NCJ Number
51948
Journal
DETROIT COLLEGE LAW REVIEW Volume: 1 Issue: 1 Dated: (SPRING 1977) Pages: 135-166
Date Published
1977
Length
32 pages
Annotation
PHYSICIANS' CIVIL LIABILITY FOR SUBSEQUENT INJURIES INFLICTED UPON CHILD ABUSE VICTIMS WHOM THEY FAIL TO REPORT IS DISCUSSED.
Abstract
DESPITE THE FACT THAT 35 STATES IMPOSE CRIMINAL PENALTIES FOR FAILURE TO COMPLY WITH CHILD ABUSE REPORTING LAWS, CRIMINAL PROSECUTION HAS NEVER BEEN BROUGHT FOR FAILURE TO REPORT. IN 1970, A CIVIL SUIT AGAINST FOUR PHYSICIANS AND A CITY POLICE DEPARTMENT WAS SETTLED OUT OF COURT. NEW YORK, IOWA, ARKANSAS, COLORADO, AND MICHIGAN SOON ADDED CIVIL LIABILITY CLAUSES TO THEIR REPORTING LAWS, AND THE NATIONAL CENTER FOR CHILD ABUSE AND NEGLECT OF THE U.S. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE INCLUDED A CIVIL LIABILITY CLAUSE IN ITS DRAFT MODEL CHILD PROTECTIVE SERVICES ACT. NONE OF THESE STATUTORY PROVISIONS HAS BEEN TESTED BY THE APPELLATE COURTS. HOWEVER, ON JUNE 30, 1976, IN THE CASE OF LANDEROS V. FLOOD, THE SUPREME COURT OF CALIFORNIA RULED THAT A PHYSICIAN WHO FAILS TO REPORT A CHILD ABUSE VICTIM CAN BE HELD LIABLE FOR SUBSEQUENT INJURIES INFLICTED ON THE CHILD BY HIS OR HER PARENTS. THE LANDEROS DECISION IS ANALYZED, AND THREE THEORETICAL BASES FOR PROVING CIVIL LIABILITY FOR FAILURE TO REPORT CHILD ABUSE VICTIMS--MEDICAL MALPRACTICE, STATUTORY NEGLIGENCE, AND LIABILITY PER SE--ARE CONSIDERED. THE LANDEROS DECISION IS SAID TO EXPOSE REPORTING LAWS AS INEFFECTIVE AND UNWORKABLE, TO RECOGNIZE THAT THE LAWS HAVE BEEN LARGELY IGNORED, AND TO POSE SQUARELY THE DILEMMA OF ENFORCING THE LAWS. IN REEXAMINING THEIR CHILD ABUSE REPORTING LAWS, STATE LEGISLATORS ARE URGED TO CONSIDER ENFORCEMENT MECHANISMS OTHER THAN CIVIL AND CRIMINAL LIABILITY PROVISIONS. FOR EXAMPLE, THE PENALTY FOR FAILING TO REPORT FOR PHYSICIANS MIGHT BE A PUBLIC REPRIMAND OR SUSPENSION OR REVOCATION OF A STATE LICENSE TO PRACTICE. THERE MAY BE ADVANTAGES TO ENFORCING CHILD ABUSE REPORTING LAWS AT AN ADMINISTRATIVE LEVEL RATHER THAN THROUGH CIVIL OR CRIMINAL CHANNELS. THE MODEL CHILD PROTECTIVE SERVICES ACT'S RECOMMENDATION THAT EMPHASIS BE PLACED ON PUBLIC AND PROFESSIONAL EDUCATION IS SAID TO BE A MORE REALISTIC APPROACH TO THE PROBLEM THAN TOUGHENING CIVIL, CRIMINAL, OR ADMINISTRATIVE PENALTIES, BECAUSE MANDATORY CHILD ABUSE REPORTING LAWS ONLY FORMALIZE THE GENERAL MORAL OBLIGATION TO AID BATTERED CHILDREN. (AUTHOR ABSTRACT MODIFIED--LKM)