Cox v. Med. Coll. of Wis. Inc.

651 F.Supp.3d 965

John COX and Sarah Dobrozsi, Plaintiffs, v. The MEDICAL COLLEGE OF WISCONSIN INC., Children's Hospital and Health System Inc., Children's Hospital of Wisconsin Inc., Rita Ventura, Hilary Petska, Lynn Sheets, Michael Gutzeit, Demetra Parr-Nelson, Jessica Barber, Amy Scherbarth, Stephanie Jewell, Lorraine Hartmann, Michelle Urban, Heather Miller, and Rebecca Chagall, Defendants.

Case No. 22-CV-553-JPS-JPS

United States District Court, E.D. Wisconsin

Signed January 17, 2023

Brian Monico, Hale & Monico LLC, Samuel D. Heppell, Jonathan I. Loevy, Loevy & Loevy, Chicago, IL, for Plaintiffs.

Jill M. Munson, Hinshaw & Culbertson LLP, Milwaukee, WI, for Defendant The Medical College of Wisconsin Inc.

Andrew J. Wronski, Matthew Dean Krueger, Kristin McGaver Sikora, Anne-Louise Treveni Mittal, Foley & Lardner LLP, Milwaukee, WI, Michael L. Johnson, Otjen Law Firm SC, Waukesha, WI, for Defendant Childrens Hospital and Health System Inc.

ORDER

J. P. Stadtmueller, United States District Judge

1. INTRODUCTION

Plaintiffs John Cox ("Cox") and Sarah Dobrozsi ("Dobrozsi") (jointly, "Plaintiffs") filed an amended complaint in this action on July 18, 2022. ECF No. 37.¹ On August 12, 2022, three groups of Defendants submitted separate motions to dismiss. ECF Nos. 41, 43, 46. The Court refers to the groups of Defendants as follows:

• Jessica Barber ("Barber"), Rebecca Chagall ("Chagall"), Lorraine Hartmann ("Hartmann"), Stephanie Jewell ("Jewell"), Heather Miller ("Miller"), Demetra Parr-Nelson ("Parr-Nelson"), Amy Scherbarth ("Scherbarth"), and Michelle Urban ("Urban") (collectively, the "CPS Defendants")

• Medical College of Wisconsin ("MCW"), Lynn Sheets ("Sheets"), and Hillary Petska ("Petska") (collectively, the "MCW Defendants")

• Children's Hospital and Health System, Inc. ("CHHS"), Children's Hospital of Wisconsin, Inc. ("CHW"), Rita Ventura ("Ventura"), and Michael Gutzeit ("Gutzeit") (collectively, the "Children's Defendants")

As of October 14, 2022, and after extensions of time to respond and reply, see text only orders on September 6, 2022; September 19, 2022; and September 29, 2022, and an order granting a request to file an oversized brief, see text only order on September 22, 2022, the motions to dismiss are now fully briefed. ECF Nos. 42, 44, 47, 61, 63, 64, 66. On August 12, 2022, Defendants also filed a joint motion to stay discovery, ECF No. 51, which is now also fully briefed, ECF Nos. 52, 56, 57. For the reasons discussed herein, the Court will grant in part and deny in part the motions to dismiss and will deny as moot the motion to stay discovery.

2. FACTUAL BACKGROUND²

Cox and Dobrozsi, spouses, are both medical doctors licensed to practice by the State of Wisconsin. At the time of the relevant events, Plaintiffs resided in Wauwatosa, Wisconsin, worked as physicians in Wisconsin, and had two adopted children.

In 2019, Plaintiffs decided to adopt another child. That child is referred to herein as L.G. In coordination with L.G.'s birth parents and a private adoption agency, Catholic Charities, prior to L.G.'s birth in April of 2019, Plaintiffs planned to adopt her. Plaintiffs entered into an agreement with Catholic Charities and with L.G.'s birth parents to that effect. Under that plan, Plaintiffs would become "pre-adoptive parents" immediately following L.G.'s birth. That phrase represents a period prior to formal, official adoption, required by Wisconsin law. Plaintiffs brought L.G. to their home on April 11, 2019. During this pre-adoptive period, L.G. lived in Plaintiff's home.

On May 9, 2019, an incident occurred in Plaintiffs' home, resulting in injuries to L.G. That morning around 5 A.M., Cox was holding L.G. in his arm while he read on his bed. Cox fell asleep while holding L.G. L.G. was later determined to have resulting skin lesions on her arms as well as having suffered a broken clavicle.

The same day as the incident, as well as several times in the following days, L.G. was evaluated by medical professionals. In total, L.G. was seen by three separate physicians, two of whom performed a physical examination on L.G., obtained L.G.'s medical history, and reached a diagnosis. L.G. was first taken to Dr. Pomeranz, the family's pediatrician. Dr. Pomeranz referred L.G. to be seen by another physician, Petska, who specialized in cases of possible child abuse. This referral was standard procedure. Dr. Pomeranz also referred L.G. to be seen by a pediatric dermatologist. As a result of Dr. Pomeranz's communication with Petska, Dr. Pomeranz ordered imaging studies of L.G.'s clavicle and shoulder. Cox was instructed to take L.G. to CHW³ for these imaging studies.

Dobrozsi brought L.G. to CHW. Dobrozsi was then informed by Dr. Pomeranz that the plan had changed, and that Petska was requiring not just imaging studies of the shoulder and clavicle, but a "full child abuse screening workup, including full body skeletal survey, head Computed Tomography (CT) scan, and blood work." Upon learning this from Dr. Pomeranz, Dobrozsi requested that Petska perform a full medical evaluation and explain the next steps. Petska agreed and spoke with Cox over the phone about how the incident occurred. Petska performed a full medical evaluation and concluded that a head CT would not be needed at that time, but that the blood work and skeletal survey would still be done. Based on her medical evaluation and her phone conversation with Cox, Petska concluded that the skin lesions on L.G.'s arms were not necessarily indicative of abuse.

Having reached this conclusion, Petska told Dobrozsi that if Dr. Pomeranz had not already called CPS to report possible abuse, Dr. Pomeranz could wait to do so. Dobrozsi communicated this by text to Dr. Pomeranz, but Dr. Pomeranz had already initiated the referral to CPS.

Petska continued with the medical evaluation, coordinating to complete shoulder and clavicle x-rays, blood work, and a skeletal survey. She thereafter permitted Dobrozsi to return home with L.G. The results of this evaluation did not reveal any "definitive evidence" of child abuse, nor did they necessarily indicate that Cox had intentionally harmed L.G. Petska communicated this to Cox over the phone.

Thereafter, it was determined that Petska would recuse herself from the care and treatment of L.G. based on a supposed conflict of interest. This determination was reached because Petska and Plaintiffs worked for the same hospital system. Accordingly, Petska and Sheets concluded that L.G. should be evaluated by a different medical provider. According to Plaintiffs, Petska retained obligations to ensure that L.G. would be seen by a provider who could provide the same or a higher level of care and to continue to care for L.G. until L.G. could be seen by a different provider.

Petska transferred care of L.G. from herself to nurse practitioner Ventura, an employee of CHHS and/or CHW.⁴ Ventura was affiliated with the Milwaukee Child Advocacy Center⁵ but was not herself a board-certified child advocacy pediatrician. Following this referral to Ventura, Petska called Plaintiffs to give them the results of the lab work that had been ordered for L.G. Petska informed Plaintiffs that the results of the lab work were "normal," which was apparently an erroneous statement. Petska instructed Plaintiffs to go to an outpatient clinic run and operated by CHW and CHHS the following day. Petska did not, however, disclose to Plaintiffs the identity of the medical provider to whom she had referred L.G. Petska assured Plaintiffs that they would be able to have all their questions answered at that clinic, including review of the lab work that had been performed.

On May 9, 2019 (the day of the incident, and the day before the medical evaluation by Ventura), CPS sent a social worker to Plaintiffs' home to interview them and assess the home and L.G. The social worker found no reason to intervene at that time.

On May 10, 2019, L.G. was scheduled to be seen by Ventura, as instructed by Petska. That same morning, Barber, an employee of CPS, informed Plaintiffs that officials at CPS and CHW had determined that Plaintiffs would not be allowed to attend that appointment. Plaintiffs did not, at this time, know the identity of the medical professional into whose care L.G. had been transferred, and Barber refused to provide Plaintiffs with that information. According to Plaintiffs, their exclusion from L.G.'s appointment at the outpatient clinic violated standard medical practice and deviated from MCW and CPS's policies and procedures. Plaintiffs allege that they were disallowed from attending the appointment because of their professions as physicians. Plaintiffs also allege that they were not afforded the protections and rights they were entitled to as pre-adoptive parents because Defendants considered that status as being less worthy of protection.

Barber took L.G. to the appointment. Plaintiffs allowed Barber to take L.G. without them because they believed they would be allowed to participate in the appointment via telephone. Plaintiffs claim they were fully authorized to participate in L.G.'s medical care by virtue of signed consents from L.G.'s birth parents and Catholic Charities.

Plaintiffs requested to speak to the individual performing the medical examination of L.G. at that appointment. Their request was denied, and Ventura did not speak with them. Barber informed Plaintiffs that the then-undisclosed medical provider had recommended a follow-up head CT scan (commonly utilized in evaluations for possible child abuse) to be completed that same day, but Barber provided no other details.

Ventura, unlike the physicians who evaluated L.G., concluded that L.G.'s injuries resulted from abuse. According to Plaintiffs, Ventura, unlike the evaluating physicians, did not conduct her examination pursuant to standard medical procedures for evaluation of potential child abuse. Ventura's evaluation, according to Plaintiffs, was inappropriate, incomplete, and...