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Peschong v. Children's Healthcare

United States District Court, D. Minnesota

July 14, 2017

Essie Peschong and D.P., E.P.P., and E.C.P., minors, by and through their parent and natural guardian, Essie Pechong, Plaintiffs,
Children's Healthcare, d/b/a Children's Hospitals and Clinics of Minnesota, and Alice Swenson, M.D., Defendants.

          Scott Matthew Cody, Esq., Kyle Kosieracki, Esq. and Tarhish Cody, PLC, counsel for plaintiffs.

          Jonathan P. Norrie, Esq. and Bassford Remele, counsel for defendants.


          David S. Doty, Judge United States District Court

         This matter is before the court upon the motion for judgment on the pleadings by defendants Children's Healthcare, d/b/a Children's Hospitals and Clinics of Minnesota (Children's), and Alice Swenson, M.D. Also before the court is the motion for partial summary judgment by plaintiffs Essie Peschong; D.P., a minor, by and through his parent and natural guardian, Essie Peschong; E.P.P., a minor, by and through his parent and natural guardian, Essie Peschong; and E.C.P., a minor, by and through his parent and natural guardian, Essie Peschong. Based on a review of the file, record, and proceedings herein, the court grants the motion for judgment on the pleadings and denies the motion for partial summary judgment as moot.


         This civil rights action arises out of a Child in Need of Protection or Services (CHIPS) proceeding in Hennepin County that resulted in D.P.'s seven-month placement in foster care. D.P. was born to Essie Peschong in 2004 with dysmorphic features, a bone disorder, and obstructions within his upper airway. Compl. ¶¶ 7-8. D.P. received his primary medical care from Children's from 2004 to 2007, and thereafter from Gillette Children's. Id. ¶¶ 9, 14. Providers from Children's continued to treat D.P. after the transfer to Gillette. Id. ¶ 14.

         D.P. was in and out of the hospital during his first eleven years; he was hospitalized for forty-one days, treated nine times in the emergency room, and underwent numerous surgeries, procedures, and sleep studies.[1] Id. ¶ 11. Among other ailments, D.P. suffered from persistent respiratory illness and obstructive sleep apnea. Id. ¶ 12. Over the years, D.P. used supplemental oxygen to manage his symptoms and regularly used a wheelchair. Id. ¶¶ 11-12, 20. On July 1, 2014, D.P. underwent a successful tracheostomy[2] procedure to relieve his sleep apnea. Id. ¶¶ 18-19. According to Ms. Peschong, after the procedure, D.P. rarely used supplemental oxygen or a wheelchair. Id. ¶ 20. D.P.'s ability to sleep increased dramatically, as did his behavior, school performance, and social skills. Id. ¶ 21.

         In approximately February 2015, Cindy Brady, a nurse who last provided care to D.P. in 2008, reported to Dr. Swenson, a child abuse pediatrician at Children's, that D.P. may be the victim of medical child abuse.[3] Id. ¶¶ 22-24. Specifically, Brady reported that D.P. continually used supplemental oxygen without cause and opined that a tracheostomy may not have been necessary. Id. ¶ 24. Brady asked Dr. Swenson to review D.P.'s medical records to determine whether Ms. Peschong was abusing D.P. Id. ¶ 27.

         On June 17, 2015, Dr. Swenson wrote a report concluding that Ms. Peschong “appears to be misrepresenting [D.P.'s] medical conditions in order to obtain care that [D.P.] does not need and that may, in fact, be harmful.” Id. ¶ 28; First Cody Decl. Ex. A, at 4. She noted that D.P.'s medical records indicate “a clear long-standing pattern of mother reporting symptoms that are not observed by the medical staff.” First Cody Decl. Ex. A, at 4. Dr. Swenson further noted that although D.P. does have “documented medical disorders, ” they did not warrant his ongoing use of oxygen, use of a wheelchair, or a tracheostomy. Id. Dr. Swenson recommended that D.P. “be placed in a safe environment where medical interventions can be removed as quickly as possible beginning with the most invasive interventions.” Id.

         On June 22, 2015, Dr. Swenson submitted the report to Hennepin County Child Protective Services (HCCPS). Compl. ¶ 43. HCCPS thereafter filed an ex-parte child protection petition with the Hennepin County Juvenile Court asserting that D.P. was the victim of medical child abuse by his mother. Id. ¶ 48. The petition was based exclusively on the report. Id. ¶ 49. On July 13, 2015, the juvenile court granted the petition and removed D.P. from his home and family.[4] Id. ¶¶ 61, 63; Norrie Decl. Ex. 3, at 1. HCCPS placed D.P. at Children's where he remained as an inpatient for more than a week.[5] Compl. ¶ 64. Doctors downsized D.P.'s tracheostomy tube during his hospitalization. Id. ¶ 65. Ms. Peschong was not permitted to see or communicate with D.P. during that time, nor was she aware of or involved in decisions regarding his medical care. Id. ¶¶ 64-65.

         After his release from Children's, D.P. was placed in foster care with family members. Id. ¶ 68. Although not in the complaint, the record properly before the court establishes that Ms. Peschong, who was represented by counsel, challenged the basis for the Petition throughout the proceedings. In July and August, she moved twice - both times unsuccessfully - for the juvenile court to reconsider the removal order. Norrie Decl. Ex. 3, at 1. On December 23, 2015, Ms. Peschong moved to dismiss the petition, arguing that its allegations were untrue and belied by the medical records. Id. Ms. Peschong also moved for sanctions against HCCPS for its alleged failure to reasonably investigate the matter before filing the petition. Id. at 2. The court denied both motions, concluding that there were “sufficient facts to support a juvenile protection matter under current law, and the issues raised by [Ms. Peschong] may be appropriately addressed at trial.” Id. at 4.

         On January 5, 6, and 7, 2016, the court held a bench trial on the matter. Norrie Decl. Ex. 1, at 1. Ms. Peschong was present and represented by counsel. Id. D.P. was represented by counsel, but was not present. Id. The court heard testimony from thirteen witnesses, including Dr. Swenson and several medical professionals called by Ms. Peschong, all of whom were subject to cross-examination. Id. ¶ 1.0. The court also admitted twenty-three exhibits, which included, among other documents, Dr. Swenson's report and hundreds of pages of medical records. Id. ¶¶ 2.0, 25.0-25.2.

         The court carefully assessed each witness's credibility. Id. ¶¶ 11.0-24.0. As to Dr. Swenson, the court determined that her testimony was credible “in all respects.” Id. ¶ 15.0. The court specifically noted that Dr. Swenson was “knowledgeable about the facts of this matter, ” her demeanor was “forthcoming and earnest, ” and her “answers were thoughtful and her testimony was persuasive.” Id. The court gave “significant weight” to her testimony. Id. In contrast, the court concluded that Ms. Peschong was a “poor historian - particularly regarding the child's medical history” and gave little weight to her testimony. Id. ¶ 21.0. The court also gave little weight to the medical professionals called by Ms. Peschong because they lacked comprehensive knowledge of D.P.'s medical history. Id. ¶¶ 16.0, 17.0, 18.0, 19.0, 20.0.

         On February 5, 2016, after weighing the evidence and after the parties had the opportunity to submit post-trial briefing, the court concluded that D.P. was a victim of medical child abuse:

Respondent has subjected the child to numerous unnecessary medical procedures and interventions, and as a result the child is without the required care for the child's physical and mental health. Respondent mother has not corrected the situation that led to the child's removal from the home, and has demonstrated an inability or unwillingness to provide the child with only medically necessary care. Thus, the child is in need of protection or services.

Id. at 21 ¶¶ 1.0, 1.1; see also id. ¶¶ 27.0-39.4. The court ordered legal custody of D.P. transferred to HCCPS for continued foster care placement in a third-party non-relative home.[6] Id. at 21 ¶ 2.0. The court also ordered Ms. Peschong to complete a case plan, which required her to participate in individual and family therapy, follow all recommendations of D.P.'s medical providers, ensure that D.P. has one primary care provider, maintain safe and suitable housing, and cooperate with HCCPS and the appointed Guardian ad Litem. Id. ¶¶ 3.0-3.5.

         Ms. Peschong immediately appealed, arguing, in part, that Dr. Swenson's report and testimony were “ill-informed” because she did not (1) review all of D.P.'s medical records, (2) speak to D.P.'s specialists, (3) examine D.P., or (4) interview Ms. Peschong. Second Norrie Decl. Ex. 8, at 40. Ms. Peschong further argued that the report and Dr. Swenson's testimony were “riddled with errors” and that Dr. Swenson “either exaggerated her study of D.P.'s medical records or knowingly misrepresented their contents.” Id. at 41. The Minnesota Court of Appeals affirmed the lower court and in doing so ...

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