New York State Court of Claims

New York State Court of Claims

Rawson v. STATE OF NEW YORK, #2008-018-622, Claim No. 105379


Synopsis


Claimant denied any domestic violence or concern for the father’s care of the infant the evening of October 26, 2000, which is consistent with the fact that she thereafter left the child alone with the father again on November 17, 2000. Based upon the testimony, even if any one of the professionals had made a report to the Central Child Abuse Registry October 26, 2000, the Court finds it speculative that Child Protective Services would have made a sufficient investigation before November 17, 2000, to have prevented the injuries this infant sustained at the hands of his father. It cannot be concluded that a call to Child Protective Services would have protected this infant. The doctors and the social worker testified persuasively, which is confirmed by the records, that they did not feel this was a child abuse case on October 26, 2000. The child’s grandmother also testified she never suspected child or domestic abuse before November 17, 2000. Accordingly, based upon the foregoing, the claim is DISMISSED.

Case Information

UID:
2008-018-622
Claimant(s):
DAWN RAWSON, Mother and Natural Guardian of MATTHEW D. FURLONG, JR.
Claimant short name:
Rawson
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105379
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
HARRIS & PANELS
By: Michael W. Harris, Esquire
John M. Murphy, Jr., Esquire
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Patrick F. MacRae, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 2, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings this claim on behalf of her minor child as a result of defendant’s failure to report child abuse to the Central Child Abuse Registry pursuant to Social Services Law § 413, and for failing to diagnose child abuse when the child was presented to the Emergency Department of State University of New York Upstate Medical University (hereinafter University Hospital) on October 26, 2000. The minor child was seriously and permanently injured on November 17, 2000, when he was shaken by his father, Matthew D. Furlong, Sr.[1]
The Facts
Matthew Furlong, Jr., was born healthy to Dawn Rawson, seventeen years old, and Matthew Furlong, Sr., twenty-two years old, on September 27, 2000, at Crouse Irving Memorial Hospital in Syracuse, New York. The family resided together in an apartment in Phoenix, New York. In the late morning or early afternoon of October 26, 2000, when the infant was just 29 days old, claimant dressed the infant, placed him in his car seat and took him outside to the parking lot at the family’s apartment complex where Mr. Furlong was working on removing the wheel bearing from the front passenger-side wheel of the family’s only car. Claimant placed the infant’s car seat behind Mr. Furlong and then she went shopping with a friend. Mr. Furlong thereafter moved the infant closer and in front of him and the right passenger wheel so he could watch him. Mr. Furlong was positioned so that he had his back to the rear of the vehicle and was alongside the passenger-side door at an angle looking at the car. Mr. Furlong indicated that in trying to remove the wheel bearing he used a pulley puller.[2] He attached the pulley puller to the bearing and used a wrench to tighten it, which places pressure on the wheel bearing so that it will pull away from the spindle. Mr. Furlong testified that as he was tightening the pulley puller, using a lot of force to turn the wrench, the pulley puller came off the wheel bearing and struck the infant’s face. The wrench landed on the car seat between the infant’s legs and the pulley puller was also in the seat on the infant’s lap. The infant started crying and Mr. Furlong testified that he had red marks on his face but he wasn’t bleeding. Mr. Furlong picked his tools up and took the baby inside the apartment. He did not try to call claimant nor did he call the doctor.

Claimant returned to the apartment, having been gone for approximately three hours with her friend. When she returned, Mr. Furlong told her that a wrench had flown off the wheel bearing pulley and struck the infant, grazing the side of his face. Claimant went to the baby in the crib and saw a bruise on the left side of his face and broken blood vessels in his eye. She called his pediatrician’s office but couldn’t get an appointment that day; they advised that if she was concerned she should take the infant to the emergency department. She believed she went to the hospital with her neighbor and placed the child in the same car seat he had been in at the time of his injury. Mr. Furlong did not go to the hospital with claimant because, according to claimant, he had to work at 6:00 p.m. that night in East Syracuse and their car wasn’t working. Mr. Furlong testified that claimant didn’t ask him to go along with her to the hospital.

Upon arrival at the Emergency Department of University Hospital, claimant checked in and saw triage. The records reflect that claimant arrived at 1717 or 5:40 p.m.[3] Thereafter, she and the infant were taken to an examination room and saw a nurse, whose name claimant could not recall. The nurse was Norma Anne Fitzgerald. Claimant was directed to undress the infant and the nurse looked him over. Nurse Fitzgerald found a bruise on the infant’s back as well as the facial injuries. Claimant was not aware of the back bruise. The nurse inquired about how the infant had been injured. Claimant told the nurse what Mr. Furlong had told her, that a wrench had flown off the wheel bearing pulley and struck the infant, grazing the side of his face. Claimant testified that the nurse told her they would want to talk with the father because he was there when the injury occurred, and that the baby would not be released home until the father came in. Claimant recalled that she also spoke with Richard Carhart, the social worker at the hospital, and the entire interview took between 20 and 30 minutes. She did not recall anyone else asking her any questions that night.

Claimant called Mr. Furlong on the landline that evening and asked him to come to the hospital. He went to the hospital but couldn’t recall when he arrived. Mr. Furlong remembered talking with at least one person that evening, maybe more. His recollection at trial was vague at best. He had no idea how the infant got the bruise on his back, and he speculated that it occurred during a bath when the baby was slippery with soap.

Nurse Fitzgerald testified at trial. She is a registered nurse and has been working in emergency rooms and intensive care units for approximately 30 years. On October 26, 2000, she was working in the Pediatric Emergency Room at University Hospital overseeing the care for children from infancy until 18 years of age, following physicians’ orders, administering medication and taking physical assessments. Nurse Fitzgerald’s memory was somewhat flawed on certain points as over five years had passed. For instance, she definitively recalled the baby being brought in by paramedics. She testified that she spoke with the paramedics about what had happened, and they advised that the father was fixing the car and a wrench had flown off and hit him in the head several hours before. The triage record[4] reflects the infant arrived as a “walk-in” at 1717 (5:40 p.m.). The record[5] indicates that Nurse Fitzgerald’s initial contact with the infant occurred at 6:00 p.m. Nurse Fitzgerald testified that once the infant was cleared to be removed from the car seat, he would be undressed and examined for other injuries. She recalled that he had a significant bruise on the left side of his forehead. At trial, she testified it was below his eye in a “V-shape” although she made no notation in the nursing record of a “V-shaped” injury. She did not recall any injury to the eye.

During her examination of the infant she found a small bruise on his back. She noted in the record that from her perspective the injuries were not consistent with the story of how the injuries were incurred. Nurse Fitzgerald testified that the mother told her that the father was fixing the car and the infant was in the car seat on the floor of the garage when a wrench flew off the brakes and hit the child in the head several hours before the mother returned home. Nurse Fitzgerald testified that she advised both Dr. James D’Agostino, the attending pediatrician, and Rich Carhart, the social worker, that she was concerned that this child might be abused. She couldn’t clearly recall talking with Dr. Ty Dickerson, the senior attending resident. Nurse Fitzgerald told claimant that it was very important for the father to come in and claimant advised that he was having difficulty getting a ride. Nurse Fitzgerald noted that in the record at 1830 (6:30 p.m.). The record reflects that the father arrived at 2020 (8:20 p.m.). Nurse Fitzgerald did not have any conversation with the father, although she recalls Rich Carhart speaking with both parents.

When Nurse Fitzgerald found out that this baby was going to be released she was very upset. She testified at her deposition that she had a confrontation with Dr. Dickerson in the hall and Dr. D’Agostino went back into the room upon her insistence. At trial, she testified she told Dr. Dickerson that this “baby would be back.” Nurse Fitzgerald testified that she assumed that a report had been made to Child Protective Services since it was not uncommon for a report to be made and the child to still be released home. The nurse indicated that when a physician calls and makes a report but indicates that he or she believes the parent’s story, sometimes Child Protective Services won’t take the report; they may send someone out in a week or so, or just keep the report on file.

Richard Carhart was the certified social worker on duty at University Hospital on the night of October 26, 2000. He was a relatively new employee at the time, having only been employed a few months. Mr. Carhart testified he had no specialized training in recognizing child abuse. He was called to the emergency room that evening to assess the situation with the infant because abuse was suspected, and he spoke with both parents. Mr. Carhart read the triage note that said that a wrench struck the child. The father, however, indicated that he wasn’t entirely sure what hit the child, but that while he was working on his car, parts came off and something struck the child. Mr. Carhart had no specific recollection of talking with Dr. D’Agostino, and he wasn’t sure whether he spoke with Dr. D’Agostino or Dr. Dickerson before or after he made his notation in the medical record. He spoke with the parents separately after the father arrived, and he recalls discussing with Doctors D’Agostino and Dickerson what the father told him happened to the child. Mr. Carhart acknowledged that it was important to compare the stories to assess consistency, because if there are inconsistencies it is necessary to determine what really happened. Based upon Mr. Carhart’s testimony, it seems his interview with the parents was superficial as he didn’t inquire into the specifics of what happened, such as where the parts of the pulley puller and wrench landed, didn’t inquire into the parents’ relationship or financial stressors, and didn’t inquire whether there was physical abuse within the home. Mr. Carhart based his assessment on the fact that the parents acted appropriately concerned about their child, they seemed to interact appropriately toward each other, and claimant appeared glad when Mr. Furlong arrived at the hospital. Mr. Carhart testified that the parents were not sure how the child got the bruise on his back. The father mentioned that it could have happened when he was bathing the child, and Mr. Carhart felt that the explanation was feasible. Mr. Carhart testified he did not suspect child abuse, although he acknowledged that Nurse Fitzgerald advised him of her concern that it was abuse. His note in the medical record reflects that he spoke with the doctor and they were in agreement that no report to Child Protective Services was appropriate at the time.[6]

Dr. Ty T. Dickerson was called to testify by claimant. Dr. Dickerson was a pediatric resident at University Hospital on October 26, 2000, working in the emergency room. Upon examination, Dr. Dickerson found the baby clean, well fed at an appropriate weight of 11 to 12 lbs., and the baby and claimant appeared to have a very strong bond. The intake note written by Dr. Dickerson reflects that he made physical findings of ecchymosis or bruise and conjuctival hemorrhage or bleeding under the conjunctiva of the eye. [7] Dr. Dickerson didn’t find the petechia on the right side of the baby’s head at that point. He ordered a prescription for chloral hydrate, which is a medication for sedation to facilitate a CT scan at 1845 (6:45 p.m.). When Dr. Dickerson spoke with claimant he found that she could not provide sufficient detail of how the injury occurred, so he initially suspected possible child abuse because a preambulatory infant sustained an injury and the adult caregiver who was present at the time of the injury was not in the emergency room. Dr. Dickerson advised claimant that they needed to speak with the father in the emergency department. He recalled that claimant cooperated and Mr. Furlong thereafter came into the emergency department. His dictated notes reflect the history that Dr. Dickerson obtained from Mr. Furlong and provides specifically:
Today the father was working on the car changing the wheel bearings. He had the infant in the car seat outside. He had a pulley puller on the wheelbearing and was taking it off with a wrench. The puller under the tension slipped off the wheel bearing and it struck the child in the left side of the face. The child cried and was taken upstairs. He was easily consoled. He has had no loss of consciousness. He has had no behavioral changes. No somnolence or lethargy. He was brought here for evaluation, however. The child had not vomited.

PHYSICAL EXAMINATION: Rectal temperature of 37.7. Pulse 130. Respirations 28. Blood pressure 98/palp. Weight _____ kg. The child was normocephalic. Anterior fontanelle is soft, open, and flat. Sutures were approximate. Extraocular muscles are intact. He did have a bruise over his left temporal area that continued over his zygoma. He had a conjunctival hemorrhage that spared the limbus. It was more prominent medially than laterally. He had no hyphema by a brief hand-held slit lamp examination. Pupils are equal, round, and reactive to light. Face is symmetric. He had no gross cranial nerve deficit. He had a positive gag reflex. Neck is supple. No adenopathy. Regular cardiac rhythm. No murmur. He was well perfused. His lungs are clear to auscultation. No organomegaly. 2+ femoral pulses. Normal hip abduction. The only other positive examination finding was a small bruise on his right flank. Parents had no idea of the origin of this bruise.

Because of the nature of the injury, we did obtain a CT scan with cuts of the orbits. The CT scan was negative. No fractures. No bony injury. No brain injury. The bony orbits and globe itself looked fine based on noncontrast head CT. He did receive ________ for sedation. Because of the bruising on the back and the negative family history of any bleeding disorders, we did obtain a PT and PTT, which are pending at the time of this dictation. Because of the nature of the injury, we had a social worker speak with the parents because we were concerned that this could [have] been an abusive situation. I believe that the injury is consistent with the mechanism of injury. As for the bruise on the baby’s back, that is of unknown origin. We will do a PT, PTT, and a CBC to rule out any gross clotting abnormalities or thrombocytopenia. The child will be discharged to the care of his parents who seem loving and capable after the results of the PT, PTT, and CBC are available.

After the initial examination, Dr. Dickerson returned to do a more thorough examination reflected in the typed record set forth above that he dictated and was signed by Dr. James D’Agostino, the supervising attending physician. The infant’s pulse, respiration, and blood pressure were normal, indicating that he was not in distress or pain. The infant presented with a symmetric face, normal head, soft fontanelle reflecting no increased pressure in the cranial vault, and normal extraocular muscles - normal eye tracking movement. On examination of the eye, the conjunctiva, or thin membrane that covers the eye, had been injured during the incident but there was no hyphema[8] reflecting that the deeper structure of the eye appeared nontraumatized. The eye pupils were equal, round, and reactive, which was reassuring because with a brain injury the cranial nerve is very sensitive and would reflect increase cranial pressure. These normal neurologic findings were encouraging that there was no traumatic brain injury. The baby also breast-fed in the room, exhibiting normal sucking and swallowing which also reflects the absence of a serious traumatic injury and indicates the infant was comfortable. The examination also revealed a normal size liver, spleen, kidneys, and a soft palpable abdomen. The infant also had normal hip abduction. Based on his examination, Dr. Dickerson felt that the injury was isolated to the area of bruising on the head and it was a relatively mild trauma.

Dr. Dickerson also found a bruise on the infant’s right flank, which is the back area just above the hip. The parents both denied knowing how the bruise occurred. The doctor was most concerned about this bruise, and he spoke with Mr. Carhart who he recalled indicated that Mr. Furlong had speculated that it could have occurred during the child’s bath the day before because the infant was squirming and he hit the side of the bassinet. Dr. Dickerson acknowledged that squirming alone would not have caused the bruise, as a bruise requires some type of trauma such as squeezing, dropping, falling, or striking the child against something purposefully or accidently. Mr. Furlong did not proffer that explanation during his interview with Dr. Dickerson and this raised concern. At trial, Mr. Carhart denied telling Dr. Dickerson or Dr. D’Agostino that the baby had hit anything. Dr. Dickerson testified that the bruise could be caused by a child being held too tightly.

Dr. Dickerson testified that as part of his examination he inquires into the psychosocial dynamics, and he asked Claimant whether she felt safe in the home, whether the father had ever threatened her or hit her, which she emphatically denied. He also inquired whether claimant was concerned that the father had struck the infant, and she refuted this concern indicating that the father was very loving toward the infant. Dr. Dickerson watched the father interact with the infant and found him to have good interaction rapport with the baby and with the mother. Dr. Dickerson asked the father about how the injury had occurred. Dr. Dickerson had experience pulling wheel bearings on an automobile and he was familiar with the tools used. The father’s explanation comported with Dr. Dickerson’s understanding of the process of removing a wheel bearing. After conducting his examination, observing the family interacting, and listening to the father’s description of what happened, Dr. Dickerson did not feel that this was an abusive situation or that the child was at risk of further injury. Dr. Dickerson discussed his assessment with Dr. D’Agostino and Mr. Carhart and all agreed. Dr. Dickerson dictated the record reflecting that the infant would be discharged. This was prior to obtaining blood test results, and a couple of hours before the infant was actually discharged at 11:25 p.m.

Dr. Dickerson recalled Nurse Fitzgerald expressing her concern that the child had been injured by a nonaccidental incident. Dr. Dickerson did not recall the exchange as confrontational, although he indicated that Nurse Fitzgerald often confronted the doctors and questioned the opinion of the physicians. He did not recall her saying that “this baby would be back.” Dr. Dickerson did not recall a “V-shaped” pattern to the bruising on the child’s forehead, nor was he aware that there was a two-hour time gap between when the injury occurred and when the infant was brought to the emergency department. Dr. Dickerson acknowledged that if someone, in response to inquiries about the cause of an injury, gave different versions to different people, it would raise concern of an attempt to mislead because of a purposefully inflicted injury. Dr. James D’Agostino testified by deposition.[9] He is a Pediatric Emergency Medical Doctor for University Hospital. As part of his education he took a course in child abuse and sexual abuse, and as part of a Pediatric Emergency Fellowship he had a one-month requirement for the evaluation and management of child abuse and sexual abuse of children. Dr. D’Agostino testified that he had a process to evaluate whether a child who came into the emergency department injured was being abused. He first obtained a history from whoever witnessed the injury and he would then evaluate whether the explanation comported with the injury. He would interview all who were present with the child and assess their reliability and credibility. He testified that he applied this evaluation process with this infant on October 26, 2000. Dr. D’Agostino’s memory had faded over time; however, he recalled examining the child and speaking with the mother and father about how the child was injured. Dr. D’Agostino was concerned about a potential abusive situation when the mother came into the emergency department without the parent who was present at the time of the injury, and it was for that reason that he called for the social worker’s input. Dr. D’Agostino also recalled Nurse Fitzgerald approaching him while he was talking with Dr. Dickerson about the mechanism of the injury at the counter and whispering “this sounds funny.”1[0] That was the only comment that he recalled Nurse Fitzgerald making.

Dr. D’Agostino’s findings from his examination of the child are reflected in most of the handwritten documents under “E.D. ATTENDING NOTES.”1[1] He found the infant alert and well fed. He found a contusion with ecchymosis at the left temple and upper eyelid, with a few petechia at the right temple. The left eye had subconjunctiva hemorrhage, no hyphema, and the cornea was clear. A “5X5 cm”1[2] ecchymatis lesion was found on the infant’s flank. During the deposition the doctor noted that the bruise was actually smaller than described in the notes and closer to the 2.5 cm (~2.6 cm) circle on Exhibit 41-B.1[3] Dr. D’Agostino ordered a CT scan and blood tests of the infant. The notes reflect that the injury occurred when the wrench the father was using while working on his car slipped and struck the child. Dr. D’Agostino attributed the petechia on the right side of the infant’s head to his head striking the side of the car seat from the force of being struck by the wrench on the left side. Dr. D’Agostino also testified that petechia can be caused by Valsalva1[4] crying, although typically in such a case there would have been more diffuse petechia. Dr. D’Agostino spoke with Nurse Fitzgerald, Dr. Dickerson, and Mr. Carhart, and he concluded that the father’s description of how the injury occurred was a feasible mechanism of injury. Dr. D’Agostino noted that although neither parent was sure what caused the bruise to the infant’s flank, the father speculated that it could have been while he was giving the infant a bath, the baby slipped and he grabbed him. Dr. D’Agostino noted that the father decisively posed that possibility which he found to be viable cause of the bruise.

The claimant called Mark Hostetler, M.D., the Chief Pediatric Emergency Medicine Doctor at the University of Chicago Children’s Hospital. He is also an Assistant Professor in Pediatrics at that University. Prior to this position he completed a Pediatric Emergency Medicine Fellowship at the University of Rochester. He is board certified in both General Emergency Medicine and Pediatric Emergency Medicine. He reviewed the medical care which the infant received on October 26, 2000, and it is his opinion that there was a deviation from the standard of care in failing to recognize that there was reasonable suspicion of child abuse.

As a side note, the attorneys disputed whether this was a medical malpractice case or a simple negligence case. Claimant’s counsel pled the case as both medical malpractice and negligence. Although whether a duty was breached by the failure to make a report of child abuse to Child Protective Services may fall within an ordinary negligence framework, clearly the presentation of a young child with unexplained or inadequately explained injuries can form the basis of a medical diagnosis of child abuse (see People v Henson, 33 NY2d 63, 73-74; Heidt v Rome Mem. Hosp., 278 AD2d 786; People v Bryce, 174 AD2d 945, 947; Matter of Kimberly S. M. v Bradford Cent. School, 226 AD2d 85, 88).

Dr. Hostetler testified that diagnosing child abuse can be very difficult. It requires a detailed evaluation of the history of the injury, physical examination, explanations for the injuries, and compatibility of the explanation with the injury. Dr. Hostetler felt that the explanation here of how the injury occurred did not comport with the injuries. It was his opinion that a wrench flying off and striking the left side of the infant’s face could not have caused the petechial hemorrhaging on the right side of the face. He also did not feel that the force of the wrench would have driven the infant’s face across to the other side of the car seat and caused the hemorrhaging. He opined that since the infant was in a padded car seat, even if the force had caused the head to move across the seat, there would be no reason for there to be an injury. To have enough kinetic energy to cause such a forceful movement, Dr. Hostetler opined, would have caused a skull fracture. Dr. Hostetler felt the back injury should have been a real concern as he disagreed that holding a squirming baby could have caused such a bruise. He opined that if it were caused by dropping the baby onto the bassinet, it is still a situation where the baby was injured and the parents failed to seek medical treatment. Delay in treatment is often associated with child abuse. He also felt that an ophthalmologist consultation should have been sought or a fundoscopic evaluation performed to determine whether there was retinal bleeding which is a key sign of child abuse. Dr. Hostetler felt that the contusion on the left side of the infant’s head was not consistent with being struck with a heavy flying object as there would also be an abrasion or an indentation.

The minimum standard of care, according to Dr. Hostetler, required notifying the social worker and ordering further medical tests, like the CT scan. Although these things were done, according to Dr. Hostetler, a report should have been made to Child Protective Services, and the child should not have been released until a safety plan was in place. He predicted that the injuries which occurred on November 17, 2000 would not have occurred if a safety plan had been in place. Although Dr. Hostetler felt the facts of this case presented a clear case of child abuse, he admitted on cross-examination that the determination required a professional judgment based upon a thorough history, physical examination, and consultation with social work.

Eben Norfleet also testified for claimant. Mr. Norfleet is an attorney and was hired on a subcontractual basis by the Oswego County Department of Social Services (hereinafter DSS) and was also employed as a part-time assistant district attorney for the County of Oswego. As part of his employment he would review legal documents for DSS, make court appearances and, in his role as an assistant district attorney, he would serve as a liaison between the two offices with the goal of facilitating faster resolution of criminal cases that were the subject of child abuse or neglect petitions in Family Court. Mr. Norfleet opined that Oswego County DSS would develop a preventative services plan to, hopefully, prevent any further abuse or neglect, and if parents didn’t initially agree to the services, the plan would have to be court-ordered by Family Court. If the parents disobeyed the orders then violation petitions would be filed. Mr. Norfleet speculated, based upon his experience with the Oswego County DSS, that if a report had been made to Child Protective Services, a preventative services case would have been opened and the parties would have been summoned into court within a week. He felt that if a report had been made, DSS would have investigated this further.

On cross-examination, Mr. Norfleet testified that based upon the language used in the reporting statute and supporting regulations (Social Services Law § 413; 18 NYCRR part 432), if a mandated reporter finds that there is no reasonable basis to suspect neglect or abuse, the reporter has no obligation to make a report. Reviewing the entire emergency department record from October 26,1[5] Mr. Norfleet agreed that the physician and social worker were not required to report abuse since from the record it appeared that they did not suspect abuse after examination and further inquiry, although the suspicion was there when the mother originally came in with the infant as the triage and Nurse Fitzgerald’s notes reflect.

Claimant also called Katherine Colgan who was educated in criminal justice and education. She worked for eight years as a Child Protective Investigator on the Impact Team investigating cases of severe physical abuse, fatalities, and sexual abuse in Monroe County. She is currently employed as a consultant for Fordham University, teaching a three-day sex abuse training course to child protective workers and child care providers. She also teaches a forensic interviewing course for child protective workers and assistant district attorneys through the Child Advocacy Resource and Consultation Center (CARC). Through the National Center for Missing and Exploited Children, she teaches a class about the identification of child abuse and neglect for mandated reporters.

Ms. Colgan testified about what happens when a report is received by a child protective worker from the Child Protective Hotline. She testified that the first thing that should be done is a 24-hour safety assessment. As a child protective worker, when she received a report, she would contact the reporter and discuss the reason for the referral. She would also call the Central Child Protective Registry to see if anyone in the household had a history with Child Protective Services, and a criminal record check would also be done. She primarily referenced her experience in Monroe County where she had worked as a child protective caseworker as she described a multi-disciplinary team with trained police officers with whom she worked closely to investigate allegations of abuse and neglect. In this case she felt that the mother, father, hospital social worker, the infant’s regular pediatrician, and the emergency room doctors would have all been interviewed. She didn’t know whether the police would interview all of these people, but in Monroe County the officer would have, in her opinion, at least spoken with the father.

Ms. Colgan testified, based upon a hypothetical set of facts, that if a physician indicated to her that a 29-day old infant was brought to the emergency department with injuries to his head, eye, and a flank bruise which were not consistent with the causal explanation, she would not have let the child return home with the parents. Given the father’s involvement at the time of the injuries, Ms. Colgan would have sought removal of the father, either by voluntary removal or the mother’s voluntary relocation and agreement to keep the father away, or placement of the infant with a relative or foster care. These efforts can be accomplished within a short period of time. Ms. Colgan indicated that even if a report had been made by some third party and the doctor indicated he thought the injuries were accidental, she would still have conducted a full investigation and made referrals for protective services.

Ms. Colgan agreed on cross-examination that if a doctor, after examining the child, believes that the injury is consistent with the causal explanation, the doctor has no obligation to call the hotline. She also agreed that the bruise to the back was not “unexplained” as there was a proposed, although, she felt, inadequate, explanation made by the father. Although she disagreed with the determination of the social worker and doctor that a report need not be made to the Child Protective Hotline, she could not say that their opinion was wrong. She also testified that once a report is made and an investigation is commenced, a child protective worker has 60 days to complete the investigation. When an infant is presented with explained bruises to the back and head while in the care of the father and there is no indication from the mother that she feels unsafe or that there has been no domestic violence in the past, no Family Court petition would be commenced before the investigation is completed. Without a Family Court action, preventative services cannot be ordered. A more thorough investigative time frame was elicited on redirect examination, and Ms. Colgan noted that within 24 hours a safety assessment is required, and within seven days after the report, all household residents must be interviewed face-to-face along with anyone noted on the referral. Within 60 days, the investigation must be completed and a determination made as to whether further action must be taken.

Diane DePanfilis, Ph.D., also testified for claimant. Dr. DePanfilis is employed by the University of Maryland School of Social Work, and is an Associate Professor of Social Work, an Associate Dean for Research, Director of the Institute for Human Services Policy and the Co-Director of the Center for Families. She has a bachelor’s degree, a master’s degree and a Ph.D. in Social Work. Her Ph.D. dissertation was on the epidemiology of child abuse and neglect recurrences. She worked through the Action for Child Protection with several states, including New York, in developing and implementing a statewide risk assessment and safety evaluation system. She worked with Child Protective Services in Erie County Pennsylvania and had no experience providing services to families in New York State. Based upon her experience, she speculated what would occur if a call had been made to the Child Abuse Hotline in this case on October 26, 2000. Although not all reports are accepted when made to the hotline, she felt that in this case the report would have been accepted and most likely an investigator would have come to the hospital that night to assess the infant’s safety. She felt the infant might have been retained overnight until a further investigation could be completed to assure the infant’s immediate safety. Dr. DePanfilis has done studies on recidivism after an initial report of child abuse and, based upon her research, she has found that there is a reduced likelihood of a subsequent occurrence of child abuse if a report is made.

Susan Kelley, Ph.D., is Dean and Professor at Georgia State University College of Health and Human Services and has 25 years of experience in nursing including some experience in New York State. Dr. Kelley has both a master’s and a Ph.D. in Developmental and Educational Psychology from Boston College. She felt that Nurse Fitzgerald was a mandated reporter who had a consistent suspicion of child abuse throughout the hospital visit. Dr. Kelley pointed to the nursing note of 2150 hours (9:50 p.m.) where Nurse Fitzgerald noted the infant vomited and was irritable, which are symptoms of a head injury, and Dr. Kelly felt this detailed a further suspicion of child abuse beyond the initial note of Nurse Fitzgerald at 1800 hours (6:00 p.m.).

Kerrie Phillips, a child protective caseworker employed by the Oswego County DSS from May of 1993 until 2001, was assigned to investigate this case after the November 17, 2000 injuries to the infant. Ms. Phillips testified about the procedures in Oswego County based upon her experience. She worked with the Child Protective Task Force which is assigned to cases of sexual abuse and serious physical injury, and includes several caseworkers, a supervising caseworker, law enforcement, and someone from the District Attorney’s Office. She testified that based upon a description of the infant’s injuries on October 26, 2000, at that point, the task force would not have been assigned to this case.

Asked if, hypothetically, a nurse had called the Child Abuse Hotline with the description of the infant’s injuries on October 26, 2000, Ms. Phillips testified that given the fact that two doctors and the social worker who were aware of Nurse Fitzgerald’s concerns all felt that the injuries were consistent with the parents’ explanation, there would be little more that a caseworker could do at that point. She would not have a basis to keep the infant from returning home. She would, however, follow up with a home visit the next day to evaluate the home setting and speak more with the parents. She would also obtain the child’s pediatric records. Preventive services could be offered, but if refused, nothing could be ordered without a Family Court proceeding being commenced. In a case where the infant initially sustains the described injuries and the doctors and social worker are of the opinion that there was no reasonable cause to suspect child abuse, she would not necessarily commence a child protective proceeding in Family Court simply because preventive services were declined by the parents. The caseworkers have 60 days from the time the child abuse report is made to complete their investigation and commence a Family Court proceeding. Unless there is imminent risk of harm, typically a Family Court proceeding would be commenced within 30 days of the date a report is made, but based upon the described injuries and circumstances here, Ms. Phillips didn’t feel that a Family Court petition would have been brought based solely upon the October 26, 2000 injuries.

On cross-examination, Ms. Phillips indicated that during the investigation of the November 17, 2000, incident she was highly suspicious of the injuries the infant suffered on October 26, 2000. She spoke with Mr. Furlong and she said that during her investigation he never revealed that he did not see what hit the baby. Nor did he tell her that he had looked away to get another tool, or that he had let go of the pulley puller or the wrench, or even moved the baby from where the claimant had placed the car seat. During the investigation after the November 17, 2000, incident Mr. Furlong indicated that he had anger control issues and had been aggressive toward claimant in the past. Claimant indicated to her that she was concerned that he could hurt the child because of his anger problems.

Claimant also called her mother, Judith Arlene Rawson. Ms. Rawson testified that she was not aware of any abusive behavior by Matthew Furlong, Sr., toward her daughter or grandson prior to November 17, 2000. She never suspected abuse and offered that if she had, she would have called the hotline.
A. Discussion
Violation of Duty Under Social Services Law § 413

With the intent and purpose to protect children and prevent further injury, impairment and suffering, Social Services Law § 413 requires certain professionals to report, or cause a report to be made, when they have “reasonable cause to suspect that a child coming before them in their professional capacity is an abused or maltreated child, or when they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct would render the child an abused or maltreated child....” [emphasis supplied] (Social Services Law § 411; Social Services Law § 413 [1] [a]).

An abused child is defined in relevant part by Social Services Law § 412 [1] as:
(a) a child under eighteen years of age defined as an abused child by the family court act;


An abused child is defined by Family Court Act § 1012 (e) as:

(e) “Abused child” means a child less than eighteen years of age whose parent or other person legally responsible for his care

(i) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional heath or protracted loss of impairment of the function of any bodily organ or

(ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or

(iii) commits, or allows to be committed an offense against such child defined in article one hundred thirty of the penal law; allows, permits or encourages such child to engage in any act described in sections 230.25, 230.30 and 230.32 of the penal law; commits any of the acts described in sections 255.25, 255.26 and 255.27 of the penal law; or allows such child to engage in acts or conduct described in article two hundred sixty three of the penal law provided, however, that (a) the corroboration requirements contained in the penal law and (b) the age requirement for the application of article two hundred sixty-three of such law shall not apply to proceedings under this article.

A maltreated child is defined in relevant part by Social Services Law § 412 [2] as:

(a) a child under eighteen years of age not in “residential care” as

defined in subdivision seven of this section:


(i) defined as a neglected child by the family court act, or


(ii) who has had serious physical injury inflicted upon him by other

than accidental means;


Family Court Act § 1012 defines a neglected child as:


(f) “Neglected child” means a child less than eighteen years of age

(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care

(A) in supplying the child with adequate food, clothing, shelter or education in accordance with the provisions of part one of article sixty-five of the education law, or medical, dental, optometrical or surgical care, though financially able to do so or offered financial or other reasonable means to do so; or

(B) in providing the child with proper supervision or guardianship, by unreasonably inflecting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the court; provided however, that where the respondent is voluntarily and regularly participating in a rehabilitative program, evidence that the respondent has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he loses self-control of his actions shall not establish that the child is a neglected child in the absence of evidence establishing that the child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as set forth in paragraph (i) of this subdivision; or

(ii) who has been abandoned, in accordance with the definition and other criteria set forth in subdivision five of section three hundred eighty-four-b of the social services law, by his parents or other person legally responsible for his care.


The professionals mandated to report a reasonable suspicion of child abuse or


maltreatment under Social Services Law § 413 include any physician, resident, intern,


registered nurse and social worker (Social Services Law § 413 [1] [a]).


Social Services Law § 420 sets forth the penalties for failure to comply with the statutory


duty to report suspected abuse and maltreatment:

(1) Any person, official or institution required by this title to report a case of suspected child abuse or maltreatment who willfully fails to do so shall be guilty of a class A misdemeanor.

(2) Any person, official or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure. [Emphasis supplied.]


There is no doubt that the defendant’s employees, Dr. D’Agostino, Dr. Dickerson, Mr. Carhart, and Nurse Fitzgerald had a statutory duty to report the infant’s injuries on October 26, 2000 if they had reasonable cause to suspect that he was an abused or maltreated child. The issue is did they have reasonable cause to suspect that the infant was being abused or maltreated. The critical time frame for purposes of determining this question was between 5:17 p.m. and 11:25 p.m. on October 26, 2000 (see Matter of Kimberly S.M. v Bradford Centr. School, 226 AD2d 85, 91). All of claimant’s qualified and knowledgeable witnesses testified that this was clearly an abusive situation which should have raised red flags and resulted in a call to the child abuse registry hotline on that evening. Yet all of these witnesses testified knowing what transpired on November 17, 2000. The Court cannot be persuaded by the unfortunate benefit of hindsight in the context of the knowledge of the horrible abuse that the father inflicted on this child as an infant on November 17, 2000.

The Court has focused only on October 26, 2000, and the facts as presented on that date. Clearly, there was concern that this could possibly be an abusive situation when claimant arrived at the emergency department with a 29-day-old infant with injuries to the left and right side of his head, and injury to his eye, and without the parent who was present at the time of the injury. Claimant did not have a clear understanding of how the injuries occurred. An initial examination of the infant revealed another bruise to his back, of which claimant was unaware and could not explain. This, too, raised solicitude.

Appropriately, further inquiry was pursued, as even Dr. Hostetler testified an initial suspicion of child abuse does not prompt an immediate call to Child Protective Services.

Claimant was advised to have the father come into the emergency department. A more thorough examination was performed by both Drs. Dickerson and D’Agostino. The head injuries were found to be a localized mild trauma. The child was otherwise well-nourished, not in distress, and well-bonded with claimant. The social worker was called in to speak with the claimant and the father when he arrived. Dr. Dickerson inquired into the family and home-life dynamics. The parents were observed interacting together and with the child. Almost six hours expired between walk-in and discharge. After speaking with the father and sizing up his demeanor, Dr. Dickerson, who had actual experience with the process and mechanism by which wheel bearings on a car are removed, felt that the injuries were consistent with the described occurrence. Although Dr. Dickerson noted that neither parent had an explanation for how the back bruise occurred, the father proffered the possibility that it occurred while he was giving the baby his bath the previous day, and the baby was slippery. Dr. Dickerson testified that Mr. Carhart told him that the father had indicated the baby slipped from his grip during the bath and may have bumped the side of the bassinet. Although the back bruise was of more concern, the proffered explanation was feasible and after consultation between the doctors and Mr. Carhart it was felt that this was not an abusive situation and a telephone call to the Child Abuse Registry Hotline was not required.

The Court is persuaded by the testimony of Dr. Dickerson, Dr. D’Agostino, and Mr. Carhart that on the night of October 26, they did not reasonably suspect child abuse after their examination and interviews with the parents. Even Ms. Colgan, who had extensive experience working for Child Protective Services and now trains others to identify and report child abuse in New York State, testified that under these circumstances a doctor has no obligation under the statute to call. Mr. Norfleet, the attorney prosecuting abuse and neglect petitions in Family Court and criminal charges as an assistant district attorney for Oswego County, agreed. Reasonable cause to suspect is not a subjective standard. Although neither the Social Services Law nor the Family Court Act define reasonable cause and there are almost no cases which address the issue, the Appellate Division of the Fourth Department cited favorably State of Wisconsin v Hurd, 135 Wis. 2d 266, 272-273, for its interpretation of the phrase “reasonable cause to suspect” in the Wisconsin reporting statute (Kimberly S.M., 226 AD2d at 89-90). In State of Wisconsin, 135 Wis. 2d at 272-273, the Court held that “reasonable cause to suspect” examines the totality of facts and circumstances actually known to, and as viewed from the standpoint of, a prudent person of ordinary intelligence. The test is whether such a person would have had reasonable cause to suspect child abuse if presented with the same totality of circumstances as acquired and viewed by the defendant (Id.).

Dr. Dickerson’s testimony was most persuasive, as he found that the explanation of how the infant sustained the head injuries comported with the process, of which he alone was familiar, of removing wheel bearings from a car. This, coupled with the parents concerned and well-bonded presentation, the mother’s denial of any abuse or concern about the father’s intentional infliction of these injuries upon the infant, and the father’s demeanor and proffered explanation for the infant’s back bruise provide the framework for evaluating the decision of these professionals. The totality of the circumstances as known to defendant’s employees the night of October 26, 2000, did not present reasonable cause to suspect child abuse or maltreatment.

Although Nurse Fitzgerald testified that she, in fact, had reasonable cause to suspect child abuse on that evening, her determination was based upon only limited information from the claimant about the cause of the infant’s injuries, and she was not a party to the follow-up discussions with the parents, specifically the father, after her initial evaluation of the infant. Additional inquiry was warranted before an adequate assessment of reasonable suspicion of abuse could be made; it is the “totality of circumstances” by which reasonable suspicion is judged. Based upon the physical examination and the discussion with the parents there was no reasonable cause to believe that this was an abusive situation.

Moreover, to impose liability under Social Services Law § 420, there must be a knowing and wilful failure to report suspected child abuse. To do something knowingly reflects an awareness of the nature of one’s conduct, and wilful means intentionally doing an act and knowing that the act is being done (see Kaplan v First City Mtge., 183 Misc 2d 24, 29-30; Walker v Security Tr. Co. of Rochester, 85 Misc 2d 614, 620). Even if the Court accepts Nurse Fitzgerald’s opinion for purposes of finding reasonable cause, she also testified that she believed one of the doctors or the social worker had made a report to the child abuse hotline that evening. She did not knowingly or wilfully fail to report suspected child abuse (Estate of Pesante v County of Seneca WL31818827, affd as modified 1 AD3d 915; Zimmerman ex rel Zimmerman v U.S., 171 F. Supp. 2d 281, 294).
B. Medical Malpractice
It is claimant’s position that defendant’s doctors breached the standard of care by failing to diagnose child abuse when the infant presented to the hospital on October 26, 2000. Child abuse has been established as a medical diagnosis (see People v Henson, 33 NY2d 63, 73-74; Heidt v Rome Mem. Hosp., 278 AD2d 786, 786; People v Bryce, 174 AD2d 945, 947). To establish medical malpractice, there must be evidence to show that the defendant doctors did not possess the requisite knowledge and skill ordinarily possessed by practitioners in the field or neglected to use reasonable care in the application of the requisite knowledge and skill or failed to exercise their best judgment (Pike v Honsinger, 155 NY 201; Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). For liability to be imposed, there must be a showing that the medical provider’s treatment decision was “something less than a professional medical determination” (Ibguy v State of New York, 261 AD2d 510;Darren v Safier, 207 AD2d 473, 474). A physician’s duty is to provide the level of care acceptable in the professional community; a doctor cannot be held liable for mere errors of professional judgment where a choice is made between medically acceptable alternatives or diagnoses (Schrempf v State of New York, 66 NY2d 289, 295; Nestorowich v Ricotta, 97 NY2d 393, 399; see also Oelsner v State of New York, 66 NY2d 636). The “line between medical judgment and deviation from good medical practice is not easy to draw” (Schrempf, 66 NY2d at 295).

Claimant’s expert, Dr. Hostetler testified that Dr. Dickerson and Dr. D’Agostino deviated from the standard of care by failing to do a proper evaluation of the infant’s injuries and failing to properly manage his care. Dr. Hostetler felt that the doctors’ orders directing blood tests, a CT scan, and a referral to the social worker were all appropriate. The deviation was the failure to make the report to the child abuse hotline. However, this failure was the result of these doctors reaching a different conclusion based upon their physical examination, experience and discussions, and evaluation of the parents. This was a determination based upon their professional judgment.

Dr. Hostetler testified that in his experience it was not unusual for there to be a disagreement between social workers and the medical professionals regarding whether or not a child abuse case must be reported. He testified that often the doctors may feel that the injuries are consistent with the asserted cause; yet, the social worker might have concerns about the social dynamics of the family or home. The social worker may feel that the family presents appropriately, but the medical team feels that the injuries do not comport with the description of how the injuries occurred. In either case, Dr. Hostetler testified that if anyone on the team is concerned about child abuse a report is made. Here the doctors and the social worker, after examination and inquiry, were all in agreement that no report was necessary.

After listening to the doctors describe their evaluation of the infant’s injuries, physical examination, and discussions with the parents, it seems clear that in this case they reached a reasoned medical judgment that this child was not suffering from child abuse at that time. Dr. Hostetler acknowledged that child abuse can be difficult to diagnose, and the evaluation must rely on clues within the history and physical examination. Although he felt that this case was almost a “textbook” presentation of child abuse given that the injuries were incompatible with the developmental age of the child, he didn’t have a problem with the care that was given to the child; his disagreement lies in the final determination that was made. Under these circumstances, the Court finds that Dr. Hostetler takes exception with a difference in professional judgment, which, even if wrong, is not actionable as medical malpractice.
C. Proximate Cause
It was Dr. Hostetler’s belief that if a call had been placed to the Child Abuse Registry Hotline on October 26, 2000, a safety plan would have been made and “if an appropriate safety plan [had] been implemented” the November 17 injuries the infant suffered would not have occurred.1[6] Dr. DePanfilis testified that, in her opinion, when a call is received by Child Protective Services, an immediate response would ensue with a child protective worker going to the hospital to immediately assess the situation. She based her opinion on the seriousness of the injury, the age and vulnerability of the child, and the inconsistent explanations. She opined that more likely than not, the worker would have either arranged for immediate protection for the infant or asked the hospital to keep the infant while a more thorough investigation of the infant’s safety was done. She also felt that the police would have been called in on this case.

Ms. Colgan testified that once a report and a referral are made to the local child protective services office, a worker will make a 24-hour safety assessment. Ms. Phillips agreed that this would occur in Oswego County. In the county in which Ms. Colgan worked as a child protective caseworker, trained police officers would also collaborate. Ms. Phillips testified that the Oswego County Child Abuse Task Force is assigned to cases of alleged sexual abuse or serious physical injury and includes law enforcement, someone from the district attorney’s office, a senior child protective caseworker and other caseworkers. In her opinion, they would not have been initially involved in this case based upon the description of the injuries the infant sustained on October 26, 2000 and the doctors’ findings. Ms. Colgan indicated that a preventative services plan could be made right away and the child could have been placed in foster care, the father could have been removed from the home or the child placed with a relative. Ms. Phillips, however, testified that based upon the injuries the infant sustained on October 26, 2000, and the doctors’ and social worker’s position that this was not child abuse, she would have had no reason to remove the child from the home and the parents. She could propose a preventive services plan, but if the parents refused she could not require them to participate without a Family Court Order. Moreover, if, after a home visit the home and parents presented appropriately and there were no other concerns from the child’s pediatric medical records or the interviews, she felt this case would not require commencement of a Family Court proceeding.

Based upon all of the testimony, even if any one of the professionals had made a report to the Central Child Abuse Registry on the night of October 26, 2000, the Court finds it speculative, at best, that Child Protective Services would have made a sufficient investigation within the 23 days before November 17, 2000, to have prevented the unfortunate injuries this infant sustained at the hands of his father. There are so many inquiries and people who would have had to respond in a specific way for Child Protective Services to obtain the information it needed to successfully impose preventative services or remove the infant from these parents prior to November 17, 2000, that it cannot be concluded that a call to Child Protective Services would have protected this infant. The doctors and the social worker testified persuasively, which is confirmed by the contemporaneous records, that they did not feel this was a child abuse case on October 26, 2000. Ms. Phillips, the caseworker ultimately assigned to this case, and the only witness from Oswego County Child Protective Services indicated that this case may not have resulted in a petition being filed with Family Court. Claimant herself denied any domestic violence or concern for the father’s care of the infant the evening of October 26, 2000, which is consistent with the fact that she thereafter left the child alone with the father again on November 17, 2000. The child’s grandmother also testified she never suspected child abuse or domestic abuse before November 17, 2000. It is within this context and not the awareness from the events of November 17, 2000, that a child protective investigation would have been done. Under these circumstances, it is equally as feasible that even with the involvement of Child Protective Services, the November 17, 2000 incident, unfortunately, would still have occurred.

Accordingly, based upon the foregoing, the claim is DISMISSED. Let judgment be entered accordingly.









May 2, 2008
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1]. Matthew D. Furlong, Sr., pled guilty to assault in the second degree and was sentenced to 2½ years determinate confinement and 3 years post-release supervision for shaking the infant on November 17, 2000 (see Exhibits 31 and 32).
[2]. Exhibit I, is an example of a pulley puller, although not the exact one Mr. Furlong used on that day.
[3]. Exhibits 6 and 41-A.
[4].Exhibits 6 and 41-A, Triage Notes.
[5]. Exhibits 6 and 41-A, Nursing Note.
[6]. Exhibits 6 and 41-A.
[7]. Exhibits 6 and 41-A.
[8]. A collection of red blood cells at the bottom of the pupil of the eye (Trial Transcript, p. 162).
[9].Exhibit 41.
1[0]. Exhibit 41, page 73, lines 20-25, page 74, lines 1-3.
[1]1. Exhibit 6.
1[2]. Exhibit 41-B was admitted by stipulation and used during Dr. D’Agostino’s deposition to reference the size of the bruise to the child’s flank. Although the exhibit was represented during the deposition as being prepared by an engineer and shows dark circles referenced to various sizes from 0.5 cm to 5.0 cm, upon closer examination by the Court, the sizes were incorrect as the circle represented as 5.0 cm is actually 6.0 cm and the circle represented as the size of a quarter (~2.6 cm) is actually bigger than a quarter, the 2.0 cm circle is actually the size of a quarter. Dr. D’Agostino also questioned the accuracy of the size of the circle represented as 5.0 cm during the deposition (Exhibit 41 page 37 lines 9-25, page 38, lines 1-17).
1[3].Exhibit 41, page 38, lines 11-17.
1[4]. Vigorous breath-holding crying (Exhibit 41, p. 24, lines 19-21).
1[5]. Exhibits 6 and 41-A.
1[6].Transcript, p. 271, lines 1-10 (emphasis supplied).