Who will speak for me?

The child in this case was abused by her father. She was taken to the hospital, where a head x-ray and CAT scan were taken. The x-rays were reported to be normal, and the child was released. The facts of the case, Draper v Westerfield, 2005 WL 2513888 (Tenn), do not indicate the circumstances surrounding how or why, but, that same day, the Department of Children’s Services (DCS) opened an investigation of suspected child abuse. An investigator went to the hospital the next day to speak with the radiologist who was ultimately named as the defendant. The radiologist claimed that he told the investigator that there were some abnormalities on the films; they should not have been labeled as normal; it was possible that 1 interpretation of the radiographic findings could be due to child abuse; if this was the case, the parents were probably the abusers; the injuries could also, although it was not probable, have been the result of mishandling of the patient by hospital personnel; but, regardless, the abnormalities were not a cause for concern. The case worker corroborated the entire conversation except for the part when the doctor said that he stated that the injuries might have been the result of abuse. One month later, the child was again brought to the hospital, where she expired secondarily to injuries sustained from abuse.

The child’s mother sued the radiologist, claiming that he was negligent and had committed malpractice, since, if he had reported the injuries as suspected child abuse, the DCS would have removed the child from the custody of the father, who was found to have been the abuser. The defendant radiologist contended that there was no doctor-patient relationship between himself and the deceased; thus, there could be no claim for malpractice, and the court agreed. The child’s mother also sued the defendant for failure to report his suspicions of abuse to the authorities. The defendant claimed that, under Tennessee law TCA sec. 37-1-410 (1996), he was immune from any potential liability because he had cooperated with the authorities when they questioned him. The trial court sided again with the defendant; however, the appellate court found that there was a material question of fact on this matter because the testimonies of the radiologist and the case worker differed. Thus, summary judgment was not appropriate, and the case was remanded for a new trial on this issue. This decision was then appealed to the Supreme Court of Tennessee.

The Tennessee Code states that “A person reporting harm shall be presumed to be acting in good faith and shall thereby be immune from any liability, civil or criminal, that might otherwise be incurred or imposed for such action.” Thus, the defendant would absolutely be immune from liability if he reported the harm. The court then defined what constitutes a report of harm and who was required to report by noting sec. 37-1-410(a) (1996) of the statute, which stated the following.

Any person, including, but not limited to, any:

  • (1)

    Physician, osteopathic physician, medical examiner, chiropractor, nurse or hospital personnel engaged in the admission, examination, care or treatment of persons;

  • (2)

    Health or mental health professional other than one listed in sub-division (a)(1); or…

  • (8)

    Neighbor, relative, friend, or any other person; having knowledge of or called upon to render aid to any child who is suffering from or has sustained any wound, injury, disability, or physical or mental condition which is of such a nature as to reasonably indicate that it has been caused by brutality, abuse, or neglect or which on the basis of available information reasonably appears to have been caused by brutality, abuse, or neglect, shall report such harm immediately, by telephone or otherwise, to the judge having juvenile jurisdiction or to the county office of the department or to the office of the sheriff or the chief law enforcement official of the municipality where the child resides.

The court was clear to say that immunity is granted to anyone who reports; however, that immunity is not forthcoming if the report that is issued does not reflect a finding of harm or abuse. In addition, immunity is not granted to those who merely cooperate in an ongoing investigation. In other words, immunity is granted to those who proactively report findings of, or the possibility of, child abuse, as opposed to those who are passive regarding the safety or well-being of those who cannot defend themselves. The defendant argued that, since investigators need medical corroboration of abuse, if immunity is not granted to those providing such information, cooperation will not be forthcoming.

The court next addressed the negligence issues, both simple negligence and medical malpractice, by stating that “in determining whether an action is for medical malpractice or for common-law negligence, the issue is whether the alleged negligent conduct bears a substantial relationship to the rendition of medical treatment by a medical professional.” If it does, it is malpractice; if it doesn’t, it is merely common-law negligence. In this case—read this carefully—the court noted that, since a doctor-patient relationship did not exist, there could be no cause for malpractice. Here, the negligence claimed was to provide information and aid to the investigators, and, since the good doctor did not opine, at least in 1 rendition of the facts, that child abuse had occurred, the plaintiff’s claim was for simple negligence based on a breach of the duty to file a report of harm or, in the alternative, to cooperate fully and truthfully with the investigator.

So, how do the elements of negligence apply in this situation? Recall from previous columns that the elements of a cause of action for any type of negligence, simple or medical malpractice, are essentially that, first, there must be duty to conform to some recognized standard of care. Second, this standard of care was breached. Third, the plaintiff suffered an injury or a harm. Finally, the breach of the duty owed was the direct or proximate cause of the injury or harm.

In addition, common law holds that we all owe a broad duty to exercise a reasonable degree of care in going about our daily activities so that we avoid causing injury or harm to another. Okay, most of us can buy that. Second, it is well established that no one has an affirmative duty to act on behalf of another unless there is a special relationship between either the one who is the source of the immediate danger or is foreseeably at risk from that danger. Finally, one who undertakes to act for another’s benefit, even if done so gratuitously, is subject to the requirement to act reasonably and carefully. Under the facts as presented, the court noted that the defendant doctor voluntarily chose to cooperate with the authorities and provide his interpretation and opinion of the radiographs. He therefore had a duty to be correct in his conclusions, knowing that others would act on his findings. Because he omitted the information that the previous injuries might have been the result of child abuse, his duty to accurately report was breached. The deceased was in immediate or foreseeable danger from injuries secondary to abuse. Therefore, the court affirmed in part and reversed in part, remanding this case back to the lower court to decide the issues of fact.


So, what does this mean for us? It can happen in your office. It can happen in the clinic of a teaching institution. It can happen to your next-door neighbor. Child abuse happens. Because we see kids all the time, you might encounter some who you suspect could be the unfortunate recipients of such actions. What do you do? The only thing you shouldn’t do is nothing. Call somebody.

It happened once at the clinic where I was a program director. A student came to me saying that she thought her patient might have been abused. I asked what she did or said. The response was, “nothing, but I’m telling you about it.” My response was simple. You are the doctor, it is your patient, call someone (I decided to turn this into an exercise to make the student take responsibility). The student asked whom to call. I gave her a phone book and told her to look it up. Well, it took 6 phone calls to 6 agencies, and finally the one that worked was the sheriff’s department, which directed her (us) to the correct agency. The student made a report, and we documented the conversation on a separate page in the patient’s chart, not in her clinical record, and then we started to reflect.

It happened when I was in private practice. Mom came for a consultation visit, and, right after she left, my staff and I discussed her demeanor and behavior and concluded that she was probably impaired. It turned out that she had driven to the office, and, when the staff saw her leaving and getting into her car with the kids in the back, that prompted the immediacy of what should we do? We called the police with a description of the car, and then we started to reflect.

Okay, a child comes in with facial bruises, black and blue marks on her extremities, and maybe some loose teeth. You have to at least think about it. If it is possible that the parents’ activities are endangering the well-being of the child, you must at least think about it. But how far does the duty extend? A colleague of mine told me of the following incident that happened to him. In short, he was treating a young teenage boy who had all second molars except the mandibular right one. The doctor took a periapical x-ray—not a good one, since only the crown and a portion of the root could be seen—and he noticed what appeared to be some type of cyst that he thought might be inhibiting the eruption of the tooth. He gave mom a referral to an oral surgeon for evaluation. Well, she didn’t go, and time passed, and there was still no second molar. He took a panoramic x-ray, and the cyst was even bigger, encompassing the entire second molar and extending a little toward the ascending ramus. He made another referral and wrote in the chart that he told mom that it was important for her to go. More time passed, and the next x-ray was ugly, because the cyst had become much larger; our colleague was really concerned. He has a heart to heart with mom, who did not go to the surgeon ostensibly for financial reasons, but who knows?

What to do? Well, our colleague called his state’s equivalent of the DCS and reported the mom for abusing her child because she was neglecting his dental needs. As it turned out, it was the smart thing to do. The little cyst grew up to be an ameloblastoma, resulting in a hemi-mandibulectomy. The doctor’s actions went a long way toward bolstering his defense when the lawsuit came, but that is a different story. After he told me this odyssey, we started to reflect.

So, are there other activities, relative to providing orthodontic care, on the parents’ part that could rise to the level of being considered child abuse? What should you do when parents refuse to have deciduous teeth removed that, if not done, could cause injury to the child? What should you do if parents refuse to take the child for recommended restorative dentistry? What should you do if parents refuse to obtain recommended periodontal therapy? Well, maybe that begs some reflection also.

The bottom line is that, when it comes to reporting, one is better safe than sorry. That’s why they grant you immunity for good-faith reporting. I know that it’s a hard thing to do. It will certainly anger the parent, and what if you are wrong? There goes a family of referrers, and you can bet that they will tell others of your poor judgment. On the other hand, what if you don’t report, and the child is subsequently injured, and you learn that you could have prevented it? Could you then be put in the position of the defendant in this case and sued for not following up on your duty? It seems that there is a whole lot that needs reflecting upon.

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Apr 13, 2017 | Posted by in Orthodontics | Comments Off on Who will speak for me?
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