[155-156] Discussion of cases recognizing a cause of action in tort allowing adoptive parents the right to seek compensatory damages against an adoption agency for the agency's negligent material misrepresentations of fact prior to adoption concerning the adopted child's history [156-159, 160-161], and discussion of cases in which courts have declined to extend liability to cases involving negligent, rather than intentional, misrepresentation by an adoption agency [159-160]. After they learned that Elizabeth was available for adoption, the plaintiffs visited her weekly for several months. (slip op. Dr. Edward J. Hart, the evaluating physician, described Elizabeth as having a "considerable behavioral disruption" and as "a child of probably low average intelligence" who was two years behind her developmental level. Most recently, in regard to adoption, in a case almost on all fours with the case at bar, the Supreme Court of Rhode Island has stated in Mallette v. Children's Friend Serv., supra at (slip op. [Note 11] This is not a case where an adoption agency placed a child without discovering and informing the potential adoptive parents about the child's medical and familial background. v. Caritas Family Servs., supra at 287. Meracle v. Children's Serv. See Spring v. Geriatric Auth. Because "the record amply support[ed] the lower courts' decisions that fraud was demonstrated," the court affirmed the jury verdict against the defendants. Her prognosis was "guarded.". You must be logged in to post a comment. The plaintiffs' expert on adoption testified that, by 1974, there was consensus in the field of social work that schizophrenia and mental retardation in the biological family should be disclosed to adoptive parents prior to placement. 657 (1992). . . On the contrary, Faison testified it was the defendant who finally convinced him to abandon his flight and surrender to the police. any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused. require that [the defendants] be held accountable for injuries resulting from deceitful and material misrepresentations which we find were foreseeably and justifiably relied on by [the plaintiffs]." [Note 10], Several considerations support our conclusion. See Harry Stoller Co. v. Lowell, 412 Mass. [Note 16] The judge's instructions on the intentional tort claims against Tompkins were as follows: "The last cause of action that has been brought in this case is one of fraud, deceit, and intentional tort, misrepresentation of a material fact. agency's affirmative misrepresentations about a child's medical and familial background, any increased burden upon adoption agencies is slight. Another expert testified that it would have been possible to determine in 1974 that there was not "any way that this young woman would have attained normal cognitive development; have been able to function the way the vast majority of children do . CIVIL ACTION commenced in the Superior Court Department on January 27, 1987. parents the right to seek compensatory damages against an adoption She also then discovered that Elizabeth's birth mother had been diagnosed as schizophrenic and that Elizabeth's early infant development had been stunted. We conclude that the plaintiffs had no duty to conduct the type of investigation suggested by the Commonwealth. ), which authorizes the release of "nonidentifying information" concerning a biological parent's "medical, ethnic, socio-economic, and educational circumstances." The discovery rule "prescribes as crucial the date when a plaintiff discovers, or any earlier date when she should reasonably have discovered, that she has been harmed or may have been harmed by the defendant's conduct." 627, 628 (1939); Pike v. Proctor, 303 Mass. That was not Absent a "wrongful adoption" cause of action based upon negligence, adoptive parents would have no recourse against the Commonwealth for misrepresentations by a State adoption agency about a child's medical and familial background. He further testified that Elizabeth suffers from borderline or latent schizophrenia, and that the facts concerning her biological mother's schizophrenia would have been very important for a correct assessment of Elizabeth's prognosis when she was presented to the plaintiffs in 1974. Thus, we do not agree with the Commonwealth that allowing liability for negligent misrepresentation would "burden [State] adoption agencies with greater costs for verification of family histories and discovery of hidden genetic-related conditions." See also Hendrickson v. Sears, 365 Mass. [and] that there was [not] any way, given this history, that she would have attained normal emotional status.". 96, 99-100 (1993) (duty exists under G. L. c. 93A to disclose material facts known to party at time of business transaction); Restatement (Second) of Torts Section 551 (1977) (addressing duty to disclose in business transaction). the plaintiffs' cross appeal is without merit, and affirm the judgment in favor of the defendant Tompkins. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. . On appeal, the Commonwealth contends that the judge should have determined as a matter of law that the statute of limitations barred the plaintiffs' action because the biological mother's history of mental illness was not "inherently unknowable" at the time that Elizabeth's adoption was finalized in 1976. Commonwealth of Massachusetts. (Massachusetts Tort Claims Act), provides that the statute does not apply to "any claim arising out of an intentional tort, including . We recite some of the facts that the jury could have found from the evidence admitted. Tompkins also told the plaintiffs that Elizabeth had been removed from foster care because of alleged abuse and had been hospitalized for malnutrition, and that she was small for her age and had been examined for dwarfism. The Commonwealth asserted a statute of limitations defense in its answer, as well as in its motions for a directed verdict and for judgment notwithstanding the verdict. Get the MLW Daily Alert. at 13) ("We are in complete agreement with these cases in holding that public policy does not preclude the [plaintiffs] from maintaining a claim for negligent misrepresentation. Id. Although Whitney v. Worcester, 373 Mass. [155-156] Discussion of cases recognizing a cause of action in tort allowing adoptive parents the right to seek compensatory damages against an adoption agency for the agency's negligent material misrepresentations of fact prior to adoption concerning the adopted child's history [156-159, 160-161], and discussion of cases in which courts have declined to extend liability to cases involving negligent, rather than intentional, misrepresentation by an adoption agency [159-160]. Although we acknowledge the "necessity to approach slowly any attempt to make an adoption agency liable for the health of the children that they place," Foster v. Bass, supra at 981, we believe that the preferable approach is to allow liability for "wrongful adoption" for claims based on both intentional and negligent misrepresentation to adoptive parents about a child's history prior to adoption. We agree. Thus, Tompkin's actions did not constitute a discretionary function entitled to immunity pursuant to G.L.c. In August, 1976, the plaintiffs adopted Elizabeth after she had lived with them for two years. Dr. Edward J. Hart, the evaluating physician, described Elizabeth as having a "considerable behavioral disruption" and as "a child of probably low average intelligence" who was two years behind her developmental level. Next we must consider whether, as the Commonwealth contends, public policy concerns dictate that we should limit liability for "wrongful adoption" to claims based on intentional conduct. Was missing early developmental milestones ; it responds mohr v commonwealth the plaintiffs as against the Commonwealth under G.L.c of established! 305, 306 ( 2007 ) policy '' ) finally convinced him to his. C. 210, Section 2 ( 1994 ed. ) hence, we believe that this result,.... Million would fairly and adequately compensate the plaintiffs for their damages Revenue v.Caylor-Nickel,... Lower courts ' decisions that fraud was demonstrated, '' the Court affirmed that, by 1974 Elizabeth... 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