Can a Family Sue if You Allege Abuse Is Occurring, and It's Not?

Good faith reports are protected

When an emergency physician (EP) reported suspected child abuse, he inadvertently gave the wrong family's information to the authorities, and the child was removed from the home. If you were the EP in question, would you expect to be on the receiving end of a lawsuit?

In fact, the family did sue the EP, but the court ruled that the physician had reported in good faith and had made an honest mistake, says Gregory P. Moore, MD, JD, an attending emergency medicine physician at Madigan Army Medical Center in Tacoma, WA.

Moore says this case emphasizes that EPs who report child abuse are protected under the law. "The law wants to protect children, and it places a high priority on that," he says. "We all have a right to privacy, but sometimes the law will allow you to violate a constitutional right for the greater good. Child abuse is a perfect example."

Moore says he knows of several cases to which an EP did not report clear cases of abuse, which resulted in successful lawsuits. "Physicians are supposed to report even a suspicion, and if they don't, they would be liable," he says. "They are not going to go after guys that are just trying to follow the rules. If you report in good faith, you will not get in trouble."

Failing to Report

Failing to report child abuse, however, carries significant legal risks for EPs, says Moore. In one case, a child was brought to multiple ERs with broken bones and other injuries, and eventually was killed. "The mother was put in jail and the father appeared and successfully sued," he says. "There were multiple injuries over multiple time periods, which is a red flag, but no one pursued it."

Robert Broida, MD, FACEP, COO of Physicians Specialty Limited Risk Retention Group in Canton, OH, says that emergency personnel are at far greater risk by failing to report suspicion of child abuse than by reporting. "In addition to potential criminal penalties in many states for failure to report, any subsequent harm to the child may be attributed to this failure in a malpractice action," adds Broida.

Possible damages from reporting suspicions that are later determined to be unfounded might include parental anguish and emotional distress, says Broida. "Most attorneys won't touch such a case. I have seen several of these cases, and all were dropped fairly quickly," he says.

On the contrary, says Broida, the damages from failure to report might be a brain-damaged baby needing skilled nursing care for life. "This is where the financial damages are, and with them, the serious liability concerns," he says. "Do not hesitate to report any suspicion, even if it's a third-hand rumor or non-specific concern. Let the authorities sort it out."

EPs Are Protected

In order to sue an EP successfully for reporting abuse, says Moore, a person would have to prove that the reporting was done maliciously, which would be difficult.

Because the law requires physicians and medical staff to report any suspicion of child abuse or neglect, the law also protects physicians from the legal fallout from making those reports, says Robert D. Kreisman, a medical malpractice attorney with Kreisman Law Offices in Chicago.

"The law assumes that all physician reports of abuse or neglect are made in good faith," says Kreisman. "The physician is immune from any civil or criminal liability that might result from the report."

Arthur R. Derse, MD, JD, FACEP, professor of bioethics and emergency medicine at the Medical College of Wisconsin, says that the standard of evidence for reporting abuse is "extremely low."

"That is, EPs and nurses merely need to have a suspicion of child abuse," he says. "The legislatures in all 50 states have given EPs and nurses wide room to be able to report this suspicion."

For this reason, says Derse, it's extremely unlikely that an EP or ED nurse could be successfully sued for negligence for an abuse allegation that was made in good faith.

"The legislatures have decided to err on the side of reporting child abuse, rather than not," says Derse. "If an allegation is made in good faith, the worst that's happened is an unfounded allegation. If a report is not made and the child dies from abuse, you have paid for that error with the price of the life of a child."

EPs Will Win Cases

In a 2009 federal case, Mueller v. Auker, 576 F. 3d 979, an Idaho EP reported child neglect to authorities because a parent refused to allow her infant to be given a spinal tap to rule out a life-threatening infection. As a result, the state was allowed to take custody of the child under the child-protection laws so the procedure could be done.

The family sued, alleging a violation of their federal constitutional rights. The federal appellate court ruled that the lawsuit against the EP could go forward. "The appellate court wasn't ready to give the EP the benefit-of-a-doubt protection for reporting, in this particular case, by dismissing the lawsuit," says Derse. However, at trial, the federal jury sided with the hospital and physician.

"That is the only case I'm aware of in which the case against the EP was not dismissed by the court, when the evidence supported that the EP acted in good faith by reporting. Even so, the EP in this case was ultimately exonerated by the jury," says Derse.

A very small number of these cases have been brought over the years, says Derse, "but when acting in good faith, the EP inevitably wins."

If there were cases in which EPs were held liable for mistakenly reporting child abuse, says Derse, there would be the unintended effect of an increase in mortality in child-abuse cases because they weren't investigated early enough.

"In good faith" is a standard that applies when you are doing an action such as reporting possible abuse with sincere belief or motive without any malice toward the parent, he explains.

"This is one of the few areas where the legislature and tort law allow you to err in good faith without penalty," says Derse.

False Reports Can Be Prosecuted

Although the law protects those who make good-faith reports, says Kreisman, false reporting may be prosecuted as a crime. "A false report differs from an 'unfounded' report, which is when the Department fails to find credible evidence of abuse or neglect," he explains.

A false report involves the reporting physician or medical staff willfully making material misrepresentations in the report of abuse, says Kreisman. "The first time someone is found guilty of making a false report, as defined, it is considered a misdemeanor under the Criminal Code," he says. "However, any subsequent violations are elevated to a felony."

The law is less forgiving for individuals who willfully, falsely report abuse, are found altering or tampering with documentation, or attempt to protect someone from prosecution for child abuse, says Kreisman.

"In those cases, the violation is a felony. The physician or medical provider involved is referred to the state medical disciplinary board," says Kreisman. "The enjoyment of immunity from prosecution and/or civil lawsuit is therefore lost."