Reduce liability risk when treating . . . young patients

February 1, 2008

In taking care of minor patients, you need to be alert to possible child abuse, and navigate the land mines of parental consent.

Key Points

Internist Joseph P. McMenamin was working his way through law school when he saw a 10- or 11-month-old boy in a Philadelphia emergency department. "The parents complained that the child seemed listless and had stopped pulling himself into a standing position," says McMenamin, who's now a partner in McGuireWoods' Richmond, VA, law office. In examining the boy, McMenamin didn't notice any bruises, and the parents said he hadn't sustained any recent injuries. But his right arm seemed tender to the touch, and an X-ray revealed a fractured humerus.

With the parents still insisting that their son hadn't been injured, McMenamin, who'd had little experience with pediatric patients, shuffled through the med-school note cards in his head. He considered metabolic abnormalities, calcium deficiency, and endocrine problems before the truth hit him, as McMenamin puts it, "like a ton of bricks": The child had been abused.

He called the local child protective agency, which promptly began an investigation. But before the inquiry was complete, the boy's grandmother charged into the ED, threatening to sue the doctor and the hospital for everything from "malicious prosecution" to "abuse of process."

On the alert for abuse

As a physician, you're required to report suspected child abuse or neglect to the child protective agency in your area. And while many physicians worry about causing a family grief by erroneously filing a report, some states-Virginia, for one-penalize healthcare professionals who don't notify authorities when they have good reason to believe a child has been abused.

"It doesn't happen often, but physicians have been held liable for violating reporting requirements," says Joseph McMenamin, and-even rarer-physicians have been targets of civil suits filed on behalf of children whose abuse went unreported by the doctor who treated them. There was even a case of a healthcare provider who faced criminal charges for failing to report a pattern of bruises on a toddler-which turned out to be just one indication of the abuse that ultimately led to the child's death.

To encourage reporting, most jurisdictions give explicit legal protection to physicians (and other professionals with similar mandates) who submit a report of child abuse in good faith. Judith M. Huerta, loss prevention manager for Medical Insurance Exchange of California, says she knows of no instances where physicians were penalized for reporting suspected abuse, even if child protective agency investigators were unable to substantiate the charge.

Child abuse can be difficult to diagnose, Huerta concedes, but there are signs to be aware of:

Neglect, McMenamin notes in "Children as Patients," a chapter he co-authored for the textbook Legal Medicine (Mosby, 2004), is more likely to be characterized by malnutrition, recurrent pica, chronic listlessness, lack of weather-appropriate clothing, poor school attendance, and inadequate medical care.

Know the rules on consent

Physicians who see patients under 18 are generally required to obtain parental consent before treating them-but not always. In fact, there's a long list of exceptions to this rule, aimed at encouraging youths to seek needed medical care and fostering physician-patient trust.

For starters, so-called emancipated minors can give legal consent for their own medical services. Conditions for emancipation vary from state to state, but in most areas it occurs in any of the following circumstances: marriage, pregnancy, parenthood, induction into the military, financial independence, or living apart from parents or legal guardian. Even runaways can often make their own medical decisions.

Moreover, minors can consent to medical treatment in instances where their parent or guardian is unavailable and delay in treating the minor could have dire consequences. And adolescents can get counseling and treatment for substance abuse or suicidal feelings without parental notification in situations where healthcare personnel feel that involving parents would compromise treatment, says Suzanne Fidler, an internist and attorney in Newport Beach, CA.

Teens are entitled to medical privacy when they seek reproductive healthcare, including contraceptives, prenatal care, pregnancy and delivery services, HIV testing, and diagnosis and treatment of sexually transmitted diseases. In most jurisdictions, the only reproductive procedure underage patients can't green-light is sterilization. Some 35 states require parental involvement in a minor's decision to have an abortion, although it's generally possible to sidestep these requirements via medical emergency exceptions or judicial bypass procedures.

You can, of course, prevail on teenagers who come to you for care regarding sexual activity, drug and alcohol treatment, or counseling to tell their parents. But you're legally enjoined from "outing" them. Just be sure to explain the treatment and its possible consequences to the patient, have her sign a consent form, and document the reasons you proceeded without parental permission.

If a youth has been sexually assaulted, however, you have a responsibility to notify the parent or guardian, Fidler notes-unless you have reason to believe it's in the patient's best interest not to; for instance, if the minor claims that a parent committed the assault. Indeed, you're required to notify child protective services if you suspect that a minor has been having sex with (or was sexually assaulted by) any adult. Even if the sexual partner is underage-if, say, a 13-year-old is having sex with a 17-year-old-you must file a report if you suspect that the sex isn't consensual.