The most common medicolegal issues include reporting child maltreatment, the presentation of ethical and effective expert testimony, informed consent in child maltreatment cases, and various liability risks related to child maltreatment cases. The health care professional who remains knowledgeable about the laws within their jurisdiction, the mandates of their professional society and state medical board, and the local resources (eg, child abuse pediatrician and hospital counsel) available to them minimizes medicolegal risk.
Key points
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Discuss the legal duty to report suspicion of child maltreatment.
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Understand processes and duties associated with giving effective and ethical expert witness testimony.
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Obtain appropriate, informed consent for child maltreatment medical evaluations.
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Explore current issues of civil liability exposure related to reporting and evaluating suspected child maltreatment.
Introduction
Patient advocacy is an integral part of pediatric practice. Few patients require that advocacy as urgently as the child who has been abused or neglected. The pediatrician’s opportunity to serve the child, whom other protectors may have failed, necessitates interactions with law enforcement, child protection agencies and the courts: entities unfamiliar to many pediatricians. In this article, four legal issues are discussed that arise when pediatricians report or evaluate children suspected of being abused or neglected: a physician’s duty as a mandated reporter; a physician’s responsibilities when called to court as an expert witness; informed consent for maltreatment-specific evaluations; and liability confronting providers involved in child maltreatment.
Introduction
Patient advocacy is an integral part of pediatric practice. Few patients require that advocacy as urgently as the child who has been abused or neglected. The pediatrician’s opportunity to serve the child, whom other protectors may have failed, necessitates interactions with law enforcement, child protection agencies and the courts: entities unfamiliar to many pediatricians. In this article, four legal issues are discussed that arise when pediatricians report or evaluate children suspected of being abused or neglected: a physician’s duty as a mandated reporter; a physician’s responsibilities when called to court as an expert witness; informed consent for maltreatment-specific evaluations; and liability confronting providers involved in child maltreatment.
Mandated reporting
For most pediatricians, the first and most frequent interaction with the child protection system is as a mandated reporter. Federal law requires states to have mandated reporting laws regarding child maltreatment. Pursuant to this law, states must require “mandatory reporting by individuals required to report,” and establish a system to respond to such reports. “Individuals required to report” is not defined by federal law, and significant variation exists among the states. Separate, and subtly different, mandated reporting laws exist in all states and territories of the United States. Additionally, a federal statute extends this duty to professionals on federal land or in federal facilities where state law does not apply.
Most states require a report when a mandated reporter, in their professional capacity, “reasonably suspects” or has “reason to believe” that a child has been abused or neglected. Other states enumerate specific professions as mandated reporters but also require all adults to report suspected maltreatment. New Jersey and Wyoming simply require all adults to report without mention of professions. As recent high-profile cases have reminded us, many adults fail to report suspicion or even knowledge of child maltreatment.
What constitutes “reasonable suspicion” or a “reasonable cause to believe” is an issue that has perplexed and frustrated physicians for decades. Recent studies have shown that one of the reasons for underreporting child abuse is a misinterpretation of the level of certainty needed before reporting. In CARES (Child Abuse Reporting Experience Study), physicians did not report 27% of the injuries that they determined to be likely or very likely caused by child abuse. Levi and Brown reported that 15% of the physicians whom they studied required 75% or more probability of abuse before they would report. Multiple studies have confirmed that physicians have varying interpretations of what constitutes reasonable suspicion.
The most helpful judicial clarification of “reasonable suspicion” comes not from child abuse reporting cases but from a search and seizure case under the 4th Amendment. The US Supreme Court stated in Illinois v Wardlow that “a reasonable, articulable suspicion” equates to something “more than an inchoate and unparticularized suspicion or ‘hunch’.” Thus, in maltreatment cases, a “reasonable suspicion” is some objective, articulable fact that would lead a reasonable person to suspect that abuse or neglect might have occurred. However, practitioners should understand that the threshold for reporting maltreatment does not require incontrovertible certainty . A mandated reporter must report a reasonable suspicion even when the provider cannot prove, or doubts, that abuse or neglect has occurred.
Another reason why pediatricians fail to report is that they do not trust the child protection system to help the patient or family. In a physician focus group study that examined physician perceptions of child maltreatment reporting systems, participants opined that they could help the family without involving child protection authorities. This approach is legally risky. Other reasons that physicians have indicated for not reporting include fear of testifying, increased time demands for these types of cases, and reluctance to get entangled in the legal system.
The Health Insurance Portability and Accountability Act (HIPAA) is, incorrectly, an oft-perceived impediment to reporting abuse and neglect. HIPAA specifically permits disclosures to “a public health authority or other appropriate government authority authorized by law to receive reports of child abuse or neglect.” Similarly, most states explicitly exempt mandated reporting of child maltreatment from the physician-patient privilege of confidentiality. Thus, the pediatrician may disclose protected health information to an appropriate investigative agency without parental notification or consent. When the physician is not the reporter of suspected abuse or neglect, the physician may still disclose Protected Health Information to the Child Protection Services or law enforcement when certain conditions are met (eg, when permitted by state law, when deemed necessary to prevent serious harm to a child, and when limited to only information related to the abuse or neglect).
Local reporting procedures vary widely by state. Pediatricians need to be aware of their local procedure. Most states offer a toll-free hotline for child maltreatment reporting. Liability for failing to report is discussed in detail later.
Pediatricians are required to report knowledge or reasonable suspicion of child abuse or neglect to appropriate authorities. HIPAA and other confidentiality laws allow disclosure of patient medical information in mandated reports. Failure to report not only endangers children but exposes the physician to legal and professional consequences.
Expert witness testimony
Although not a common aspect of pediatric practice, practitioners may be called to testify in a variety of legal proceedings related to child maltreatment. In a criminal trial, the state seeks to prove the guilt of a defendant beyond a reasonable doubt and to impose a sentence. In civil proceedings, litigants, including government officials (eg, child protective services), attempt to establish findings by a preponderance of the evidence, so they can obtain orders regarding child custody, visitation, or child support. Pretrial hearings, such as Frye and Daubert hearings, determine which evidence or witness testimony is permitted at a subsequent trial. Rarely, pediatricians may become involved in governmental administrative hearings (eg, licensure or revocation of licensure) tangent to maltreatment cases.
Although practitioners may feel uncomfortable testifying as an expert in child maltreatment, the definition of “expert” in this context is broad. The Federal Rules of Evidence define an expert as someone with “scientific, technical, or other specialized knowledge” that would assist the judge or jury in deciding the case. One need not be the foremost authority on child maltreatment, nor understand every nuance of the subject, to qualify. Practitioners who are unsure about proper testimony in a child maltreatment case are advised to consult with a physician board certified in the recently established subspecialty of child abuse pediatrics.
A practitioner’s first formalized contact with the testimonial process comes in the form of a subpoena. A subpoena is a legal document that notifies a witness that they are needed to present evidence in court. A subpoena might require testimony ( subpoena ad testificandum ), the production of documents ( subpoena duces tecum ), or both. Because a subpoena suspends typical rules regarding medical confidentiality, it is important for the physician to read carefully which disclosures are commanded (and therefore allowed) by the subpoena. A provider receiving a subpoena for a medical record that they did not create should notify the attorney issuing the subpoena of the appropriate custodian instead of disclosing the record. On receiving any subpoena, the wisest course is to call the attorney who issued the subpoena. The attorney should discuss which testimony or documents are required and also the facts or opinions to which the attorney hopes the witness will testify.
The best preparation for any kind of court testimony is to be thoroughly familiar with the medical facts of the case. Although many courts permit a witness to refer to notes during testimony, the witness should be able to recite the basic facts of the case (patient’s name, age, dates seen, high points of the history, and injuries found) from memory. The expert should be familiar with the patient’s entire chart, because questions may be asked about the patient’s medical conditions unrelated to abuse or neglect.
The testimony of an expert witness begins with qualification as an expert witness. The qualification of a witness as an expert is a legal procedure by which the witness shows to the court sufficient training, research, writing, professional activities, or other qualifications to serve as an expert. The official judicial determination of an “expert” comes when an attorney asks the judge to recognize the witness as an expert in a particular subject matter. Being qualified as an expert entitles the expert to offer opinions in court. In answering questions, from either party, the witness should consider themselves an impartial educator of the court about the topic of their expertise. A physician has an ethical obligation to provide accurate, unbiased testimony based on sound scientific principles.
Less commonly, a practitioner may be called as a fact witness, rather than an expert witness. When testifying as a fact witness, the qualification step mentioned earlier is omitted. However, unlike an expert, a fact witness is not allowed to provide an opinion or interpretation of what the witness observed. A fact witness may testify only to the specific facts that the witness has seen, heard, felt, and so forth.
At many steps in the legal process, evidentiary rules, court rulings, or party agreements may limit the content of a witness’ testimony. In general, these restrictions are not a concern for the witness; it is the attorney’s responsibility to ask questions that elicit admissible testimony. This is another reason that the best strategy is to answer each question as posed, rather than trying to anticipate or manipulate the testimony.
Child protection has long been hindered by physicians who give irresponsible testimony. Irresponsible testimony includes testimony for which the expert is insufficiently qualified, or testimony based on idiosyncratic theories that have either not been substantiated by well-conducted medical studies or have not gained wide acceptance in the medical community. The American Academy of Pediatrics’ recommendations for expert witnesses are listed in Box 1 . The American Medical Association Code of Medical Ethics requires that physicians who testify based on “a theory not widely accepted in the profession” must “characterize the theory as such.”
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Licensed in the state where the expert practices medicine
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Board certification in the area relevant to the testimony
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Actively engaged in clinical practice of medicine relevant to the testimony
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Unless retired from clinical practice, most of a physician’s professional time should not be devoted to expert witness work. If retired, a physician should only testify on cases that occurred when he or she was in active practice
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