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Billups v. Penn State Milton S. Hershey Medical Center

United States District Court, M.D. Pennsylvania

November 20, 2012

Jamel BILLUPS, et al., Plaintiffs

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Mark D. Freeman, Media, PA, for Plaintiffs.

Christopher E. Ballod, Marshall Dennehey Warner Coleman & Goggin, Pittsburgh, PA, Kim Kocher, Thomas M. Goutman, White and Williams LLP, Philadelphia, PA, Carrie E. Smyth, David L. Schwalm, Thomas, Thomas & Hafer, LLP, Harrisburg, PA, for Defendants.


YVETTE KANE, Chief Judge.

Presently pending before the Court are two motions to dismiss Plaintiffs' amended complaint filed by the Penn State Milton S. Hershey Medical Center Defendants (Doc. No. 61) and the Franklin County Defendants (Doc. No. 60). The motions have been fully briefed and are ripe for disposition. For the reasons stated more fully herein, the Court will grant the Franklin County Defendants' motion and will grant in part and deny in part the Penn State Milton S. Hershey Medical Center Defendants' motion.


A. Parties and Procedural Background

Plaintiffs Jamel Billups and Jacqueline Rosario, and their daughters, L.B. and T.R., both minors, filed a nine-count complaint in this matter on September 27, 2011. (Doc. No. 1.) Their complaint targeted three groups of Defendants, and each group moved to dismiss the complaint. (Doc. Nos. 25, 32, 39.) On April 23, 2012, 2012 WL 1392294, the Court issued a memorandum and order granting the motions filed by the Chambersburg Borough Defendants and the Penn State Milton S. Hershey Medical Center Defendants, granting in part and denying in part the Franklin County Defendants' motion, and granting Plaintiffs leave to file an amended complaint. ( Doc. No. 58.)

Plaintiffs filed an amended complaint on May 13, 2012. (Doc. No. 59.) The amended complaint arises from the circumstances surrounding the temporary removal of L.B. and T.R. from the custody of Mr. Billups and Ms. Rosario and alleges that the Penn State Milton S. Hershey Medical Center Defendants and the Franklin County Defendants violated Plaintiffs' constitutional rights. The Penn State Milton S. Hershey Medical Center Defendants are comprised of the Penn State Milton S. Hershey Medical Center (" Medical Center" ) and four Medical Center employees— Mark S. Dias, M.D., who is a neurosurgeon and co-director of the Medical Center's Child Safety Team; Kathryn R. Crowell, M.D., who is a co-director of the Child Safety Team; Arabinda K. Choudhary, M.D., who is the director of the pediatric neuroradiology department and a member of the Child Safety Team; and Kathleen D. Eggli, M.D., who is the chair of the radiology department. The Franklin County Defendants are comprised of Franklin County and two employees of the Franklin County Office of Children, Youth, and Families (" CYF" )— Kari Coccagna and Minnie Tuner.

B. Factual Background[1]

This case arises out of a child abuse investigation that resulted in Mr. Billups

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and Ms. Rosario temporarily losing custody of their daughters, T.R. and L.B., and also resulted in Mr. Billups being criminally prosecuted in state court. At the time of the events giving rise to Plaintiffs' claims, T.R. was approximately two years old and L.B. was approximately four months old. (Doc. No. 51 ¶ 16.)

On October 19, 2009, while Ms. Rosario was at work, Mr. Billups watched over T.R. and L.B. in the apartment he shared with Ms. Rosario. ( Id. ¶ 17.) After hearing L.B. cry, Mr. Billups checked on her and noticed that she was arching her back and " tens[ing] up." ( Id. ¶¶ 17-18.) He proceeded to carry her to the living room, where he noticed that she was stretching her arms out rigidly and having difficulty breathing. ( Id. ¶ 17.) He then called Ms. Rosario, who was already en route to the apartment. ( Id. ) After Ms. Rosario arrived home, she and Mr. Billups called 911 to seek medical attention for L.B. ( Id. ) After doing so, however, they decided to take L.B. to the Chambersburg Hospital themselves, so that L.B. could receive medical attention faster. ( Id. )

After L.B. was admitted to the Chambersburg Hospital, a computed tomography (" CT" ) scan of L.B. was performed at approximately 5:31 p.m. ( Id. ¶ 20.) The CT scan revealed that L.B. had a " small amount of subdural and subarachnoid hemorrhage and edema." ( Id. ) The examination did not reveal a " soft tissue swelling or [a] skull fracture." ( Id. )

1. L.B.‘ s Transfer to, and Examinations at, the Medical Center

At approximately 7:37 p.m. on October 19, 2009, L.B. was admitted to the Medical Center. ( Id. ¶ 21.) Plaintiffs aver that L.B. was transferred to the Medical Center " because, according to the Chambersburg [Hospital] emergency room note, L.B.'s ‘ intracranial hemorrhage and bilateral healed/healing rib fractures’ were ‘ suspicious of nonaccidental trauma’ and [the Medical Center] had a Child Safety Team." ( Id. ) The following day, at approximately 4:29 p.m., magnetic resonance imaging (" MRI" ) and magnetic resonance venography (" MRV" ) examinations of L.B. were performed. ( Id. ¶ 22.) These examinations revealed that L.B. had thrombosis, a condition— otherwise known as a childhood stroke— in which " one or more veins that drain blood from ... [the] brain [are] clotted." ( Id. ) The examination also revealed that one of L.B.'s veins was dilated and that there was a non-specific signal in L.B.'s neck, both of which represented an increase in blood flow " as a result of L.B.'s brain finding alternative pathways to compensate for the clotted veins in her brain." ( Id. ) No evidence of injury to L.B.'s spine or of disruption to her spinal ligaments was detected. ( Id. )

Dr. Choudhary, the director of pediatric neuroradiology at the Medical Center and a member of its Child Safety Team, evaluated the results of this examination and recorded his conclusions in a report. ( Id. ¶¶ 10, 23.) The Child Safety Team, co-directed by Drs. Dias and Crowell, evaluates patients whose injuries indicate that they may be victims of child abuse. ( Id. ¶¶ 7-9.) In his report, Dr. Choudhary stated that the " ‘ superficial cortical vessels on the left side [of L.B.'s brain] are not visualized’ and that thrombosis was a possible explanation." ( Id. ¶ 23.)

In addition, an abdominal CT scan and skeletal surveys of L.B. were performed at

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the Medical Center. ( Id. ¶ 29.) The CT scan and skeletal surveys revealed that L.B. had sixteen bilateral rib fractures in the anterior region of her ribs, none of which were acute and all of which were approximately four-to-eight weeks old. ( Id. ) Neither the CT scan nor the skeletal surveys revealed that L.B. had suffered any internal injuries associated with the rib fractures. ( Id. )

On October 22, 2009, a Medical Center radiologist reported that L.B.'s rib fractures " were ‘ at the anterior anxillary line’ and the ‘ lateral aspect and anterior anxillary line.’ " [2] ( Id. ¶ 42.) According to Plaintiffs, posterior rib fractures " have been considered by proponents of the shaken baby syndrome hypothesis as pathognomonic, or having a virtual 100% predictive diagnostic value, of the diagnosis of abuse." ( Id. ¶ 43.)

On October 28, 2009, Dr. Crowell issued a medical report wherein she concluded that L.B.'s injuries were caused by abuse. ( Id. ¶ 36.) Neither Dr. Crowell nor any other doctor, however, performed tests to exclude non-traumatic explanations for L.B.'s injuries, such as " a thrombophilia workup." ( Id. ¶¶ 24, 33-34.) Further, no doctor at the Medical Center asked Ms. Rosario whether she suffered from a Vitamin D deficiency or conducted tests to determine whether Ms. Rosario or L.B. suffered from such a deficiency. ( Id. ¶ 34.) Plaintiffs allege that a Vitamin D deficiency " can lead to rickets, a condition known to flare the anterior ends of a child's ribs sometimes appearing as if they were healing fractures and sometimes referred to as a rachitic rosary" and " can also lead to weak bones that fracture with birth and/or normal infant handling." ( Id. ¶ 30.)

2. Dependency Proceedings

On October 20, 2009, the day after L.B. was admitted to the Medical Center and " presumably before the results of the October 20, 2009 MRI ... [were] known," Franklin County obtained an ex parte order, granting temporary custody of T.R. and L.B. to the County. ( Id. ¶ 25.) Also on that date, the " Franklin County clerk of courts docketed a dependency petition seeking the custody of T.R. and L.B. and seeking appointment for an attorney for [Ms. Rosario]. The court also ordered a psychological evaluation of [Mr. Billups and Ms. Rosario]." ( Id. ¶ 26.) According to the dependency petition, Franklin County employees, " following an emergency administrative staffing, ... determined Court intervention was also necessary in order to ensure the continued safety and well being of [L.B.]." ( Id. ¶ 27.) Plaintiffs aver that Franklin County employees " would have consulted with L.B.'s treating physician and/or a member of the Child Safety Team" before filing the petition. ( Id. ¶ 28.)

The Franklin County Court of Common Pleas held a dependency hearing on December 18, 2009. ( Id. ¶ 41.) At the hearing, Dr. Crowell, who was qualified as an expert witness in the area of child abuse, testified that " an extensive screening" of L.B. was performed to determine whether she had coagulation problems, bleeding disorders, or an abnormal " metabolic workup." ( Id. ) With respect to L.B.'s rib fractures, Dr. Crowell testified that a radiologist indicated that the fractures were posterior, not anterior. ( Id. ¶ 42.) Plaintiffs, however, allege that no radiologist ever made this finding. ( Id. ) Dr. Crowell was also questioned about an October 22,

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2009 report, which stated that L.B.'s rib fractures were at the anterior anxillary line. ( Id. ¶ 44.) Dr. Crowell explained that the reference to the anterior anxillary line in that report indicated the location from which the fractures were viewed, not that the fractures were anterior. ( Id. )

At the conclusion of the hearing, the court, having determined that the allegations of abuse had been sustained, adjudicated both L.B. and T.R. dependent. ( Id. ¶ 49.) The court reasoned that L.B.'s parents had failed to offer a plausible alternative explanation for L.B.'s injuries and found that, in light of the examinations performed on L.B. at the Medical Center, " it is highly unlikely that any credible expert could have come to a different conclusion at all different than that at which Dr. Crowell arrived." ( Id. ¶ 49.) Further, the court stated that " testimony from a retained expert would not have had a high degree of likelihood of changing the result in this case, since the evidence in favor of dependency came from a treating physician and was so credible and overwhelming." ( Id. ) Plaintiffs, however, assert that Dr. Crowell was never L.B.'s treating physician. ( Id. ¶ 50.)

3. Contrary Expert Reports Regarding L.B.'s Injuries

In January 2010, Ms. Rosario obtained replacement counsel and retained Dr. Julie Mack, an assistant professor of radiology at Penn State, and Dr. Barnes, the director of the Pediatric MRI & CT Center at the Stanford University Medical Center's Lucile Packard Children's Hospital, to evaluate the opinions of Drs. Crowell, Dias, and Choudhary regarding L.B.'s injuries. ( Id. ¶¶ 52-54.) At this time or sometime thereafter in 2010, Dr. Eggli, the chair of the Medical Center's radiology department, implemented a department policy authorizing her to either approve or not approve the reports of Medical Center doctors in legal proceedings, deny liability insurance to those doctors whose reports were not approved, and prohibit those doctors whose reports were not approved from revealing their position at the Medical Center or using the Medical Center logo and letterhead when creating reports. ( Id. ¶ 11.)

On February 14, 2010, Dr. Barnes issued a report, concluding that L.B.'s rib fractures were anterior, that thrombosis and congenital rickets were possible causes of L.B.'s injuries, that a more thorough " hematology/ coagulopathy and vascular workup" should be performed on L.B., and that a " bone fragility disorder" should be considered and evaluated. ( Id. ¶ 57.) Dr. Barnes sent his report to Franklin County. ( Id. ) Upon Dr. Mack's review of Dr. Barnes's report and the Medical Center's findings, she was concerned that the Medical Center's Child Safety Team " had mistakenly concluded that L.B.'s thrombosis and congenital rickets were caused by abuse." ( Id. ¶ 59.) Plaintiffs aver that Dr. Mack then contacted Drs. Crowell, Choudhary, and Mark Iantasco, who was L.B.'s attending physician, to explain why she believed that L.B.'s ...

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