Hurst, III et al v. Madera et al

Filing 102

ORDER granting in its entirety 62 Motion to Dismiss Defendants HCA- Healthone LLC, Jo Ann Wacker-Farrand, Margaret Hauser and Jane Gallup, by Magistrate Judge Kathleen M. Tafoya on 9/27/2017. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 16–cv–01914–KMT
HENRY A. HURST III,
SUSAN I. HEATH, as Co-Personal Representatives of the Estate of NATALEE MARIE
SKINNER-HURST, deceased, and
JONATHAN ROBERTS HURST, individually,
Plaintiffs,
v.
ROTCHANA S. MADERA,
SUZANNE DOLAN,
HCA-HEALTHONE LLC, a limited liability company doing business as SWEDISH MEDICAL
CENTER,
ROCKY MOUNTAIN HOSPITAL FOR CHILDREN AT SWEDISH MEDICAL
CENTER,
JO A. WACKER-FARRAND,
MARGARET HAUSER, and
JANE GALLUP,
Defendants.

ORDER

This matter is before the court on the “Motion to Dismiss Defendants HCA-Healthone
LLC, Jo Ann Wacker-Farrand, Margaret Hauser and Jane Gallup.” (Doc. No. 62 [“Mot.”].)
Plaintiff filed a Response (Doc. No. 88), to which Defendants filed a Reply. (Doc. No. 89
[“Reply”].)1

1

For the sake of brevity, although there are additional defendants in this matter, the four
defendants who filed the present motion are collectively referred to herein as “Defendants.”

Background Information
Kelsy Newell-Skinner gave birth to Natalee Marie Skinner-Hurst on May 14, 2014.
(Doc. No. 50 at 7 [“Am. Comp.”].)2 On that same date or the next day, an employee(s) of
Defendant HCA-Healthone LLC, a limited liability company doing business as Swedish Medical
Center (“SMC”), reported to Colorado Protective Services of the Denver County Department of
Human Services (“DCDHS”) that Baby Natalee was born prematurely, her mother had admitted
to marijuana use during the pregnancy, and the mother had also tested positive for marijuana.
(Id. at 8, 115.) DCDHS’ records indicate Defendant Jo A. Wacker-Farrand, an SMC social
worker, made the report indicating that in addition to the mother’s marijuana use, the primary
concern was neglect, with other complicating factors of stress in the home, explained as
circumstances that create risk to child safety, and that the baby’s urine did not test positive but a
Meconium test had been requested. (Id. at 8.) SMC’s records indicate that Defendant Margaret
Hauser, another SMC social worker, informed Baby Natalee’s mother and father, Jonathan
Hurst, of the report to DCDHS and that the father was upset about it. (Id. at 115.)
Baby Natalee and her mother were discharged on May 23, 2014. (Id. at 9.) The results
of the Meconium test were returned on May 27, 2014 and were positive for tetrahydrocannabinol
(“THC”), a chemical contained in marijuana. (Id.)
Plaintiffs allege that during Baby Natalee’s hospitalization and afterward, various family
members and other interested persons reached out with multiple pleas, inquiries and requests to

2

Since the filing of the current motion, Plaintiffs filed a Second Amended Complaint. (Doc. No.
94.) However, the amendments contained therein pertain only to allegations and claims against
Defendant Suzanne Dolan. Therefore, this Order will reference Plaintiffs’ Amended Complaint
(Doc. No. 50) as it is the pleading upon which the current motion is based and to which the
briefing refers.
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SMC’s employees, including Defendants Wacker-Farrand, Hauser, and Jane Gallup to inquire
why there were no caseworkers/social workers from DCDHS and SMC showing up to render
services and investigate. (Id. at 66.) They also reported the baby’s mother had not bonded with
her, the mother had stated that the baby did not like her, and the mother suffered from preexisting mental health and substance abuse issues. (Id. at 66-67.) Defendant Rotchana Madera,
the assigned DCDHS caseworker, reported to DCDHS that she visited Baby Natalee in the
hospital after her birth, the Meconium test was negative, and that she had performed a home visit
after Natalee was released and interviewed both parents. (Id. at 10-18.) Each of these reports
was false as the Meconium test was positive and Defendant Madera never contacted anyone in
Baby Natalee’s family, nor did she visit the baby in the hospital or at home after the baby’s
release. (Id.) Additionally, DCDHS records show Defendant Madera accessed Natalee’s case
file on May 19, 2014 and May 27, 2014, the date of the positive Meconium test results. (Id. at
13-14.) She did not access it again until July 8, 2014, at which point she recommended the case
be closed. (Id. at 14.) 3
On July 31, 2014, Baby Natalee died after being injured by her mother on July 27, 2014.
(Id. at 67-68.) Plaintiffs have asserted a claim of Professional Negligence Resulting in Wrongful
Death against Defendants SCM, Wacker-Farrand, Hauser, and Gallup. (Id. at 106-139.)
Defendants seek dismissal arguing that they complied with their legal duties and therefore,
Plaintiffs cannot state a viable negligence claim.

3

DCDHS records include additional false reports pertaining to Defendant Madera’s contact with
Baby Natalee and her mother. Because those facts are not relevant to the issues presented in the
current motion, the court will not address them herein.
3

Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss
a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the
parties might present at trial, but to assess whether the plaintiff's complaint alone is legally
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d
1194, 1201 (10th Cir. 2003) (quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall v.
Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the
plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis.
First, the court identifies “the allegations in the complaint that are not entitled to the assumption
of truth,” that is, those allegations which are legal conclusion, bare assertions, or merely
conclusory. Id. at 679-81. Second, the Court considers the factual allegations “to determine if
they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss. Id. at 679.
Notwithstanding, the court need not accept conclusory allegations without supporting
factual averments. S. Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998).

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“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover,
“[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’ Nor does the complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Id. (citation omitted). “Where a complaint pleads
facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, courts may consider not only the
complaint itself, but also attached exhibits and documents incorporated into the complaint by
reference. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citations omitted).
“[T]he district court may consider documents referred to in the complaint if the documents are
central to the plaintiff’s claim and the parties do not dispute the documents’ authenticity.” Id.
(quotations omitted).
Analysis
Plaintiffs base their professional negligence claim upon what they describe as “a set of
complex acts of misfeasance and nonfeasance” by Defendants. (Resp. at 13.) “In determining
whether a defendant owes a duty to a particular plaintiff, the law distinguishes between acting
and failure to act, that is, misfeasance, which is active misconduct that injures others, and
nonfeasance, which is a failure to take positive steps to protect others from harm.” Smit v.
Anderson, 72 P.3d 369, 372 (Colo. App. 2002) (citing Univ. of Denver v. Whitlock, 744 P.2d 54
(Colo. 1987)). According to Plaintiffs, Defendants had statutory duties to take certain actions

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based upon misfeasance. Additionally, Plaintiffs argue that had statutory duties not applied,
Defendants had a special relationship with Baby Natalee and her mother and therefore, owed a
duty of care based upon nonfeasance.
a. Duty to Act
“In Colorado, a prima facie case of negligence is established when the plaintiff proves the
following elements: the existence of a legal duty owed by the defendant to the plaintiff, a breach
of that duty, injury to the plaintiff, and a causal relationship between the breach and the injury.”
Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 929 (Colo. 1997) (citing Connes v. Molalla
Transp. Sys., Inc., 831 P.2d 1316, 1320 (Colo. 1992)). “Because negligence requires proof of the
existence and breach of a legal duty, a negligence claim cannot be sustained without evidence of
an applicable standard of care and evidence that the defendant’s conduct did not conform to the
standard of care.” Gerrity, 946 P.2d at 929 (citing United Blood Servs. v. Quintana, 827 P.2d
509, 519 (Colo. 1992)). In Gerrity, the court discussed situations in which legislative enactments
and/or administrative regulations establish the applicable standard of care. Id. “If the legislative
enactment or regulation defines the legal duty owed by the defendant, then proof of its violation
establishes a breach of that duty.” Id.
Plaintiffs reference various Colorado statutes throughout their Amended Complaint and
Response in an attempt to identify a statute defining a legal duty on the part of Defendants that
they allege Defendants breached. Looking at each of the referenced statutes in turn, however,
Defendants’ actions, as alleged in the Amended Complaint, did not violate any applicable legal
obligation.

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Plaintiffs cite to Colo. Rev. Stat. § 19-3-304, which requires Defendants to report a “child
being subjected to circumstances or conditions that would reasonably result in abuse or neglect.”
It is undisputed Defendants complied with this statutory obligation by reporting their concerns
regarding Baby Natalee to DCDHS, specifically stating that their primary concern was neglect
and that the baby’s mother had admitted to marijuana use and tested positive to THC. (Am.
Comp. at 8, 115.)
Plaintiffs concede Defendants made a report pursuant to Colo. Rev. Stat. § 19-3-304 but
argue Defendants failed to accurately assess factors of risk and endangerment, perform an
“ongoing assessment” of needs or barriers to services upon discharge, refer the mother for
substance abuse, alcohol education, or treatment, or create a plan of care that would ensure the
continuation of services and support to meet the needs of the baby and her caregivers. (Resp. at
8-9.) In their Amended Complaint and Response, Plaintiffs assert conclusory statements that the
described actions were required. (Id.; Am. Comp. at 114, 117, 119-20.) However, Plaintiffs do
not cite to any statute or regulation mandating these actions.
Relying on Colo. Rev. Stat. § 25-1-122(4)(d), Plaintiffs also assert that Defendants were
required to make additional reports to DCDHS that family members reached out expressing
additional concerns post-discharge and inquire as to why DCDHS was not rendering social
services or investigating. (Resp. at 10-13; Am. Comp. at 126-27.) However, Colo. Rev. Stat.
§ 25-1-122(4) provides only that certain health related records and their content will be held as
confidential. Sub-section (4)(d) of that statute provides an exception for reports of child abuse.
Thus, this statute does not establish a legal duty nor in any other way require the actions
Plaintiffs describe in their Amended Complaint and Response.

7

Relying on Colo. Rev. Stat. §§ 19-3-401 and 19-3-405, Plaintiffs state Defendants were
obligated by law to cause to have Baby Natalee taken into protective custody. (Resp. at 12; Am.
Comp. at 70.) Colo. Rev. Stat. § 19-3-401 provides authority to law enforcement officers to take
children into protective custody under certain circumstances. Though not specifically identified
by Plaintiffs, 19-3-401(3)(c)(1) allows a law enforcement officer to take a newborn, defined as
less than 72 hours old, into protective custody when a “physician, registered nurse, licensed
practical nurse, or physician assistant” identifies the newborn “as being affected by substance
abuse or demonstrating withdrawal symptoms.” As Defendants point out, under the plain
language of this section, law enforcement officials could have taken temporary custody of Baby
Natalee when Defendants reported to DCDHS that the mother had a positive drug test, however,
this statute does not impose a duty on or provide authority for Defendants, as hospital
employees, to take custody and control of Baby Natalee.
Finally, Plaintiffs state that Colo. Rev. Stat. § 19-3-405 required SMC’s hospital
administrator to cause Baby Natalee to be taken into temporary protective custody. (Resp. at 5.)
Plaintiffs misread this statute. Colo. Rev. Stat. 19-1-103(1)(a)(VII) defines child abuse or
neglect as including any case in which a child tests positive at birth for various schedule 1
controlled substances, including marijuana. Colo. Rev. Stat. § 19-3-405(2)(a) states that a
hospital administrator may, but is not required to, seek a temporary protective custody order if a
child reasonably believed to have been neglected or abused is being treated.4

4

Plaintiffs also cite to Colo. Rev. Stat. § 19-1-103(20) and Colo. Rev. Stat. § 19-10-107 as
establishing a legal duty on the part of Defendants. (Resp. at 13; Am. Comp. at 128.) However,
Colo. Rev. Stat. § 19-1-103(20), at all times relevant to the present lawsuit, defines the term
‘child care centers’ and § 19-10-107 was repealed in 1987. See Act of July 1, 1987, ch. 138,
1987 Colo. Sess. Laws 1st Reg. Sess. 695.
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In order for Plaintiffs’ claim to survive a request for dismissal, they must sufficiently
allege Defendants not only owed a legal duty to Baby Natalee and/or her mother, but also
breached that duty. Gerrity, 946 P.2d at 929. The statutes upon which Plaintiffs rely establish
only that Defendants had a duty to report to DCDHS their concerns that Baby Natalee would be
subject to neglect and that the baby and the mother tested positive for marijuana use. See Colo.
Rev. Stat. § 19-3-304. Plaintiffs concede Defendants complied with this requirement.
b. Special Relationship
Plaintiffs contend that even if Defendants did not have a legal duty to act pursuant to
statute or regulation, they had a special relationship with Baby Natalee and her mother making
them responsible for preventing the type of harm that occurred in this case. As noted, courts
recognize this type of claim as nonfeasance negligence, which “involves passive inaction or a
failure to take steps to protect someone from harm.” State Farm Fire & Cas. Co., Inc. v. U.S.,
No. 06-cv-01135-WYD-MJW, 2008 WL 5083502, at *9 (D. Colo. Nov. 25, 2008).
In nonfeasance cases a duty has been recognized only in a limited group of cases
where a special relationship existed between the parties of such a character that
social policy justified the imposition of a duty to act. Special relationships that
have been recognized include common carrier/passenger, innkeeper/guest,
possessor of land/invited entrant, employer/employee, parent/child and
hospital/patient.
Id. (citing Whitlock, 744 P.2d at 57–58).
Colorado law’s recognition of a special relationship is limited. “[B]ecause in
misfeasance the actor has created a new risk, and in nonfeasance the actor has simply preserved
the status quo, the situations in which nonfeasance leads to liability are more circumscribed than
those for misfeasance.” Smit, 72 P.3d at 372.

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In Colorado, absent a special relationship, a person generally has no duty to take
action for the protection of another even if it is reasonably apparent that such
action is necessary to protect the other person from injury or peril. Special
relationships typically involve circumstances in which the defendant either had a
treating or supervisory relationship with the decedent or maintained custodial
control over the decedent’s environment.
Watkins v. Action Care Ambulance, Inc., No. 07–cv–02598–WJM–BNB, 201l WL 108527, at *4
(D. Colo. March 23, 2011) (quoting English v. Griffith, 99 P.3d 90, 94 (Colo. App. 2004)).
While patient Kelsy Newell-Skinner and patient Baby Natalee were in the hospital, a special
relationship existed between both of the two and their medical caregivers. However, that
relationship did not continue after mother and baby’s discharge from the hospital.
Citing Leake v. Cain, 720 P.2d 152 (Colo. 1986), Plaintiffs assert a conclusory statement
in their Response that “there is no question here that a ‘special relationship' existed by and
between [] Defendants and patient Kelsy Newell-Skinner and by and between [] Defendants and
patient Baby Natalee who was birthed at SMC.” (Resp. at 15.) However, Leake does not
support Plaintiffs’ conclusion. In Leake, police officers were summoned to a party of teenagers
where alcoholic beverages were being served. Id. at 160-61. Ralph Crowe, one of the
intoxicated attendees, attempted to interfere with the officers’ efforts to disperse the group,
resulting in the officers handcuffing him. Id. at 161. Eventually, the officers released Ralph
Crowe to his younger brother, Eddie Crowe, who appeared sober, to drive him home. Id. After
leaving the party, the brothers stopped at a store and when they left, Ralph drove the car instead.
Id. at 154. Ralph struck six people on the street, killing two of them. Id. The decedents’
families filed a wrongful death action, asserting claims against the officers who released Ralph
Crowe for negligently failing to take him into custody, arguing that it was foreseeable he would
drive an automobile and injure the public. Id.
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The court ruled in favor of the officers, explaining, “While the officers obviously had a
duty to prevent Ralph Crowe from harming others while he was handcuffed at the party, see
Restatement (Second) of Torts § 319 (1965) (duty of those in charge of person having dangerous
propensities), the officers discharged their duty by restraining Crowe until he calmed down. The
officers’ duty, as it related to the conduct of Ralph Crowe, began and ended at the party. It did
not extend to the period after Ralph Crowe was released to his younger brother, who assured the
officers that he would drive Ralph Crowe home.” Id. Thus, the Leake decision does not support
a finding Defendants had a special relationship with either Baby Natalee or her mother following
their discharge.
Plaintiffs also attempt to rely on Perreira v. State, 768 P.2d 1198 (Colo. 1989) wherein a
court held a mental hospital could be liable for the shooting death of a police officer by a
mentally ill person recently released from an involuntary commitment for short-term treatment.
Plaintiffs’ reliance on the Perriera decision is misplaced. In reaching its holding, the court in
Perreira focused on the unique relationship between a treating psychiatrist and an involuntarily,
as opposed to voluntarily, committed patient. Id. at 1216. “The involuntary commitment of a
mentally ill person to a state mental health facility creates a special relationship substantially
different in kind from the relationship existing between a treating psychiatrist and a voluntary
patient.” Id. The differences in the relationship, as the court noted, were the responsibility and
duties Colorado statutes applied to a psychiatrist treating an involuntarily committed patient. Id.
Colorado law provided that the treating psychiatrist could deny various rights otherwise granted
to mentally ill persons under commitment, terminate treatment and discharge the patient, seek a
court order extending the term of the patient’s treatment for three months, petition the court for

11

long-term care and treatment if the patient’s mental illness rendered him a danger to himself or
others, and petition the court for an order depriving the patient of certain rights upon his release
in the interest of public safety. Id. (citing Colo. Rev. Stat. §§ 27–10–108, 27–10–109(1), 27–
10–110(1), § 27–10–125). Based on the extent of the treating psychiatrist’s control over the
conditions and duration of the patient’s involuntary commitment, the court rejected the
psychiatrists’ contention that they had no actionable duty to protect members of the public from
the released patient. Id.
As established in the previous section, Colorado law did not provide Defendants control
or custody of Baby Natalee or her mother, and certainly not to the extent that resulted in finding
a duty to protect third parties from harm, as in Perreira. Further, Plaintiffs’ position that
Defendants had a special relationship with individuals months after they were released from
Defendants’ care is untenable. Baby Natalee and her mother were released on May 23, 2014.
Baby Natalee’s injury and subsequent death did not occur for over two months following their
release. Plaintiffs have not cited to any case law in which a court has held a medical hospital
responsible for a medical patient’s actions months after her release. Defendants argue that a
hospital providing maternity services cannot be expected to assume the duty of monitoring
families, predicting future child abuse, and intervening in custody issues. The court agrees.
Similar to Leake, to the extent Defendants’ had a special relationship with Baby Natalee and her
mother to prevent harm, that relationship existed while they were in Defendants’ care. Id. at 161.
There are no allegations Baby Natalee was in any way abused, neglected, or otherwise harmed
while in Defendants’ care.

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Therefore, it is
ORDERED that the “Motion to Dismiss Defendants HCA-Healthone LLC, Jo Ann
Wacker-Farrand, Margaret Hauser and Jane Gallup” (Doc. No. 62) is GRANTED in its
entirety. Defendants HCA-Healthone LLC, a limited liability company doing business as
Swedish Medical Center, Jo Ann Wacker-Farrand, Margaret Hauser and Jane Gallup are
dismissed from this action.
Dated this 27th day of September, 2017.

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