Roe No.1 v.

Childrens Hospital: The Scope

of Hospital Liability and Extending the
Duty of Care in Cases of Child Abuse

CHANAL MCCAIN

INTRODUCTION

N
egligence liability within tort law is constantly evolving based on
new social attitudes, technology, and policies.1 Accountability in
negligence cases is often fact-specific, with courts and states
agreeing that there are certain classes of people that should generally be
protected.2 This includes the protection of children from abusive
professionals.3 The medical community plays a vital role in handling
matters of suspected abuse.4 Medical providers are often placed in the
position to investigate and report abuse involving children.5 There are laws
and policies in place to protect children, including mandated reporter
statutes, physician and hospital licensing requirements, and expectations
that hospitals conduct swift and accurate investigations of alleged abuse.6
In 2014, the Massachusetts Supreme Judicial Court (SJC) heard Roe No. 1 v.
Childrens Hospital, which involved child abuse by a pediatric physician,
and held that a Boston hospital owed no duty of care to the North Carolina

J.D. Candidate, 2017. Bachelor of Arts, cum laude, Political Science and African American
Studies, University of South Carolina (2014). I would like to thank my family and friends for
their unwavering love and support. I would also like to thank the members of the New
England Law Review for providing advice, edits, and support throughout this process.
1 See Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067, 1070 (Mass. 1989).
2 See infra Part I.C.
3 See infra Part I.BC.
4 See infra Part I.BC.

5 See infra Part I.BC.

6 See infra Part I.B.

52
2017 Roe No. 1 v. Childrens Hospital 53

patients of a former Childrens Hospital employee who left to work in

North Carolina amid accusations of abuse in Boston.7
This Comment will argue that the SJC erred when it declined to
recognize a duty of care owed to the North Carolina patients. Part I will
provide background information regarding negligence law, hospital and
physician licensure, the medical communitys role and influence in society,
and mandated reporter statutes. Part II provides a deeper explanation of
the SJCs opinion, including arguments made by the North Carolina
plaintiffs and Childrens Hospital. Part III will argue that Childrens
Hospitals failure to adhere to mandatory reporter statutes and report the
findings of any investigations should expose them to civil liability. Part
IV.A will argue that the Court should have considered the position of the
medical profession as a national system, and extended the duty of care in
light of the factual circumstances of this case. Part IV.B will argue that
society expects medical providers to be competent and protect patients
from abusive employees. Finally, Part IV.C will argue that it is antithetical
to a fundamental negligence conceptnamely, negligence in hiringif we
do not hold hospitals that fail to report abuse liable in situations where
subsequent hospitals cannot make an informed decision on whether to hire
a potential employee.

I. Background

A. The Scope of the Duty of Care

In an action for negligence, a plaintiff must show that the defendant

owed the plaintiff a duty of care and that the defendant breached that duty
of care.8 A duty may be breached by an act or omission, and [t]here can be
no negligence where there is not duty.9 The duty owed and the level of
negligence the plaintiff must prove is related to the status and
relationship of the parties.10 To determine whether the law provides that a
duty of care is owed in certain situations, courts must look to existing
social values and customs, and to appropriate social policy.11

7 See Roe No. 1 v. Childrens Hosp. Med. Ctr., 16 N.E.3d 1044, 104849 (Mass. 2014); infra

Part II.
8 See 1 MARC G. PERLIN & DAVALENE COOPER, MASSACHUSETTS PROOF OF CASES CIVIL 23:4

(2015).
9
Id. (quoting Karlowski v. Kissock, 175 N.E. 500, 502 (Mass. 1931)).
10
17 RICHARD W. BISHOP & THOMAS B. MERRITT, MASSACHUSETTS PRACTICE SERIES 18.1
(2015).
11 Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067, 1070 (Mass. 1989). See PERLIN

& COOPER, supra note 8, 23:4.

54 New England Law Review On Remand Vol. 51 | 52

A duty of reasonable care is also owed to third parties if the actor has a
special relationship with the individual who poses a risk.12 A relationship
that is included in this paradigm is an employer with employees when the
employment facilitates the employees causing harm to third parties.13
Hospitals and other employers may be sued for the negligent hiring of
physicians or other employees if they negligently employed someone who
could, within the scope of employment, harm others.14 The employer must
have a reason to believe the employee or potential employee is unfit.15 In
Juarez v. Boy Scouts of Am., Inc., a negligence case against the Boy Scouts of
America from California, the Court of Appeal held that the Boy Scouts
could not be held liable for negligent hiring because they were not aware of
an abusers past history.16 There, the Boy Scouts did not have any
information that would lead them to believe that the employee in question
had a propensity to molest children.17 Thus, one of the factors courts
consider regarding whether an employer was negligent in hiring is
knowledge of a potential employees history, including facts that are
potentially uncovered during the hiring and vetting process.18

B. Hospital Organization, Licensure, and Mandatory Reporter Statutes

The Joint Commission on Accreditation of Hospitals (JCAH) accredits

some hospitals, and requires those hospitals to comply with JCAH
recommended policies and procedures.19 JCAHs mission is to
continuously improve health care for the public . . . by evaluating health
care organizations and inspiring them to excel in providing safe and
effective care of the highest quality and value.20 An inquiry into
professional background, including involvement in malpractice litigation
and reprimands at a prior facility, is important when determining whether
someone should be employed at a particular hospital.21 JCAH recommends

12 RESTATEMENT (THIRD) OF TORTS 41 (2012).

13 Id. at 40. See generally id. 40 cmt. e (The duty provided . . . encompasses the
employers duty to exercise reasonable care in the hiring, training, supervision, and retention
of employees.).
14 See JAMES T. OREILLY ET AL., A PRACTITIONERS GUIDE TO HOSPITAL LIABILITY 257 (2011).
15 Juarez v. Boy Scouts of Am., Inc., 97 Cal. Rptr. 2d 12, 2425 (2000).
16 Id. at 24.
17 Id.

18 Id. at 2425 (explaining that an employer could be held liable for negligent hiring if the

employer has reason to know the employee is unfit).

19 MARGARET C. JASPER, HOSPITAL LIABILITY LAW 1 (1999).
20 About the Joint Commission, JOINT COMMISSION, http://www.jointcommission.org/about_
us/about_the_joint_commission_main.aspx [https://perma.cc/3GZR-VYAN] (last visited Aug.
15, 2016).
21 See JASPER, supra note 19, at 2.
2017 Roe No. 1 v. Childrens Hospital 55

hospitals verify qualifications of physicians by determining whether there

was a [l]oss of medical staff membership or clinical privileges at another
hospital.22 In addition to national accreditation, state statutes mandate and
determine how hospitals are licensed in Massachusetts.23
Hospitals are required to report to the Massachusetts Board of
Registration in Medicine (Massachusetts Board) any disciplinary action
taken against physicians for misconduct.24 The Massachusetts Board has
statutory power to handle matters related to medical licensure and
practice,25 and some of the Boards records are available to the public.26
If the licensing authority in another jurisdiction disciplined a
physician, that conduct and disposition may be grounds for a complaint
under Massachusetts law.27 The state system creates a central location for
hospitals to report misconduct, and inquire into a physicians background,
competence, and reliability.28
In addition to reporting misconduct to licensing agencies, states have
passed mandatory reporter laws in response to the failure of medical
professionals to report child abuse in spite of the harmful and lasting
effects on survivors.29 In Massachusetts, mandated reporter statutes impose
on medical personnel and medical facilities a duty to report suspected
abuse.30 If the personnel included within the mandate suspect abuse, they
are required to report the suspected abuse to the Department of Children
and Families.31 There are criminal penalties for mandated reporters who
knowingly violate the statute, and the statutes do not explicitly bar civil
liability for someone who fails to report.32 In addition, some states and

22 Id. at 7.
23 See MASS. GEN. LAWS ANN. ch. 111, 51 (West 2016).
24 See id. at 53B.

25 See 243 MASS. CODE REGS. 1.01 (2016) (citing MASS. GEN. LAWS ch. 112, 29B (2015)).

26 See 243 MASS. CODE REGS. 1.02(8)(a) (2016) (citing MASS. GEN. LAWS ch. 66, 10 (2016) and

MASS. GEN. LAWS ch. 4, 7 (2016)).

27 See 243 MASS. CODE REGS. 1.03(5)(a)(12) (2016).

28 See supra Part I.B. See generally American Academy of Pediatrics, Policy Statement

Protecting Children From Sexual Abuse by Health Care Providers, 128 PEDIATRICS 407, 414 (2011),
http://pediatrics.aappublications.org/content/pediatrics/128/2/407.full.pdf [https://perma.cc/
5BZF-424V] [hereinafter AAP Policy Statement] (outlining actions that healthcare providers
should take to prevent sexual abuse).
29 See Douglas J. Besharov, The Legal Aspects of Reporting Known and Suspected Child Abuse

and Neglect, 23 VILL. L. REV. 458, 46465 (1978).

30 See MASS. GEN. LAWS ANN. ch. 119, 21 (2016) (defining the classes of people and
institutions that qualify as mandated reporters); MASS. GEN. LAWS ANN. ch. 119, 51A (2016).
31 See MASS. GEN. LAWS ANN. ch. 119, 51A (West 2016); see also id. at 21 (defining the

Department as the Department of Children and Families).

32 See id. at 51A(c) (2016); see generally Ham v. Hosp. of Morristown, Inc., 917 F. Supp. 531,
56 New England Law Review On Remand Vol. 51 | 52

courts have expressly imposed or found civil liability for mandated

reporters that have failed to report suspected child abuse.33

C. Integrity and Moral Responsibilities of the Medical Profession

The medical profession has a responsibility to serve the community in

accordance with high moral standards.34 The American Academy of
Pediatrics (AAP) issued a policy statement in 2011 addressing child sexual
abuse by health care providers.35 From a preventative standpoint, AAP
recommends that medical staff be screened for past allegations of abusive
behavior with children.36 Critics argue, however, that this is not sufficient
because it is estimated that less than one percent of child molesters have
criminal records.37 AAP stressed the importance of bringing allegations of
abuse to a physicians supervisor.38 If there is reasonable cause to believe
that a child has been abused, hospitals are legally obligated to report such
abuse to child protective services and/or the police.39 In addition to steps
caretakers can take to protect children, the AAP suggests that medical
institutions carefully screen physicians during the recruitment-and-hiring
process.40 Overall, the AAP has provided information to medical
institutions and professionals that helps recognize warning signs, and
explains the duties owed when a potential problem arises.41 As previously
explained, hospitals in Massachusetts are licensed by the state and

53637 (E. D. Tenn. 1995) (holding that a Tennessee mandatory reporter statute is a criminal
statute only if someone knowingly fails to report, but absent of knowingly failing to report,
there is an affirmative duty to report and the statute does not preclude civil liability).
33 E.g., N.Y. SOC. SERV. LAW ch. 55, tit. 6, 420 (McKinney 2016); R.I. GEN. LAWS ch. 40-11,

40-11-6.1 (2016); Landeros v. Flood, 551 P.2d 389, 392, 394 (Cal. 1976); Kimberly S.M. by
Mariann D.B. v. Bradford Cent. School, 649 N.Y.S.2d 588, 59192 (N.Y. App. Div. 1996); Steven
J. Singley, Failure to Report Suspected Child Abuse: Civil Liability of Mandated Reporters, 19 J. JUV.
L. 236, 247 (1998) (explaining how some states and courts have specifically allowed or
interpreted mandated reporter statutes to include civil liability if the failure to report resulted
in continued injury).
34 See Forziati v. Bd. of Registration in Med., 128 N.E.2d 789, 791 (Mass. 1955).
35 See AAP Policy Statement, supra note 28, at 407.
36 Id. at 411.

37 See id. at 411.

38 See id. at 412.

39 Id. at 412.
40 See id. at 411.

41 See supra Part I.C; AAP Policy Statement, supra note 28, at 411 (detailing warning signs of

abuse); see also David Abel, Pediatricians Suicide Soothes No Wounds, BOS. GLOBE (Feb. 25, 2011),
http://www.boston.com/news/local/massachusetts/articles/2011/02/25/pediatricians_suicide_s
oothes_no_wounds/?page=full [https://perma.cc/4S6G-PZHT] (explaining the stories of a few
of Levines alleged victims, including one young man who says that Levine paid particular
attention to him and took him on trips where the alleged abuse occurred).
2017 Roe No. 1 v. Childrens Hospital 57

accredited by JCAH.42 Hospital personnel have specific responsibilities

when dealing with cases of suspected child abuse, and play a vital role in
subsequent investigations.43

II. Courts Opinion

A. Factual Background of the Case

In 1966, Childrens Hospital hired pediatrician Melvin Levine, where

he practiced until 1985.44 Thereafter he moved to North Carolina, received
a license to practice medicine, and began working as a pediatrician at the
University of North Carolina School of Medicine (UNC).45 Levine was
employed by UNC until 2009, when he resigned and surrendered his
license to practice medicine due to allegations of sexual abuse from some of
his patients.46
Plaintiffs were former patients of Levine at UNC.47 They sued
Childrens Hospital, alleging that Childrens Hospital failed to properly
train, supervise, or discipline Levine during his employment at Childrens
Hospital.48 They further alleged that Childrens Hospital knew or should
have known of Levines abuse when he was employed with it, and it
failed to properly address it.49 Plaintiffs claimed that due to Childrens
Hospitals negligence, Levine was able to move to North Carolina, become
licensed, and continued his abuse of patients.50
The plaintiffs alleged that, in 1967, a patients mother informed
Childrens Hospital of abuse that her son suffered by Levine.51 The
plaintiffs also claimed to have knowledge of other instances where patients
may have informed Childrens Hospital of sexual abuse.52 Childrens
Hospital responded by claiming the abuse occurred between 1978 and
1984, and Levine was no longer employed with them.53 Regardless,

42 See supra Part I.B.

43 See MASS. GEN. LAWS ANN. ch 119, 51A(b) (West 2016).
44 Roe No. 1 v. Childrens Hosp. Med. Ctr., 16 N.E.3d 1044, 1046 (Mass. 2014).

45 Id.
46 Id.

47 Id.
48 Id.

49 Id.
50 Roe No. 1, 16 N.E.3d at 1046.

51 Id.
52 Id. The plaintiffs complaint also included sexual abuse cases brought against Levine

after he left Childrens Hospital. Id. at 1047.

53 See id. at 1047.
58 New England Law Review On Remand Vol. 51 | 52

plaintiffs in Roe No. 1 maintained that there were additional suits against
Levine claiming abuse while he worked at Childrens Hospital.54

B. Procedural History and the Courts Refusal to Extend the Duty of

Care

The issue in Roe No. 1 was whether Childrens Hospital owed a legal
duty of reasonable care to the UNC plaintiffs.55 Childrens Hospital moved
to dismiss the complaint for failure to state a claim.56 Childrens Hospital
contended that it did not owe the plaintiffs a duty of care because the
alleged abuse occurred after Levine left Childrens Hospital and began
work in another hospital.57 Plaintiffs moved to amend their complaint to
argue that Childrens Hospital owed them a duty of care due to a special
relationship the hospital had with Levine, and that the hospital knew he
posed a foreseeable risk of harm to future patients.58 The Superior Court
allowed Childrens Hospitals motion to dismiss and denied plaintiffs
motion to amend.59 The judge concluded that Childrens Hospital did not
owe a duty of care to the plaintiffs because the alleged abuse occurred
when the hospital no longer employed Levine.60 The court did not want
employers to be potentially liable for future abuse by former employees of
unknown people around the country.61
The SJC agreed with the Superior Courts decision to dismiss the
complaint.62 Childrens Hospital had a duty to supervise and monitor
Levine while he was there, and owed a duty of reasonable care to his
patients at Childrens Hospital, but it did not owe the same duty to future
patients at another hospital.63 The Court reasoned that the geographic and
temporal breadth of the duty plaintiffs seek to impose reaches too
far . . . .64 The future parties are unknown and the hospital would no
longer be able to supervise, monitor, or discipline the former employee.65

54 Id. Childrens Hospital was not a party to any of these suits. Id. at 1047 n.6.
55 Roe No. 1, 16 N.E.3d at 1047.
56 Id.
57 Id.

58 Id.

59 Id.

60 Id.
61 Roe No. 1, 16 N.E.3d at 1047.
62 See id. at 1053.

63 See id. at 104849.

64 Id. at 1049.
65 See id. The Court did not address whether Childrens Hospital was obligated to inform

UNC of the allegations if UNC inquired because plaintiffs did not allege any type of inquiry
or misrepresentation occurred. See id. at 1050.
2017 Roe No. 1 v. Childrens Hospital 59

The court also declined to recognize a special relationship that would

give rise to a legally cognizable duty of care.66 Such relationships only exist
where the defendant could reasonably know that failure to take action in a
particular situation could cause harm to a clearly defined class of
plaintiffs.67 The Court was also not convinced by the plaintiffs
contentions that the medical community had a self-imposed duty of care,
that there is a statutorily imposed duty of care, or that public policy
requires a recognition of such a duty of care.68

ANALYSIS

III. The Court Failed to Properly Take into Account the Medical
Communitys Reliance on Mandatory Reporting and Other Statutes
to Monitor Employee Conduct and Protect Patients from Abuse

A. Childrens Hospital Failed to Adhere to Mandatory Reporting

Statutes That Are in Place to Protect Children from Abuse

The Court here failed to properly analyze the extent of Childrens

Hospitals responsibilities under mandatory reporter statutes.69 When the
families of the children in Massachusetts initially reported the abuse, the
hospital had a duty to investigate and report its findings.70 The hospital did
neither, which resulted in Levines continued abuse.71 Adhering to
Massachusetts law is important, and even if the hospital was not convinced
by the allegations, the law would have protected the hospital against civil
suit if the allegations turned out to be unsubstantiated.72 The hospital knew
of Levines alleged abuse as early as 1967, and did not follow any of the
necessary steps to investigate and protect Levines future patients.73 While

66 Id. at 1050.
67 Roe No. 1, 16 N.E.3d at 1050.
68 See id. at 1051.

69 See Besharov, supra note 29.

70 See MASS. GEN. LAWS ANN. ch. 119, 21 (West 2016) (defining the classes of people and

institutions that qualify a mandated reporters); MASS. GEN. LAWS ANN. ch. 119, 51A (West
2016).
71 See generally MASS. GEN. LAWS ANN. ch. 119, 21 (West 2016) (Childrens Hospitals

failure to abide by the mandatory reporter statute led to Levines continued abuse).
72 See id. at 51A; id. at 21.

73 See MASS. GEN. LAWS ANN. ch. 119, 51A (West 2016); Roe No. 1 v. Childrens Hosp.

Med. Ctr., 16 N.E.3d 1044, 104647 (Mass. 2014) (noting that the plaintiffs alleged that the
mother of a patient informed the hospital that Levine abused her son during an examination).
Any person who becomes aware of alleged abuse may also report the allegations to the
institution that employs him or her if the institution has a representative responsible for
60 New England Law Review On Remand Vol. 51 | 52

the Court was aware of Childrens Hospitals failure to adhere to statutory

requirements, it still did not allow the plaintiffs any further opportunity to
explain the special relationship that Childrens Hospital had with the
UNC patients.74 The Court wrote that, [t]he mere existence of a statute or
regulation does not automatically give rise to a legal duty for the purpose
of a negligence action.75 While this may be true, some jurisdictions have
specifically held that medical institutions may be held civilly liable for
failing to respond to allegations of abuse as outlined in mandated reporter
statutes.76 The Massachusetts courts should follow this reasoning.77

B. Childrens Hospital Should Be Subject to Civil Liability for Its

Failure to Report Levines Alleged Abuse

Some states hold mandated reporters civilly liable for failure to report
abuse.78 Even if the existence of mandatory reporter statutes does not
irrefutably impose a duty of care on the Childrens Hospital to protect the
UNC patients, these laws are important when analyzing the community
standards of care that are expected from medical facilities.79 The
Massachusetts statutes do not explicitly allow for civil liability for violating
mandatory reporter statutes, but an argument can be made that it is
implied.80 The courts could hold Childrens Hospital civilly liable for
negligence if it did not protect Levines patients while he was an employee
there.81 Furthermore, the UNC patients had a compelling argument that the

notifying the Department of Children and Families. MASS. GEN. LAWS ANN. ch. 119, 51A(f)
(West 2016).
74 See Roe No. 1, 16 N.E.3d at 1047.
75 Id. at 1052.
76 Compare MASS. GEN. LAWS ANN. ch. 119, 51A (West 2016) (declining to indicate whether

civil liability is appropriate in case of violation of the statute), with Ham v. Hosp. of
Morristown, Inc., 917 F. Supp. 531, 537 (E.D. Tenn. 1995) ([W]hile the court acknowledges
that the defendants have raised many forceful arguments . . . the court concludes that these
arguments do not circumvent [that] . . . the reporting statute creates a legal obligation to
report suspected brutality, neglect, or physical or sexual abuse of children . . . .).
77 See Ham, 917 F. Supp. at 537.
78 See N.Y. SOC. SERV. LAW ch. 55, tit. 6, 420 (McKinney 2016); R.I. GEN. LAWS ANN. ch. 40-

11, 40-11-6.1 (West 2016).

79 See Lev v. Beverly Enterprises-Massachusetts, Inc., 929 N.E.2d 303, 313 (Mass. 2010)
(explaining how violations of statutes do not create a duty to the plaintiff if a duty does not
already exist, but the violations are relevant when there is an allegation of negligence).
80 See MASS. GEN. LAWS ANN. ch. 119, 51A (West 2016); Landeros v. Flood, 551 P.2d 389,

394 (Cal. 1976); Kimberly S.M. by Mariann D.B. v. Bradford Cent. School, 649 N.Y.S.2d 588,
58990 (N.Y. App. Div. 1996); see generally Ham v. Hosp. of Morristown, Inc., 917 F. Supp. 531,
53637 (E.D. Tenn. 1995) (holding that the mandatory reporter statute creates a legal
obligation and failure to report gives rise to civil liability).
81 See RESTATEMENT (THIRD) OF TORTS 40 cmt. e (2012).
2017 Roe No. 1 v. Childrens Hospital 61

negligence extends to them as future patients within the medical

profession.82
Kimberly S.M. by Mariann D.B. v. Bradford Cent. School, a case from New
York, highlights the medical communitys expectation that medical
personnel will protect third-party patients from abuse, a principle that is
applicable in this case.83 Childrens Hospital neglected to fulfill its
obligation to report Levine, and, in turn, did not report any subsequent
disciplinary action that it took against Levine.84 That report to the
Massachusetts Board likely could have prevented Levine from moving and
becoming licensed at a different hospital.85 Furthermore, the mandatory
reporter statutes do not expressly or impliedly create a selective
application only to situations involving abuse committed by individuals
outside the medical facility, and Childrens Hospital had a duty to
investigate any allegations that it had received.86 These statutes have the
same application regardless of whether it is Childrens Hospital learning of
abuse committed by a physician-employee, or learning of abuse committed
by a parent or family member of a child.87

IV. The Duty of Care is Not a Stagnant Legal Concept and the Court Had
the Opportunity to Extend It in Light of the Growing
Responsibilities and Influence of the Medical Profession

A. The Court Did Not Fully Consider That State Medical Boards and
Licensing Agencies Are Part of a National System

Medical boards have the significant responsibility to protect the

public.88 The Court did not consider the historical and present
responsibilities of the medical profession and the implications the
profession and the licensing process have on society.89 The UNC hospital

82 See id.; Roe No. 1 v. Childrens Hosp. Med. Ctr., 16 N.E.3d 1044, 1047 (Mass. 2014)

(arguing that Childrens Hospital knew or should have known that Levine posed a
foreseeable risk of harm to future patients).
83 See Kimberly, 649 N.Y.S.2d at 58990; Landeros, 551 P.2d at 394.
84 See MASS. GEN. LAWS ANN. ch. 111, 53B (West 2016).
85 See James N. Thompson & Lisa A. Robin, State Medical Boards, 33 J. LEGAL MED. 93, 99100

(2012) (Most states have requirements that entities such as hospitals, managed care
organizations, and liability insurers must report disciplinary actions . . . It is important for the
boards to have the authority to enforce such reporting requirements.).
86 See MASS. GEN. LAWS ANN. ch. 119, 51A (West 2016).
87 See id.
88 Thompson & Robin, supra note 85, at 96. See supra Part I.B.
89 See Thompson & Robin, supra note 85, at 95 (quoting Dent v. W. Va., 129 U.S. 114, 122

(1889)). See generally Federation of State Medical Boards, U.S. Medical Regulatory Trends and
Actions at 67 (May 2014), https://www.fsmb.org/Media/Default/PDF/FSMB/Publications/
62 New England Law Review On Remand Vol. 51 | 52

and parents of Levines patients most likely relied on his medical license
and reputation when deciding to place their children under his care.90 If the
North Carolina licensing board received reliable information when it
inquired about Levines licensure in Massachusetts, it could have made a
more informed decision regarding whether to license him to practice in the
state.91 The Federation of State Medical Boards (FSMB) and National Board
of Medical Examiners (NBME) have created a national system for easier
communication and transparency between state licensing boards and
employers for this reason.92 It would be dangerous if professionals could be
accused of misconduct in one state, then move to another state and
possibly continue the misconduct while avoiding accountability.93
In addition, if UNC was aware of Levines conduct, based on reports
by Childrens Hospital and the Massachusetts Board, UNC could have
made a more informed decision regarding whether to hire him.94 In fact,
after allegations of abuse surfaced at UNC, it did what the Childrens
Hospital failed to doprotect any future children that would have been
patients of Levine.95 Levines alleged abuse became a national story, with
all of his accusers being from Childrens Hospital and UNC, not the
unpredictable class of patients that the Court argued would exist.96
Childrens Hospital should have relied on the Massachusetts Board,
NBME, and FSMBs primary reporting and documenting functions to
protect any patients that Levine would interact with after the initial
allegations.97 The Court did not fully consider that a national medical
licensing and reporting system is in place to make sure that basic standards
of conduct are being met in all states to protect all patients.98

us_medical_regulatory_trends_actions.pdf [https://perma.cc/84QL-YVVW] [hereinafter U.S.

Medical Regulatory Trends and Actions] (explaining the role and structure of state medical
boards, how they confer licenses to practice medicine, and how they subsequently regulate
physicians after they are licensed).
90 See Dent v. West Virginia, 129 U.S. 114, 12223 (1889).
91 See Stacy Davis, Medical Board Permanently Pulls Pediatricians License, WRAL.COM (Mar.
20, 2009), http://www.wral.com/news/local/story/4779364/ [https://perma.cc/3LCJ-NE55].
92 See U.S. Medical and Regulatory Trends and Actions, supra note 89, at 1819.
93 See id. at 1819.
94 See Davis, supra note 91 (explaining that after allegations of abuse surfaced in North

Carolina, the state medical board revoked his medical license and stopped him from
practicing medicine).
95 See id.
96 See id.
97 See Thompson & Robin, supra note 85, at 95.
98 See Thompson & Robin, supra note 85, at 95.
2017 Roe No. 1 v. Childrens Hospital 63

B. The General Public Expects Competency and Protection from Health

Care Providers

Childrens Hospital is part of a national medical system, and the public

expects it to exercise due care in the hiring, retention, and discipline of
employees.99 People rely on health care providers to employ competent
and trustworthy people.100 If Childrens Hospital became aware that one of
its current or former employees broke the law or abused his or her power,
it had a duty to take the proper steps to uphold the integrity of the medical
profession and protect patients.101 It would be unreasonable for prospective
patients and families to individually vet their physicians and healthcare
providers.102 It is not unreasonable for health care providers to be mindful
of the trust patients and families have in them.103 It should be the medical
providers responsibility to be transparent regarding employee conduct,
because people rely on its judgment and discretion.104 If Childrens
Hospital failed to uphold these responsibilities, the courts should hold it
subject to liability.105 The provision of the Massachusetts Board policy
regarding physician discipline in another jurisdiction also shows the public
and medical communitys insistence on across-the-board accountability
and review.106 This system of national transparency and accountability
upholds the integrity and competency of the medical profession.107

C. We Cannot Hold Hospitals Liable for Negligent Hiring if They are

Not Given Relevant Information Regarding a Physicians Past

When Childrens Hospital neglected its duties to investigate and report

Levines alleged misconduct, it prevented UNC from making a responsible
and informed decision to hire Levine.108 The SJC held that the public cannot
expect employers to be liable for former employees, who go to unknown
places and injure an unknown class of peoplewhich is not the case
here.109 Levine did not pursue a different career in another country.110 He

99 See supra Part I.B.

100 See supra Part I.B.
101 See Forziati v. Bd. of Registration in Med., 128 N.E.2d 789, 791 (Mass. 1955).
102 See id.; AAP Policy Statement, supra note 28, at 407.

103 See AAP Policy Statement, supra note 28, at 407.

104 See id. at 407.

105 See Ham v. Hosp. of Morristown, Inc., 917 F. Supp. 531, 53637 (E.D. Tenn. 1995).
106 See 243 MASS. CODE REGS. 1.03(5)(a)(12) (2015).

107 See supra Part I.B.

108 See OREILLY ET AL., supra note 14.

109 See Roe No. 1 v. Childrens Hosp. Med. Ctr., 16 N.E.3d 1044, 1049 (Mass. 2014).
110 See id. at 1046.
64 New England Law Review On Remand Vol. 51 | 52

stayed in the United States and became a national icon in his field.111 It
would contravene the purpose of mandated reporter statutes if hospitals
did not have to investigate allegations of abuse when the employee no
longer worked there.112
Here, it would be difficult for any court to hold UNC liable for
negligent hiring because it was unaware of Levines conduct while he was
a doctor in Boston.113 The SJC skirted the question of whether Childrens
Hospital would have a duty to inform UNC of the alleged misconduct even
if UNC had inquired.114 Due to Childrens Hospitals failures, the alleged
victims have little to no recourse in receiving justice; there is a reporting
system in place for UNC to have been able to make a more informed
decision, and Childrens Hospitals actions prevented that.115
It was unreasonable for the court to conclude that Childrens Hospital
is not the proper defendant.116 The Court incorrectly decided that the UNC
patients are part of an unidentifiable class of people, and therefore
Childrens Hospital is not required to protect them.117 However, the
hospital here failed to protect its own patients, and it subsequently exposed
other patients to abuse.118 If a physicians past conduct is unavailable to
institutions that are considering hiring them, it will be very difficult to
make a responsible determination on whether to hire someone.119 It is
important for national, and arguably international, transparency for direct
communication through proper reporting related to the conduct and
competence of members of the medical community.120

111 See Abel, supra note 41.

112 See supra Part I.B.
113 See Juarez v. Boy Scouts of Am., Inc., 81 Cal. App. 4th 377, 39496 (2000) (explaining that

the court would not hold an employer liable for an employees misconduct if the employee
had a high degree of control over the victim).
114 See Roe No. 1, 16 N.E.3d at 1050.
115 U.S. Medical and Regulatory Trends and Actions, supra note 89, at 1819.

116 See id. (discussing the obligations of hospitals to report physician misconduct to state

boards so other hospitals can be aware of this misconduct when determining a physicians
fitness for employment).
117 See Roe No. 1, 16 N.E.3d at 1049.
118 See id. at 1046. Plaintiffs did not argue that Childrens Hospital had a duty to prevent
future behavior by Levine, but that it had the responsibility to take the required steps, as
outlined by the medical community and Massachusetts law, to protect children who would
undoubtedly be seen by Levine if he continued to practice medicine. See id.
119See U.S. Medical and Regulatory Trends and Actions, supra note 89, at 1819.
120See id.; Roe No. 1, 16 N.E.3d at 1048 ([E]mployers are responsible for exercising
reasonable care to ensure that their employees do not cause foreseeable harm . . . an employer
whose employees have contact with members of the public in the course of conducting the
2017 Roe No. 1 v. Childrens Hospital 65

CONCLUSION

The Massachusetts Supreme Judicial Court decided that Childrens

Hospital owed no duty of care to patients of Melvin Levine outside the
walls of the hospital. In doing so, it framed the issue as an employer being
potentially responsible for the actions of a former employee who goes to an
unknown future employer and injures an unknown group of people.121 The
case at hand is not that simple. Melvin Levine stayed in the same, very
specific, profession, and continued to have access to children. His moving
to another state should not have relieved Childrens Hospital of any duties
or shield it from subsequent liability.
The Commonwealth has recognized that children are part of a special
class and deserving of special protection. Mandated reporter statutes are a
primary way states involve the medical system in the protection of
children. Conferring the responsibility to report child abuse, with criminal
consequences for failing to comply, separates the medical community from
private employers responsibilities to protect children. This distinction
should be enough to expose medical institutions to civil liability for failing
to adhere to mandated reporter laws.
In addition to the Commonwealth, the medical community has
recognized for a long time that it owes a duty to protect the public. The
establishment of state medical boards, and subsequently national medical
boards and licensing agencies, are proof of the medical communitys
commitment to the overall health and safety of citizens. The centralized
systems within the medical community rely on medical personnel and
hospitals to properly investigate, report, and document allegations of
misconduct and incompetency. This system is unique, yet necessary to
reach the overall goal of protecting the public, especially children. If the
Court held that a duty of care was owed to North Carolina patients, and it
turned out that the allegations were unsubstantiated, the Court still would
have done its job. Refusing to allow the plaintiffs to argue a duty of care to
move forward was a mistake. The Courts decision here undermined
medical institutions ability to ensure good character and competency of
professionals, and provided no recourse for the victims of Levines alleged
abuse.

employers business has a duty to exercise reasonable care in selecting and supervising its
employees.).
121 See Roe No. 1, 16 N.E.3d at 1049.