspecific standard, even if their medical judgment leads them to believe otherwise.
The majority strips doctors of the protections inherent in a medical-malpractice cause of action,
which would hold a doctor to the standard of care in his profession when determining whether a
“reasonable cause to suspect abuse” exists. By declaring that a doctor’s failure to report
suspected abuse sounds in ordinary negligence and not in medical malpractice, the majority
essentially handicaps the doctors of this state, requiring them to report any circumstance in
which a child in a doctor’s care is discovered to have a bump or bruise that a layperson might
find indicative of abuse, even if, upon examination, the doctor makes a medical determination
that the injury is not a sign of abuse. When a doctor acting in his professional capacity, as has
occurred in this case, has “reasonable cause to suspect child abuse,” this suspicion necessarily
arises from the doctor’s professional medical determination that child abuse might have
occurred. Accordingly, plaintiff’s cause of action against Drs. Rao and Truong sounds in
medical malpractice, not in negligence.1
The Role of Doctors in Our Society
(Finding abuse versus presuming abuse)
The majority opinion fails to take into account the obvious—that there exists a significant
difference between the role of doctors in our society and the role of other professionals in
society. Doctors are required to find objective evidence that abuse has occurred—that is their
charge or role in our society. Doctors search for and find the cause and origin of medical issues
in their patients. They cannot simply presume that abuse has occurred. Finding abuse requires
medical judgment on the part of the doctor. Unlike in other professions, in the medical
profession there exists a standard of care for each diagnosis and each patient. For a doctor to
presume that abuse is the cause and origin of certain trauma would be a violation of the standard
of care owed to that patient and to society in general.2
The majority essentially asserts that in the setting of a doctor’s office or hospital emergency
room, “reasonable cause to suspect abuse” does not require the use of medical judgment and,
therefore, an action can be filed against the doctor for ordinary negligence. After the majority
opinion in this case is released, I suspect that in order to avoid frivolous lawsuits for failure to
report incidents under the statute, doctors will report all incidents involving a bump or bruise to
the DHS, and the DHS will then be required to investigate all these claims.
I concur with the majority opinion to the extent that if a patient walks into a doctor’s office or
an emergency room and reports that her boyfriend, stepfather, relative, or other person has been
abusing a child, then, under those specific facts, the doctor is not required to find abuse and no
medical judgment is involved.
The majority cites only two cases to support its position that “reasonable cause to suspect
abuse” does not require medical judgment, People v Cavaiani, 172 Mich App 706, 715; 432
NW2d 409 (1988), and Williams v Coleman, 194 Mich App 606, 616-617; 488 NW2d 464
(1992). However, both cases are distinguishable from the present case. I note that Cavaiani is a
criminal case, not a civil negligence case and therefore is of little assistance in the present case.
More importantly, in Cavaiani the defendant, a psychologist and family therapist, was told by his
Other professions, such as teachers and others named in the statute, upon observation of a
student, or for that matter a report by a student, are entitled, without violating a standard of care,
to presume abuse and are required to report that which they presume occurred. There exists no
professional medical judgment involved in this process. Stated another way, one profession
presumes abuse, the other is required to find objective evidence of abuse. In my opinion, to
conflate the role of one profession within our society with that of another is simply a failure to
comprehend the synergetic relationships of each part of our society. The majority implies that
because doctors have immunity for all false reporting claims, they are relieved of the duty of
finding objective evidence of abuse and therefore are simply held to a layperson’s standard of
presuming abuse and reporting it. I suspect that most medical schools and most doctors will be
interested in this new presumed abuse standard. Fortunately, I am of the opinion that doctors
must find objective evidence that abuse has occurred, and the act of finding abuse, in my opinion,
involves medical judgment.
Discussion of the Case
Plaintiff’s claims against Dr. Rao and Dr. Truong arise from their February 15, 2003,
emergency room examinations of Rufus Young, Jr. Tara Hall, Rufus’s foster mother, advised
the doctors that Rufus had been exposed to drugs and alcohol before his birth and that his
biological parents had physically abused him. Hall advised the doctors that Rufus had multiple
problems, including a refusal to toilet train, an inability to gain weight, and a history of tremors
and weight loss, and she advised them of an upcoming medical appointment to address Rufus’s
failure to thrive. Drs. Truong and Rao then examined Rufus and concluded, in their professional
opinions, that there was no reason to suspect current abuse.
As the majority notes, there is no dispute in this case that there was a professional doctorpatient relationship between the doctors and Rufus, so this case turns on the medical judgment
prong of the Bryant test, which is set forth in the majority opinion. Bryant v Oakpointe Villa
Nursing Ctr, Inc, 471 Mich 411, 422; 684 NW2d 864 (2004). In this case, both Dr. Rao and Dr.
Truong testified that they did not have reasonable cause to suspect abuse. Dr. Rao’s original
report noted that the diagnosis by Dr. Truong, a first-year resident at the time, was incorrect; Dr.
Truong’s report should have said that there were marks or scars on Rufus, not bruises. Dr. Rao
also testified that if there had been bruises, she would have notified the social worker. Further,
defendants noted that Rufus had a history of eczema and that a first-year resident could easily
mistake eczema scars for marks caused by abuse.
In light of these facts, the doctors’ failure to report illustrates my point: the doctors used
their medical judgment to identify Rufus’s symptoms and determine whether they were
indicative of abuse. Drs. Rao and Truong made medical determinations on the basis of their
different levels of expertise to determine whether the marks on Rufus’s skin were scars or
nine-year-old client that her father had fondled her breasts. As noted above, under this set of
facts, the psychologist was not required to find objective evidence of abuse and no medical
judgment is involved. In Williams, the defendants were social workers, not doctors, and
therefore that case is of less assistance to the present case than Cavaiani.
bruises, and whether they were caused by eczema or abuse. These questions can only be
answered after some application of medical knowledge or expertise—an individual cannot tell
the difference between eczema and bruising, for example, without first learning how eczema and
bruising form and how they appear on the skin during different stages of development and
healing. Further, a first-year resident likely would not exhibit the same level of expertise as the
attending physician in making this determination. Accordingly, a determination regarding
whether marks on a child’s body indicate abuse or are the result of some other medical condition
constitutes a “medical judgment beyond the realm of common knowledge and experience,”
which is indicative of a cause of action for medical malpractice, not negligence.
The majority determines that because MCL 722.623 applies to several occupations
outside the medical field, the cause of action against the individual doctors necessarily rests in
ordinary negligence, not medical malpractice. Yet this is an overly simplistic reading of the
statute. True, the statute mandates that teachers, child care providers, and others employed
outside the medical field are also obligated to report child abuse if they have reasonable cause to
suspect it. However, the majority fails to recognize that the capacity of an individual to have
“reasonable cause to suspect child abuse” depends in large part on whether that individual is a
physician, a counselor, a social worker, a teacher, or a member of one of the other listed
For example, a teacher might conclude that a student who arrives in school with strange
discolorations on his arms and face might have been bruised and, given this observation, she
might have reasonable cause to believe that the student had been abused. Therefore, she would
be required to report under the statute. Conversely, a doctor examining the discolorations on this
child might determine that these same discolorations were not bruises, but flare-ups of eczema.
Although a layperson might think that these discolorations were signs of abuse, the doctor,
through the exercise of his medical judgment, would not have reasonable cause to believe that
this child had been abused. Although the teacher’s lack of medical expertise would render her
suspicion of abuse or neglect reasonable, a doctor’s exercise of his medical judgment could
indicate that he did not have reasonable cause to suspect that a suspicious discoloration on the
child’s skin was indicative of abuse or neglect. When a physician acts in his professional
capacity, his determination that he has reasonable cause to suspect child abuse or neglect
necessarily arises from the exercise of his medical judgment; by extension, so does any failure to
recognize such abuse or neglect3. This is not an ordinary negligence situation—a layperson
When addressing the question whether, in the setting of a hospital emergency room,
“reasonable cause to suspect abuse” requires the use of medical judgment, the trial court
answered in the affirmative, plaintiff’s experts answered in the affirmative, and the individual
defendants answered in the affirmative. Needless to say, I concur with the determination of
defendants, plaintiff’s experts, and the trial court.
In particular, I note that plaintiff’s expert witnesses, Dr. Roy Antelyes and Dr. Robert
Lerer, noted that in the setting of a hospital emergency room or a doctor’s office, a doctor’s
medical judgment is essential to determine if there is a “reasonable suspicion of abuse.” Dr.
Antelyes testified as follows:
Q. And how does the physician go about coming up with a suspicion of
A. Well, part of that has to do with your education and experience. Part
of it has to do with the historical data that you have obtained from somebody who
brought it to your attention. Part of it is your physical examination and/or
laboratory testing. And I think I probably covered pretty much all of it.
Dr. Robert Lerer testified:
Q. On February 15th, 2003, do you know if any of those bruises or marks
on his body were fresh versus old?
Q. Now every patient in the Children’s Hospital emergency department
that shows up with bruises, you don’t automatically file a suspected child abuse
form, do you?
A. No, no. I don’t think so, and, you know, I’ve worked in the emergency
room at various times in my career, although it’s been more than fifteen years
since I worked in the ER seeing patients, but the patients present to your office
just like they do in the emergency department with bruises and so forth.
Not every child that has bruises has been abused. Children fall, sometimes
children injure themselves in the course of play activities. Sometimes children,
you know, fight and may be bruised in that particular fashion. So accidental
injuries of any sort caused by whatever can produce bruises.
Q. How does the physician in the emergency department or in the office .
. . determine whether or not the bruises are the type that should be reported to
A. First of all, the history is very important. If I have—and I’ll give you
some for instances to explain each point.
The history is very important. If you have a history of an event occurring
and the bruise or bruises do not match the event, then you immediately become
suspicious that you’re not getting a true picture and, therefore, child abuse
becomes prominent in your differential diagnosis, so that would be number one.
Number two, I think you tend to see what the social situation is like. Now,
I have seen children bruised, indeed, I had one patient fatality where both parents
cannot judge whether the doctor’s actions were negligent in the way that he could judge the
teacher’s, because unlike the teacher, the doctor’s determination whether abuse did or did not
occur would arise from his understanding of the science behind the symptoms. An expert would
be needed to explain how abuse could be recognized through a medical examination and whether
a doctor’s diagnosis or failure to recognize abuse comported with the standard of care.
Therefore, any potential error in judgment on the part of a doctor in such a scenario sounds not in
ordinary negligence, but in medical malpractice.
Although on the surface, the requirements of reporting suspected abuse under MCL
722.623 might appear to be identical regardless of the profession of the reporting individual, the
process that each profession brings to the determination whether a reasonable cause to suspect
that child abuse exists is significantly different. Conversely, the majority lays all its eggs in one
basket: under the majority’s theory, if a layperson can be sued for ordinary negligence for
committing a certain act, then a doctor can be sued for ordinary negligence for committing the
same act. This clearly defies the intent behind the medical malpractice cause of action, which
establishes a process that is distinct from an ordinary negligence claim to bringing a cause of
were physicians, so I’m not implying that if you’re in a low socioeconomic home,
that you are more likely to be necessarily abused than if you come from a higher
class family, but nevertheless, if you are in a chaotic home situation, if you have a
single parent with a boyfriend in the home, then you become more suspicious in
situations where you’re thinking is this abuse or is this an accidental type of
I think associated findings are also important, in my estimation. This child
had one very important finding, and that is that from the time that he was placed
in the foster home, he actually dropped weight.
A. I don’t think I can look at the pictures and exclude the possibility that
some old eczema that is now healed has produced some hyperpigmented areas.
A. If the bruises have the appearance of being three months or older to
the examining physician and some history is obtained by the examining physician
that the biological family, known to be abusive or neglectful or both, did them and
there’s no further history elicited that the child currently is in an abusive foster
home, then the physician might be justified under such circumstances as to not
contact Protective Services under such a hypothetical. [Emphasis added.]
This testimony indicates that a physician’s determination of abuse is subjective, involving
clinical findings and medical judgment. As such, it is beyond the common expertise of an
ordinary person and requires medical testing to substantiate. Therefore, the cause of action is for
medical malpractice, not ordinary negligence.
action against doctors for errors committed during the doctor-patient relationship, because such
errors are often based on medical judgments beyond the realm of common knowledge and
experience and require the introduction of expert testimony to ensure proper disposition of the
In my opinion, this is clearly a medical malpractice cause of action because these doctors
could not have determined whether Rufus’s injuries were caused by abuse or something else
unless they exercised their medical judgment. Therefore, they are entitled to defend themselves
under the proper standard. Because plaintiff’s claims of ordinary negligence against Drs. Rao
and Truong should fail, her vicarious liability claims against the corporate defendants, which are
premised on the ordinary negligence claims against the individual doctors, should fail as well.
The motion for summary disposition should have been granted. I would reverse and
remand for proceedings consistent with this opinion.
/s/ Peter D. O’Connell