Mothers' Lawsuits Claiming Univ. of Pittsburgh Medical Center Interfered with Parental Rights Can Go Forward

The claims arise out of “UPMC’s purported disclosure of their confidential medical information to [child protection authorities] for the purpose of targeting them with highly intrusive, humiliating and coercive child abuse investigations starting before taking their newborn babies home from UPMC’s hospitals shortly after childbirth.”

From Harrington v. UPMC, decided Friday by Judge W. Scott Hardy (W.D. Pa.):

Plaintiffs Cherell Harrington and Deserae Cook filed a Complaint in Civil Action in the Court of Common Pleas of Allegheny County, Pennsylvania, on behalf of themselves and two putative classes, alleging various claims against the University of Pittsburgh Medical Center ("UPMC") and Allegheny County via its Office of Children, Youth and Families ("AC-CYF") arising out of UPMC's purported disclosure of their confidential medical information to AC-CYF for the purpose of targeting them with highly intrusive, humiliating and coercive child abuse investigations starting before taking their newborn babies home from UPMC's hospitals shortly after childbirth….

At this stage of the case, the factual allegations set forth in the Amended Complaint must be taken as true and viewed in the light most favorable to Plaintiffs. These allegations are recounted as follows….

Harrington is the mother of three children and until the birth of her third child had never been accused of abusing or mistreating her children in any way. She was admitted to UPMC's Magee Women's Hospital … on November 29, 2017, and gave birth to her third child, a son, who was born healthy via caesarean section the same day.

Upon her admission to the hospital, Magee employees collected Harrington's urine and tested it for drugs without her knowledge, consent, or any medical reason. The urine sample taken from Harrington came back "unconfirmed positive" for marijuana, further stating, in part, that "[t]he results are to be used only for medical purposes. Unconfirmed screening results must not be used for non-medical purposes (e.g., employment testing, legal testing)," and "the tests…are not definitive. Until definitive testing confirms any result, the result should be regarded as provisional and uncertain." Magee personnel likewise administered a drug test to Harrington's newborn son without Harrington's knowledge or consent. The newborn's test results were negative for all illicit drugs.

The next day, as Harrington was recovering from surgery and caring for her newborn son, a UPMC social worker entered her room and informed her that she had tested positive for marijuana and that her son had tested negative, but that her positive test result would be reported to AC-CYF. Harrington told the social worker there was no reason to report the result because it was false and her newborn's test result was negative, yet the social worker told her she was required to report the result to AC-CYF. The social worker had no reason to suspect or believe Harrington's newborn had been affected by illegal substance abuse or was having withdrawal symptoms resulting from prenatal drug exposure. That same day, without Harrington's consent, and without medical necessity, reason, or justification, UPMC reported her confidential unconfirmed positive drug test result to AC-CYF while also reporting that her newborn had tested negative and was "in good health." Then, later that evening, a nurse attending to Harrington told her that because she tested positive, she should not breastfeed her son and that UPMC would not support or assist her in doing so.

On December 1, 2017, less than three days after giving birth to her son, an AC-CYF case worker entered Harrington's private hospital room to inform her that AC-CYF was investigating her for child abuse based upon a report received from UPMC. Despite Harrington's objection to the investigation because her positive test result was "unconfirmed," the case worker told her that AC-CYF opens an investigation whenever it receives a report from UPMC that a new mother tested positive for drugs. Then, while still in Harrington's private hospital room, the AC-CYF case worker photographed Harrington's healthy newborn baby and required Harrington to sign various AC-CYF forms and documents; the case worker also told her that AC-CYF would be subjecting her private residence to a home inspection upon discharge from the hospital.

On December 4, 2017, merely two days after Harrington was discharged from the hospital, the same AC-CYF case worker arrived at her home, toured her house, inspected her refrigerator and cupboards, and took photographs of her children. The case worker required Harrington and her husband to answer detailed personal questions about their education, employment, family and medical histories, and he asked their then-eleven-year-old daughter about Harrington's "use of addictive substances."

The case worker also told Harrington that because of UPMC's report to AC-CYF, AC-CYF would be requiring her to participate in a drug counseling session with a representative of Pennsylvania Organization for Women in Early Recovery ("POWER") and submit to another drug test administered by it. When Harrington objected to participating in this process, the case worker told her that if she did not complete POWER's assessment, he would report her "failure to cooperate" to a judge and require her to travel to downtown Pittsburgh for monthly drug tests. Fearful of losing custody of her children, Harrington submitted to the POWER assessment under duress. The case worker noted on an AC-CYF form that Harrington "cannot or will not control [her] behavior" and that her "protective capacity" for her children was "diminished" due, exclusively, to the unconfirmed positive drug test result reported by UPMC.

During this home inspection, the case worker also required Harrington to sign numerous papers, including releases permitting AC-CYF to contact and obtain confidential information from her 11-year-old daughter's pediatrician, dentist, and school. The case worker would not give Harrington copies of these documents. Again, fearful of losing custody of her children, Harrington signed these documents.

On December 27, 2017, a POWER representative arrived at Harrington's home two hours earlier than scheduled. Upon arrival, the representative asked Harrington a series of questions about her personal life, including whether she had a history of illegal drug use. The representative also administered another urine drug test with a negative result. Harrington believes this POWER representative submitted a report to AC-CYF which included Harrington's answers to the representative's questions. Then, on December 29, 2017, a representative from POWER informed the AC-CYF case worker that Harrington was "not recommended for treatment."

Notwithstanding POWER's recommendation, in early January 2018, the AC-CYF case worker persisted with his investigation by contacting Harrington's daughter's school and interviewing the school's social worker, by contacting Harrington's pediatrician and obtaining medical information about all three of her children, and by contacting Harrington's dentist and obtaining her daughter's dental information. Then, on January 8, 2018, the case worker returned to tour Harrington's home a second time and inspected her bedrooms and the contents of her refrigerator and kitchen cabinets. The case worker also interviewed Harrington's daughter. Before leaving Harrington's home, the case worker informed Harrington that he would speak with his supervisor regarding the status of the investigation. Harrington received no further communications from the case worker or anyone else at AC-CYF….

Cook is the mother of two children, a 5-year-old boy and a 1-year-old girl. She was admitted to UPMC's Mercy Hospital ("Mercy") on July 7, 2018 and gave birth to her healthy daughter that same day. As part of the hospital admission intake process, a Mercy employee asked Cook whether she had ever used illegal drugs, to which Cook responded that she had smoked marijuana in the past but "quit everything" when she found out she was pregnant. Thereafter, Mercy employees collected Cook's urine and tested it for drugs without her knowledge, consent, or medical reason. Mercy personnel likewise administered a drug test to Cook's newborn daughter without Cook's knowledge or consent. Both Cook's and her newborn daughter's drug test results were negative.

The next day, a UPMC employee entered Cook's hospital room and informed Cook and the newborn's father that although she tested negative for drugs, UPMC was "required" to report her to AC-CYF because of her answers to the intake questions. Before that date, UPMC never informed Cook that her answers to the patient intake questions would be used as the basis to report confidential information to AC-CYF. Then, the following day, July 9, 2018, without Cook's consent, a Mercy employee contacted AC-CYF and reported, in part, that Cook's and her newborn daughter's drug test results were negative, but that Cook "admitted to using marijuana in the beginning of her pregnancy but stopped when she found out she was pregnant. No current concerns[.]" Cook was discharged from the hospital that same day.

After being discharged, an AC-CYF caseworker left a note on Cook's door stating that she needed to contact the caseworker to schedule a home inspection. Fearing the loss of custody of her children, Cook contacted the caseworker and scheduled a home inspection as instructed. Then, on July 24, 2018, an AC-CYF case worker arrived at Cook's home and completed a "walk through", during which she inspected her children's bedrooms, the amount of food in the kitchen and the amount of children's clothing and toys. The caseworker also interrogated Cook and the children's father about their education, employment, family and medical histories, and provided unsolicited parenting advice and provided them with a "parent handbook." The AC-CYF case worker also required Cook to sign a release for both of her children's medical records.

The next day, on July 25, 2018, the AC-CYF case worker completed a "Pennsylvania Model Risk Assessment Form" in which she concluded that there was "no risk" to Cook's children. Despite this "finding," Cook received numerous phone calls from social service agencies offering unnecessary services for her and her children. Then, on August 23, 2018, the AC-CYF case worker signed a letter informing Cook that her family was not accepted for services by AC-CYF, and that neither further intervention nor ongoing services were needed. The next day, and despite having concluded that no further intervention or services were needed, the AC-CYF case worker returned to Cook's home and conducted another home inspection and interrogated Cook about her children's medical histories, medical insurance, and recent doctor's visits. Then, a few days later, on August 27, 2018, the AC-CYF case worker sought and obtained confidential medical information regarding both of her children from their pediatrician despite having previously concluded that no further intervention or services were needed….

The court allowed the plaintiffs' lawsuit to go forward. It concluded that plaintiffs adequate alleged that UPMC was a state actor because of its connection with AC-CYF:

Plaintiffs' allegations go beyond merely averring that UPMC reported crimes it observed or that it made statutorily mandated reports of child abuse. Plaintiffs assert factual allegations that UPMC routinely took affirmative steps in accord with its own policies, customs, and practices, and in violation of its own legal and ethical duties, to obtain confidential medical information from its patients and to convey that private information to AC-CYF without its patients' consent as part of a practice, policy or agreement with AC-CYF and knowing that AC-CYF routinely accepted and acted upon UPMC's disclosures to conduct unwarranted, intrusive, coercive, and unconstitutional child abuse investigations, including the possible removal of the mother's newborn child from her custody…. And, while UPMC contends that Plaintiffs' averments of an agreement between UPMC and AC-CYF were merely bald assertions that lack any factual backing, in this Court's estimation those allegations do allege a plausible agreement, conspiracy, or coordinated plan between UPMC and AC-CYF, particularly because those allegations permit reasonably drawn inferences that AC-CYF routinely defers to and relies upon UPMC's judgment as to whether, and to what extent, it will conduct child abuse investigations of UPMC's maternity patients even when the CPSL may not mandate UPMC to make such child abuse reports. Likewise, Plaintiffs' factual allegations also permit a reasonably drawn inference that UPMC intentionally facilitated AC-CYF's intrusions, not only into the patients' private medical information, but also into their private hospital rooms which UPMC undoubtedly governs and in which Plaintiffs allege the patients and their newborn children are captively and coercively interrogated and photographed….

The court concluded that the plaintiffs adequately alleged a violation of their familial integrity rights:

The United States Supreme Court has explained that it is "a cardinal principal 'that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.'" … While familial integrity is a liberty interest entitled to constitutional protection, such protection is not absolute. Rather, it is "limited by the compelling governmental interest in the protection of children—particularly where the children need to be protected from their own parents" and does not include a right to remain free from child abuse investigations…. [But t]he State "has no interest in protecting children from their parents unless it has some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse." …

Plaintiffs' allegations plausibly cast doubt on whether AC-CYF and UPMC, as a joint actor with AC-CYF, possessed the requisite objectively reasonable suspicion of abuse to justify both the initiation and degree of governmental interference with Plaintiffs' familial relationships. As pled by Plaintiffs, Defendants merely possessed information that Cook ceased using marijuana several months beforehand when she found out she was pregnant, that she tested negative for drugs with "no current concerns" upon admission to the hospital for childbirth, and that her newborn also tested negative for drugs immediately after birth. Similarly, as pled in the Amended Complaint, Defendants merely possessed Harrington's "unconfirmed positive" drug test result that included the express qualifiers that such result is 'to be used only for medical purposes" (and not for non-medical purposes such as employment testing and legal testing) and that the test administered "may react with compounds other than the drugs indicated, and therefore are not definitive." Yet, with nothing more, Defendants seemingly disregarded the presumption articulated by the Supreme Court in Troxel v. Granville (2000), that a "fit parent will act in the best interest of his or her child" and instead intruded into and interfered with Plaintiffs' constitutionally protected liberty interests in their familial integrity….

Defendants … contend that Plaintiffs' rights to the custody, care, and management of their children were not infringed upon merely by being subjected to child abuse investigations. However, while … the fundamental right to familial integrity does not include a right to remain free from child abuse investigations in and of themselves, such investigations do not escape constitutional scrutiny when initiated, expanded, or continued in the absence of reasonable grounds and thus become arbitrary abuses of power. Here, Plaintiffs allege that the putatively unwarranted and unjustified child abuse investigations began when UPMC personnel administered drug tests on Plaintiffs and their newborns without their knowledge or consent, and were subsequently exacerbated by governmental intrusions into their hospital rooms and homes under coercive circumstances that created a belief that they would lose child custody, all without any objectively reasonable suspicion of abuse or despite any errant suspicion being dispelled.

Plaintiffs also allege intrusions beyond being subject to child abuse investigations. They allege that they were coerced into signing various AC-CYF forms and documents, including releases permitting AC-CYF to obtain confidential information from their young children's pediatricians, dentists, and schools. Plaintiffs also allege that AC-CYF insisted upon additional drug testing and/or drug counseling and imposed unneeded and unwanted parental advice and instruction. Plaintiffs also allege that at least one such investigation involving Cook triggered numerous phone calls from social services agencies offering unnecessary services. Indeed, these averments plausibly contend that the investigations were unjustified ab initio, expanded and persisted without any legitimate predicate and despite objective evidence of non-abuse, and transgressed beyond investigative fact gathering….

The court held that plaintiffs plausibly alleged violations of their constitutional right to privacy in medical information:

There exists a constitutionally protected privacy interest in "'avoiding disclosure of personal matters'" such as medical records "which may contain intimate facts of a personal nature." …

Here, Plaintiffs essentially allege that UPMC secretly obtained their and their newborns' personal, intimate medical information and then divulged that information to AC-CYF for the purpose of pursuing unwarranted child abuse investigations and other impositions on their familial relationships. Plaintiffs also allege that the medical information at issue is very specific and personally identifiable. Plaintiffs further allege that this highly personal information was obtained in contravention of their reasonable privacy expectations inherent in their trusted physician-patient relationships, and, even then, it was taken and then divulged to the government and other third parties without their knowledge or consent.

Under these circumstances, it is reasonable to infer that such purported breaches of trust caused by Defendants' alleged invasions of privacy erode these vitally important relationships between maternity patients such as Plaintiffs and their medical providers. These alleged circumstances must then be weighed against the legitimate and important governmental interest in disclosing and using such private medical information to protect children from abuse. Here, there are express statutory mandates, notably the CPSL and the Health Insurance Portability and Accountability Act ("HIPAA"), that provide the contours for when and to what degree such information may be reported by UPMC and used by AC-CYF. At this preliminary juncture, however, Plaintiffs have pled enough to plausibly tip the balance of these factors towards establishing viable constitutional privacy claims….

The court held that plaintiffs plausibly alleged violations of their Fourth Amendment rights:

At Count Six, Harrington asserts a claim against AC-CYF alleging that it violated the Fourth Amendment by requiring her to submit to drug tests based solely on a hospital report of an unconfirmed positive test for marijuana while pregnant and without any basis to believe that she abused or neglected her children.

AC-CYF argues that Harrington voluntarily consented to drug testing. Accordingly, AC-CYF has the burden to establish that Harrington's consent to be tested was freely and voluntarily given…. Harrington avers that her consent was not voluntary because of the purportedly coercive timing, setting, and nature of the AC-CYF case worker's directives that she must submit to subsequent drug tests. Harrington was subjected to this child abuse investigation immediately upon giving birth, while still in the hospital, and while under the belief that her infant newborn would be taken away from her if she refused or otherwise failed to cooperate. Under the totality of the circumstances, these averments plausibly allege that Harrington did not voluntarily consent to such drug tests, and AC-CYF will need to proffer evidence during discovery to satisfy its burden to the contrary….

And the court held that plaintiffs adequately alleged breaches of UPMC's "common law duty to keep all patient communications, diagnoses, and treatment information confidential":

UPMC seeks dismissal of these claims contending that its alleged disclosures to AC-CYF were made in good faith, and it therefore is immune from liability pursuant to the CPSL, citing 23 Pa. C.S. § 6318(a)(1). Because good faith is presumed, 23 Pa. C.S. § 6318(c), Plaintiffs must allege sufficient facts to plausibly establish that UPMC acted in bad faith.

In this regard, Plaintiffs aver that UPMC administered drug tests without consent and then disclosed the "unconfirmed" results of those tests along with other confidential medical information to AC-CYF, despite knowing these tests were unreliable and likely to lead to false positive results. Plaintiffs also aver that UPMC's testing of Plaintiffs' newborns without their consent nonetheless resulted in negative results, and that UPMC possessed no countervailing information that would lead those involved in the delivery or care of these healthy infants to believe that they were affected by illegal substance abuse of their mothers or that they exhibited withdrawal symptoms resulting from prenatal drug exposure. {In this instance, Cook admitted to hospital personnel that she previously used illegal drugs, but "'quit everything'" when she found out she was pregnant. However, the Pennsylvania Supreme Court has held as a matter of law that a mother's act of ingesting illegal drugs while pregnant does not constitute child abuse.}

In one such alleged instance, UPMC personnel allegedly disclosed Harrington's confidential medical information to AC-CYF despite her newborn's negative drug test result and indications that the infant was "in good health." In another instance, UPMC personnel allegedly disclosed Cook's confidential medical information to AC-CYF even though both her and her newborn's drug tests were negative, and even though UPMC had "no current concerns." Based upon these averments, the Court finds that Plaintiffs sufficiently pled facts to raise a reasonable expectation that discovery will reveal evidence of bad faith to overcome the good faith presumption warranting immunity.

But the court rejected Harrington's compelled speech claim:

Harrington contends that AC-CYF threatened to report her to a judge and require her to submit to monthly drug tests, without justification, unless she answered a series of questions about her personal life through mandated participation in the POWER program…. Harrington does not appear to be contending that AC-CYF sought to compel involuntary affirmation of objected-to beliefs or to embrace a particular government-favored message. In fact, Harrington's threadbare averments supporting her free speech claim offer no specifics as to what speech, if any, she contends had been coerced. Rather, as pled, Harrington narrowly alleges that AC-CYF threatened to report her to a judge and require her to submit to monthly drug tests unless she answered a series of questions about her "personal life." While the Court finds that the Amended Complaint does contain adequate factual averments to plausibly establish the requisite compulsion, the Court also concludes that the Amended Complaint is devoid of allegations as to what POWER's questions entailed, and thus the Court cannot assess whether to apply strict or intermediate scrutiny, much less discern whether those questions pass constitutional muster.

The court also rejected plaintiffs' sex discrimination claims:

In their Amended Complaint, Plaintiffs allege that Harrington's husband was present at the hospital prior to and during childbirth and intended to return home with Harrington and their newborn, but UPMC did not collect or attempt to collect his urine to test it for drugs. Likewise, Plaintiffs allege that the father of Cook's newborn was also present at the hospital during childbirth and similarly intended to return home with Cook and their newborn, yet UPMC never attempted to collect his urine to test it for drugs nor did UPMC asked whether he had ever used illegal drugs….

[But] Plaintiffs were UPMC's labor and delivery patients, while the fathers were not. UPMC obtained Plaintiffs' private medical information, including prior purported drug use, in the context of their physician-patient relationship during labor, delivery, and recovery from childbirth. Plaintiffs have not and presumably cannot allege any corresponding physician-patient relationship between the fathers and UPMC's obstetricians and their labor and delivery service.

Moreover, there is a fundamental biological distinction between a mother and father regarding the substances they consume (both legal and illicit) and the potentially deleterious impact those substances may have on their child's health and wellbeing both in utero and upon birth. The CPSL recognized this reality by imposing specified reporting obligations on hospitals based on mothers' drug use but not fathers' drug use. These inherent differences between mothers and fathers are substantial in the context of prenatal care, labor, delivery, and recovery, and principles of equal protection do not require ignoring this reality.

Furthermore, AC-CYF undertook investigations based upon reports that Plaintiffs, but not the fathers, illegally used drugs. Therefore, based upon the averments contained in the Amended Complaint and reasonable inferences drawn therefrom in Plaintiffs' favor, the Court finds that Plaintiffs have not alleged a cognizable equal protection claim and that they cannot plausibly allege additional facts by amendment to allege Plaintiffs and the fathers were similarly situated to establish such a claim….

Congratulations to Margaret Schuetz Coleman of O'Brien, Coleman & Wright, LLC and to Sara Roset of the ACLU-Pennsylvania on their victory on this motion.