Child Abuse Reporting: Do You Know What to Do?

Child Abuse Reporting: Do You Know What to Do?
By Judy Regan, MD, JD, MBA, and Edward Hadley, JD

Child abuse is estimated to occur in hundreds of thousands of children each year. Childhood physical abuse may be caused by anyone including a parent or close relative. Many children may die as a result of the abuse. Those who survive may be left with emotional trauma long after the external bruises have healed.i Child sexual abuse, although underreported, can also be caused by anyone within the family or outside the home. Children at this age are particularly unprepared to cope with repeated sexual stimulation, therefore the long term emotional consequences may be devastating. Early recognition and treatment is important to minimize the long term effects of both physical and sexual abuse.

As a result of the frequency of child abuse, the Tennessee legislature has established several state laws to encourage reporting. The statutes have two emphases. First, all citizens, including healthcare providers, have a duty to report, suspected child abuse. Second, persons who report in good faith are immune from civil and criminal liability for reporting. These reporting statutes are summarized below:

Child Abuse (See Tenn. Code Ann.§ 37-1-403)
When to Report:
When have knowledge of or are called to render aid to any child who is suffering from or who 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

The statute requires that a healthcare provider “shall” report suspected child abuse when the above stated conditions are met.

How to Report:
The suspected abuse must be reported “immediately, by telephone or otherwise.” Under Tenn. Code Ann. § 37-1-412, failure to report is a Class A misdemeanor and can also create exposure to civil liability. Suspected abuse should be reported in the following manner:
to the local juvenile judge; or
to the local department of children’s services in the manner prescribed by the department; or
to the office of sheriff or the chief law enforcement official of the municipality where the child resides.

What to Report:
To the extent known to the reporter, the following information shall be reported:
name, address, and age of the child,
name and address of the person responsible for the care of the child,
the facts meeting the criteria to require the reporting.

Pregnancy of a Minor (See Tenn. Code Ann. § 38-1-302, Tenn. Code Ann.§ 39-13-506)
Every physician or other person who makes an initial diagnosis of pregnancy on an unemancipated minor must provide to the minor’s parents:
if the parent is present and if the minor consents,
any available written information on how to report an occurrence of sex abuse which may have resulted in the minor’s pregnancy.

Disclosure to the parents is not required if it violates HIPAA. The Department of Health will provide the information to be given to parents in the newsletters of the Board of Medical Examiners and the Board of Osteopathic Examiners.

If during any treatment or examination of a child less than 18 years old a determination is made that the child is pregnant, and if it is learned during the course of treatment or examination that the alleged father is at least four years older than but not the legal spouse of the victim, the person examining or treating the child is encouraged to, upon obtaining the consent of the patient, parent, or legal guardian and within 24 hours of the time of treatment, examination, or diagnosis, report the same by telephone or otherwise to the judge having juvenile jurisdiction or to the sheriff or chief law enforcement official of the municipality where the child resides. The reporting is not mandated by statute.

Child Sexual Abuse (See Tenn. Code Ann. § 37-1-403, Tenn. Code Ann. § 37-1-605,606, Tenn. Code Ann. § 39-15-210)
Suspected sexual abuse must be reported if the physician or other person reporting merely has reasonable cause to suspect child abuse and regardless of whether the child has sustained any apparent injury:
Report suspected sexual abuse when a physician is requested to perform an abortion on a patient less than 13 years old and the physician has reasonable cause to suspect sexual abuse.
The physician must also extract a sample of the embryonic or fetal tissue and report the extraction.
The physician must preserve the tissue and turn it over to the investigating law enforcement official.

Every physician or other person who makes a diagnosis of, or treats, or prescribes for any venereal disease or STD, venereal herpes, or chlamydia in children 13 years old or younger:
Shall report the case immediately, in writing on a form supplied by the Department of Health to that department.
If the STD or venereal disease is confirmed, and if sexual abuse is suspected, then the case should be reported pursuant to the sexual abuse statute.

Protective Custody (See Tenn. Code Ann. §37-1-404)
Any person in charge of a hospital or “similar institution” or any physician treating a child may keep that child in custody until the next regular weekday session of the juvenile court without the consent of the parents or legal guardian regardless of whether additional treatment is required:
if the circumstances are such or the condition of the child is such that the child’s continued residence in the home or in the care or custody of the parents or legal guardian presents an imminent danger to the child’s life or physical or mental health.
Any person taking a child into protective custody shall immediately notify the Department of Children Services.

Immunity (See Tenn. Code Ann. § 37-1-410)
Persons who report in their capacity as a healthcare provider are treated differently than persons who report in a non-professional capacity. Healthcare providers are afforded absolute immunity from civil and criminal liability if their report is based upon a professional encounter with the victim or based upon a second opinion by a provider with expertise in child abuse even if the provider did not actually examine the child. Absolute immunity is afforded to healthcare providers who report pursuant to the statutes and:
the report arises from an examination of the child performed by the healthcare provider in the course of rendering professional care or treatment of the child; or
the report arises from a second opinion at the request of the department or any law enforcement agency, whether or not the healthcare provider has examined the child, rendered care or treatment, or made the report of harm if the healthcare provider who renders the second opinion is highly qualified by experience in the field of child abuse and neglect, as evidenced by special training or credentialing.

The immunity provided is absolute immunity from any civil or criminal action “based solely on”:
the healthcare provider’s decision to report what such provider believed to be harm; or
the healthcare provider’s belief that reporting was required by law; or
the fact that a report of harm was made; or
the fact that a second opinion was made pursuant to the qualifications set forth above.

Qualified immunity is provided to persons making reports not based upon a professional encounter or second opinion. Such persons are presumed to have acted in good faith and immune from liability in any civil or criminal action that is based solely upon:
the person’s decision to report what the person believed to be harm; or
the person’s belief that reporting such harm was required by law; or
the fact that a report of harm was made.

However, the immunity is not absolute and the presumption of good faith can be rebutted. Thus, if a physician encountered a child socially and reported suspected abuse in good faith, then that physician would be entitled to immunity unless a lack of good faith was demonstrated.
Immunity also extends to any person communicating a report as part of his or her job duties. And any person who suffers a detrimental change in his or her employment as a result of reporting suspected child abuse may sue his or her employer.
Immunity does not extend to lawsuits arising out of the treatment itself such as medical malpractice, medical battery, or failure to obtain informed consent.

Whenever a provider encounters suspected child abuse, it is best to consult these statutes and consider contacting legal counsel to ensure compliance and the benefit of immunity. A provider should always document thoroughly the subjective and objective signs and symptoms of abuse including statements made by the patient and parent or legal guardian. When conflicting statements are made by patient and parent or guardian, the provider should not attempt to determine who is telling the truth. Instead, the provider should report suspected abuse assuming the other criteria are met and let the proper investigating authorities determine whether abuse has occurred.

Providers should be suspicious of reports of abuse occurring when divorce actions or other custody disputes are pending. If the patient is not a regular patient or has traveled from their home community for an otherwise routine exam or treatment of a minor problem, a parent or guardian may be attempting to take advantage of a provider who does not have knowledge of the patient or family history. In these situations, the provider should always err on the side of reporting suspected abuse. However, the provider should carefully document the elements necessary to demonstrate compliance with the reporting statutes and secure the benefit of immunity.