August 18, 2016
Unfortunately, healthcare professionals see the following reality all too often. A child presents to them with an injury. The accompanying parent blames it on a fall. The healthcare professional treats the injury themselves or consults with a pediatric specialist to do so. The injury is then properly treated, and the child is returned home. Sometime later, another family member alleges ongoing child abuse, which ultimately is proven. The child’s guardian then sues the treating healthcare professional(s) for not seeking an abuse consult in response to the child’s earlier injury.
This same scenario played out a few weeks ago in Court Appointed Grdns. v. Children’s Hosp. Med. Ctr., 1st Dist. No. C-150449, 2016-Ohio-5112 (Hamilton Cty.) The child’s guardians sued the hospital and two treating physicians, alleging both common-law medical malpractice and R.C. 2151.421 violations for failing to seek an abuse consult during the child’s emergency room visit. The trial court granted the defense summary judgment motion. The guardians then appealed the common-law issue only, posing a question that had not been asked in the Ohio appellate arena for over twenty years: is failing to obtain a consult with an abuse specialist actionable in Ohio as medical malpractice? The First District in Court Appointed Grdns. unanimously said “No” because diagnosing and preventing child abuse does not constitute medical care. As the First District further explained, the healthcare professional’s common-law duty to his or her patient ends once the medical care for which treatment was sought is completed.
Of course, that is only half the story. Again, the First District made it well-known that the only issue appealed was the scope of a healthcare provider’s common-law duty of care. The Ohio Legislature, however, is not so forgiving. Under R.C. 2151.421(A)(1)(a), any healthcare professional acting in his or her official capacity – e.g., when treating a patient under eighteen years of age or a developmentally disabled patient under twenty-one years of age – has a statutory duty to “immediately report” any reasonable suspicion of abuse to either the public children services agency or a peace officer. While a good-faith report entitles the healthcare professional to immunity from civil or criminal liability related to the report, a failure to comply with this reporting duty subjects the healthcare professional to compensatory and punitive damages, and possible criminal charges. This statute’s overall purpose is commendable, but its fifteen subsections, thirty paragraphs, and thirty-plus subparagraphs involve many twists-and-turns that can trip up those who simply are trying to do what is right.
If you reasonably suspect one of your minor or developmentally-disabled patients is being abused, please do not assume that your full duty ends when the treatment visit does. Immediately seek out your manager, hospital / office administrator, or risk manager for advice. And, as always, if you have questions or concerns about the statute and your duties under it, please consult with a trusted healthcare attorney.