School-Malpractice Theory Rejected By N.Y. Court
New York State's highest court, ruling on two cases in which children were allegedly misdiagnosed as retarded, last month rejected in one case the concept of "educational malpractice" as legal grounds on which to redress such plaintiffs' grievances against public agencies.
In the other case, however, it found that the misdiagnosis by a public institution of a deaf boy as retarded constituted "medical malpractice."
Since the first widely publicized case in which a claim of educational malpractice was made--a 1976 California suit brought by a high-school graduate who charged he was illiterate--state courts, including New York's, have continued to turn away the idea that any ill effects of education can be defined to be the result of "malpractice" by educators.
But lawyers who have watched or been involved in the New York cases say the court's willingness to concede medical malpractice in the highly prescriptive realm of special education marks a narrow distinction between the two concepts that other cases are likely to test again. And they note that the prescriptive nature of regulations in the current school-reform movement could pave the way for suits arguing that schools did not carry out reform requirements. (See accompanying story on this page.)
In the first New York case, Torres v. Little Flower Children's Services, the New York Court of Appeals rejected, by a 4-3 decision, the claim of a Spanish-speaking student that he was illiterate because he had been misdiagnosed as retarded while in the care of a city agency. The plaintiff sought more than $2 million in damages from the city's social-services department and the institu3tion in which he had lived as a young child.
Lawyers for Mr. Torres brought their claim on the grounds that the city agencies had failed to carry out their statutory requirement to provide him with an appropriate education. They did not charge the agency with educational malpractice. But lawyers for the city introduced the concept, contending that the plaintiffs' charge amounted to an unprovable claim of educational malpractice.
Lower Court's Decision Upheld
Upholding a lower court's decision, the high court said that previous state-court rulings agree that educational malpractice is not grounds for a lawsuit, holding that as a matter of public policy "the courts would not second-guess the professional judgments of public-school educators and administrators in selecting programs for particular students."
However, in the second case, Snow v. The State of New York, in which a deaf child was improperly placed in a class for the retarded, the high court affirmed a lower court's ruling that the claim was based on medical, rather than educational, malpractice. The plaintiff, Donald Snow, was awarded $1.5 million.
The Snow case will not be appealed, but lawyers for Mr. Torres said last week that they were weighing an appeal to the U.S. Supreme Court on due-process grounds.
Frank Torres, now 27, was abandoned by his mother when he was seven years old, court records indicate. The New York City Department of Social Services assumed responsibility for his care and placed him with the Little Flower Children's Services, an authorized child-care agency.
The agency agreed to provide him with basic care and education as needed. When Mr. Torres came to Little Flower, he was fluent in Spanish but spoke no English. He was enrolled in a public school operated by the New York City Board of Education on the agency's grounds.
According to Marcia Lowry, the lawyer for Mr. Torres, "While Little Flower and the city department of social services knew of Frank Torres's language problem, they took no steps to compensate for his lack of familiarity with English." Mr. Torres said he began to understand English "around the 3rd grade."
Ms. Lowry said Little Flower determined that Mr. Torres suffered from borderline retardation, based on tests administered in English, but kept him in a regular class with a lighter workload. In his deposition, Mr. Torres said he turned in all his classwork with only his name and the date on the assignments, and "teachers would usually tell me to go to the back of the classroom to go to sleep because I could not read or write."
Although Mr. Torres was illiterate, he was capable of doing mathematics at a normal level. According to court documents, it was not until the 8th grade, at the age of 14, that the student was seen by a reading specialist, who administered a series of tests.
According to the court's majority opinion, the reading specialist de-termined that Mr. Torres was not retarded, but suffered from an "extremely complex reading disability" and outlined a remedial approach for the student. Mr. Torres subsequently had tutors but graduated from the 8th grade unable to read.
He continued with a tutor after the 8th grade but stopped attending sessions because they were held 45 minutes away and no transportation was provided. Mr. Torres remains functionally illiterate, according to his lawyers.
Suit Against 'Parents'
Ms. Lowry said that in previous educational-malpractice cases, the courts have ruled that a student or a student's parent can address problems through administrative procedures.
She argued that in Mr. Torres's case, since he was abandoned as a child, the suit was not against the educators but the agencies that acted as his parents--the department of social services and the Little Flower Children's Services--for failing to carry out their state-mandated duties.
However, the court of appeals agreed with the lower-court finding, that, in fact, the Torres case was one of educational malpractice.
"What is at the root of the policy enunciated in [previous cases] is not the identity of the defendant, but the nature of the determination courts would be called upon to make," the majority ruled. "The policy is equally applicable whether the student challenges educational decisions made by the board of education or by his guardians in response to actions taken by school officials, for in either situation the court would be thrust into the positions of reviewing the wisdom of the educators' choices and evaluations.
"Here, for example, [Torres's] allegations would require the courts to assess the nature of his difficulty in learning, including such elusive factors as his own attitude, motivation, temperament, past experience, and home environment to examine board of education policies and their implementation by school officials--the very role we have already declined to assume--and then in addition to determine whether the guardians' responses to these policies and decisions constituted negligence," the majority opinion continued.
Karen Hutson, the lawyer in the case for the department of social services, said the issues in the Torres case were the same as those rejected in earlier educational-malpractice suits. "We're still talking about educational decisions," she said. "The focus of the complaint was still that the wrong educational decisions were made."
Ms. Hutson said that, on the basis of the record, she cannot determine if the correct educational decisions were, in fact, made for Frank Torres.
However, in a sharp dissenting opinion, three judges stated that Mr. Torres faced the same problem as Donald Snow, in that he was misdiagnosed, and should have received similar compensation.
Donald Snow, now 22, was institutionalized at the age of two, first at the Brunswick Home for Mental Defectives, then at the Willowbrook State School. Despite the fact that notations on the medical records at Willowbrook indicated the boy's hearing ability was questionable, he was administered an iq test for hearing children and received a score of 24, according to court documents.
On the basis of the low score, it was determined that the boy was not suitable for a trainable and educable program.
At the age of 5, he was enrolled in a speech class. At that point, his teacher, who was aware he was deaf, labeled him a "very bright child" who would "learn quickly." However, he was not intellectually re-evaluated until four years later and remained institutionalized with severely retarded patients.
Although the state argued that Donald Snow's case was a matter of educational, not medical, malpractice, the New York Court of Claims, which originally heard the case, disagreed. It determined that sound medical judgment was not used, first in the incorrect evaluation of Mr. Snow, then in the failure to re-evaluate him. The court said, "It is clear that the malpractice which was committed was not one of educational malpractice, but rather medical malpractice. The finding is substantiated by the very nature of the Willowbrook State School. The patients receive continuous medical treatment, as well as psychological treatment."
The court also noted that Mr. Snow's school record was actually a medical record, and that payment of the boy's treatment was made under his father's medical plan.
The case was appealed to the appellate division, where it was upheld, and then appealed to New York's high court, which upheld the appellate decision without issuing a separate opinion, but lowered the amount of damages awarded Mr. Snow from $2.5 million to $1.5 million.
Torres, Snow Compared
The majority opinion in the Torres case differentiated that case from the Snow case, stating that "while mistaken evaluations are central to both Snow and Torres, such factors as age of the child upon entry, nature of the institution and kind of care administered mark the difference between medical- and educational-malpractice claims."
However, in the dissenting opinion, the three judges argued that "[e]ducational malpractice is no more involved in Frank Torres's illiteracy than it was in Donald Snow's stunted intellectual growth."
The dissenting opinion stated that while in the Snow case, "the action has been held maintainable because predicated on medical, rather than educational, malpractice; in like manner, Torres's claim should be held maintainable because based on custodial, rather than educational, breach of duty."
'Not As Obviously Horrible'
Mr. Torres's lawyer, Ms. Lowry agreed: "The same reasoning that applied in Snow applies in Torres. Frank Torres was misdiagnosed by an agency psychiatrist, not by educators. Donald Snow was put in an institution, Frank Torres was in an institution," she said. "Maybe it is easier for the court to understand a physical infirmity than an infirmity like language.
"One can sympathize very strongly with someone being put into Willowbrook; what happened to Frank Torres was not as obviously horrible," she continued. "Maybe the judges responded on an emotional level, but it is very hard to understand the analytic differences between the cases."
Robert Ellis, the lawyer for Donald Snow, said that educational malpractice turns on "the nature of the defendant rather than the plaintiff."
"The courts have broadened the concept of educational malpractice [in one earlier case] and in Torres," he said, to the degree that they have succeeded in "denying people access to the courts, because of the nature of the institution; if it had been done in prison, in the army, in any private encounter, it would be actionable."