Malpractice Consult

By Lee J. Johnson, JD

Domestic violence and physician liability

Q:At our rural health clinic, we have a patient who is being physically abused by her husband. We're worried that he might kill her. We've counseled her to get out of the house immediately and to seek help from a battered women's shelter. The patient says she needs her husband's income to support herself and her children, and she makes excuses for him. She may be clinically depressed. She has refused all suggestions of counseling. Can we discharge her from our practice after offering to refer her to another physician? Should we violate her wishes and contact the authorities?

A: You've described a thorny ethical and legal dilemma where a physician can face liability for doing too much or too little. None of the options is ideal, but you're probably better off reporting the abuse to the authorities if the patient won't.

In some states, in fact, reporting is mandatory. Other states provide immunity for health professionals who report domestic abuse to authorities, as long as you report in good faith based on medical evidence of suspected abuse. Contact your medical society to find out the law in your state.

Even if your state doesn't offer protection, you could be liable if you don't take any action and the patient's husband kills or injures her. She or her estate can sue for failure to monitor her situation, failure to inform her of the risks she faces, and failure to report the abuse. Her attorneys could argue that you were obligated to protect her since her depression rendered her unable to make a rational decision.

On the other hand, violating the patient's privacy could also lead to a suit. Discharging her from your practice at this point is the worst option, and could result in a suit for abandonment.

You're obligated to spell out the risks of not accepting counseling, such as a deepening depression, which could prevent her from taking appropriate action to protect herself. Ask the patient to sign a refusal-to-consent form. Perhaps that legal formality will push her to take the counseling option more seriously. Document if she declines to sign, and also carefully record all your findings of physical abuse.*

You must judge the patient's capacity to understand her risks, as well as the benefits of your suggestions, and the options she has. If it appears that she doesn't have the legal capacity to understand the risks she's facing, document that in the chart. It may support your decision to report the abuse.

Encourage the patient to contact the authorities on her own. Spell out the risks of not doing so, and don't spare any details. Document this warning.

Tell the patient if you are considering reporting the abuse. It may encourage her to report it herself. If she has a legitimate fear of reprisals from her husband if she contacts the police, provide her with information about women's shelters where she can be safe. Or offer to help contact a relative or friend she might be able to stay with.

The bottom line is that if the patient won't take steps to protect herself, and you think she's in a life-threatening situation, you may have to report the abuse to authorities, especially since there are children involved.

*See "Doctors vs domestic violence: Yes, you can make a difference," Oct. 23, 2000.

The author, who can be contacted at PO Box 37, Mount Kisco, NY 10549, or at leejohnson@dellnet.com, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

Lee Johnson. Malpractice Consult.

Medical Economics

2001;4:119.