PITTSBURGH – Allegheny County authorities are seeking to dismiss a lawsuit brought by a Western Pennsylvania couple against custodial and medical authorities for removing their then-eight-month-old son to foster care for two-and-a-half weeks, on the incorrect suspicion that they were the cause of his broken leg.
Kenan Gajarov and Lala Jamalova (as legal guardians and natural parents of minor R.G.) of Wexford first filed suit in the Allegheny County Court of Common Pleas on May 12 versus the Allegheny County Office of Children, Youth and Families, Allegheny County Department of Human Services Director Marc Cherna, the University of Pittsburgh Medical Center Children’s Hospital and its Assistant Professor of Pediatrics and Physician Dr. Adelaide Eichmann, all of Pittsburgh.
On Sept. 16, 2018, the plaintiffs brought their then-eight-month-old child, R.G. to the pediatrician when he awoke in the early morning hours, inconsolably crying. The doctor diagnosed him with teething pain and prescribed Tylenol to treat it.
The following day, Sept. 17, 2018, the parent plaintiffs noticed something was wrong with R.G.’s leg and he was still in considerable pain. After reconvening with the pediatrician, the plaintiffs were directed to take the child to UPMC for evaluation, where he was diagnosed with a broken right leg.
“On or about Sept. 17, 2018, defendant Allegheny County Office of Children Youth and Families (OCYF) received a report about the minor child and his injuries. OCYF consulted with Dr. Adelaide Eichmann of the Children’s Advocacy Center,” the suit states.
“Dr. Adelaide Eichmann reported that the minor child was not mobile, due to low muscle tone, and would not have been able to cause this tibia fracture on his own, yet seemingly sought no further consult from pediatric orthopedics.”
Acting on this recommendation, in the next four days, R.G. was placed at a Bethany Christian Services foster home and removed to the custody of the OCYF.
However, on Oct. 5, 2018, OCYF supervisors learned from an independent pediatric orthopedic surgeon that an alternate and likely possibility was that R.G.’s leg became entangled in his crib during his sleep, and in his trying to dislodge it from the crib, accidentally broke his own leg.
“Unfortunately, as defendants refused to consider any alternative for cause of injury other than the extremely unlikely possibility, considering all of the evidence present at the time, including statements by the parent plaintiffs, that the parents caused this harm, the minor child was removed from the love, care and supervision of his parents for about 18 days,” according to the lawsuit.
Assistant County Solicitor John A. Bacharach filed to remove the case to the U.S. District Court for the Western District of Pennsylvania on July 7, citing constitutional rights violations for substantive due process under the 14th Amendment.
“The complaint makes claims against the defendants for violation of the plaintiffs’ rights under the 14th Amendments to the Constitution of the United States of America pursuant to 42 U.S.C. Section 1983, in addition to claims made under the law of the Commonwealth of Pennsylvania,” the removal notice read, in part.
“The complaint claims that the defendants were deliberately indifferent to the plaintiffs’ substantive due process rights guaranteed by the 14th Amendment to the United States Constitution by removing or causing to be removed their children and placing them in foster care pursuant to an investigation of suspected child abuse without first conducting an adequate investigation.”
UPDATE
On Aug. 12, counsel for the Allegheny County Office of Children, Youth and Families and Cherna filed a motion to dismiss the suit, based on upon several arguments on invalidity towards the complaint.
“Plaintiffs’ negligence claims against the County Defendants in Counts I and IV must be dismissed because they are immune from suit under the Political Subdivision Tort Claims Act. The Tort Claims Act bars suit against the County because it is a local agency, and against Marc Cherna, because he is an employee of the County,” the dismissal motion read.
“There are no facts alleged in the complaint from which it could be inferred that Mr. Cherna was even aware of the plaintiffs’ case. CYF took custody of R.G. after being informed a physician at a reputable hospital suspected that the infant’s fractured tibia was caused by child abuse. OCYF promptly returned him to his parents’ custody after being presented with a credible medical opinion that there was an innocent cause for R.G.’s broken leg. These facts do not set-forth a plausible cause of action that Marc Cherna of OCYF intentionally injured the plaintiffs.”
In the matter of substantive due process rights, the defendants say that only egregious official conduct which shocks the conscience would lead to those rights of the plaintiffs being violated – and that was allegedly not the case here.
“Removing an infant with a fractured leg from his parents as a temporary safety measure based on the opinion of a physician at CHP that the cause was suspected child abuse is not egregious official conduct or close to it. There is nothing in the complaint that would have put OCYF clearly on notice that Dr. Eichmann’s opinion was incorrect or that she was not a competent physician or had some improper motive,” the motion says.
“The complaint suggests that OCYF should have obtained a second opinion from another specialist before obtaining an emergency custody authorization to remove R.G. Even if that allegation is correct, it amounts to negligence, at most, and it does not come close to meeting the shocks the conscience standard necessary to state a plausible substantive due process claim.”
The defendants added that when government units are defendants in Section 1983 actions, they are “not subject to liability for constitutional violations under the theory of respondeat superior for conduct of their employees or agents” nor is the Allegheny County Office of Children Youth and Families “an administrative division of Allegheny County.”
The defendants say the county office is not a “person” capable of being sued under 42 U.S.C. Section 1983, and for all of the above reasons, the suit should be dismissed.
For counts of negligent infliction of emotional distress, state-created danger and a substantive due process violation, unconstitutional policies and customs under 42 U.S.C. Section 1983 and negligence, the plaintiffs are seeking damages in excess of $50,000, plus interest and costs.
The plaintiffs are represented by Matthew J. Scanlon of Scanlon & Wojton, in Pittsburgh.
The defendants are represented by Sally A. Frick and Marcelle M. Theis of Dickie McCamey & Chilcote and Assistant County Solicitors John A. Bacharach and Frances M. Leibenguth, all also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-01017
Allegheny County Court of Common Pleas case GD-20-005729
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com