The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
The Children’s Bureau recently released a report to Congress: Immunity from Prosecution for Mandated Reporters. This report, produced by the ABA Center on Children and the Law, only covered civil immunity issues for medical, health, and child welfare professionals and did not cover criminal liability. The report was commissioned because there is currently no one set of laws, rules, or regulations that protect medical, health and child welfare workers as they cooperate or assist in child abuse and neglect investigations.
Researching immunity issues, Center staff surveyed 544 medical professionals’ experiences consulting and assisting with child abuse or neglect investigations and any resulting civil litigation; 95 percent of the medical professionals who responded had worked with local child protective services on child abuse or neglect investigations. Medical professionals reported several ways of being involved in investigations:
- 90 percent reported possible abuse/neglect
- 58 percent have been called as an expert witness, and
- 56 percent have been asked to provide a second opinion.
Legal Issues Reported in the Survey
Federal cases tend to involve civil rights violations; state cases invoke malpractice. Negative consequences from being named in either a federal or state lawsuit were anxiety/depression or emotional stress; time taken away from practice; and financial burden on themselves or their institution.
- 95 percent of respondents have not been sued in federal court
- 67 percent of responders knew their state immunity laws provide protection from civil liability
- 8 percent report the outcome of a lawsuit impacted their willingness to consult/assist on cases in the future.
The report noted the threat of legal liability is on the minds of medical professionals. While the number of professionals who had been sued was small, more than ½ of the total sample believe it to be enough of an issue to warrant legislative changes. Legislative changes would include:
- expanding/addressing loopholes in immunity protections
- increasing resources, and
- making improvements in child protection and court systems.
Case Law Review
The report cited common themes in civil lawsuits cases where professionals were sued as a result of working on a child abuse or maltreatment cases. These include:
- Violation of Civil Rights including allegations of civil rights violations included 4th and 14th Amendment claims.
- RICO type cases alleging collusion or conspiring with other professionals in child abuse or maltreatment cases.
- Negligence in either supervising children who were known to a professional or agency. Other claims included negligence in failing to file reports or bring cases to court as needed.
- Many actions discussed whether the alleged wrongdoer was acting under color of state law.
- Several Munchausen Syndrome or Munchausen Syndrome by Proxy cases were included in the types of cases filed.
- Many parents alleged that professionals involved in these cases caused them to experience a lack of companionship by not allowing them to have ongoing contact with their children.
- Medical and psychological professionals were often sued for making improper referral or reaching erroneous conclusions.
- There were many cases where physicians were sued for assisting or consulting on a case.
- Parents sued on the grounds of false imprisonment when children were removed from their care.
- Mandated reporters faced liability when they failed to report allegations of child abuse or neglect.
Information from Pleadings in Civil Liability Cases
Many physicians in the report provided examples of pleadings used in child abuse or maltreatment cases involving allegations in which they cooperated or assisted. After reviewing the pleadings and subsequent lawsuits, most cases were dismissed at summary judgment. However, all participants reported significant costs involved to defend a lawsuit, even if that party prevailed.
Recommended Statutory Changes
The report suggested Congress consider having The Child Abuse Prevention and Treatment Act (CAPTA) mirror the immunity provisions of the Victims of Child Abuse Act (VCAA). 42 U.S.C. §13031(f) provides for immunity for good faith reporting and associated actions, which would include cooperating in an investigation. Potential CAPTA language would include provisions that persons who act in good faith in making, cooperating, or assisting in a child abuse or maltreatment report are entitled to protection from criminal and civil liability. This change would make CAPTA consistent with other federal laws and protect those who cooperate or assist in child abuse and maltreatment reports. The report provides recommended model language based on Delaware’s statute:
…shall be immune from, claims, suits, liability, damages or any other recourse, civil or criminal, arising from any act, assistance, consultation, proceeding, decision or determination undertaken, performed or recommended.
States with Immunity Protections
States have varying levels of protection from liability. The report recommended looking at statutes from California, Delaware, North Carolina, Washington and Wyoming. These states provide protection from liability for those who consult or assist on cases involving child abuse and maltreatment.
The report suggested Congress consider providing immunity protections for professionals who consult or assist on cases involving child abuse and maltreatment. This protection is needed to allow professionals to work on these cases without fear of being sued for providing assistance to vulnerable children.
In reviewing federal and state statutes, the report suggested Congress follow the type of language included in other statutes providing for protection from liability such as VCAA and in child death reviews. By providing these protections, professionals who work on these important cases could carry on their work with less fear of liability.
Sally Small Inada, M.A., communications and marketing director, ABA Center on Children and the Law.
For more information:
Report to Congress on Immunity from Prosecution for Mandated Reporters
Should this Radiologist be Sued?
“Hello?” Lee Boyd, radiology MD, answers her cell.
“Hey, Lee, glad I caught you between patients; when you get a chance today would you come to pediatrics? I got something I’d like you to check for me.”
“I have a few minutes, what’s up?”
“Urgent appointment came in, 7-year-old boy, limping on his left leg, complaining of pain, tenderness; mom said she thought he hurt himself rough-housing with his younger brother, maybe sprained his ankle. I saw a couple things during the exam:
He was favoring his left forearm as well as limping, and protecting his rib cage too. Mom did not mention any of that but the nurse could see it easily during the intake exam, he flagged it for me.
I saw a lot of bruising, in various stages of healing, on the forearm, elbow area and torso. Mom and the boy couldn’t or wouldn’t explain what had happened beyond “rough-housing.” I ordered X-rays of his left arm, leg, and rib cage.
I’d like your professional opinion about what I am seeing on those X-rays—I remembered the CME* you and the radiology department put on for our hospital pediatrics service couple months back on child maltreatment.”
“Ok, Ty, I should be able come over in an hour or so around lunch time, I can take a look then.”
“Thanks—let the nurse know when you get here and I’ll join you.”
Depending upon current state laws, the radiologist, who will never see the minor but is offering her expert opinion to help her colleague, may be exposed to liability.
*Continuing Medical Education