Abuse suspected? Take these actions, or risk lawsuits
Good faith reporting is protected from lawsuits
A physician fails to recognize signs of probable abuse, and the child is subsequently harmed.
• A child is injured through abuse, and the injuries are not properly diagnosed or treated.
• Abuse is diagnosed, but it is not reported quickly enough, and the child is harmed in the interim.
These are all situations in which a physician could be successfully sued for failing to report suspected child maltreatment to the appropriate child-protection authority or police, which is mandated by every state, says Jonathan M. Fanaroff, MD, JD, FAAP, FLCM, associate professor of pediatrics at Case Western Reserve University School of Medicine and co-director of the Neonatal Intensive Care Unit at Rainbow Babies & Children's Hospital, both in Cleveland, OH.
"In addition to liability to the child for malpractice, the physician may be subject to fines or imprisonment," he says. "A few states regard repeated failures to report abuse as a felony offense."
Most states require a physician to report when they suspect or have reason to believe that a child has been abused or neglected, says Fanaroff. Thus, the physicians do not need to be certain, but they should have at least a reasonable suspicion, he says. Physicians who report suspected abuse or neglect to the proper authorities in good faith, meaning that there is a genuine suspicion of abuse or neglect, are immune from liability, adds Fanaroff.
Michael G. Anderson, MD, JD/ESQ, FAAP, FCLM, general counsel and pediatrician at Children's Pediatric Centers in Canton, GA and assistant professor of pediatrics at the Medical College of Georgia in Augusta, says, "This means the good-faith reporter may have an absolute privilege or defense against a lawsuit from an unhappy person who was reported, even if authorities never prosecute for any abuse." Anderson says these practices are used at his organization:
• Pediatricians tell parents they are required to refer all questions of child abuse and neglect to authorities for investigation without having to form an opinion one way or another.
"We treat our patients medically and leave the rest up to law enforcement," Anderson says. "When we explain this is a mere reflexive response, our patients accept our call to the police well without much difficulty."
• Physicians are told not to investigate before reporting when one angry parent accuses the other of abuse.
"Here at the Children's Pediatrics Center, we caution all about moving outside our primary training and practice," Anderson says. "Physicians, however well-intended, are not law-enforcement investigators."
• Pediatricians ensure that the required report is efficiently given.
Anderson finds that the local police departments have the most efficient process for helping physicians fulfill their reporting duties concerning children. Although state governments typically have an alternate method for mandated case referrals, typically the mandated reporter may leave a name and number and waits for a call back, he says.
"The risk of a delayed report remains with a mandated reporter until they actually give an authority the required report," Anderson explains.
• Physicians don't attempt to restrain anyone allegedly involved.
"Simply do your doctor's duty and then stop," he advises. "Leave plenty of room for law enforcement to do their duties, and you may avoid not only legal risks, but even possible physical injury."
Sources
For more information on liability risks involving reporting of suspected abuse, contact:
- Michael G. Anderson, MD, JD/ESQ, FAAP, FCLM, General Counsel & Attending Pediatrician, Children's Pediatric Centers, Canton, GA. Phone: (770) 720-6963. Fax: (770) 720-6965. Email: [email protected].
- Jonathan M. Fanaroff, MD, JD, FAAP, FLCM, Associate Professor of Pediatrics, Case Western Reserve University School of Medicine, Cleveland, OH. Phone: (216) 844-3387. Fax: (216) 844-3380. Email: [email protected].
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