Legal Review and Commentary
Failure to report abuse leads to settlement
News: A newborn baby exhibited signs of child abuse each time he was brought to the doctor during the first seven weeks of his life. His injuries, however, were ignored continually. Ultimately, the boy's wounds and fractures necessitated a trip to the emergency department (ED), at which point the natural parents' rights were terminated. The boy's adoptive parents filed suit against the clinic and the doctors and alleged negligence for failing to notify state officials of the abuse. Although the defendants claimed that they did not know that the injuries should have been reported to the state, the parties settled the lawsuit for $600,000.
Background: Parents of a newborn baby boy brought their son to a local clinic 13 times during the first seven weeks of his life. Each time the boy exhibited injuries, including wounds to his genitalia and head. Despite the obvious signs of physical abuse, the clinic and its doctors ignored the signs of neglect. After seven weeks, the boy finally was taken to the ED for treatment. Doctors determined that the boy's injuries included corneal ulcerations to both eyes, permanent blindness to his right eye, partial blindness to his left eye, permanent brain damage from a cerebral infarct, and multiple acute and healing fractures to 29 ribs and bones in his fingers and feet.
The natural parents' rights soon were terminated, and they were prosecuted for child abuse. The boy's adoptive parents brought suit on behalf of their son against the clinic and its doctors for negligence. They argued that the defendants failed to notify child protective Services, as required by applicable standards of care, when they knew or should have known that such abuse and neglect were ongoing. They also maintained that the failure to notify authorities was the proximate cause of the serious injuries to their son. The defendants responded that they had no way to know that the injuries should be reported to state officials. Nevertheless, the parties settled for $600,000, with the clinic and two of its doctors each contributing $200,000 to be paid in trust for the boy's benefit.
What this means to you: This scenario provides an alarming example of protocol with which every health care practitioner should be familiar. "It is very difficult to understand how the defendant clinic and its physicians could respond that they did not know that this child's injuries should have been reported to the state's child protective services," says Cheryl Whiteman, RN, MSN, HCRM, clinical risk manager for Baycare Health System in Clearwater, FL.
As with other obligations imposed by the law, the clinic and the physicians had a responsibility to understand federal and state statutes governing the reporting of suspected child abuse that were applicable where they were providing health care. If the clinical members of an office setting truly do not know what their legal responsibilities are, Whiteman suggests procuring the services of a risk manager as soon as possible. "Risk managers have a responsibility to be aware of state and federal regulations and statutes involving health care. As the number and complexity of these regulations continues to grow, the risk manager may need the assistance of legal counsel and/or a compliance expert to ensure that the organization and its practitioners are abiding by statute and adhering to the applicable standard of care," she advises.
Unfortunately, the examples of physical abuse presented by this scenario are not unusual. A study of infant physical abuse in Alaska by Gessner, Moore, Hamilton, and Muth — published in the January 2004 issue of Child Abuse & Neglect — found that 4.6 out of every 1,000 children born alive are physically abused during their first year, and nearly a quarter of those cases result in the baby's hospitalization and/or death. (Gessner B, Moore M, Hamilton B, et al. The incidence of infant physical abuse in Alaska. Child Abuse & Neglect 2004; 28:9-23). And a 2003 report published by Fight Crime: Invest in Kids, a nonprofit organization based in Washington, DC, reported that on a typical day, at least five children in this country are killed by abuse or neglect, and two of those five are infants younger than 1 year old. (Fight Crime: Invest in Kids. New Hope for Preventing Child Abuse and Neglect: Proven Solutions to Save Lives and Prevent Future Crime. Washington, DC; 2003.)
These numbers may seem surprisingly high given the relatively low publicity given to infant abuse as compared with child abuse relating to older children. But a study by the University of Wales College of Medicine — published in the December 2002 issue of Child Abuse & Neglect — found that severe abuse is six times more common in babies than in children from 1 year to 4 years of age, and it is 120 times more common than in 5- to 13-year-olds. (Sibert J, Payne E, Kemp A, et al.
The incidence of severe physical child abuse in Wales, Child Abuse & Neglect 2002; 26:267-276.) The study emphasized that infant physical abuse should be of particular concern because brain injuries and fractures are more common and because abuse is more likely to cause severe damage and death. Also of note is that the University of Wales study attributed this high incidence of infant physical abuse, at least in part, to the failure of secondary prevention of child abuse by health professionals. One of the study's conclusions was that the vigilance of health care providers in reporting and preventing abuse and neglect needs to increase.
Whiteman notes in addition to any legal responsibilities required of health care professionals when confronted with evidence of child abuse or neglect, the parties involved also had an ethical responsibility to the child who could not speak for himself or protect himself. "Certainly, we must be vigilant regarding potential child abuse and neglect," she says. "We must also remain mindful of potential abuse and neglect of the elderly and vulnerable adults." In this case, the number of injuries this child sustained was staggering: "Thirteen trips to the clinic in seven weeks should certainly have raised a red flag on numerous occasions," says Whiteman.
- Texas District Court, Hidalgo County, Case No. C-1552.