Privacy vs. EP Duty to Report Could Be Focus of Lawsuit

Very little literature or case law exists to shed light on the circumstances that might result in litigation against health care providers for allegedly making false reports of suspected abuse of adult ED patients, according to Edward Monico, MD, JD, assistant professor in the department of emergency medicine at Yale University School of Medicine in New Haven, CT.

"In fact, the existing literature and case law concentrates on the exact opposite scenario — the failure to report abuse when it should have been suspected," adds Monico.

If a patient did sue because a report of suspected abuse was unfounded, Monico says that the lawsuit would likely focus on the confrontation between the patient's right to privacy and the duty on the part of the health care provider to report suspected or proven abuse.

"Attempting to elicit victim consent will go a long way to mitigate later allegations that a patient's right to privacy was violated," he adds.

Specifically, says Monico, while physicians take an oath to maintain the confidentiality of the doctor-patient relationship, they may be forced to violate that trust in order to comply with certain state laws. "Some commentators have maintained that it offends an individual's autonomy to require or encourage reporting of mistreatment over a competent adult's objection," he says.

With increasing awareness of domestic violence as a major public-health problem, many states have developed policy initiatives that attempt to compel health care practitioners to better respond to the problem, says Monico. "Most states have imposed some sort of affirmative duty on the part of health care providers to report suspected abuse," he says.

Most of these laws protect health care practitioners who report in accordance with the law, explains Monico, by providing them with immunity from civil and criminal liability.

Anticipate Immunity

"The 'in accordance' language contemplates that the report of abuse would rest on some degree of reasonableness," says Monico. For example, he says, New Mexico requires that anyone who has reasonable cause to believe an adult has been abused report that knowledge or be guilty of a misdemeanor.

Similarly, says Monico, California law provides that any health practitioner employed by a health facility, clinic, or physician's office, and acting within the scope of employment, must make a report to the appropriate legal authorities concerning any person that the practitioner knows, or reasonably suspects, has suffered a wound or injury inflicted by the use of a deadly weapon or resulting from assaultive or abusive conduct.

"Lawmakers clearly anticipate that some investigations of reported abuse will uncover no abuse at all," says Monico. "Health care providers should anticipate immunity, as long as their suspicions are anchored on reasonableness."

This relies on the EP knowing what wounds, scenarios, and complaints should arouse a reasonable suspicion of abuse, says Monico. Document these signs and symptoms, he advises, and cite hospital protocols, if possible, when making reports of suspected abuse.

"Not unlike risk reduction for medical malpractice, the best strategies to reduce risk associated with mandatory reporting center on practicing good medicine," says Monico.