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L.A., As Parent and Legal Guardian of S.A., A Minor, and L.A v. New Jersey Division of Youth and Family Services;*Fn1

November 16, 2012

L.A., AS PARENT AND LEGAL GUARDIAN OF S.A., A MINOR, AND L.A., INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES;*FN1 NEW JERSEY DEPARTMENT OF HUMAN SERVICES, NOW KNOWN AS DEPARTMENT OF CHILDREN AND FAMILIES; KEVIN M. RYAN, FORMER COMMISSIONER; EILEEN CRUMMY, DIRECTOR OF DIVISION OF YOUTH AND FAMILY SERVICES; CHARLES VENTI, FORMER DIRECTOR OF DIVISION OF YOUTH AND FAMILY SERVICES; SHALONDA MARTIN; RICHARD KLEIN, ED.D.; CATHERINE HINES, CADS; GWENDOLYN ARMSTRONG; AUBREY LUTZ; ANDREA STOKES; MONICA DUDAK; AND PAULETTE TARICA, DEFENDANTS, AND JERSEY SHORE UNIVERSITY MEDICAL CENTER AND DANIEL YU, M.D., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1131-07.

The opinion of the court was delivered by: Waugh, J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 2, 2012

Before Judges Alvarez, Waugh, and St. John.

The opinion of the court was delivered by WAUGH, J.A.D.

Plaintiff L.A. (Linda*fn2 ) appeals the Law Division's August 13, 2010 orders dismissing her claims, brought on behalf of her minor daughter S.A. (Sally), against defendants Daniel Yu, M.D., and Jersey Shore University Medical Center (Medical Center). We reverse.

I.

We discern the following facts and procedural history from the record on appeal.

A.

Sally was born on November 5, 1998. She was abandoned by her biological mother in September 1999, at which time the Division of Youth and Family Services (DYFS) assumed custody and placed her in a foster home. In November 2000, DYFS approved placement of Sally with her biological father, K.L. (Ken).

At 8:00 p.m. on the evening of January 13, 2001, unidentified relatives brought two-year-old Sally to the Medical Center's emergency department. They told the triage nurse that Sally had been "vomiting" and had an "unsteady gait." They told another nurse that Sally had been "unable to walk." The second nurse observed Sally to be "very lethargic and weak on arrival to ER with unusual odor on breath." The relatives told the nurse that they had been "called to [Sally's] house by [her] step-mother." Sally was registered as "Jane Doe" and immediately taken into the emergency room.

Yu examined Sally, noting a "cologne smell" and a "smell of chemical alcohol" from her mouth. He checked her breathing and pulse, looked for metabolic disorders, ingestion, and bleeding, and checked her mucous membranes, neck, heart, lungs, abdomen, extremities, and skin. Yu ordered blood work, a chest x-ray, a urinalysis, a blood-sugar check, and a test for carbon monoxide. He put Sally on a saline IV to prevent dehydration. Sally was also seen by a pediatric resident.

Test results received at 8:33 p.m. showed that Sally's blood alcohol level was 0.035 percent. At about the same time, Ken arrived at the hospital. He showed Yu a container of cologne, which he said Sally might have ingested. The records do not reflect that he gave Yu any information concerning how Sally had ingested cologne or any other form of alcohol. At 8:45 p.m., the emergency department's records were updated with Sally's name and date of birth, as well as her father's name and address.

Based on the results of the lab tests, the odor detected on Sally's breath, and Ken's presentation of the cologne, Yu concluded that Sally had ingested cologne. Although Yu recorded "cologne presented," neither he nor any Medical Center employee noted the type of cologne, its alcohol concentration, or the volume and contents of the container. Similarly, there were no notes concerning the circumstances under which Sally had accessed the cologne or who, if anyone, had been with her at the time.

By 9:30 p.m., Sally was "more alert" and "able to stand." Ken remained with her. At 11:20 p.m., Sally was alert, "tolerating oral fluids," and "able to ambulate with steady gait." Yu approved her discharge. Ken took her home at 11:30 p.m. Yu did ...


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