Monday, April 13, 2015

Plaintiff Loses Malicious Prosecution Suit; Circumstances Supported Probable Cause Child Abuse Had Occurred

Tiscareno v. Frasier, 2015 WL 735668 (2/23/15) (Ut.) (unpub'd) - In a malicious prosecution lawsuit, there was probable cause that Ms. Tiscareno, a daycare worker, abused a one-year-old boy where: 4 doctors believed medical evidence indicated brain bleeding began in the boy when he was in Ms. Toscareno's sole care; some doctors thought the cause was shaking; the boy was in seemingly good health when he was dropped off; Ms. Tiscareno told police she shook the boy to try to revive him. Probable cause would have existed regardless of Dr. Frasier's allegedly fabricated medical opinions and the pathology report that indicated there had been brain bleeding before Ms. Tiscareno took over care. And no recovery for a Brady violation where the pathology report was not produced for the first trial, which ended in a guilty verdict, but was available after the district court granted a new trial and the second trial resulted in an acquittal. Brady relief only arises upon conviction and the trial court never entered a judgment of conviction. And, as for the private hospital which had the pathology report, there was no clearly established obligation to disclose the pathology report. While the hospital could have expected the Brady obligation to extend to law enforcement, thanks to Smith v. N.M. Department of Corrections case and Pierce v. Gilchrist, , it had no reason to believe it would extend to private hospitals under contract with the state. Pierce involved a chemist working with the police and Smith involved officers acting as arms of the state. Neither involved the obligation of a private hospital to help in an investigation related to its primary function of providing healthcare.