BY MICHAEL WEBER
When talking about liability in cases of medical child abuse, there are several angles to examine when it comes to the medical profession. How are individual doctors liable in medical child abuse cases? How is the hospital as an organization liable in medical child abuse cases? What do both doctors and hospitals need to do to avoid liability?
First, a disclaimer that I am not an attorney, and this is purely common-sense advice. As you will see, this isn’t rocket science. It’s just an area that very few doctors or hospital legal staffs address until it is too late.
Where do these lawsuits come from? Usually from the accused criminal offender if a law enforcement investigation and arrest are non-existent. But it isn’t just the offender that can litigate. There is an increasing trend of protective fathers suing hospitals and doctors for malpractice for failure to either recognize this abuse (lack of medical record review) or to report this abuse when recognized. I am currently aware of two such cases working their way through the civil court system. Normally, it is the offender suing after the police, CPS, or the family court system has failed and the victim is returned to the suspected offender. Remember, these offenders are attention seeking and a lawsuit is just another way of receiving that attention. So, what can doctors and hospitals do to avoid or mitigate these lawsuits?
First for the individual doctor, you must remember that this is abuse and you are a mandated reporter of abuse. If you feel the need to chart “Munchausen by Proxy” or Medical Child Abuse,” you better be reporting to CPS. I always suggest reporting to both police and CPS, as neither organization is properly trained and there is a ton that police can do, if they choose, that can corroborate the medical child abuse diagnosis. I also encourage pediatricians not to chart the term “munchausen by proxy.” Instead chart that you believe the offender is falsifying the medical history of the child or inducing symptoms in the child. The only doctor who should be charting medical child abuse or munchausen by proxy is the board-certified child abuse pediatrician at the hospital. If you chart those terms, you open yourself up to questioning in criminal or civil trial about your knowledge base on that abuse. That can go terribly wrong for a pediatrician with just a surface knowledge of this abuse, especially when the offender is the plaintiff in a civil case.
I have seen cases where doctors have charted munchausen by proxy and then failed to report to either CPS or law enforcement. This is failure to report child abuse and is an actual crime in many states. I doubt that any doctor would ever be prosecuted for such a crime, but it certainly increases civil liability if a doctor could be criminally culpable for the further abuse of a victim by failing to report such abuse as required by criminal law, especially if the plaintiff in the civil case is the victim’s father. Doctors also sometimes feel the need to confirm this abuse before reporting. To be very frank, that is not your job. If you attempt to take over the roll of the police and CPS, you are stepping over the line and again creating liability where none existed before. Police and CPS will need the cooperation of doctors to effectively complete an investigation, but doctors should never act as investigators. Doctors also need to remember that an active police investigation into a child abuse complaint is an exception to HIPAA. If police or CPS need to speak to you, be open and honest. A doctor may follow all of this advice and still be named in a lawsuit by a criminal offender in these cases. This is usually due to a hospital that has no plan or written policy on how these reports of abuse should be handled.
That brings us to what hospitals can do to prevent lawsuits for either the mother or the father in these cases. I have never experienced a doctor that was uncooperative in one of these cases (although I’m sure that has occurred), but I have certainly experienced a hospital attorney who thought stalling and impeding a criminal investigation was beneficial to his client (the hospital, not the doctors). If you are a civil attorney for a hospital, you need to realize this is a report of child abuse, just like any other form of child abuse, and is an exception to HIPAA. Impeding a police or CPS investigation creates liability, especially if the plaintiff is the victim’s father. Police need to follow the proper protocol for subpoenas to obtain records, but when this occurs at your hospital and there is a police investigation, you should never limit police access to doctors, nurses, or other staff that they need to talk with for the investigation. This may seem like common sense, but civil attorneys may tend to treat a criminal matter as a civil matter. That is harmful for the hospital and the victim in these cases and can be bad optics to a civil court jury or judge. A good civil attorney will certainly argue in closing statements that delaying the investigation was consciousness of guilt on the part of the hospital and doctors.
If your hospital has no policies or plans in place for this abuse, you are open to legal action. Hospitals, especially children’s hospitals, should have policies on reporting this abuse and a plan for what takes place after that report. I can tell you that very few children’s hospitals in the U.S. currently have this in place. Without this, hospitals are particularly vulnerable to civil action from the father of the victim.
The most effective way to avoid a lawsuit is to have a multi-discipline team (police, CPS, board certified Child Abuse Pediatrician, criminal and CPS prosecutors) prepared to receive these reports of abuse and act on the reports aggressively with an effective CPS and criminal investigation. Unfortunately, this approach is rare in the United States currently.