As a follow up to our most recent post on What You Need to Know About PA’s Child Protective Services Law, you should know that the Pennsylvania Superior Court (PA’s primary appellate court) recently held that a physician may be sued for malpractice for failing to report suspected child abuse, even though there is not an express right to sue a physician for failing to report such abuse under the PA Child Protective Services Law (the “Child Abuse Law”).
You likely know that the Child Abuse Law requires any licensed or certified health care practitioner to immediately report suspected child abuse to the Department of Human Services electronically or by phone when the individual has reasonable cause to suspect that a child is a victim of abuse. 23 Pa. C.S. § 6311(a). A health care practitioner may have reasonable cause to suspect child abuse from contact with the child in the practitioner’s practice or from a specific disclosure to the health care practitioner by the child or an individual unrelated to the child. 23 Pa. C.S. § 6311(b). If the health care practitioner willfully fails to report suspected child abuse, the practitioner commits a misdemeanor of the second degree. If the abuse suffered by the child constitutes a first degree felony or more severe crime, the health care practitioner commits a third degree felony. 23 Pa. C.S. § 6319(a).
In K.H. v. Kumar, the PA Superior Court was presented with the sad case of an infant’s severe brain injury from child abuse that went repeatedly unreported by the infant’s physicians. The trial court held that the physicians could not be sued for malpractice because the Child Abuse Law, which expressly creates a duty for physicians to report suspected child abuse and establishes criminal penalties for a failure to do so, does not expressly permit non-reporting physicians to be sued in civil court for malpractice.
However, upon review, a unanimous three-judge panel from the PA Superior Court overturned the lower court’s ruling and held that the Child Abuse Law does not prevent physicians from being sued for malpractice for their failure to report suspected child abuse. The Court noted that the Child Abuse Law does not expressly prohibit suits for malpractice against non-reporting physicians, and emphasized that physicians have a duty of reasonable care to their patients as a result of the physician-patient relationship. Whether a particular physician fails to meet that duty of care is a question for the jury, not the judge to decide.
Notably, the Court also held that the hospital that employed the physicians could be found negligent for failing to have appropriate policies and procedures in place for the retention and availability of patients’ prior radiological studies. This is an important warning to medical practices and health care institutions, which should ensure that they have policies and procedures in place to give their physicians ready access to all patient records that could indicate prior physical abuse to a minor patient.
In the conclusion of its opinion, the Court quoted the Hippocratic Oath and its sentiments recognizing that treatment of a patient involves consideration of the patient’s family situation. The Court emphasized that these sentiments are central to the intent of the sections of the Child Abuse Law requiring health care practitioners to report suspected child abuse.
The full-text of the eloquently written case is accessible at this link: http://www.pacourts.us/assets/opinions/Superior/out/j-a08018-15o%20-%201023340425279130.pdf#search=%22k.h. kumar%22.
The Takeaway: Any health care practitioner who has a reasonable suspicion that his or her minor patient has suffered child abuse should not hesitate to report the abuse immediately. Willfully failing to report the abuse is a crime and can result in civil liability. Health care institutions should also ensure that policies and procedures are in place to give physicians ready access to patient records that could indicate patterns of child abuse.
To report suspected child abuse in PA, go to www.compass.state.pa.us/cwis or call (800) 932-0313.