(CN) – Penn State doctors improperly withheld emails related to a baby they deemed had been abused when she had in fact presented with rickets and a stroke, a federal magistrate ruled.
Jamel Billups and Jacqueline Rosario said the drama started when their 4-month-old daughter, referred to in court documents as L.B., was brought to the Penn State Milton S. Hershey Medical Center with difficulty breathing, an intracranial hemorrhage, and 16 rib fractures on Oct. 19, 2009.
Though Billups and Rosario said L.B. had had congenital rickets and had just suffered a childhood stroke, doctors instead suspected the black couple of child abuse.
Franklin County child services then allegedly seized L.B. and her 2-year-old brother, T.R., and sent them to foster homes. Billups was jailed 414 days after the county brought him up on criminal charges of which he was ultimately acquitted.
Billips and Rosario said Penn State’s Child Safety Team knew that Vitamin D deficiency can lead to rickets and weak bones in African Americans, but that they failed to order a blood test of L.B. or her mother for abnormal clotting factors or vitamin D deficiency.
After Chief U.S. District Judge Yvette Kane dismissed most of the family’s claims last year, there are just two social workers, three doctors and Franklin County remaining as defendants from the original complaint that the couple filed in 2011.
The Child Safety Team doctors – co-directors Mark Dias and Kathryn Crowell, as well as pediatric neuroradiology department director Arabinda Choudury – face claims that they violated the parents’ due process rights in certifying that “all potential non-traumatic causes for L.B.’s injuries had been investigated and ruled out,” Kane noted.
During discovery, the doctors produced about 1,000 pages of medical records but not a single email from their accounts about L.B.
Billips and Rosario moved to compel when the doctors gave them some emails and a privilege log earlier this year. The motion concerns documents identified in the log and demanded in 13 discovery requests, which involve communications between the doctors and their attorneys, the Franklin County District Attorney’s Office and the Attorney General Legal Advisory Board on Child Abuse. The board and the office are not parties to the litigation and asked the doctors to withhold the files.
U.S. Magistrate Judge Thomas Blewitt found last week that doctors, described in the court record as the Hershey defendants, can claim work-product privilege over some emails.
“There is no dispute that the instant civil action is related to the prior criminal proceedings against Mr. Billups, and, as such, the correspondence exchanged between the Franklin County District Attorney and the Hershey defendants containing the opinions and legal theories of the prosecutor are subject to work product protection in this action,” Blewitt wrote. “Furthermore, plaintiffs fail to argue that they have a substantial need for the materials to prepare their case and cannot, without undue hardship, obtain the substantial equivalent by other means.”
Blewitt did, however, order the doctors to cough up their correspondence with the child abuse advisory board.
“The Hershey defendants assert that the disputed documents have been withheld from plaintiffs because they contain the mental impressions, conclusions, and opinions of the defendant doctors as they relate to their preparation for a meeting with the Attorney General Legal Advisory Board, and assert that they have been deemed confidential by the board,” Blewitt wrote. “Hershey defendants have not, however, expressly identified a federally recognized evidentiary privilege protecting these documents from disclosure.”
Blewitt gave the doctors 14 days to come forward with such a privilege, move for a protective order or produce the records.
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