Suits Possible for Failure to Report Child Abuse
Suits Possible for Failure to Report Child Abuse
Err on the side of reporting
Michael Gerardi, MD, FAAP, FACEP, director of pediatric emergency medicine at Goryeb Children’s Hospital in Morristown, NJ, reports that he is aware of several recent lawsuits naming an emergency physician (EP) for failure to diagnose child abuse.
“The child is seen for what is perceived as a minor injury and no one connected the dots pointing to abuse because the stories of how the injury occurred seemed truly accidental,” says Gerardi. “Subsequently, the child was severely abused or murdered.”
Daniel M. Lindberg, MD, an attending physician in the Department of Emergency Medicine at Brigham and Women’s Hospital and assistant professor of medicine at Harvard Medical School, both in Boston, says he knows of many EPs who saw an injured child and later learned they had failed to detect abuse, but isn’t aware of any lawsuits involving this.
“The key is to do everything you can not to miss it. When you do miss it, good documentation doesn’t help you very much,” he says. Inevitably, the EP documents that the family had a good interaction and that there were no red flags, but this doesn’t mean much if a lawsuit is filed alleging missed abuse, Lindberg explains.
You should not document the fact that you still had some concerns for abuse when the patient left, but chose not to report for some reason or another, advises Lindberg. “Since physicians are mandated reporters throughout the United States, you are putting yourself out there by doing this,” he says.
It is far better to report a concern and communicate to Child Protective Services that you aren’t 100% sure abuse exists, than not report and leave the concerns hanging, says Lindberg.
ID High-risk Injuries
Systematic screening for child abuse in the ED increases the detection of suspected child abuse, according to a just-published study that screened 104,028 children presenting at seven EDs in the Netherlands from February 2008 to December 2009.1
EPs should know which injuries are low, moderate, or high risk for abuse, advises Gerardi. For instance, he says, a spiral humerus fracture reflects moderate to high risk, while a spiral tibia fracture in a toddler is very low risk. Bruises on certain parts of the body, such as the shin, are low risk, but bruises on the spinal column are highly suggestive of abuse.
Certain injuries should always make EPs consider abuse, even if the child has never been injured before, says Lindberg. To screen for other injuries, he recommends that EPs perform and document a thorough physical examination including the ears, the fontanel (if open), lips, frenula, palate, teeth, genitalia, and skin.
“If you screen carefully and you don’t find anything and you decide not to report it, I think most people understand that you thought about it and tested for it,” Lindberg says. “That is a decision that is more defensible.”
Be Matter-of-fact
Skeletal surveys should be obtained regardless of physical examination findings for contacts of injured, abused children who are younger than 24 months old, according to a recent study.2 Twenty U.S. child abuse teams used a screening protocol for the contacts of physically abused children with serious injuries, and identified at least one abusive fracture in 16 of 134 contacts, none of which had associated findings on physical examination.
“These results are especially important for EPs because they have the chance to talk to families early before the involvement of law enforcement, child protective services, and lawyers on all sides,” says Lindberg, the study’s lead author. “A non-judgmental, matter-of-fact approach can help ensure that siblings are evaluated without making it a fight.”
He says that EPs might try saying something like, “The injuries we’ve found are more than we would expect for the kind of injury that you reported. In cases like this, it’s important to look at other kids in the family to make sure we aren’t missing violence or other dangerous medical diagnoses.”
The EP’s decision to report shouldn’t be based on risk factors such as poverty or young parents, advises Lindberg. “Those factors impact the risk for abuse the same way that blood pressure impacts the risk for heart disease,” he says. “People abuse their kids with none of those red flags, and most people with all of the red flags take excellent care of their kids.”
It’s more helpful to look for injuries that are uncommon, and use a systematic, unbiased approach that doesn’t depend on having a parent lose his or her temper in the ED, says Lindberg. To reduce legal risks, he recommends that EPs “think less about risk factors than about the injuries they are seeing, and whether or not other injuries are identified.”
Err on Side of Caution
Samantha L. Prokop, JD, an attorney with Brennan, Manna & Diamond, LLC, in Akron, OH, says that the one piece of advice she always gives clients in a state that offers immunity for reporting suspected child abuse, is that it is better to err on the side of caution and report. (To view a Child Abuse and Neglect Reporting State Statute overview, go to http://bit.ly/OcX6zK.)
“Failure to report may lead to not only criminal penalties, but also private causes of action for negligence,” she adds.
In one case, a child was brought to the ED with symptoms of intestinal colic and his mother later sued the EP, his employer, and the hospital that treated the patient, alleging a violation of the Illinois abuse and neglect reporting statute. Plaintiffs also alleged that the defendants breached a common law duty that medical professionals owe to their patients.3
The court held that the EP had no common law duty to discern the child’s 5- to 8-week-old rib fractures, which allegedly resulted from abuse, while diagnosing and treating the colic issues.
“In light of this case, ED physicians may have more leniency in the duty to recognize and report abuse due to the focused and episodic care they provide,” says Prokop. A primary care physician with access to a lengthy medical history will likely have more information available to identify and report suspected abuse than would an EP, who likely has no prior records available and is focusing on a specific treatment issue, she adds.
Document social service consults and efforts made to report abuse, advises Prokop, and charting “no abuse suspected” may help refresh an EP’s recollection as to his or her state of mind if an issue arose in the future. However, nursing documentation indicating unexplained injuries, history of violence, or reported prior abuse could be used to show suspicion of abuse that should have been reported, she cautions.
“If there is enough documentation in the chart to give the provider reasonable suspicion of abuse or neglect, he or she should err on the side of reporting, as this documentation would likely be used against the practitioner in a subsequent suit,” she says.
References
1. Louwers E, Korfage IJ, Affourtit MJ, et al. Effects of systematic screening and detection of child abuse in emergency departments. Pediatrics 2012;130(3):457-464.
2. Lindberg DM, Shapiro RA, Laskey AL, et al. Prevalence of abusive injuries in siblings and household contacts of physically abused children. Pediatrics 2012;130(2):193-201.
3. Varela v. St. Elizabeth’s Hospital of Chicago. 372 Ill.App.3d 714, Case No. 1-065-3718 (Appellate Court of Illinois, First District, First Division, May 15, 2007).
Michael Gerardi, MD, FAAP, FACEP, director of pediatric emergency medicine at Goryeb Childrens Hospital in Morristown, NJ, reports that he is aware of several recent lawsuits naming an emergency physician (EP) for failure to diagnose child abuse.Subscribe Now for Access
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