Dr. Jeffrey R. Balser
Immunity granted for reporting child abuse
Health care providers in Tennessee are now guaranteed absolute immunity from litigation for reporting suspected child abuse cases, under legislation passed last week by both the Tennessee House of Representatives and Senate.
What started over six years has culminated into legislative protection for physicians and other health care workers. Spearheaded by Vanderbilt’s Betty Nixon, Dr. Ellen Wright Clayton, and the Tennessee American Academy of Pediatricians, the bill provides for absolute immunity when reporting suspected child abuse. Nixon is the director of Government and Community Affairs at Vanderbilt. Clayton is the Rosalind E. Franklin Professor of Genetics and Health Policy and professor of Law.
The bill was sent to Governor Don Sundquist May 29 and, if signed, will become effective immediately.
The legislative action changes the current standard for immunity from “good faith” to “absolute.” Under absolute immunity, a person cannot be held liable for the action covered. Under the new bill, immunity applies only to reporting child abuse and related testimony and communications with authorities. All citizens of the state are still mandated to report suspected child abuse and have good faith immunity for reporting child abuse.
Under good faith immunity, the person reporting the abuse is protected from liability if he or she can demonstrate there was reason to suspect child abuse and did not act in bad faith. Due to the increased admission of discovery, the burden of proof had shifted to the person reporting the suspected abuse. The new legislation puts an end to this burden of proof, hopefully encouraging health care providers to report suspected abuse to the authorities.
Suits against professionals who report, particularly against those who provide evidence, have chilled the environment for reporting suspected abuse, Nixon said. There is growing anecdotal evidence that reporters are sending cases to the state’s children’s hospitals and comprehensive pediatric centers for evaluation and reporting instead of reporting directly to the state at the time of the incident. The time required in making referrals put children at risk for further harm.
“The bill was needed in order to promote the reporting of suspected child abuse and neglect,” Clayton said. “These reports are necessary to protect children from further harm. Health care professionals are uniquely situated to recognize and to evaluate these injuries. At the same time, they know that reporting these suspicions makes families unhappy, particularly given the interventions by DCS (Department of Children’s Services) and in some cases the police that follow, and that unhappy families sue.
“In recent years, we have experienced such suits, which have taken a long time to resolve, and we know that, as a result, some providers have been reluctant to meet their legal obligations to report.”
There is also clear evidence that children in Tennessee are dying as a result of child abuse. In 1996, DCS identified 10 child fatalities related to child abuse or neglect, only four of whom had a history of Child Protective Services involvement. In 1997, DCS identified 31 child abuse fatalities. Of these only 15 had prior involvement by CPS. Public or private agencies were involved in 19 of the 31 cases. The next year, 29 children died as a result of abuse or neglect in Tennessee, and only 14 of these cases were handled by CPS.
Tennessee now joins California, Massachusetts, New Jersey, and Ohio in providing absolute immunity to health care professionals reporting suspected abuse.
Nixon attributed the successful passage of the bill to timing and the supporters of the legislation. “This has been a problem for a long time,” she said. “We were first asked to do something legislatively about six years ago.” After being advised to wait and monitor court decisions based on the topic, Nixon and her legislative supporters decided to try to pass the bill this year.
“It passed unanimously,” Nixon said. “We expected opposition from lawyers, specifically trial lawyers as advocates seeking remedy for their clients.”
Representative Kim McMillan and Senator Joe M. Haynes were instrumental in passing the bill, according to Nixon. “Both are well respected members of the bar and the legislature. This was tremendously helpful.”
Under the law, “health care provider” is defined as physician, osteopathic physician, medical examiner, chiropractor, nurse, hospital personnel, mental health professional or other health care professional.
An amendment limits physicians and health care providers from reporting suspected child abuse as a result of an examination. This, according to Nixon, is important to safeguard the public from any possible misuse of power by health care professionals.
Vanderbilt’s policy coincides with the new law. It calls for the compliance with Tennessee law that requires any person (including physicians, nurses, hospital personnel) to report suspected child or adult abuse. Guidelines for evaluation, documentation, management, reporting, and referral of suspected abuse, neglect, or violence will be consistent with Tennessee law to report abuse/neglect of children, adults, and victims of violent crime to appropriate agencies and/or law enforcement.
Any hospital personnel who knows of or is called to treat a child who has been sexually abused or has sustained any wound, injury, disability, or physical or mental condition which is of such a nature to reasonably indicate that it has been caused by brutality, abuse, or neglect, is expected to report such harm immediately.
When faculty and staff reasonably believe that a child has suffered abuse, neglect, or sexual abuse, the attending physician shall be notified and requested to evaluate presenting symptoms for indication of abuse/neglect, within 24 hours.
“I would advise health care professionals to see this bill as an affirmation of the importance of reporting and as a recognition of the unique roles that we play in this process,” Clayton said. “To merit the protection this law provides, we need to continue to use our skills to gather information and to conduct examinations in deciding whether reasonable suspicion of abuse or neglect exists.
“We need to continue to deal with these families, who are often in a state of crisis, with the highest degree of care and professionalism. We need to remember our obligations to protect these families’ privacy and confidentiality, recognizing that we can discuss our findings only with state agencies.”