June 1999 Bulletin

Physicians can't keep abuse hidden

Although patient information is confidential, all states require reports of suspected child harm

One of the most disturbing events for a physician is treating a patient who appears to have been abused by his or her caregiver. These patient encounters fall squarely on the intersection of physicians' obligations to maintain the confidentiality of patient information and their duty to report suspected abuse to public authorities.

For many years, abused and neglected children were often hidden from view. Indeed, physicians' duties to keep patient information confidential often prevented them from reporting even the most egregious cases of suspected child abuse. But now all 50 states have enacted laws to protect abused children and to require certain professionals to report cases of suspected abuse. These statutes are generally quite similar, and cover the following topics:

Definition of abuse. Abuse is generally defined as nonaccidental physical harm or threatened physical harm to a child's welfare. Several statutes, however, contain a more expansive definition of abuse, covering harms such as mental or emotional injury, sexual abuse, sexual exploitation and neglect. A physician should be aware of the applicable definition in the state in which she practices.

Who is a mandatory reporter? Physicians and surgeons are required to report suspected child abuse in all states. Nurses are also required to report in most states, and many statutes include other physician extenders and ancillary health care personnel as mandatory reporters.

To whom must the suspected abuse be reported? Most states designate an agency or other organization with which all reports of child abuse must be filed. However, some statutes require physicians and other hospital staff to report cases of suspected abuse directly to the head of the hospital or institution. It is important that a physician know whether the statute in his state requires that he/she report to both to the state agency and the designated hospital official or whether he/she may discharge his or her duty simply by filing an internal report at the hospital or other health care facility.

Contents of the report. The required elements of suspected abuse reports are fairly uniform across the states. Generally, the report must contain the name and address of the child, the persons responsible for the child's care, the child's age and the nature and extent of the child's injuries. Some states require immediate notification of suspected abuse by phone, to be followed by a more complete written report, while others require only that the official report be submitted in writing within prescribed time periods.

Also, some states require that reports of abuse include other information that might identify the cause of an injury, such as photographs or X-rays of the injured child. Some states permit a physician to order X-rays and other examinations in cases of suspected abuse without obtaining parental consent, while other statutes require an authorization by hospital administration or, in a few instances, a court order before any medical procedures can be conducted without the parent's consent.

Despite the apparent simplicity of these requirements, they can be difficult to implement. Ascertaining abuse is a subjective process and in close cases it can be difficult to know when to report and when to remain silent. In most states, however, a person who reports abuse is granted immunity from civil and criminal liability associated with the report provided it was made in good faith. For example, in the Michigan case of Awkerman v. Tri-County Orthopedic Clinic, three orthopaedic surgeons were sued for wrongfully filing a report of child abuse. The physicians had treated a young boy for multiple fractures and, after rejecting a diagnosis for osteogenesis imperfecta, filed a report of suspected child abuse with the appropriate state agency. Subsequent examinations by other physicians showed that the patient did, in fact, suffer from osteogenesis imperfecta and was not the victim of abuse. Nevertheless, the court held that, because the physicians acted in good faith in reporting the suspected abuse, they could not be held liable even though the suspicion was later found to be unsupported.

Finally, it is important to keep in mind that children are not the only victims of abuse. Elderly patients can easily be abused and neglected and are often too embarrassed to admit their difficulty voluntarily. Almost all states have enacted legislation concerning the reporting of elder abuse, which in some cases includes situations as uncertain as "isolation" of an older patient. Unlike with child abuse, in some states reporting elder abuse is voluntary rather than mandatory.

To ensure that they comply with applicable laws, physicians should develop and integrate into their practices a systematic method of identifying and reporting cases of suspected abuse.

By Bryan A. Schneider, a Chicago health care attorney at Harris, Kessler & Goldstein.

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