Qualified immunity: Pure heart and empty head

I don’t know about you, but lately, over the past 2 or 3 years, we have seen a slight uptick in patient presentations where we must ask ourselves whether we are looking at a possible case of child abuse. The facts of Nelson v Lindaman, No. 13-0719 (Iowa Sup. Ct. April 24, 2015), had the following facts. A child was brought to the emergency room suffering from an arm fracture. The treating emergency room physician doubted the father’s account of the injury and reported suspected child abuse to the proper authorities. An orthopedic specialist who had limited experience in cases of child abuse was called in to treat the fracture. An investigator came to the hospital, reviewed the hospital records, and began preparing a legal filing that would have prevented the father from having any contact with the child. However, after interviewing the orthopedic surgeon who treated the fracture, the investigator did not file the paperwork; the surgeon indicated that the injury could have occurred as the father described, stating that “the mechanism they described fits the fracture seen.” Two weeks later, the investigating agency, on the basis of a medical review panel, concluded that the father’s account was not credible and decided that the no-contact order should be filed. However, before the order could be filed, the child was again brought to the emergency room with massive brain injuries that were inflicted by the parents, both of whom were eventually convicted of child endangerment and sent to prison.

The child, through his legal representative, brought a malpractice suit against the orthopedic surgeon alleging that he failed to both detect and report child abuse. The suit also asked for punitive damages. The doctor asked that the case be dismissed because he was protected from civil liability based on Iowa’s child abuse reporting statute, which grants qualified immunity for those acting in good faith who make an appropriate report. The trial court denied the request, the doctor appealed, and the Iowa supreme court reversed the finding that the qualified immunity applied to the facts of the case. Here is the court’s reasoning.

The issue was whether the surgeon acted in good faith by participating in the interrogatory phase of the investigation and whether as a result of that participation he should be accorded civil immunity from liability. What was the surgeon’s good faith participation in the investigation? When interviewed, he stated that since the other emergency room physicians were already dealing with the potential child abuse issues, he believed that his role was limited. In his conversation with the investigator, he stated that he “made no effort to make my own evaluation of the credibility of the father with regard to the medical history….The only opinion I developed was that…the history could possibly be consistent with the type of spiral humeral fracture I observed in this child.”

The following is the testimony of the last part of the defendant’s interview with the investigators and depicts his proffered good faith cooperation.

I refused to give them any opinion regarding the credibility of the father’s story or regarding child abuse, even though they raised with me some issues that they thought undercut his credibility. The reason I refused to give them any opinion regarding credibility and child abuse is because I had not performed an investigation regarding child abuse. Therefore, each time the DHS raised an issue concerning that, I repeated the only opinion I could help them with for their assessment; namely, my opinion that, as a matter of biomechanics, the mechanism that the parents had described to me fit the fracture seen, by which I meant that the father’s story about the arm being pinned and twisted behind the child’s back, if true, could be consistent with a spiral humeral fracture occurring in that arm.

Section 232.73(1) of the Iowa Code provides in part the following.

A person participating in good faith in the making of a report, photographs, or X rays, or in the performance of a medically relevant test pursuant to this chapter, or aiding and assisting in an assessment of a child abuse report pursuant to section 232.71B, shall have immunity from any liability, civil or criminal, which might otherwise be incurred or imposed. The person shall have the same immunity with respect to participation in good faith in any judicial proceeding resulting from the report or relating to the subject matter of the report.

The purpose of the statute is “to encourage those who suspect child abuse to freely report it to authorities without fear of reprisal if their factual information proves to be faulty.” Additionally, the state has an interest in encouraging “those having information about child abuse to come forward when asked to do so, without the fear of litigation should it later be shown that the information was improperly released.” These immunities apply not only to those who make initial reports, but also to those who participate in subsequent investigations. The court then went on to define what constitutes good faith by stating the following.

“…good faith means only honesty in fact, negligence ordinarily has no significance. That is, the honesty in fact that constitutes good faith merely requires honesty of intent and it is not necessary to show that the person was diligent or non-negligent. Bad faith, then, is obviously something far more extreme than a failure to observe reasonable…standards or the standards of a reasonably prudent [person]. It is irrelevant that the person in question was negligent in forming a particular belief. All that is required…is the actual belief or satisfaction of the criterion of ‘the pure heart and empty head.’”

In other words, the court took great pains to note that even if a doctor is “wrong, reckless, or negligent in forming or communicating his opinion,” qualified immunity would still attach as long as the doctor was not dishonest and acted in good faith. It is both impossible and unreasonable to expect any physician to be absolutely correct 100% of the time. All that can be asked is that he acts reasonably and in good faith while performing both his professional duties and his administrative and legal obligations. To find bad faith and to disqualify one from immunity would require a showing of “animus, preexisting bad blood, desire for revenge, or the like.” The court found in favor of the surgeon and granted the qualified immunity.

Commentary

We have been granted a license to make a wonderful living. With that license comes certain responsibilities, one of which is our obligation not only to be aware of the potential for child abuse but also to look for signs of it. No, we needn’t peek through the curtains or lift up the covers, but we must look at our patients as patients, not as malocclusions. They come to us with baggage, and these carry-ons and steamer trunks often take the form of certain aspects of their medical and social histories being significant vis-a-vis their diagnosis or treatment.

Classic signs of child abuse are the manifestations discussed in every lecture we attend on this topic. More problematic are the subtle types of child abuse, the unconventional ones. The Mayo Clinic describes the following 5 types of child abuse: physical, sexual, emotional, medical, and neglect ( www.mayoclinic.org/diseases-conditions/child-abuse/symptoms-causes/syc-20370864 ). Also noted are the following 9 symptoms for us to be aware of: withdrawal from friends or usual activities; changes in behavior—such as aggression, anger, hostility, or hyperactivity—or changes in school performance; depression, anxiety, or unusual fears or a sudden loss of self-confidence; an apparent lack of supervision; frequent absences from school or reluctance to ride the school bus; reluctance to leave school activities, as if he or she doesn’t want to go home; attempts at running away; rebellious or defiant behavior; and attempts at suicide.

Without turning this column into a treatise on child abuse, I want to relate 3 stories that might help some readers. The first occurred a few years ago. While examining a new, young patient, a doctor in our clinic noted a small dentigerous or eruptive cyst around a mandibular second molar. The orthodontist made a note to watch it. About 6 months later, all other second molars had erupted except the one in question. An x-ray showed the pericoronal cystic area to be larger. The orthodontist made a referral to an oral surgeon for evaluation and management, but the patient’s parent did not follow through. At each successive visit, the orthodontist repeated the admonitions to take the child for evaluation and duly noted all of this in detail in the patient’s chart. The lesion grew larger, as did the orthodontist’s concern. He insisted that the child must be seen and evaluated by an oral surgeon. At the next appointment, when the child had still not had the “required” consultation, the orthodontist called child protective services and reported the situation. Good thing. It was an ameloblastoma, and the child required a hemimandibulectomy. Everyone got sued, but the orthodontist came away unscathed because of his documentation and reporting of the child abuse.

My second story concerns a woman who came in for a consult and appeared inebriated. She really couldn’t focus on the discussion; I rescheduled a second consult, and she left the office. I immediately went to the front desk to talk to my office manager about the situation. You know, one of those “can you believe what just happened” kind of moments. She interrupted me and told me that the woman had told her she was on her way to pick up her kids at school. No hesitation—child endangerment—and we called the police describing the incident.

The last story occurred just the other day. One of our dental assistants came and told me that we had a patient in the chair who was really upset about having to wear anterior rubber bands. He said that he was being bullied at school, and that he didn’t want to wear them at school because he feared the bullying would get worse, but he didn’t want to not wear them and disappoint his mom or the doctor. The assistant said the kid was shaking, sweating, and really upset. I thanked her and said I would look into it. Ten minutes later, the resident came into my office and related the exact same story. I told the resident to get the name and address of the child’s school and the name of the principal, and instructed her to draft a letter that would alert the school to the bullying.

We are obligated to report instances of abuse or suspected abuse to the appropriate authorities. If we conform to those requisites we will be accorded qualified immunity from prosecution and liability if something happens to the child as a result of any deficiencies in our assessment or reporting activities. Whether our assessment of the abuse is correct is irrelevant. We made our best diagnosis and assessment of the situation. We exercised good judgment. We undertook our responsibility and obligation professionally. We reported our suspicions and concerns to whom we thought it to be appropriate. Likewise, whether the authorities to whom we reported our concerns were the most appropriate of the many agencies one could alert is irrelevant. We acted reasonably, we acted in good faith, we acted in a timely manner. We attempted to protect the child. We did what we believed we were supposed to do. We did not act in bad faith. We did not act to get someone in trouble. We did not have animus or hurtfulness as a motive. There was no evil intent. As the court noted, we needn’t be perfect. We need only exhibit that our heart was pure, even if the head was somewhat empty.

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Dec 12, 2018 | Posted by in Orthodontics | Comments Off on Qualified immunity: Pure heart and empty head
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