Is physician liable when parents don’t comply?

If a parent refuses to comply with your treatment recommendations for a child, are you legally required to report this information to authorities?

“At an extreme point, this becomes child abuse and neglect. All states have laws, as does the federal government, requiring physicians to report it to the appropriate authorities, whether child protective services, public health, or the police,” says Maxwell J. Mehlman, JD, Arthur E. Petersilge professor of law and director of The Law-Medicine Center at Case Western Reserve University School of Law in Cleveland, OH.

Courts have allowed parents to pose significant risks to their children in pursuit of what they think is best for them, says Mehlman, but the law also has stepped in when parents have made decisions harmful to children. “There isn’t a clear rule as to what parents can and cannot do. It depends on the court or the agency that’s been asked to step in,” says Mehlman. “My advice to physicians is they have to protect the children and also protect themselves.”

Mehlman says physicians should not hesitate to involve juvenile court offices or the legal department of a hospital to obtain advice in protecting themselves legally. “When in doubt, raise the issue, and pass the buck to the law if you want to be protected,” he advises. “In this situation, it’s imperative for physicians to get some kind of decision from a juvenile court — either that you can expose this child to this risk, or you can override the parent’s judgment.”

Physicians have to “follow their instinct to protect the child, who is the vulnerable party, and let the chips fall where they may afterward.” “If you do something medically to improve a child’s health, particularly in case of serious illness or a life-threatening situation and a parent sues, you can debate afterward whether it was the right thing to do,” says Mehlman. “But if the physician doesn’t step in, the child can be permanently harmed.” To reduce legal risks, he says physicians should:

• Document what they told the parents.

Have them sign to acknowledge that the instructions were received and that they understand the instructions, advises Mehlman.

• Know state laws requiring physicians to report knowledge of parental noncompliance as possible abuse and neglect.

“Most states have an immunity provision which legally protects physicians reporting in good faith,” says Mehlman.

State laws vary somewhat. However, most use general language such as prohibiting parents to take actions that seriously impair or retard a child’s mental health or development, he says. They typically don’t define these terms, which are left open to interpretation, he says.

“You can look at past cases and see how they were decided, but they are somewhat all over the place and very fact-specific,” says Mehlman.

• Consider the child’s own wishes.

If a child refuses something that the doctor and parents want, the physician cannot simply ignore that, says Mehlman. “As you move toward something that is more elective, physicians should definitely pay attention to the child’s own wishes,” he advises. “If the child refuses to give assent, the physician can always get a judge’s view on how to deal with that. But don’t assume that just because it’s a child, that the patient has no role in decisions.”

The older and more mature the child, the more important it is for physicians to consider a minor’s wishes, adds Mehlman. “All states have some version of a mature minor doctrine,” he explains. “Even if child hasn’t reached the state’s age of majority, if the child is mature enough — and this is a judgment call the physician can make — the physician is entitled to treat the child as if she were a legal adult.” (See related story on using non-compliance as a defense strategy, below.)

Parent’s non-compliance: Is it an effective defense?

A physician defendant could use a parent’s non-compliance as a defense in some cases, “but courts are reluctant to allow doctors to pass the buck to their patients,” says Maxwell J. Mehlman, JD, Arthur E. Petersilge professor of law and director of The Law-Medicine Center at Case Western Reserve University School of Law in Cleveland, OH.

If the parents are suing in their own right, the defense could argue that they were contributorily negligent, Mehlman says, and if the parents are suing on behalf of the child, the defense could argue that the parents, not the physician, caused the bad outcome.

“Generally, medical malpractice law doesn’t tend to recognize contributory negligence on the part of patients,” he adds. “Courts, with a few exceptions, tend not to accept those arguments by doctors, on the theory that patients are not experts.” On the other hand, if the patient has not complied with the physician’s explicit instructions, the doctor can use the non-compliance as a defense, Mehlman says. “Most states have gotten rid of contributory negligence in favor of comparative negligence,” he notes. “If a parent sues a doctor for $1 million, and the jury decides some of it is the parent’s own fault, the verdict would be reduced in proportion to their own misdeeds.”

The physician cannot abdicate responsibility entirely to the parents, emphasizes Mehlman. “The physician has to take reasonable steps to ensure child’s welfare is maximized, and what is ‘reasonable’ will vary very much on the specifics,” he says. “If parents walk out saying, ‘We’re not going to do that,’ you can’t just leave it at that. On the other hand, there is a limit to how much a physician can be expected to oversee what parents do.”