1. Is the doctor a certified specialist?
Any time one party seeks to call an expert witness, there is a question of whether that witness should qualify as an expert, and that process frequently involves a review of the witness’s qualifications, including any certifications as a medical specialist. Not every doctor claiming to be a child abuse specialist actually is one. To be a child abuse specialist, a formal certification is important—it means the doctor has received three years of specialized fellowship training, has passed an exam certifying the doctor to take on the role of a CAP, and continues to participate in certification activities to retain board certification. Some senior physicians received this specialty credentialing before fellowships were established, but they did so by passing the same certifying examination. Some physicians are not board certified but have considerable experience in assessing children suspected of maltreatment and can be considered expert, but this expertise needs to be clearly established to qualify the doctor as an expert. At least some publicly reported cases involving doctors without board certification have also involved court decisions rejecting those doctors’ opinions. Doctors should face a high burden to show they have the training and experience necessary to qualify as an expert witness.
Relatedly, attorneys for all parties should understand a doctor’s background. In police misconduct investigations, a red flag arises when an officer has moved from one police force to another and especially when the officer has been subject to any kind of discipline in the past. When a hospital has decided a doctor should not diagnose child abuse or found that a doctor made multiple false child abuse diagnoses, it is reasonable for an attorney for the parent or the child to question the doctor’s ability to serve as an expert witness in the future. And, of course, an agency attorney would be free to establish such a doctor’s expertise despite any such problems in the doctor’s background.
2. What are the boundaries of a CAP’s experience—and what is an appropriate designation of the CAP’s expertise?
Even when a doctor does have a relevant expert credential, attorneys should still consider the appropriate scope of any expert qualification. Attorneys should therefore explore the boundaries of any proposed expert’s expertise. This task is especially important when dealing with CAPs, who have special training in child maltreatment but do not always have expertise in a range of possible alternative diagnoses.
A CAP’s actual area of specialization is defined by the American Board of Pediatrics, which provides guidelines for pediatric subspecialities, including child abuse pediatrics. Those guidelines cover the diagnosis of physical abuse—indeed that topic accounts for 43 percent of all content on the board certification exam, and sexual abuse accounts for another 25 percent of content. Other areas require less focus—types of neglect, “other maltreatment,” and various other topics. In all cases, and especially those involving diagnoses beyond physical and sexual abuse, it is fair to investigate how much experience an individual CAP has with the specific diagnosis at issue.
In all categories of diagnoses, CAPs depend on other pediatric specialists, and the reliability of a CAP’s diagnosis can often be measured in part by how well the CAP collaborated with and synthesized information from other specialists. Diagnosing maltreatment involves ruling out other possible explanations for a child’s presentation, including medical conditions, a process that may involve multiple specialties. The optimal practice of child abuse pediatrics relies on collaboration with other subspecialists such as radiologists and hematologists. CAPs should be asked to demonstrate the ways in which they used the expertise of others to inform their diagnoses. If, for example, a hematologic or genetic diagnosis was considered and excluded, the CAP should be able to identify the source of expertise in those specialties on which the CAP relied to draw his or her conclusions. Lawyers are also, of course, free to explore specialists in those fields who can confirm or contradict the CAP’s conclusion.
3. Did the CAP follow a rigorous process in reaching a diagnosis?
Child abuse pediatrics remains a relatively young subspecialty—it was established as a board-eligible pediatric subspecialty in 2006. A central challenge to CAPs’ practice is, as one of us (along with several leading CAPs) put it, that “[s]tudies of individual clinical decision-making in child abuse pediatrics have demonstrated high variability in clinicians’ judgments and expert opinions.” To remedy this inconsistency, leading CAPs have endeavored to establish best practice standards of care in a series of academic articles in medical journals. Attorneys should become familiar with these recommended practices and determine if they were followed in individual cases. Any failure to meet these standards are legitimate grounds for challenging a CAP’s opinion and, when that failure is particularly severe, to challenge the admissibility of evidence. Three practices, in particular, are worth lawyers’ attention: (1) how CAPs introduce themselves to patients and their families, (2) whether and how CAPs engaged in practices to reduce the risk of implicit biases affecting their diagnosis, and (3) whether and how CAPs consult with and evaluate the opinions of other specialists.
First, CAPs have an ethical imperative to disclose their role when first introduced to a family. Informed consent requires that child patients and their parents understand that CAPs generally seek to assess concerns of physical abuse or other maltreatment and are particularly likely (compared with other medical providers) to disclose what a parent or child says to CPS agencies or law enforcement. Failing to disclose this role is poor practice and can reasonably raise questions about an individual CAP’s professional ethics and judgment.
Second, many studies show “implicit biases based on race, socioeconomic status, and perceived social risk” in the diagnosis of child maltreatment. CAPs should be asked about specific efforts to reduce such implicit and unconscious bias in their clinical work. Specifically, did the CAP rely on subjective findings such as the perceived affect of a caregiver, or did the CAP rely excessively on risk factors such as the young age of a caregiver when making an assessment? Attorneys can identify and interview any witnesses present for a CAP’s discussion with parents or other family members to identify any alternative interpretations of the CAP’s statements or demeanor. CAPs should be able to speak directly to any steps they take to minimize the role of bias in their work, such as with peer review or standardization of care efforts that dictate the same response to the same injury presentation.
Third, a CAP’s process should include routine consultation with other specialists, as discussed above. In addition, some leading CAPs ensure peer review in every case, with a goal to foster “standardization of practice and consistent application of available evidence across cases,” with some leading hospitals providing a CAP peer review in every case. This peer review “protects against well-known cognitive errors in medical decision making, such as premature closure and anchoring errors”; mitigates the risk that any one medical provider could overcompensate in response to perceived errors in any previous cases; and helps ensure medical conclusions are based on facts, not any unconscious bias regarding any individual.
Just as consultation with other specialists should be a routine part of a CAP’s work, so should consultation with past medical providers—and especially when a parent names another treatment provider. Past providers may have unique insight into the child’s diagnosis and treatment and provide important context that may not be obvious when a family seeks treatment for a child’s acute condition. CAPs should generally consult with known treatment providers before reaching a diagnosis.
The importance of close consultation with other providers is particularly well illustrated in the diagnosis of medical child abuse. Medical child abuse (which evolved from Munchausen syndrome by proxy, terminology that is no longer used) is a diagnosis applied to parents who doctors believe have falsified or exaggerated their children’s symptoms, leading to unnecessary and harmful medical care. While this diagnosis can refer to severe maltreatment in rare cases, it has also earned some significant academic criticism as overly broad. In addition, many cases involving this diagnosis involve parents seeking medical treatment for children with some serious and often difficult-to-explain symptoms. In such cases, criticism has focused on how a medical child abuse diagnosis can exist in tension with parents’ right to seek treatment for their children. Especially when the most appropriate course of action is unclear, “great deference must be accorded a parent’s choice as to the mode of medical treatment to be undertaken,” as one New York court wrote two generations ago. When one physician or the CPS agency suspects medical child abuse, it thus becomes particularly important for a CAP to obtain records from and consult with the (often many) providers that a child has seen over time. And it is especially important for the CAP to consider the range of rare medical diagnoses that can drive parents to consult with multiple providers for their child—a process that can involve consultations with multiple specialists, who sometimes suggest nontraditional treatments.
Lawyers should therefore be asking a range of questions about how an individual CAP reached his or her conclusion, the following questions among them:
- Did the CAP accurately introduce himself or herself to the family?
- What steps did the CAP take to minimize the role of bias in the assessment of the child? Do any circumstances suggest the CAP could have been influenced by unconscious or implicit bias toward any family member?
- If the child was injured, did the parent offer an explanation of what happened? If the CAP deemed the parent’s explanation insufficient to explain the child’s injury, on what basis?
- What prior treatment providers may have relevant information—and did the CAP discuss the diagnosis with them?
- Did the CAP consider a possible medical explanation for the child’s presentation?
- What other specialists may have expertise in the diagnosis or part of the diagnosis—and were they consulted by the CAP? Did their views align with the CAP’s? If not, what was the CAP’s basis for disagreeing with another doctor’s opinion?
- Did the CAP consider any opinion offered by any doctor consulted or retained by any of the parties? If the CAP disagrees with that opinion, what is the CAP’s basis for doing so?
4. Does anything in the record suggest the CAP has a bias toward the CPS agency and against parents?
A growing amount of national and local journalism and even documentary filmmaking have raised questions about the work of some individual CAPs, suggesting that they have misdiagnosed child abuse and perhaps have a strong bias to find child abuse and disregard other valid explanations for children’s injuries or other health conditions. See Stephanie Clifford, “The power of child-abuse pediatric specialists and parents’ unequal journey toward justice” (Marshall Project, Aug. 20, 2020); Mike Hixenbaugh & Keri Blakinger, “A devastating diagnosis,” NBC News, Sept. 19, 2019; Isabelle Taft, “Shaky Science, Fractured Families,” Miss. Today, Feb. 27, 2023; Take Care of Maya (June 30, 2023) (official trailer). While we take no position on those public critiques, exploring any potential for bias by a witness presented by one side in a neglect case is surely an appropriate part of litigation.
One way to probe a CAP for any potential bias is to investigate how often the CAP consulted and ruled out abuse. One recent study found that CAPs find little or no evidence of abuse in a majority of cases. Another found CAP consultations led to a shift in a diagnosis away from abuse in significant numbers of cases. But that is not true of every CAP; one county controller’s office has even raised questions about a much higher than average rate of diagnosing rare forms of child maltreatment (in this case, medical child abuse). We take no position on the accuracy of these diagnoses; rather, we identify rates of diagnosis of both abuse and non-abuse as an area for exploration.
Attorneys should investigate whether a CAP diagnosing abuse is an outlier in any way. Of course, attorneys must explore case-specific variables. A CAP who is only asked to document abuse in relatively easy-to-diagnose cases will make such diagnoses in a higher percentage of cases overall. But attorneys can and should inquire about individual CAPs’ rates of identifying maltreatment with an eye toward any questionable trends.
How any expert witness is paid is always fair game in litigation. It is similarly fair for lawyers to question how CAPs are paid—and whether their salaries establish a connection between their work and the CPS agencies that are alleging abuse or neglect and calling them as witnesses. In some jurisdictions, those agencies have contracts with hospitals, paying hospitals to have a child abuse pediatrics program (and hospitals may rationally seek out or rely on such payments because child abuse pediatrics is not a lucrative service that is likely to pay for itself). One advocacy group has counted at least $1.6 million in annual payments to hospitals in one state. Of course, the mere existence of a funding stream from a CPS agency to a hospital to support a CAP’s salary does not mean a CAP’s opinion is inherently untrustworthy. But any CAP who is funded by CPS can be challenged about this relationship and should be able to demonstrate evidence of impartiality. Information about such funding should be made available as a matter of transparency and, if impartiality cannot be demonstrated, may be used to bolster arguments of bias that rest on other factors.
Many CAPs serve on multidisciplinary teams in which they work closely with those who gather evidence and aid criminal and civil prosecution of child abuse, whether that team is based at a hospital, at a child advocacy center, or elsewhere. In at least one state, Florida, CAPs’ roles on such teams is even codified in state law, while in other jurisdictions, it is a matter of practice or contracts with agencies. There is nothing wrong with such teams, but membership on one may indicate an inclination to take a prosecutorial perspective—a fair topic for questions to be put to a proffered expert. CAPs may also provide expertise for family and defense attorneys who defend caregivers accused of child maltreatment. This is an important factor to identify and may underscore the objectivity of the CAP.
Finally, lawyers can challenge any over-reliance on past involvement with CPS as a factor in a CAP’s conclusion that a child has been maltreated. A past investigation or even a substantiation does not necessarily indicate anything about the parent or child. A large majority of all CPS investigations are not substantiated for maltreatment, and if a CAP has overemphasized such a past investigation in reaching his or her conclusion, this should be carefully probed and demonstrated.
Lawyers should therefore ask a range of questions about how an individual CAP has mitigated the potential for bias in the CAP’s assessment, such as the following questions:
- How often does the CAP rule out abuse in cases in which the CAP is consulted?
- How is the CAP’s work funded? If the CAP is publicly funded, what steps does he or she take to maintain and demonstrate objectivity and independence as a medical expert?
- Does the CAP work on a multidisciplinary team alongside law enforcement and CPS professionals? If so, how does the CAP maintain and demonstrate objectivity and independence as a medical expert?
- Has the CAP offered medical expertise to a family or defense attorney of a caregiver accused of child maltreatment?
- If the child’s caregiver was previously reported, investigated, or found to be responsible for child maltreatment, how did the CAP use this information in reaching his or her conclusions?
5. Would a different CAP come to the same conclusion?
When clients challenge a child abuse diagnosis, attorneys will frequently seek alternative opinions from other experts. Defense attorneys doing this should consider asking a CAP to evaluate another CAP’s work and advise the defense, and perhaps serve as expert witnesses. One of us is a CAP who has taken on this role in multiple cases. Most CAPs seek to diagnose as accurately as possible and are aware of the massive harm that an incorrect diagnosis of abuse can cause. And multiple studies show that CAPs effectively rule out abuse or neglect when other physicians suspect it. See Danielle Zamalin et al., “Predictors of Making a Referral to Child Protective Services Prior to Expert Consultation,” 24 Acad. Pediatrics 78–86 (Jan.-Feb. 2024); Joanne N. Wood et al., “Child Abuse Pediatrics Research Network: The CAPNET Core Data Project,” 23 Acad. Pediatrics 402–9 (Mar. 2023); James Anderst et al., “Is the diagnosis of physical abuse changed when Child Protective Services consults a Child Abuse Pediatrics subspecialty group as a second opinion?,” 33 Child Abuse & Neglect 481–89 (Aug. 2009). And because CAPs often testify in court on behalf of the CPS agency, presenting them as a witness for a parent or child challenging an agency’s abuse allegation could be particularly powerful.
Conclusion
A medical expert’s testimony on whether a child was maltreated is undoubtedly highly important in neglect and abuse cases. Because accurate diagnoses are essential to accurate legal determinations, attorneys for all parties must exercise due diligence to ensure that child abuse pediatricians and other experts follow rigorous processes before reaching their conclusions.
