Albert v. Bunnell

15 Mass. L. Rptr. 137
CourtMassachusetts Superior Court
DecidedAugust 7, 2002
DocketNo. 985894E
StatusPublished

This text of 15 Mass. L. Rptr. 137 (Albert v. Bunnell) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Albert v. Bunnell, 15 Mass. L. Rptr. 137 (Mass. Ct. App. 2002).

Opinion

Fabricant, J.

INTRODUCTION

This action arises from the plaintiffs’ adoption of a pair of twin boys who turned out, after the adoption had became final, to have certain disabilities. The plaintiff parents seek to recover damages from the defendant pediatrician, as well as the corporation through which he practices, on the ground that he failed to give them medical information that would have influenced their decision to finalize the adoption. Before the Court is the defendants’ motion for summary judgment on the ground that a pediatrician has no duty to give such information in the circumstances presented here.1 For reasons that will be explained, the motion will be allowed.

BACKGROUND

The record presents the following facts as undisputed for purposes of the present motion.2 In the fall of 1991, the plaintiffs were planning to adopt a child or children through an adoption agency based in Newton. They informed the adoption agency, according to their joint affidavit, that “the one thing that was the most important to us was that the child be healthy. We would not adopt a ‘special needs’ child, or a child with health problems.” They met with the defendant, pediatrician Bruce Bunnell, according to their joint affidavit, and he “agreed to be the pediatrician for the child(ren) we decided to adopt.”

The adoption agency informed the plaintiffs of the birth at a Florida hospital of twin boys available for their adoption. The plaintiffs went to Florida to pick up the babies. While there, according to their deposition testimony, they learned certain information potentially relevant to the babies’ health, including that the birth was somewhat premature. They discussed this information with Dr. Bunnell by telephone, and he suggested certain additional questions they should ask regarding the babies’ medical history. The plaintiffs brought the babies back from Florida, and took them for their first examination with Dr. Bunnell on November 22, 1991. He saw them on various occasions thereafter, and addressed various health issues that arose.

The records of the Florida hospital where the birth occurred, particularly a “discharge summary,” included details regarding the birth, the mother’s health history, and the babies’ condition at and shortly after the birth. The information in the discharge summary included items that, according to Dr. Bunnell’s deposition testimony, would constitute “red flags" with respect to the children’s prognosis. Dr. Bunnell received a copy of the discharge summary, but the evidence conflicts as to when and how. His deposition testimony was that he received it from Renee Albert in the summer of 1993. Nurses who worked at the Florida hospital, however, testified that their practice was to send a copy of the discharge summary to the pediatrician “within one to two weeks.” One of those nurses recognized her handwritten notation on the copy of the discharge summary that was retrieved from Dr. Bunnell’s files in discovery. As the defendants concede for the purposes of this motion, the evidence would support an inference that Dr. Bunnell received the discharge summary in or about November of 1991, and the Court must so assume in considering the motion.

Dr. Bunnell did not discuss the discharge summary with the plaintiffs, and did not inform them of the information contained in it, or of the significance of that information with respect to the likelihood that the children would develop disabilities. Had he done so [138]*138prior to the finalization of the adoption, according to the plaintiffs’ affidavit, they would not have proceeded with the adoption.

In the Court’s view, the facts surrounding the plaintiffs’ engagement of Dr. Bunnell, and his undertaking toward them, are critical to the issue presented by this motion. The evidence offered on this issue is as follows. The plaintiffs’ joint affidavit recites that “(b)efore flying to Florida to meet the children, and before making the decision to adopt the boys, we met with Dr. Bruce Bunnell, who agreed to be the pediatrician for the child(ren) we decided to adopt.”3 Robert Albert testified at his deposition in the Florida case4 that “we enlisted Dr. Bunnell as our pediatrician-in-waiting, so to say, and as I found out information concerning the children, I called Dr. Bunnell, told him what I had heard. He then asked me to ask some questions, which I then asked.” Regarding the children’s prematurity, Robert Albert testified, “we were asking him his advice.” The following exchange then occurred:

Q . . . How did he know that you were asking him for his advice with regard to whether or not to adopt these children?
A. When we interviewed Dr. Bunnell we told him that when we got the call and they told us that a child was ready to be adopted, that we would speak to him to check out any medical problems.

Renee Albert testified at her deposition in the Florida case that “we did make our intentions known that we were an adoptive couple and that we were asking for any input that he may have according to the facts that we were given at the time .. . We asked if — we told him how — when they were born and said was there anything we should ask, in other words, what does this mean . . . but I didn’t use those exact words.” The following exchange then occurred:

Q. What does this mean in terms of — does this mean anything good or anything bad?
A. Any input.
Q. Input with regard to whether or not it should affect your decision to adopt those children?
A. Input from a medical standpoint as to whether or not there were questions that we should ask because we knew that we’d have the chance to speak to somebody about it, so we wanted to get some feedback from him as to what kind of questions would be appropriate.
Q. But the reason you were asking the questions as to what was appropriate is so that you could ask questions so that you could determine whether or not to adopt the children?
A. That was part of a determination process, yes.

Later in the deposition, Renee Albert referred to a discussion in the initial meeting with Dr. Bunnell of her nervousness about being a new mother. She related assurances he gave her, and then testified as follows:

Q. Did he tell you what you need to do to check out the adopted child to see if the child was healthy?
A. He agreed that he would check out the children for us as per the contract5 stated.
Q. He would check them out—
A. That’s his job, because I wasn’t a medical professional. We were to see a “pediatrician” (witness gestures and indicates quotation marks) upon receiving our child and taking it to him.

Later in the deposition, in the context of relating the suggestions Dr. Bunnell made regarding questions the plaintiffs should ask of the hospital, particularly regarding the babies’ gestational age, Renee Albert testified that “I think there was an understanding between Dr. Bunnell and ourselves that we would find out if there were any risks involved with these children.” Asked why the plaintiffs brought the babies to Dr.

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Bluebook (online)
15 Mass. L. Rptr. 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albert-v-bunnell-masssuperct-2002.