Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
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Executive Summary
Reported instances of sexual abuse and other physical abuse in children have increased dramatically in recent years. According to the U.S. Department of Health and Human Services, there were 1,070,000 referrals to child protection agencies in 2000, while there were 1.8 million two years later.[1] As primary caregivers, physicians, especially pediatricians, are often the first to suspect or learn of instances of such abuse. Child welfare laws throughout the country obligate physicians who suspect or learn of child abuse to report such abuse to the appropriate child welfare agency. In some states, failure to properly report suspected abuse exposes physicians to criminal prosecution. In a case that gained national prominence,[2] a well-respected pediatrician in Bridgeport, Conn., and his associate were arrested and prosecuted for failing to report the pregnancy of an 11-year-old girl. In addition to criminal prosecution, these physicians faced disciplinary action jeopardizing their continued licensure by the state’s Department of Public Health. The state and local medical societies joined the legal battle on behalf of the physicians. Claims were raised in the criminal and administrative forums that the reporting laws were imprecise and that the state’s Department of Children and Families had failed to adequately inform and educate physicians of the obligation and method of reporting suspected abuse. In addition, once pregnancy was suspected, the pediatrician referred the child to an ob/gyn to confirm or rule out the suspected pregnancy. Neither issue was found by the court to insulate the physicians from prosecution or administrative disciplinary action. The case serves as a harsh lesson to primary caregivers who deal with children.
Mistake 1 Failing to Know the Law
Reporting requirements in each state differ slightly, namely concerning when a doctor is required to report suspected abuse.[3] Generally, however, state child welfare laws impose an obligation on those who deal frequently with children to recognize and report instances of suspected abuse. In many states, these persons are referred to as “mandated reporters.” Other examples of mandated reporters include counselors, therapists, social workers, teachers, and school administrators. Many states, similar to Connecticut, have done an inadequate job of educating mandated reporters about the requirements of law and the mechanism by which reports are to be made. A time-worn cliché in the law nevertheless rings true in this instance: “Ignorance of the law is no excuse.”
Action Step Physicians who treat children should investigate whether their state has mandatory reporting laws. In a hospital or clinical setting, physicians should seek out training from the administration. Those in private practice should turn to their local or state medical societies to request training. In most states, prosecutors have separate units specifically to train lawyers to investigate and prosecute child physical and sexual abuse. These individuals, if requested, often participate in in-service training or seminars to educate medical professionals on requirements of the law.
Mistake 2 Failing to Report Abuse
Child welfare laws obligate physicians, as mandated reporters, to report suspected physical or sexual abuse of a child. Failure to report that abuse, as in the instance of the Connecticut physicians, can lead to criminal prosecution and serious disciplinary action. More important, a child who is suspected to be the victim of abuse is at risk of further serious harm, physical and emotional, without appropriate intervention by a child welfare agency. Physicians, who suspect abuse and fail to follow state guidelines, also expose themselves to the risk of a future lawsuit. Take for example, the emergency room physician who treats a very young child for a fracture of an extremity and finds x-ray evidence of prior healed fractures and a history of recent admissions for serious or suspicious traumatic injuries. The physician suspects abuse, but makes no report and releases the child to the caretaker. Shortly thereafter, the child dies as a result of a battering by the caretaker. Attorneys for that child’s estate can and will sue that doctor for failing to take appropriate steps to protect that child by reporting the suspected abuse.
Action Step A physician who has a reasonable suspicion that a child has been subjected to physical or sexual abuse should immediately report to the appropriate child welfare agency.
Mistake 3 Failing to Recognize Abuse
The signs and residual effects of physical abuse are often more apparent than those associated with sexual abuse. Most mandatory reporting laws do not require physicians to prove abuse with certainty before the obligation to report is imposed. Rather, a good-faith basis to suspect abuse generally triggers the reporting obligation. When the protection of children is at stake, the child welfare agency would rather that the physician err on the side of reporting. Typically, physicians who have a good-faith basis to suspect abuse are insulated from repercussions by the patient or the caretaker. Child welfare agencies in each state exist solely for the benefit of children. Most have protocols that allow confidential investigations to be conducted and proactive intervention to avoid harm to a child at risk.
Action Step Physicians should know how their state’s child welfare laws define abuse. Also, they should know the difference between “suspected abuse” and abuse that can be categorically proven, as well as whether their state requires them to report suspected abuse.
Mistake 4 Engaging in Overzealous Reporting
Physicians are subject to possible prosecution, suit, and disciplinary action for failure to report. But what of the physician who wrongly reports the claim of suspected abuse? Many states provide administrative and sometimes criminal penalties for those who falsely report claims of abuse, which sometime creates a delicate, fine line for doctors who are uncertain whether abuse has occurred. Again, a reasonable, good-faith basis for suspecting abuse will generally insulate the physician. Those subject to prosecution or administrative sanction for falsely reporting are generally doctors who have either intentionally or recklessly overreacted to a situation.
Action Step Physicians should act diligently and have a good-faith, reasonable basis to suspect abuse. They should never falsely report an incident, but in a situation in which there is some basis to suspect abuse, the physician is better off reporting and allowing the child welfare agency to make the appropriate determination.
Mistake 5 Failing to Timely Report Abuse
In most states with mandatory reporting laws, there is generally a time requirement dictating when a report must be made and the manner of reporting. A physician should strive to know the time limits and the mechanism for making such reports. Most child welfare agencies have a 24-hour hotline or care line for a mandated reporter to make a verbal report of suspected abuse. Many states require a written follow-up within a further limited time. The physician who suspects abuse and makes either a verbal or a written report outside of the prescribed time periods runs the same risks as the physician who fails to report at all.
Action Step Physicians should know the time limits within which reports must be made and the manner in which reports must be made.
Mistake 6 Referring to a Specialist
“I suspected some form of abuse, but I referred the child to an appropriate specialist for further determination.”
The Connecticut physicians suspected pregnancy but were concerned, based on the child’s age and an equivocal history given by the caretaker, that the pregnancy test may have provided a false positive. In that instance, rather than file the mandated report, those physicians referred the child to an ob/gyn. Although this action is generally accepted as good medical practice, in the instance of suspected physical or sexual abuse of a child, once the primary care physician has a reasonable suspicion, the law imposes on that physician the duty to report. Referral to a specialist, who may report the abuse later, does not insulate the primary care provider.
Action Step Even if the physician is referring a child to a specialist to confirm a diagnosis, if there is a reasonable basis to suspect abuse, that primary care physician has an obligation to make the necessary report to the child welfare agency.
Mistake 7 Failing to Create an Office Protocol and to Adequately Document Patient History and Findings
Every physician who may treat a child has an obligation to educate his or her staff and create an office protocol to ensure the fact that suspected abuse is immediately made known to the physician so an appropriate report can be made. Physician assistants and nurse practitioners are generally considered mandated reporters in their own right, independent of the obligations the law places on their employer physician. But what happens when a triage nurse obtains a history that strongly suggests abuse and fails to either note that in the chart or provide that information to the physician? The nurse’s failure to act does not insulate that physician from the responsibility for failure to make the appropriate report. What happens in the instance of a physician who sees a young child and obtains a history that suggests sexual abuse? Further, the physician conducts a physical examination and observes some physical manifestation of the claimed abuse. The physician properly discharges his or her duty by filing the appropriately mandated report to the child welfare agency. However, the physician remains open to criticism if he or she fails to accurately and fully record the patient’s history and resulting medical findings. Sloppy charting exposes the physician to aggressive cross-examination in the criminal prosecution of the abuser. Criminal defense lawyers will seek out the treatment chart. Despite claims of a vivid memory of certain patient information, failure to record fully and accurately in the patient’s chart results in fertile avenues for an experienced cross-examiner to impugn a doctor’s findings and opinions.
Action Step Physicians should educate their staff as to reporting requirements and create a written office protocol requiring all staff to undergo training. When child abuse is suspected, physicians should be certain the chart fully and clearly reflects the complete history they have obtained as well as the full extent of any physical findings.
Mistake 8 Failing to Report Suspected Abuse During an Ongoing Child Custody Case
Probably the most difficult situation for a physician is a report by one parent that a child has been sexually abused by the other parent and the physician knows or learns that a bitter custody battle is taking place.
All too often, one parent will raise false claims of sexual abuse against the other to gain leverage in a custody or visitation fight. Sorting out the truth in these situations is a difficult and complex task best left to those who have a particular expertise in investigating sexual abuse allegations. A physician who has been informed of a claim of sexual abuse, but who suspects or believes that the informing parent may be using this allegation as a wedge, nonetheless has a duty to report and leave it to the appropriate child welfare agency to determine the validity of the claim.
Action Step Physicians should report any claim of child sexual abuse even if they suspect that one parent is attempting to use this report improperly as a tool in a custody or visitation fight. In these instances, it certainly is appropriate for the physician to include in the report his or her concern that the allegation may be the result of a custody battle.
Mistake 9 Interviewing a Child
Although the incidents of reported child sexual abuse have increased significantly in recent years, the number of such false claims also has risen dramatically. Studies show that children can be the victims of suggestive questioning even by the most well-meaning interviewer. A parent who has chosen to make a false allegation of sexual abuse will often go to great lengths to shape and create a recollection, particularly in a younger child. Often, physicians, social workers, and police officers, with little or no knowledge of appropriate forensic interview techniques, have unwittingly reinforced false memories by the manner in which the interview is conducted. If a physician obtains a history from a parent or sees signs that a child has been sexually abused, unless the physician has been trained in the appropriate forensic interview process, he or she should not interrogate the child. The physician should document the chart accordingly, thoroughly noting the history that was obtained and any physical findings that were made, and then report the matter immediately. Because of the rash of false allegations that have arisen in recent years, most law enforcement professionals have access to a trained team that often includes a prosecutor, a social worker, or a psychologist specially trained in the forensic interview process, and appropriately trained police officers. Physicians should let them do their work.[4]
Action Step Physicians should refer the child to the appropriate agency so that the proper forensic interview of the child can occur.
Mistake 10 Violating Confidentiality Laws
Many states, recognizing the high incidence of underage pregnancy, have created confidentiality laws to encourage youngsters to seek advice and care. The duty to report suspected sexual abuse is not limited to small children. Often, laws require that any suspected abuse of a youngster under age 16 must be reported to the appropriate child welfare agency. Under many of these laws, physicians are prohibited from informing a child’s parent or caretaker that the child has sought reproductive or abortion counseling or services. Violating these confidentiality laws can expose a physician to civil, criminal, or administrative sanctions.
What should the physician do when a 14-year-old comes to the school health clinic, reports a history of active sexual behavior, and seeks counseling or birth control? This situation is probably the single greatest dilemma for the physician because there is a clear conflict between the obligation to report sexual abuse and the confidentiality laws that protect the minor. Physicians who practice in settings where these issues can occur should not wait until the question arises in the clinical setting. Rather, the provident thing to do is to seek out from the appropriate child welfare agency and the state licensing board a clear definition of the physician’s obligations. Commonly accepted definitions of child sexual abuse generally envision a younger child. The manner in which the term “sexual abuse” is defined in state law, however, may make that term broad enough to include the 14- or 15-year-old with a history of sexual activity. Even if this youngster is voluntarily engaging in this conduct, most states prohibit youngsters under a certain age from consenting to sexual activity. These laws are commonly referred to as statutory rape laws. In this context, a youngster who is under the age of lawful consent cannot willingly engage in sexual activity. The person with whom that person engages in such sexual activity is violating the criminal laws. In most instances, this activity is viewed as “sexual abuse.” It is not the traditional definition of sexual abuse.
Doctors who practice in school clinics should insulate themselves by making certain that they have a specific directive as to when such sexual activity must be reported to child welfare agencies. The physician’s personal beliefs as to birth control and abortion should not govern that physician’s conduct in this setting. If the law mandates reporting sexual activity by a young teen then, regardless of the confidentiality laws that prohibit the physician from informing the parent, the physician is obligated to follow the mandated reporting laws set down by that child welfare agency.
Action Step Physicians who provide reproductive and sexual counseling services to teenagers should seek out and obtain clear direction as to when sexual activity must be reported and to whom.
Conclusion
Physicians must develop prudent procedures to deal with cases of suspected child abuse and suspected sexual abuse.
Written by:
Richard T. Meehan, Jr., Esq.
Peer reviewed by:
Frederick D. Paoletti, Esq.
[1] Data for 2000 can be found at http://www.act.dhhs.gov/programs/cb/publications/cm001/chaptertwo.htm. Data for 2002 can be found at http://www.hhs.gov/news/press/2004pres/20040401.htm. Both statistics are in the U.S. Department of Health and Human Services annual study entitled “Child Maltreatment.”
[2]E. Felten, “The Deal with Older Guys,” The Weekly Standard, Aug. 12, 2002; O’Reilly Factor, Sept. 30, 2002.
[3] The following statutes require health care providers to report suspected abuse. Physicians should review the applicable statute in their state for greater detail. Alabama §26-14-3(a), §26-14-10 (1992): “Known or suspected”; Alaska §47.17.020(a), §47.17.023, §47.17.060 (1996): “Have reasonable cause to suspect”; Arizona §13-3620(A), §8-805(B) – (C): “Have reasonable grounds to believe”; Arkansas §12-12-507(b), §12-12-518(b)(1): “Have reasonable cause to suspect. . . Have observed conditions which would reasonably result”; California Penal Code §11166(a), (c); §11165.7(a): “Have knowledge of or observe, know or reasonably suspect”; Colorado §19-3-304(1), (2), (2.5); §19-3-311: “Have reasonable cause to know or suspect. . . Have observed conditions which would reasonably result”; Connecticut §17a-101a: “Have reasonable cause to suspect or believe”; Delaware Tit. 16, §903, §909: “Know or in good faith suspect”; District of Columbia §4-1321.02(a), (b), (d); §4-1321.05: “Know or have reasonable cause to suspect”; Florida §39.201(1), §39.204: “Know or have reasonable cause to suspect;” Georgia §19-7-5(c)(1), (g); §16-12-100(c): “Have reasonable cause to believe”; Hawaii §350-1.1(a), §350-5: “Have reason to believe”; Idaho §16-1619(a), (c); §16-1620: “Have reason to believe . . . Have observed conditions which would reasonably result”; Illinois 325 ILCS 5/4, 720 ILCS 5/11-20.2: “Have reasonable cause to believe”; Indiana §31-33-5-1, §31-33-5-2, §31-32-11-1: “Have reason to believe”; Iowa §232.69(1)(a) – (b), §728.14(1), §232.74: “Reasonably believe”; Kansas §38.1522(a), (b): “Have reason to suspect”; Kentucky §620.030(1), (2); §620.050(3): “Have reason to suspect”; Louisiana Ch. Code. §603(13), §609(A)(1), §610(F): “Have cause to believe”; Maine Tit. §4011-A(1), §4015: “Know or have reasonable cause to suspect”; Maryland Family Law §5-704(a),§5-705(a)(1): “Have reason to believe”; Massachusetts Ch. 119, §51A, §51B: “Have reasonable cause to believe”; Michigan §722.623(1), (8); §722.631: “Have reasonable cause to suspect”; Minnesota §626.556 Subd.3(a), 8: “Know or have reason to believe”; Mississippi §43-21-353(1): “Have reasonable cause to suspect”; Missouri §210.115(1), §568.110, §210.140: “Have reasonable cause to suspect. . . Have observed conditions which would reasonably result”; Montana §41-3-201(1) – (2), (4): “Know or have reasonable cause to suspect”; Nebraska §28-711(1), §28-714: “Have reasonable cause to believe. . . Have observed conditions which would reasonably result”; Nevada §432B.220(3), (5); §432B.250: “Know or have reason to believe”; New Hampshire §169-C:29, §169-C:32: “Have reason to suspect”; New Jersey §9:6-8.10: “Have reasonable cause to believe”; New Mexico §32A-4-3(A), §32A-4-5(A): “Know or have reasonable suspicion”; New York Soc. Serv. Law §413(1): “Have reasonable cause to suspect”; North Carolina §7B-301, §7B-310: “Have cause to suspect”; North Dakota §50-25.1-03, §50-25.1-10: “Have knowledge of or reasonable cause to suspect”; Ohio §2151.421(A)(1), (A)(2), (G)(1)(b): “Know or suspect”; Oklahoma Tit. 10, §7103(A)(1), §7104, §7113; Tit. 21, §1021.4: “Have reason to believe”; Oregon §419B.005(3), §419B.010(1): “Have reasonable cause to believe”; Pennsylvania 23 Pa. §6311(a), (b): “Have reasonable cause to suspect”; Puerto Rico Tit. 8, §441a, §441b: “Should know or have knowledge of. . . Suspects. . . Observes”; Rhode Island §40-11-3(a), §40-11-6(a), §40-11-11: “Have reasonable cause to know or suspect”; South Carolina §20-7-510(A), §20-7-550: “Have reason to believe”; South Dakota §26-8A-3, §26-8A-15: “Have reasonable cause to suspect”; Tennessee §37-1-403(a), §37-1-605(a), §37-1-411: “Knowledge of/reasonably know. . . Have reasonable cause to suspect”; Texas §261.101(a) – (c), §261.102: “Have cause to believe”; Utah §62A-4a-403(1)-(3), §62A-4a-412(5): “Have reason to believe … Have observed conditions which would reasonably result”; Vermont Tit. 33, §4913(a), (f) – (h): “Have reasonable cause to believe”; Virginia §63.2-1509(A), §63.2-1512: “Have reason to suspect”; Washington §26.44.030(1), (2); §26.44.060(3): “Have reasonable cause to believe”; West Virginia §49-6A-2, §49-6A-7: “Reasonable cause to suspect. . .When believed. . . Have observed”; Wisconsin §48.981(2), (2m)(c)-(e): “Have reasonable cause to suspect. . . Have reason to believe”; Wyoming §14-3-205(a), §14-3-210: “Know or have reasonable cause to believe or suspect. . . Have observed conditions which would reasonably result.”
[4] In one case the author defended, the mother and father of a four-year-old girl were involved in a contentious custody battle. The mother reported to the local police department that the father had been sexually abusing the child. A child welfare caseworker and a police officer ordered the father to bring the child to police headquarters. The child was taken from the father and an egregiously suggestive interview was conducted by the social worker and the police officer. The interview was videotaped. In that interview, the child repeatedly denied that her father had touched her inappropriately. Using anatomically correct drawings, the police officer sat the child on his lap and repeatedly pointed to the genitals of the child in the drawing asking if her daddy had touched her there. Each time a question was asked such as: “We know your daddy touched you between your legs, didn’t he?” the child was given a piece of candy. Finally the child relented and began to agree with the questioners. A series of these suggestive, and coercive questions were put to the child. Eventually the father was arrested and charged with felony sexual abuse. An evaluation of the videotape of that interview by a psychologist who specialized in the investigation of allegations of child sexual abuse demonstrated that the child’s recollection had been improperly poisoned. Ultimately, the case against the father was dismissed, but not until after several years of protracted legal battles, both in the criminal forum and in actions by the state to terminate that father’s parental rights. An appropriate forensic interview by one trained in that protocol would have demonstrated, in the first instance, that there was no substance to the allegation. Ultimately that child was the victim of a different type of abuse, the abuse that comes from being wrongly used as a wedge in a fight between the parents.
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