My thoughts on tort of educational malpractice

www.rbs2.com/edumal3.pdf

Courts repeatedly asserted that evaluation of education was impossible in a court room, ignoring a glaring inconsistency in their reasoning: courts routinely deal with similar technical issues with conflicting facts in both medical malpractice and products liability claims. As the courts noted, good teaching does not guarantee good learning, since the pupil and his/her parents control many of the factors in learning. But this situation is no different from some medical malpractice cases, in which the physician prescribes appropriate therapy, but the patient does not take prescribed medicine, the patient does not do orthopedic exercises, the patient misses medical appointments, .... then the patient complains of a bad result. Similarly, the situation is no different from plaintiffs in products liability cases where the plaintiff misused the product, failed to follow the manufacturer's instructions, ... then the plaintiff blames the manufacturer for an injury.

Courts complain that it is too difficult for them to set a standard of care in teaching. Courts routinely set a standard of care for physicians and surgeons, so let's compare teaching with medicine. A person can teach in public school with a mere bachelor's degree in "education", which takes only 4 years of full-time study to earn. Furthermore, every parent has some experience teaching their children. On the other hand, a physician must have a minimum of a bachelor's degree in science, four grueling years of medical school, and complete a residency (i.e., apprenticeship) of at least three years, for a total of 11 years of education. This comparison shows that, of the two professions, medicine is by far the more technical, the more remote from the experience of the judge and members of the jury. Courts' conclusory assertion that it is impossible to formulate a standard of care for teaching is patently ridiculous.

There is one case in New York State in which a deaf child was misclassified as retarded, and plaintiff won a judgment of $ 1.5×106. This singular victory was possible because the plaintiff's attorney skillfully argued the case as medical malpractice, not educational malpractice. Snow v. State, 469 N.Y.S.2d 959 (1983), aff'd without opinion, 475 N.E.2d 454 (N.Y. 1984). The Snow case should be compared with Hoffman v. Board of Education,410 N.Y.S. 99 (1978), rev'd, 400 N.E.2d 317 (N.Y. 1979), in which a child misclassified because of a speech defect received nothing.

financial drain on beleaguered schools

The courts were concerned about the financial drain of malpractice litigation on public schools, again ignoring a glaring inconsistency in their reasoning: courts see no problem with holding either manufacturers liable for alleged defects in their products or physicians liable for injuries allegedly caused by their negligence. (Indeed, tort lawyers claim that such litigation makes products and medical care safer, thereby benefiting the entire public.) The reasons that the court gave to shield public schools from liability were precisely the reasons that courts across the nation had earlier rejected, in ending immunity for torts committed by state and local governments, see, e.g.., Muskopf v. Corning Hosp. Dist., 359 P.2d 457 (Calif. 1961); Mayle v. Penn. Dept. Highways, 388 A.2d 709 (Pa. 1978); Ayala v. Philadelphia Board Edu., 305 A.2d 877 (Pa. 1973).

floodgates of litigation

An alternative way of expressing the same concern is the terse statement by some courts that recognizing the new tort of educational malpractice as valid will "open the floodgates of litigation", which will burden the courts.

To quote an old legal maxim, the proper role of the courts is: "Fiat justitia, ruat coelum. (Let justice be done, though the heavens fall.)" Hoffman v. Board of Education, 410 N.Y.S. 99, 111 (1978), rev'd, 400 N.E.2d 317 (N.Y. 1979).

A well-respected torts textbook remarks about the reluctance of judges to "open the floodgates of litigation" in the context of infliction of mental distress:

... this is a poor reason for denying recovery for any genuine, serious mental injury. It is the business of the law to remedy wrongs that deserve it, even at the expense of a "flood of litigation," and it is a pitiful confession of incompetence on the part of any court of justice to deny relief on such grounds.

Prosser and Keeton on Torts, §12, p. 56 of Hornbook, (5th ed. 1984).

cited with approval in Doe v. Board of Education of Montgomery County, 453 A.2d 814, 823 (Md.App. 1982)(Eldridge, J., dissenting).

The only job of courts is to adjudicate disputes between people. The refusal of judges to hear complaints against schools effectively gives schools a license to misbehave and harm pupils, since the schools are then notaccountable to their pupils in a court.

failure to teach ?

The courts often mischaracterized the issue as "failure to teach", which made it easy for the courts to dispose of this case, since good teaching does not guarantee good learning. But, as Judge Suozzi noted, the key issue in the Donohue case was the continued promotion of the pupil to the next grade level, despite the pupil's lack of competence with the material, and the pupil's eventual graduation from high school. It is a matter for future courts to decide whether this automatic promotion and graduation of incompetent pupils is negligence or fraud.

bandwagon

Judges were eager to dispose of this political hot potato. In most of the later cases on educational malpractice, the courts simply cited the holdings of Peter W. and the Donohue cases, chanted the dogma that courts refuse to recognize "educational malpractice" as a valid claim, then dismissed plaintiff's claim(s). Thus, these two early cases, which I characterized above as a "runaway train", have effectively blocked later plaintiffs from having a court consider the merits of their claim(s).

By 1982, judges could cite many cases in which other courts had refused to permit claims of educational malpractice. See, e.g.,:

• Hunter v. Board of Education, 439 A.2d 582, 583-84 (Md.App. 1982)(citing five cases).
• Paladino v. Adelphi Univ., 454 N.Y.S.2d 868, 870 (1982)("The courts have uniformly refused, based on public policy considerations, to enter the classroom to determine claims based upon educational malpractice.")(citing seven cases).
• Swidryk v. St. Michael's Medical Center, 493 A.2d 641, 642, n.1 (N.J.Super. 1985)(citing nine cases).
• Moore v. Vanderloo, 386 N.W.2d 108, 113 (Iowa 1986)(citing thirteen cases).
• Ross v. Creighton University, 957 F.2d 410, 414, n.2 (6thCir. 1992)(citing fourteen cases in eleven states).
• Moss Rehab v. White, 692 A.2d 902, 906, n.7 (Del. 1997)(citing fifteen cases).
• Doe v. Yale University, 1997 WL 766845, *1 (Conn.Super. 1997)(citing twelve cases).

These long strings of citations look impressive, until one realizes that all of these cases simply parrot the ridiculous reasoning in the Peter W. and Donohue cases. The courts are not making an independent assessment, starting from basic principles of tort law, with analogies to medical malpractice, but simply following judges who disposed of earlier educational malpractice claims. I would hope that the first appellate court in each state that considers the new issue of educational malpractice would make its own independent assessment, instead of taking the easy way and merely copying decisions from other states. When later judges follow earlier judges, whether wisely or foolishly, there is little significance to a long string of citations that say the same thing.

scholarly articles

The nearly unanimous refusal of judges to permit educational malpractice claims is in stark contrast to the scholarly commentary in legal journals by professors of law and by practicing attorneys. At least one court took note of this discrepancy, then – of course – chose to go with the runaway train of court cases. Ross v. Creighton University, 740 F.Supp. 1319, 1327 (N.D.Ill. 1990)("Educational malpractice is a tort theory beloved of commentators, but not of courts. While often proposed as a remedy for those who think themselves wronged by educators ..., educational malpractice has been repeatedly rejected by the American courts ...."); quoted with approval in Finstad v. Washburn Univ., 845 P.2d 685, 692 (Kan. 1993). Here is a short list of scholarly articles in law reviews, all of which conclude that the new tort of educational malpractice is consistent with traditional notions of tort law and that judges are unjustified in rejecting educational malpractice claims.

1. John Elson, A Common Law Remedy for the Educational Harms Caused by Incompetent or Careless Teaching, 73 Northwestern Law Review 641 (1978).
2. Robert H. Jerry, II, Recovery in Tort for Educational Malpractice: Problems in Theory and Practice, 29 Univ. Kansas Law Review, 195 (1981).
3. Terrence P. Collingsworth, Applying Negligence Doctrine to the Teaching Profession, 11 J. Law & Education 479 (1982).
4. Gershon M. Ratner, A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills, 63 Texas Law Review 777 (1985).
5. John G. Culhane, Reinvigorating Educational Malpractice Claims: A Representational Focus, 67 Washington Law Review 349 (1992).(Article emphasizes the justified reliance on representations made by educators.)

There are also numerous notes on the subject of educational malpractice that are written by law students and published in law reviews. I have chosen not to cite these notes here, because someone could claim that the disgruntled students' anger about poor teaching motivates their opinions; and because the students lack experience in either teaching or law, so their notes are less persuasive than articles by professors of law or practicing attorneys.

physical injury more serious than education ?

The unwillingness of courts to consider injury to pupils in educational malpractice stands in sharp contrast to the willingness of courts to order schools, colleges, teacher, and professors to pay damages for personal injury to pupils or students in the course of athletic activities or science experiments. The obvious question is "Why do courts regard physical injury as more worthy of compensation than intellectual injury?" Lack of education can reduce one's earning potential just as much as loss of an arm.