Even If You Hope You’re Wrong, You’re Right

"Public policy" is the term that describes the process of punishing, rewarding, or excusing certain actions so that a greater good can be accomplished.

The Good Samaritan statute is probably the first example that physicians think of when dealing with public policy. Because the public does not want its physicians turning away from emergency situations they may happen upon, the law will excuse an error made by a physician in attending to someone in urgent need.

Another example of a law clearly defined by public policy is the Child Abuse Reporting Act. The goal of the law is to encourage health care practitioners to err on the side of reporting their suspicions of child abuse.

Dr. O is an obstetrician and gynecologist who was asked to consult on an eight-year-old girl admitted through the emergency room for abdominal pain. The surgeon asking for the consult had taken the patient for a diagnostic laparoscopy to rule out appendicitis. During that procedure, the surgeon noted that the appendix did not appear inflamed. There was, however, exudate present in the pelvis as well as fibrous adhesions of bowel to the pelvic organs. These unusual findings prompted the request for Dr. O.

In taking over the case, Dr. O found extensive adhesions to the pelvis, fallopian tubes, the uterus, and pelvic floor which completely obliterated the pelvic cavity. In his operative report, Dr. O noted abnormalities in the vaginal opening that “did not appear compatible with an eight-year-old female.”

Because of the laparoscopic and pelvic examination findings, Dr. O formed a suspicion that the child obtained an infection through sexual abuse. He contacted the hospital social worker and informed the child’s mother of his suspicions. The social worker contacted the county child protective agency.

Dr. O diagnosed pelvic inflammatory disease, treated the patient with triple antibiotic therapy, and sought an examination by a pediatrician. The pediatrician could not ascertain the origin of the pelvic infection. The patient was discharged within a week and followed up at a children’s hospital for further evaluation of sexual molestation. Dr. O’s recollection was that no physical evidence of child abuse was found.

Some four months later, Dr. O received a letter threatening a lawsuit. The letter written by an attorney representing the child’s family claimed that “due to your misdiagnosis and that of the hospital, my clients were made to endure the agony of facing charges of child sexual abuse. The child was removed from my clients’ possession, and was made to bear the embarrassment, humiliation and mental anguish associated with such charges.” The attorney estimated that compensable damages would exceed $500,000.

Dr. O reported the claim to CAP, which responded to the out-of-state attorney by informing him of Dr. O’s requirement to report a reasonable suspicion of child abuse under California law. Thus, the letter explained, not only were Dr. O’s actions appropriate, Section 11166 et seq. of the California Penal Code states that a health care practitioner who fails to report suspected child abuse may be prosecuted for a misdemeanor, punishable by imprisonment and/or a monetary fine.

Further, CAP wrote to the attorney, the law goes on to state that “no health care practitioner . . . who reports a known or suspected instance of child abuse shall be civilly or criminally liable for any report authorized” by the law.

The attorney did not write back and did not bring the lawsuit.

The law explains that a reasonable suspicion is one that is “based on facts that could cause a reasonable person in a like position, drawing when appropriate on the health care practitioner’s training and experience, to suspect abuse.”

And even if that reasonable suspicion turns out to be in error, the public policy behind the law will step in to give that health care practitioner absolute immunity from liability for the mistake.

This is one of those circumstances in which physicians must hope that they are wrong.

Gordon Ownby is CAP-MPT’s general counsel. Comments on Case of the Month may be directed to gownby@cap-mpt.com.