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Sherman v. Adoption Center of Washington

December 09, 1999


Before Wagner, Chief Judge, Steadman, Associate Judge, and Kern, Senior Judge.

The opinion of the court was delivered by: Steadman, Associate Judge

Appeal from the Superior Court of the District of Columbia

(Hon. Evelyn E.C. Queen, Motions Judge) (Hon. Jose M. Lopez, Motions Judge)

Argued April 13, 1999

This case involves a dispute about the liability of an adoption agency when a foreign-born child adopted by an American client turned out to have medical problems. The appellant, Anne V. Sherman, adopted a Russian baby girl who was discovered to be carrying the hepatitis C virus when the girl was examined by a pediatrician in the United States. Sherman sued the Adoption Center of Washington and several of its employees *fn1 for breach of contract, "wrongful adoption/malpractice" and related counts. Ultimately the trial court granted summary judgment in favor of the defendants on all counts. The trial court also denied Sherman's motion to amend her complaint to include fetal alcohol syndrome/fetal alcohol effect as an additional infirmity of the child. We affirm both orders.

I. Facts

Appellant Sherman adopted an eleven-month old baby girl, Irina, from Russia around the end of May 1993. Sherman first thought to pursue adoption of a Russian child based on a Montgomery County newspaper article she read in September 1992. *fn2 The article discussed the fact that many Russian children were available for adoption, that older parents could adopt them, and that the waiting period was not extensive. *fn3 The article mentioned Nina Kostina of the Franklin Adoption Center, now the Adoption Center of Washington (ACW). Sherman called Kostina at the end of December 1992 and was referred by her to ACW Executive Director Linda Brownlee. The adoption process began formally with the execution of a contract between Sherman and ACW (then operating under its original name, Franklin Adoption Center) on February 18, 1993.

The contract included a caveat as follows:

[Sherman] understand[s] that Franklin Adoption Center, Inc. cannot guarantee the health of the child, but will make best efforts to insure that the child's health is known to the parent(s) prior to placement. However, [Sherman] understand[s] that it is very difficult to know all of the health issues involved.

In addition to this contract language, Sherman was made aware that even though ACW knew her highest priority was adoption of a healthy baby, *fn4 no baby available for adoption would have a clean medical record because Russian law at that time prohibited foreign adoption of healthy Russian babies. Further, Russian orphanages rarely supplied prospective foreign parents with complete medical histories of children available for adoption.

ACW located Irina as a potential adoptee on April 27, 1993. A photograph and an October 1992 medical excerpt (three pages long when translated into English) were the only documentation made available to Sherman or ACW, as was the standard practice in Russian adoptions at the time. The medical excerpt referenced one hospitalization for a respiratory infection, negative results on blood tests for HIV and hepatitis B, some developmental delays, and a diagnosis that loosely translated as "encephalopathy." Marlene Drucker, an ACW social worker, explained that "encephalopathy" is a general diagnosis applied often to Russian babies with unusual birth circumstances, such as either lengthy or rapid labor, C-section deliveries, or older mothers. She further stated based on her experience that Irina's record indicated she was in the best health Drucker had seen. Even so, Drucker advised Sherman to get the excerpt reviewed by an emigrated Russian physician residing in Maryland, Dr. Anna Schvarts.

After reviewing the brief record, Dr. Schvarts confirmed that "encephalopathy" usually meant any of a multitude of birth circumstances and did not necessarily present cause for concern, and also explained that institutionalized children often had developmental delays that resolved themselves when the children were placed in home environments. Nonetheless, Dr. Schvarts developed a list of questions for Sherman to pursue prior to adoption, and referred her to Dr. Nina Scribanu as another medical resource. Dr. Scribanu essentially confirmed what had been explained by Dr. Schvarts, and went into further detail about the developmental delays typical of children in orphanages. Sherman took the additional precaution of having the medical excerpt reviewed by her sister, a nurse and attorney by training, who advised her to request additional information.

Sherman attempted to get the questions from Dr. Schvarts answered through Brownlee at ACW, but Brownlee was unable to glean any additional information from the orphanage. Additionally, Kostina called ACW's coordinator in Russia to obtain follow-up information, and after her conversation in Russian related to Sherman that she had been told Irina "was doing beautifully and healthy and was doing well." Sherman was informed her best chance of getting more medical information would be a direct visit with the orphanage staff.

Armed with these facts and advice, Sherman traveled to Russia in May, accompanied by her brother. There, on three occasions over a period of about four days, she met with the orphanage director, Dr. Truba, and saw Irina. She asked Dr. Truba questions about Irina's medical history, *fn5 was told of a second hospitalization for bronchitis, and was assured that Irina was completely recovered. She was not allowed to see or copy Irina's medical file because, according to Dr. Truba, government regulation would not allow the disclosure. When Sherman pressed on ...

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