PAGES-PROF STEWART
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PAGES502-512-PROFSTEWART.docxCHILD ABUSE Child abuse is the intentional serious mental, emotional, sexual, and/or physical injury inflicted by a family member or other person responsible for a child’s care. Some states extend the definition to include a child suffering from starvation. Other states include moral neglect in the definition of abuse, along with immoral associations; endangering a child’s morals; and the location of a child in a disreputable place or in association with vagrant, vicious, or immoral persons. The federal Child Abuse Prevention and Treatment Act (CAPTA) provides minimum standards that states must incorporate in their statutory definitions of child abuse and neglect. The CAPTA definition of “child abuse and neglect,” at a minimum, refers to: “Any recent act or failure to act on the part of a parent or caregiver, which results in death, serious physical or emotional harm, sexual abuse, or exploitation, or an act or failure to act which presents an imminent risk of serious harm.”2 A wealth of information on child abuse and state statutes can be found at the Administration for Children and Families website: www.childwelfare.gov. This site is a child welfare information gateway that provides access to information and resources to help protect children and strengthen families. Topics include child welfare, preventing and responding to child abuse and neglect, supporting and preserving families, foster care, and adoption. Who Should Report? Presently, all states have enacted laws to protect abused children. Most states protect the persons required to report cases of child abuse. In a few states, certain identified individuals who are not required to report instances of child abuse, but who do so, are protected. Child abuse laws may provide penalties for failure to report. Persons in the healthcare setting who are required to report, or cause a report to be made, when they have reasonable cause to suspect that a child has been abused include administrators, physicians, interns, registered nurses, chiropractors, social service workers, psychologists, dentists, osteopaths, optometrists, podiatrists, mental health professionals, and volunteers in residential facilities. How to Detect Abuse? An individual who reports child abuse should be aware of the physical and behavioral indicators of abuse and maltreatment that appear to be part of a pattern (e.g., bruises, burns, broken bones). In reviewing the indicators of abuse and maltreatment, the reporter does not have to be absolutely certain that abuse or maltreatment exists before reporting. Rather, abuse and maltreatment should be reported whenever they are suspected, based on the existence of the signs of abuse and maltreatment and in light of the reporter’s training and experience. Behavioral indicators include, but are not limited to, substantially diminished psychological or intellectual functioning, failure to thrive, no control of aggression, self-destructive impulses, decreased ability to think and reason, acting out and misbehavior, or habitual truancy. Such impairment must be clearly attributable to the unwillingness or inability of the person responsible for the child’s care to exercise a minimum degree of care toward the child. Good Faith Reporting Reports of suspected child abuse must be made with a good faith belief that the facts reported are true. The definition of good faith as used in a child abuse statute may vary from state to state. However, when a healthcare practitioner’s medical evaluation indicates reasonable cause to believe a child’s injuries were not accidental and when the healthcare practitioner is not acting from his or her desire to harass, injure, or embarrass the child’s parents, making the report will not result in liability. Statutes generally require that when a person covered by a statute is attending a child and suspects child abuse, that person must report such concerns. Typical statutes provide that an oral report be made immediately, followed by a written report. Most states require the report to contain the following information: The child’s name and address The person(s) responsible for the child’s care The child’s age The nature and extent of the child’s injuries (including any evidence of previous injuries) Any other information that might be helpful in establishing the cause of the injuries, such as photographs of the injured child, and the identity of the alleged abuser Psychologist Immune to Liability A minor child and his mother brought an action for damages against physicians for failing to diagnose disease and filing erroneous child abuse reports in Awkerman v. TriCounty Orthopedic Group.3 The Wayne County Circuit Court granted the physicians’ motions for partial summary judgment, and the plaintiffs appealed. The Michigan Court of Appeals held that the child abuse reporting statute provides immunity to persons who file child abuse reports in good faith even if the reports were filed because of negligent diagnosis of the cause of the child’s frequent bone fractures, which eventually was diagnosed as osteogenesis imperfecta. The court of appeals also held that damages for shame and humiliation were not recoverable pursuant to Michigan statute. Immunity from liability did not extend to damages for malpractice that may have resulted from the failure to diagnose the child’s disease as long as all the elements of negligence are present. In another case, the psychologist in E.S. by D.S. v. Seitz4 was immune from liability in a suit charging her with negligence in formulating and reporting her professional opinion to a social worker that a father had sexually abused his 3-year-old daughter. The psychologist made the report in compliance with the Wisconsin statute, after having examined the child in the course of her professional duties as a mental health professional. The patient in Marks v. Tenbrunse5 had been assured that anything he disclosed during his treatment sessions would remain confidential. During the treatment sessions, the patient disclosed that he had fondled two children under the age of 12. As a result of that disclosure, two psychologists made a good faith report to Child Protective Services. The report caused the patient to be prosecuted for his admitted sexual misconduct. Because the patient admitted to the abuse of two children, the psychologists had reasonable cause to believe that the children currently were being abused. The psychologists were found immune from both civil and criminal liability as a result of their good faith report. Failure to Report Child Abuse The criminal and civil risks for healthcare professionals lie not in good faith reporting of suspected incidents of child abuse, but rather in failing to report such incidents. Most states have legislated a variety of civil and criminal penalties for failure to report suspected child abuse incidents. Penalties are “in the form of either fines or jail time or both, on mandatory reporters who fail to report cases of suspected child abuse and neglect as required by the reporting laws. State laws also may impose penalties on any person who knowingly makes a false report of abuse or neglect.”6 Psychologist’s Failure to Report Past Abuse The Minnesota Board of Psychology was found to have acted properly when it placed the license of a psychologist on conditional status.7 The psychologist argued that he was not required to report past abuse that was not ongoing, that a report made 5 weeks after the incident was not untimely, and that the reporting laws were unconstitutional because they violated the privacy rights of clients and the privilege against self-incrimination. The psychologist had failed to report incidents of sexual child abuse. The court held that there was no merit to the psychologist’s contentions that the child abuse reporting laws were unclear and that they did not apply to one patient, who was a grandfather responsible for the child’s care at the time of the incident in question. Nurse’s Failure to Document and Report In State v. Brown,8 rescue personnel were summoned to the scene of an emergency and found a 2-year-old foster child unconscious; not breathing; and “posturing,” an abnormal rigidity of the body and a sign of brain damage. While performing emergency medical treatment, rescue personnel discovered a series of small, round, dime-to-quarter size bruises running parallel along the child’s spine. They also noticed a red bruise under his eye. This information was relayed to the flight crew who airlifted the child to the hospital. The flight crew then reported the information to a nurse employed at the hospital. The child recovered after treatment and was released from the hospital on August 14, 2002. Four days later, on August 18, the child was returned to the hospital where he died of abusive head trauma. The nurse did not document the bruises or call the state’s child abuse hotline because the boy’s foster mother said the bruises were the result of the boy leaning back in a booster seat. In February 2003, the prosecutor alleged that the nurse had reasonable cause to suspect that the child had been abused or neglected. She was charged with failure to report child abuse to the division of family services under Section 210.115.1, Revised Statutes of Missouri, and to a physician under Section 210.120, Revised Statutes of Missouri. The nurse sought to dismiss the charges, alleging the statutes were unconstitutionally vague. In September 2003, the court held that the sections were unconstitutionally vague and dismissed the case. The state appealed. The appellate court determined that the statutes were not vague. The test for determining whether a law is void for vagueness is whether its language conveys to a person of ordinary intelligence a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The statute criminalizing a health professional’s failure to report child abuse upon “reasonable cause to suspect” abuse was not unconstitutionally vague. The phrase “reasonable cause to suspect” has been in use for more than a century and is understandable by ordinary persons. Physician Entitled to Immunity A physician who was not the initial reporter of suspected child abuse, but who performed a medical examination of a child at the request of the Department of Children and Families to determine whether reasonable cause existed to suspect child abuse, was entitled to the immunity from liability provided by statutory law. It was clear that the physician, a mandated reporter under the law, examined the child in the ordinary course of his employment in the emergency department. He complied with applicable statutes when he relayed his findings that there was a reasonable suspicion of child abuse to the department. Inasmuch as the plaintiffs did not allege that the physician acted in bad faith during the examination and reporting process, his actions constituted a report of suspected child abuse protected by statutory law. The trial court, therefore, properly granted the medical defendants’ motion for summary judgment.9 CHILD ABUSE CAN BE ELUSIVE Child abuse is not always obvious to the caregiver and can unfortunately go undetected to the detriment of the child. I learned this early on in my training. I was a first-year resident at General Medical Center and was on tour in the hospital’s pediatric unit with Peggy, the unit charge nurse. As we walked down the corridor I noticed a young child in room 106 in a full leg cast, which had been placed in traction. I asked Peggy what had happened to the patient? Peggy said, “Oh that’s Gracie. Poor thing. She broke her femur tripping over a toy in her home.” I thought to myself that was a major injury for tripping over a toy. I questioned Peggy further and she told me that she knew where I was leading by my questions and said, “Oh you can be assured that Gracie had not been abused. She has the sweetest mother and father. Although they are divorced one of her parents is here every day. I even questioned the mother and she assures me it was an accident.” I had an uneasy feeling about the mother’s story and decided to visit the radiology department to review Gracie’s X-rays with the radiologist on duty. I walked into the imaging reading room where I found three radiologists reviewing various imaging studies. I introduced myself as a first-year resident to Dr. Patrick Williams, the medical director of radiology. I asked Dr. Williams, “Do you have time to review Gracie’s X-rays with me?” The radiologist replied, “No problem. What is Gracie’s last name?” I told him and he pulled up Gracie’s X-rays electronically on a computer screen. As soon as the he pulled up the X-rays he said, “Oh yes, Gracie has a compound fracture of the femur.” He was very patient as he thoroughly reviewed with me Gracie’s case. He pointed out the compound fracture of the femur with the computer cursor. I asked him, “Do you think the injury could have occurred from Gracie tripping over a toy at home on a plush carpet?” He replied, “That would be highly unlikely.” He called over one of his partners and said, “Does this patient’s injury look like she tripped over a toy?” Looking at me he said, “Is this what you were told?” I said, “Well, yes, I was.” He looked at me and said, “I have been reading imaging studies for over 20 years. It is highly unlikely that Gracie’s compound fracture of her left femur is the result of her tripping over a toy.” The third radiologist in the room commented, “Definitely not caused by a slip on a toy.” Following my review with the radiologists, I called Peggy and asked if she had time to review Gracie’s medical record with me after lunch. Peggy replied, “Sure thing, I will see you after lunch.” After lunch I went to the pediatric unit. Upon arriving on the unit Peggy and Caroline, a hospital social service worker, greeted me. Caroline said, “I contacted child welfare in the county in which Gracie resides. They informed me that Gracie was an active child abuse case, which they have been following for the past 6 months. They thanked me for the information and will be in the hospital late this afternoon to follow up.” The lesson here for every caregiver is to be continuously observant regarding the signs and symptoms of abuse. Caregiver in-service education programs should include the procedures for reporting suspected abuse according to applicable laws and an organization’s policies and procedures.
COMMUNICABLE DISEASES Most states have enacted laws that require the reporting of actual or suspected cases of communicable diseases. The need for statutes requiring the reporting of communicable diseases is clear: If a state is to protect its citizens’ health through its power to quarantine, it must ensure the prompt reporting of infection or disease. The mandatory reporting of communicable diseases by clinicians is vital to protection of society as noted in the following excerpt from a 1990 Centers for Disease Control and Prevention (CDC; http://www.cdc.gov) report: Reporting of cases of infectious diseases and related conditions has been and remains a vital step in controlling and preventing the spread of communicable disease. These reports are useful in many ways, including assurance of provision of appropriate medical therapy (e.g., for tuberculosis), detection of common-source outbreaks (e.g., in food-borne outbreaks), and planning and evaluating prevention and control programs (e.g., for vaccine-preventable diseases). The epidemic of the acquired immunodeficiency syndrome, the recent increase in tuberculosis in young adults, the reemergence of malaria as a health threat to travelers, and the potential spread of dengue fever to the continental United States have all contributed to the renewed interest in the surveillance of infectious diseases.17
BIRTHS AND DEATHS All births and deaths are reportable by statute. Births occurring outside of a healthcare facility should be reported by the legally qualified physician in attendance at a delivery or, in the event of the absence of a physician, by the registered nurse or other attendant. The physician who pronounces death must sign the death certificate. Statutes requiring the reporting of births and deaths are necessary to maintain accurate census records. Suspicious Deaths Greater than a state’s interest in the recording of all births and deaths is the state’s desire to review suspicious deaths that may be the result of some form of criminal activity. Unnatural deaths must be referred to the medical examiner for review. Such cases include violent deaths, deaths caused by unlawful acts or criminal neglect, and deaths that may be considered suspicious or unusual. The medical examiner may conduct an investigation as to the cause of death through an autopsy and report the findings to the police department or prosecutor assigned to the case. The purpose of a medical examiner’s investigation is to determine the actual cause of death and thereby provide assistance for any further criminal investigation that may be considered necessary. If a medical examiner determines a death is due to an intentional act, he or she can be called as a witness to testify with regard to the findings if a trial ensues.
▸ PHYSICIAN COMPETENCY
Congress enacted the Health Care Quality Improvement Act (HCQIA) 23 of 1986 to improve the quality of medical care by encouraging physicians to participate in peer review and by restricting the ability of incompetent physicians to move from state to state without disclosure or discovery of their previous substandard performance or unprofessional conduct. The HCQIA was enacted in part to provide those persons giving information to professional review bodies and those assisting in review activities with limited immunity from damages that may arise as a result of adverse decisions that affect a physician’s medical staff privileges.
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AFTER HE FELL OFF A LADDER, ONE MEDICAL ERROR LED TO ANOTHER |
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. . . I left the medical system damaged and broke. I believe that if I had access to some solid, physician-specific outcome data and better information on the risks and benefits of the medical devices my doctors were proposing, even I could have made health care decisions that wouldn’t have resulted in my having to type this essay with one hand. —Kerry O’Connell, The Washington Post, August 25, 2012 |
Prior to enacting the HCQIA, Congress found that “[t]he increasing occurrence of medical malpractice and the need to improve the quality of medical care . . . [had] become nationwide problems,” especially in light of “the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician’s previous damaging or incompetent performance.” 24 HCQIA was enacted to facilitate the frank exchange of information among professionals who conduct peer review inquiries without the fear of reprisals in civil lawsuits. The statute attempts to balance the chilling effect of litigation on peer review with concerns for protecting physicians who are improperly subjected to disciplinary action.
National Practitioner Data Bank
The National Practitioner Data Bank (NPDB) was created by Congress as a national repository of information with the primary purpose of facilitating a comprehensive review of physicians’ and other healthcare practitioners’ professional credentials. The NPDB operates under the authority of the Secretary of the Department of Health and Human Services (DHHS). The NPDB was established by law to protect the public and patient safety by restricting the ability of unethical or incompetent practitioners to move from state to state without disclosure or discovery of previously damaging or incompetent performance. The NPDB provides hospitals with a snapshot of a professional’s history before credentialing. The repository of information streamlines a patchwork of state laws governing the reporting of adverse actions against professionals seeking privileges.
Hospitals are required to report to the NPDB professional review actions related to a professional’s competence or conduct that adversely affect clinical privileges for more than 30 days and a physician’s voluntary surrender or restriction of clinical privileges.
The NPDB presents a number of challenges to healthcare organizations. Healthcare professionals, for example, need to be educated regarding the purpose of the data bank so it will not erode trust and staff participation in risk management activities. The purpose of the data bank is not punishment; rather, it is prevention and deterrence.
Reporting Requirements
The regulations establish reporting requirements applicable to hospitals; healthcare entities; boards of medical examiners; professional societies of physicians, dentists, or other healthcare practitioners that take adverse licensure or professional review actions (e.g., reduction, restriction, suspension, revocation, or denial of clinical privileges or membership in a healthcare entity of 30 days or longer); and individuals and entities (including insurance companies) making payments as a result of medical malpractice actions or claims. A medical malpractice action (or claim) has been defined as a written complaint or claim demanding payment based on a healthcare practitioner’s provision of or failure to provide healthcare services, including the filing of a cause of action based on tort law, brought in any state or federal court or other adjudicative body.
Required Queries
Healthcare organizations must query the data bank every 2 years on the renewal of staff privileges. The data bank serves as a flagging system whose principal purpose is to facilitate a more comprehensive review of professional credentials. As a nationwide flagging system, it provides another resource to assist state licensing boards, hospitals, and other healthcare entities in conducting extensive independent reviews of the qualifications of healthcare practitioners they seek to license or hire or to whom they wish to grant clinical privileges.
Required Reporting
For those healthcare providers who question whether they are covered under this law, the DHHS defines the term entity broadly, rather than attempting to focus on the myriad healthcare organizations, practice arrangements, and professional societies, to ensure that the regulations include all entities within the scope of the statute. A healthcare entity is any entity that provides healthcare services and engages in professional review activity through a formal peer-review process for the purpose of furthering quality health care or a committee of that entity. Healthcare practitioners include all healthcare practitioners authorized by a state to provide healthcare services by whatever formal mechanism the state uses (e.g., certification, registration, licensure).
Data Bank Queries
Data bank queries can be made by state licensing boards, hospitals, other healthcare entities, and professional societies that have entered or may be entering employment or affiliation relationships with a physician, dentist, or other healthcare practitioner who has applied for clinical privileges or appointment to a medical staff. A plaintiff’s attorney is permitted to obtain information from the data bank when a malpractice action has been filed and the practitioner on whom information has been sought is named in a suit.
Query Fees
Under data bank rules, there is a nominal fee for data bank queries each time a physician and dentist apply for medical staff privileges at their facilities. 25
Penalties for Failing to Report
Hospitals or other healthcare entities that fail to report adverse professional review actions limiting the clinical privileges of physicians or dentists lasting more than 30 days can lose immunity protection provided by Title IV of the HCQIA for a 3-year period.
Confidentiality of Data Bank Information
Information reported to the data bank is considered strictly confidential and cannot be disclosed except as specified in the NPDB regulations. Individuals and entities that knowingly and willfully report to or query the data bank under false pretenses or fraudulently access the data bank directly are subject to civil penalties. The data bank follows the following guidelines on disclosure:
§ 60.13 Confidentiality of National Practitioner Data Bank information.
(a) Limitations on disclosure. Information reported to the Data Bank is considered confidential and shall not be disclosed outside the Department of Health and Human Services, except as specified in §60.10, §60.11 and §60.14. Persons and entities which receive information from the Data Bank either directly or from another party must use it solely with respect to the purpose for which it was provided. Nothing in this paragraph shall prevent the disclosure of information by a party which is authorized under applicable State law to make such disclosure.
(b) Penalty for violations. Any person who violates paragraph (a) shall be subject to a civil money penalty of up to $10,000 for each violation. This penalty will be imposed pursuant to procedures at 42 CFR part 1003. 26
The Privacy Act of 1974 protects the contents of federal systems of records, such as those contained in the NPDB, from disclosure, unless the disclosure is for a routine use of the system of records as published annually in the Federal Register. The published routine uses of NPDB information do not allow for disclosure of information to the general public.
INCIDENT REPORTING Incident reports contain statements made by employees and physicians regarding a deviation from acceptable patient care. Some state health codes provide that hospitals and nursing facilities must investigate incidents regarding patient care and require that certain incidents must be reported in a manner prescribed by regulation. Reportable incidents often include such things as those incidents that have resulted in a patient’s serious injury or death, an event such as fire or loss of emergency power, certain infection outbreaks, and strikes by employees. Incident reports should not be placed in the medical record. They should be directed to counsel for legal advice. This will help prevent discovery on the basis of client–attorney privilege. There is conflicting case law in that some courts will not permit incident reports to be discovered, whereas others will allow discovery. A Florida appeals court ruled that incident reports prepared in anticipation of litigation are not discoverable, even though the information contained in the report was not available by any other means.27 In Berg v. Des Moines General Hospital Co.,28 the Iowa Supreme Court ruled that, because of the time lapse between the actual incident and the inability of the nurses to recall the incident, discovery of the written incident report was allowed. Incident/Occurrence Reports Discoverable Occurrence reports in Columbia/HCA Healthcare Corp. v. Eighth Judicial District Court29 were found to have been prepared in the ordinary course of the hospital’s business and were therefore not protected by the “work product doctrine.” The hospital’s petition implicitly admitted that it required its personnel to fill out preprinted forms in the event of an unexpected occurrence. Occurrence reports consisted of a four-page form, which are completed by hospital employees who have information regarding unusual events that occurred in the hospital. The hospital admitted that the purpose, at least in part, for creating occurrence reports was to improve the quality of care given at the hospital. The documents were not privileged merely because an attorney was involved in the investigative process. The investigation occurred in the ordinary course of business. The Nevada legislature never intended to exempt occurrence reports from discovery under Nevada Revised Statute § 49.265. Occurrence reports, which the hospital admitted are nothing more than factual narratives, contain the very type of information that will most likely be uncovered through traditional discovery procedures. In those instances where the information can be obtained only through the occurrence report, prospective plaintiffs should not be denied access. Allowing Nevada Revised Statute § 49.265 to become an impenetrable bulwark of damaging factual information defeats the very purposes of Nevada’s evidence code for which Nevada Revised Statute § 49.265 is a part: “The purposes of this [evidence code are] to secure fairness in administration . . . to the end that truth may be ascertained and proceedings justly determined.”30 The court concluded that the occurrence reports are neither work product nor protected by the peer-review privilege embodied in Nevada Revised Statute § 49.265. State Reportable Incidents State reportable events include the reporting of communicable diseases, infections, and an unusual or an unexpected cluster of patients with symptoms/diseases or exposures suggestive of a health emergency or terrorism event. Many states have enacted legislation requiring hospitals to report incidents that result in patient injury. The Pennsylvania Medical Care Availability and Reduction of Error Act (MCARE Act) reporting requirements, for example, are intended to help reduce and eliminate medical errors by identifying problems and implementing solutions to improve patient safety. The MCARE Act requires healthcare facilities to report serious events and incidents to a newly established patient safety authority. The act defines a serious event as an event, occurrence, or situation involving the clinical care of a patient in a medical facility that results in death or compromises patient safety and results in an unanticipated injury, requiring the delivery of additional healthcare services to the patient. Physicians are also required to report complaints, disciplinary actions, and criminal offenses to the professional licensure board. Physicians are required to report the following events:31 Medical professional liability actions filed against the physician Disciplinary actions by a healthcare licensing authority of another state Convictions for offenses above summary offenses Arrests for a felony (criminal homicide, aggravated assault, sexual offenses) or an offense under the Controlled Substance, Drug, Devise [sic] and Cosmetic Act Managers must be aware of specific state reporting requirements. Hospital procedures for reporting patient care incidents must comply with state regulations. As with The Joint Commission requirements, the Pennsylvania law prohibits retaliatory action against the healthcare worker for reporting patient care incidents and provides for written notification to patients. Individuals designated to report incidents must do so if required by a state’s statute. The director of nursing at a nursing facility in Choe v. Axelrod32 was fined $150 for failure to report an instance of patient neglect. An anonymous telephone call had been placed with the Department of Health regarding two incidents of alleged patient neglect. In one incident, a patient had been left unattended in a shower by an orderly and the patient sprayed himself with hot water, which resulted in second-degree burns on his forehead. On a second occasion, a similar incident occurred, but no one was injured. On investigation by the Department of Health, a determination was made that both incidents constituted patient neglect and that failure to report these incidents was a violation of New York public health law. After a hearing by an administrative law judge, the charge in the first incident was sustained, and the charge in the second incident was dismissed. The nursing director petitioned to annul the administrative determination. She contended that the Department of Health failed to establish a prima facie case of patient neglect, that the incident was an unavoidable accident, and that the Department of Health’s proof was based on hearsay evidence. The court held that evidence supported a finding that the director of nurses failed to report an incident of patient neglect as required by statute. On the question of hearsay evidence: It is . . . well established that an agency can prove its case through hearsay evidence . . . In the final analysis, the evidence showed that the patient was left unattended, albeit momentarily, O’Brien (the orderly) was disciplined for that act, and petitioner did not report the incident. The finding is thus supported by the kind of evidence on which reasonable persons are accustomed to rely in serious affairs.33 Although it may not always be clear as to when an incident report should be filed, appropriate procedures should be in place addressing how questionable events should be handled.
