Lorain/Elyria, OH
Lawsuit: Doctor didn`t report abuse
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ELYRIA — When he was 8 months old, Jayden Davidson died a violent death.
But he didn’t have to, according to a lawsuit filed Wednesday in Lorain County Common Pleas Court that accuses
Jayden’s doctor of failing to report signs of child abuse on the dead boy and his older brother.
Dennis O’Toole, who represents Jordan’s court-appointed guardian, Matthew Dooley, said Dr. Samuel Getachew had a legal obligation to report the abuse he was treating the two boys for which from October 2006 through June 2007, when Jayden died.
Jayden’s brother survived and is in the care of a family member, O’Toole said.
Kevin Kimbrough, the 25-year-old Lorain man babysitting the boys while their mother was at work, could get the death penalty if convicted of aggravated murder. An autopsy showed that Jayden died from physical abuse.
O’Toole said the beating that finally killed Jayden was brutal, but it wasn’t the first time the boy had been hit.
O’Toole said the boys’ mother, Julie St. Clair, had taken Jayden and his brother to Getachew almost monthly to seek treatment for injuries that were consistent with physical abuse, including bruises that neighbors also recalled seeing and didn’t report.
The abuse was obvious, O’Toole said.
“There were noticeable bruises all over the body and he died from one of the beatings.”
The autopsy performed on Jayden showed injuries to the head, older bruises and broken ribs, O’Toole said.
St. Clair no longer has custody of Jayden’s brother and has only strictly supervised visits with her son, O’Toole said.
Lorain County Prosecutor Dennis Will said he doesn’t recall any evidence that would have led to St. Clair or Getachew being charged in the case.
Getachew declined to comment Wednesday.
Dooley, who is an attorney appointed by the court to watch over Jayden’s brother’s interests and serve as the executor of Jayden’s estate, is legally entitled to sue for damages if a doctor fails to report abuse, O’Toole said. The lawsuit doesn’t specify how much in damages should be awarded.
If Dooley wins the case, O’Toole said, the money will be kept for Jayden’s brother’s later use.
Kimbrough, who remains in the county jail, and St. Clair had been boyfriend and girlfriend but were broken up when St. Clair asked him to watch her children after her usual baby sitter fell through.
Police have said Kimbrough took the boys from St. Clair’s house to his girlfriend’s house. The girlfriend called 911, saying Jayden had stopped breathing. He died at CHP Regional Medical Center a short time later.
Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.
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Doctors are reluctant to report “possible” abuse, because if they open their mouths, they’ll get sued faster than you can say Johnnie Cochran!
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Sorry Dan S, I think you are wrong. A doctor is obligated to report possible abuse, so is a mother! Where were the rest of the family and friends of these people? If the children were treated before why didn’t anyone report it? Oh I forgot, nobody wants to get involved. That mother is just as responsible as anyone for not protecting her children.
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2151.421 Reporting child abuse or neglect.
(A)(1)(a) No person described in division (A)(1)(b) of this section who is acting in an official or professional capacity and knows, or has reasonable cause to suspect based on facts that would cause a reasonable person in a similar position to suspect, that a child under eighteen years of age or a mentally retarded, developmentally disabled, or physically impaired child under twenty-one years of age has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the child shall fail to immediately report that knowledge or reasonable cause to suspect to the entity or persons specified in this division. Except as provided in section 5120.173 of the Revised Code, the person making the report shall make it to the public children services agency or a municipal or county peace officer in the county in which the child resides or in which the abuse or neglect is occurring or has occurred. In the circumstances described in section 5120.173 of the Revised Code, the person making the report shall make it to the entity specified in that section.
(b) Division (A)(1)(a) of this section applies to any person who is an attorney; physician, including a hospital intern or resident; dentist; podiatrist; practitioner of a limited branch of medicine as specified in section 4731.15 of the Revised Code; registered nurse; licensed practical nurse; visiting nurse; other health care professional; licensed psychologist; licensed school psychologist; independent marriage and family therapist or marriage and family therapist; speech pathologist or audiologist; coroner; administrator or employee of a child day-care center; administrator or employee of a residential camp or child day camp; administrator or employee of a certified child care agency or other public or private children services agency; school teacher; school employee; school authority; person engaged in social work or the practice of professional counseling; agent of a county humane society; person, other than a cleric, rendering spiritual treatment through prayer in accordance with the tenets of a well-recognized religion; superintendent, board member, or employee of a county board of mental retardation; investigative agent contracted with by a county board of mental retardation; employee of the department of mental retardation and developmental disabilities; employee of a facility or home that provides respite care in accordance with section 5123.171 of the Revised Code; employee of a home health agency; employee of an entity that provides homemaker services; a person performing the duties of an assessor pursuant to Chapter 3107. or 5103. of the Revised Code; or third party employed by a public children services agency to assist in providing child or family related services.
Here’s where it takes liability away in a civil proceeding.
(G)(1)(a) Except as provided in division (H)(3) of this section, anyone or any hospital, institution, school, health department, or agency participating in the making of reports under division (A) of this section, anyone or any hospital, institution, school, health department, or agency participating in good faith in the making of reports under division (B) of this section, and anyone participating in good faith in a judicial proceeding resulting from the reports, shall be immune from any civil or criminal liability for injury, death, or loss to person or property that otherwise might be incurred or imposed as a result of the making of the reports or the participation in the judicial proceeding.
(3) A person who knowingly makes or causes another person to make a false report under division (B) of this section that alleges that any person has committed an act or omission that resulted in a child being an abused child or a neglected child is guilty of a violation of section 2921.14 of the Revised Code.
Pretty straightforward.
The Dr. may find himself charged with a crime if the civil lawsuit is successful.
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He should be charged !!!!!!!!!!
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Just another thought, I bet he would report someones arse to the collection agency without even thinking about it !!!! But someones life in danger ?, come on I mean wth, he is suppose to be saving lives.
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What’s upsetting is that this woman continued to leave her children with this man after she suspected something was wrong. Doesn’t this qualify as some sort of neglect on the mothers part?
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There was a case involving a rape case with a minor a few years back and a local clergy knew about it. Do you know what he did? He called the rapist (who of course was convicted and sentenced) not the police or children services, he called the rapist to find out what was going on because he had been counseling him and left the 12year old out to hang. The rapists had threatened to kill the victim and their family. Did the police charge this clergy, absolutely not. Did the church protect the victim absolutely not, did the association reprimand or educate the clergy absolutely not, in fact the clergy is now again in charge of more children and youth.
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The last comment to this sad case, if the mother really took these children to the physician as much as they said she did for injuries, did she report them as injuries? Did she wait to the bruises were gone? Why isn’t the mother to blame. I understand the circle of abuse, but to leave the baby in the hands of an abuser and not stop it with the children is criminal in itself. Neglient, etc., should be charged to the mother.
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I think the mother is involved more than is being indicated. She didn’t report the baby being beaten because she didn’t see any problem with it. The neighbors, too. You’re supposed to whup your kids, right? It’s onlly bad when you “accidently” kill one or get caught. You know- the kids were “bad.” I hear it all the time. “he’s always been bad.” Listen- if your kid’s “bad”- you’re doing something WRONG!
also- I have other experience with this so called doctor, and a child that may have been abused, I would not take my child to this doctor ever.
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amyc,
I have also had experience with this doctor and possible abuse. Children services (an organization in Lorain county that is nothing but a joke) was involved also. There was a pattern established and still nothing was done. This doctor even talked to a family member, and the things that he told the family member, he DENIED to Children services. I hope he is charged and found guilty.
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“Sorry Dan S, I think you are wrong. A doctor is obligated to report possible abuse, so is a mother!”
I don’t want to sound like I’m playing with words, but I think the word, “possible” is the sticking point.
I once brought a baby of about 18 months into the hospital with burns on it’s feet.
The mother said the baby crawled up into the sink and turned on the hot water scalding itself.
Nothing about her story rang true.
I asked the doctor to help out with the child abuse case I initiated, and he refused, saying that he didn’t know beyond a doubt, that the mother was telling the truth.
He said, that if his standards have to be higher than just a “possibility” that abuse was done.
OK, that said, that was a couple decades back, so maybe the laws changed. However, the civil laws don’t change as fast as the criminal laws.
So, I would be curious to see how the actual laws are written, when it comes to blowing the whistle, when dealing with just a “possibility” and not something solid.
For some reason the doctor in this story was reluctant to report previous abuse.
Most likely out of fear of a lawsuit.
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“Lorain County Prosecutor Dennis Will said he doesn’t recall any evidence that would have led to St. Clair or Getachew being charged in the case.”
All of the prior signs of abuse in the story, came from the mother, who is now suing the doctor.
Perhaps there were no definite signs of abuse that would meet the standards, in the above statutes that The Raven posted above.
After reading the statutes further, it does look like there are laws protecting doctors from civil laws in the state of Ohio.
I wonder if the federal civil laws do the same.
If not, you might be protected by state law, in civil proceedings, however, if the plaintiff sues in federal civil court, you might have to play by a whole new set of rules, where you may not be protected.
But I’d like to think the federal laws offer the same protection.
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On June 5, 2008 the Ohio Supreme court ruled that the laws regarding required reporting of abuse or neglect, use “Objective” standards…
“(June 5, 2008) The Supreme Court of Ohio ruled today that in cases requiring teachers or other professionals to report “known or suspected†child abuse, the former version of R.C. 2151.421 required the application of a subjective standard. The Court’s 7-0 decision, written by Justice Evelyn Lundberg Stratton, partially reversed a decision of the 7th District Court of Appeals.”
In the original trial:
“The case went to trial before a jury. In instructing the jury, the judge stated that, in deciding whether Marino had violated the reporting statute, jurors should review the evidence and circumstances of the case and subjectively determine whether or not Marino actually suspected that D.K. had been abused. The jury returned a verdict in favor of the school district.”
In the above, the jury was allowed to determine what was know or suspected, making the decision an objective one.
The below correction upholds that what a doctor or other professional suspects, is an objective matter:
“Writing for the Court in today’s decision, Justice Stratton said the plain language of the former statute imposed a reporting requirement based on the subjective standard of what a person required to report actually knows or suspects. She wrote: “The applicable version of R.C. 2151.421(A)(1)(a) provided:
‘No person described in division (A)(1)(b) of this section who is acting in an official or professional capacity and knows or suspects that a child under eighteen years of age … has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the child, shall fail to immediately report that knowledge or suspicion to the public children services agency or a municipal or county peace officer … ’ The court of appeals concluded that the trial court had erred in instructing the jury that the relevant standard is subjective.”
So, I would think that unless there is overwhelming evidence to the contrary, a doctor could easily claim that he didn’t suspect child abuse.
And since the evidence of child abuse wasn’t presented in the article, past the word of the mother suing the doctor, I’d bet there was no reason for the doctor to suspect abuse.
Doctors have to see hundreds of kids on a monthly basis, dinged up from normal kid activities.
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Dan, I have to admit, that was nice work.
I stand(sit) corrected.
Thanks
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Raven…
After reading your entire post I was in agreement with you, due to the way the law read…
…but ran across the Ohio Supreme Court thing by accident, while looking for something about the Federal statutes.
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A doctor treats and heals sick people. He is not a childrens services caseworker. What do you think would happen to his practice/business if a doctor gets a reputation by word of mouth that he made some suspected abuse reports that didn,t pan out? It,s like blaming the people/sueing them for NOT having a fence around their pool where the kid, who had no business being there in the first place, drowned. Tragedies or not we can,t blame everybody and anybody for every bad thing, ordinance or no ordinance, Ohio Revised code or no Ohio Revised Code. Also, there is a difference sometimes between morally obligated and legally obligated. Guaranteed though, unless it is exceptionally obvious, if I were a doctor I would stick to doctorin.
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