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Eileen A. Bower v. Lawrence County Children and

November 14, 2011


The opinion of the court was delivered by: McVerry, J.


Pending before the Court are the MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) (Document No. 8) filed by Defendant Jameson Health Systems ("Jameson Hospital") and the MOTION TO DISMISS (Document No. 11) filed by Defendants Lawrence County Children and Youth Services ("Lawrence County CYS") and caseworker Eva Lightel ("Lightel"), with briefs in support. Plaintiff Eileen Bower ("Bower") has filed responses in opposition to the motions and they are ripe for disposition.*fn1

Factual and Procedural Background

At this stage of the case, the facts set forth in the Complaint must be taken as true and viewed in the light most favorable to Plaintiff. From that perspective, the allegations in the Complaint portray a tragic scenario in which a newborn baby was forcibly removed from his mother‟s arms due to a "false positive" drug test. *fn2

Plaintiff Elaine Bower is a resident of Lawrence County, Pennsylvania. On July 12, 2009, Bower attended a barbecue at which she consumed McCormick Foods Supreme Pasta Salad which contained poppy seeds. Moments later, Bower went into labor and was admitted to Jameson Health Center for the birth of her child. During her pregnancy, Bower had received necessary and appropriate prenatal care and had passed every drug screen that had been administered, including a drug test taken on June 22, 2009.

Jameson has a written drug testing policy (the "Policy"), by which all obstetrical patients undergo a urine drug screen in order to identify newborns who may demonstrate symptoms of drug withdrawal and require special observation and treatment. According to the Policy, the initial drug screen is considered positive for opiates if the detection level of opiate metabolites exceeds 300 nanograms/mL. If the initial screen is positive, the Policy requires that a confirmation test be performed. Under the Policy, the test is confirmed positive for morphine if the level detected exceeds 100 nanograms/mL.

Plaintiff alleges that the cut-off concentration levels used by Jameson are far lower than those set by the federal government for federal workplace testing programs and are so low that they are likely to produce "false positive" results. Plaintiff alleges that the federal cut-off level for opiates or morphine is 2000 nanograms/mL. The Court takes judicial notice that on September 30, 1997, the Substance Abuse and Mental Health Services Administration of the Department of Health and Human Services published a revision to drug testing guidelines which increased the testing cut-off level for opiates from 300 to 2000 nanograms/mL. 62 Fed. Reg. 51118-01, 1997 WL 596172 (September 30, 1997). In explaining its action, the Department cited a study which concluded that eighty-seven percent (87%) of positive opiate results in laboratory tests were verified as negative by medical review officers. The Department specifically noted that "many who have not used heroin but had taken a prescribed codeine or morphine medication or eaten poppy seeds (which may contain morphine and/or codeine) have also tested positive." Id. (Emphasis added). The Department increased the cut-off level to eliminate "false positive" results due to, inter alia, ingestion of poppy seeds.

Jameson Policy further required that if a mother tested positive, a drug test be performed on the newborn‟s urine and meconium. The Policy required Jameson to notify its social service department whenever a maternity patient‟s initial drug screen was positive. If the confirming test was positive, the Policy required the social services department to notify the Lawrence County CYS. The Policy required notification of Lawrence County CYS even prior to confirmation if any of the following factors are present: (1) prenatal history indicating prior drug use or children in foster care; (2) positive urine screen during pregnancy; (3) physician suspicion; (4) unusual patient behavior; or (5) noncompliant prenatal care.

Plaintiff alleges that Jameson‟s reporting Policy is not required under federal or state law.

Plaintiff further alleges that the Policy was created and carried out in cooperation with Lawrence County CYS. Moreover, Plaintiff alleges that Jameson was aware of the Lawrence County CYS policy to remove a newborn whenever Jameson disclosed a positive drug test.

Upon admission to the hospital, Bower voluntarily submitted to a drug test in conformity with Jameson policy. Nobody asked Bower whether she had eaten any foods that might affect the test results. Plaintiff‟s initial urine screen came back positive for opiate metabolites, but at a level below 300 nanograms/mL. Jameson performed a confirmation test. The confirmation test indicated that the amount of morphine was so low that there was "no reference range." Plaintiff alleges that the test results were consistent with the ingestion of poppy seeds within hours of the test. Bower avers that she did not engage in any illegal drug use during her pregnancy.

On July 13, 2009 (the day Baby Brandon was born), Jameson informed Lawrence County CYS that Bower had tested positive for opiates. At the time, Jameson knew that Baby Brandon‟s drug tests were negative and that he was not having withdrawal symptoms. Jameson had no reason to believe that Baby Brandon had been the victim of child abuse.

The Complaint alleges that Lawrence County CYS did not perform any investigation to determine whether the test results were a "false positive." Prior to seeking protective custody, Lawrence County CYS did not interview Bower or her family members; did not interview Bower‟s treating physician, Dr. Bassaly; did not attempt to obtain copies of Bower‟s medical records; and never inspected Bower‟s home or investigated whether she had the necessary items to care for an infant. No services were offered to prevent removal of the baby. Lawrence County CYS had received a copy of the drug test results which showed that Bower‟s opiate level was "no reference range." Nevertheless, in petitioning for the initial order of custody, Lawrence County CYS alleged that Bower had tested positive for opiates and therefore Baby Brandon was without proper parental care. Lawrence County CYS alleged that to allow Baby Brandon to return home with Bower would be contrary to his welfare because he had been exposed to drugs. This position was based solely on the report from Jameson. Plaintiff alleges that Lawrence County CYS had a policy to take immediate action to remove newborns from parents whenever it received, and solely based upon, a report of a positive prenatal test from Jameson.

On the morning of July 15, 2009, caseworker Lightel obtained an ex parte court order which granted Lawrence County CYS permission to take custody of Baby Brandon. Quest, apparently the laboratory that performed the drug test, faxed its confirmatory report of "no reference range" to Jameson after the initial custody order was obtained. Later that day, a member of Jameson discussed the drug test results with Bower. She pleaded that there must be a mistake, as she was not a drug user.

On July 16, 2009, Lawrence County CYS forcibly removed Baby Brandon from Bower‟s arms. Later that day, a seventy-two hour review hearing was held. It was determined that Baby Brandon would remain in the custody of Lawrence County CYS until an adjudication hearing scheduled for July 21, 2009. During this interim, Bower contacted Lawrence County CYS to attempt to see her baby. This effort was unsuccessful. Bower was informed that both Lightel and her supervisor were off work during this time period. On July 20, 2009, Lightel came to Bower‟s home and verified that it would be a healthy living environment for Baby Brandon. Bower again asked to see her baby. Lightel informed her that she would try to set it up. However, Bower‟s phone calls later that day were not returned.

On July 21, 2009, an adjudication hearing was held. Lawrence County CYS introduced into evidence the initial drug screen conducted by Jameson which showed "no reference range" for opiates. Nevertheless, the Master recommended that Baby Brandon remain in Lawrence County CYS custody. On July 22, 2009, Bower called Lightel numerous times to see her baby. Eventually, Bower went to Lawrence County CYS and gave Lightel diapers, a blanket, clothes and a baby bath for Baby Brandon. On July 24, 2009, the Lawrence County Court of Common Pleas entered a custody order consistent with the Master‟s recommendation. The same day, Bower was able to see and hold Baby Brandon for one hour. After that, Baby Brandon was placed in three separate foster care homes.

Baby Brandon was returned to Bower‟s custody following an adjudication/disposition hearing on September 28, 2009, seventy-five (75) days after he was removed. Plaintiff alleges that she endured emotional turmoil and stress due to the forcible seizure of her baby. Plaintiff further alleges that she lost the ability to breast-feed and bond with her infant child.

Plaintiff filed a five-count Complaint. Count I alleges that Lawrence County CYS and Lightel violated her substantive due process rights under the Fourteenth Amendment to the United States Constitution.*fn3 Count II alleges that Jameson and Lawrence County CYS conspired to violate Bower‟s constitutional rights. Count III alleges negligence by Jameson, in that it failed to use reasonable care to avoid a "false positive" drug test; failed to ensure that Lawrence County CYS was apprised that the results indicated a "below the reference range"; and violated its own policy by reporting a result below the 300 nanogram/mL screening level. Count IV alleges negligence by Lawrence County CYS and Lightel in that they failed to act reasonably to ensure that the basis for removal of Baby Brandon was substantiated and that the ...

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