"Healthcare attorneys will advise a client that it is far better, in theory, to be faced with defending a civil action for reporting suspected abuse rather than the bleak alternative of defending a civil action . . .if a child is injured."

is a senior Healthcare Law associate with the firm of Updike, Kelly & Spellacy, P.C. in Hartford. She concentrates her practice on the representation of institutional and individual care providers, and is a frequent speaker on issues involving health law.

is a senior litigation associate with the firm of Updike, Kelly & Spellacy, P.C. in Hartford. She is also a licensed pharmacist. The focus of her practice in the healthcare area is on the representation of individual providers for professional liability issues and administrative proceedings. She lectures to pharmacists and other healthcare providers on risk management and other liability issues.

This article originally was originally published byThe
Connecticut Law Tribune in its Health Law Supplement (September 21, 1998). It is reprinted here with permission. Copyright ©1998 The Connecticut Law Tribune.

Topic Home Page: Resources for Victims of Sexual Abuse

Topic Feature: Mandatory Reporting of Child Abuse

Topic Feature: Remedies for Victims of Sexual Abuse

Topic Feature: Statutes of Limitation for Victims of Sexual Abuse

Child Abuse Reporting:
Hidden Dangers

By Attorney Jennifer L. Cox
and Attorney Jennifer A. Osowiecki

In Connecticut, licensed healthcare providers are required to report suspected or known child abuse to the Department of Children and Families, or the police, pursuant to General Statutes §17a-101, et seq. Logically, this burden is placed on healthcare providers because they are often on the front lines and are uniquely able to observe the physical and mental harm that results from abuse. The virtually unanimous public opinion is that child abuse is an evil which must be addressed each time it is exposed. Requiring mandatory reporting by healthcare providers is just one of the methods the State uses to fight this pervasive and disheartening problem.

The vast majority of reports made pursuant to the child abuse reporting statutes proceed without complications or adverse consequences to the providers. Unfortunately, there are many risks to healthcare providers, some of which are rarely discussed publicly, primarily because it is politically unpopular to take issue with the laws aimed at protecting children.

The most obvious risk is not at all hidden and is frequently discussed: it is the prospect of being sued by disgruntled parents who believe they have been wrongfully accused of abuse. In Zamstein v. Marvasti, 240 Conn. 549, 692 A.2d 781 (1997), the Supreme Court began an examination of this issue and fashioned something of a safe harbor from civil and criminal liability in its interpretation of the child abuse reporting statutes. However, the case does not go far enough to extend full protection to healthcare providers from suits by angry parents.

In Zamstein, the report of child abuse arose out of a bitter divorce and custody dispute in which Sharon Zamstein accused her husband, Jacob, of sexually abusing their children. The defendant psychiatrist was retained for the express purpose of evaluating the children to determine whether the father had abused them. Custody of the children was granted to Sharon Zamstein. A criminal prosecution against Jacob Zamstein ended in an acquittal. He then sued the psychiatrist, Dr. Marvasti, claiming that the prosecution against him and the alienation of his children (among other things) would not have occurred but for the psychiatrists report of suspected sexual abuse.

Although there was a dissenting opinion by Justice Berdon, the Supreme Court had no difficulty in deciding that a chilling effect would be created and would work against the purpose of the child abuse reporting laws if professionals performing evaluation were made to consider the potential ramifications of their actions on various individuals other than the children. The statutory mandate, which is illustrated in Zamstein, is that providers who make a report in good faith, following the statutory guidelines, are immune from any liability, civil or criminal. Conn. Gen. Stat. §17a-101e. But most reporting situations do not occur in the black and white context present in the Zamstein matter. Child abuse had already been identified as a potential problem and in fact was the known focus of the psychiatrists examination of the children. It would be fundamentally unfair to require a healthcare provider in that circumstance to guaranty the right answer, when professional judgment is the only element involved. Most reporting events occur in a much grayer range, and involve a myriad of facts and often conflicting information. It is not always clear that a medical presentation rises to the level where it must be reported.

Almost all healthcare attorneys will advise a client that it is far better, in theory, to be faced with defending a civil action for reporting suspected abuse rather than the bleak alternative of defending a civil action (along with administrative or criminal proceedings) if a child is injured or killed as a result of failing to make a report of suspected child abuse. The problems do not come from the theoretical, they come from real life issues that are brought to the surface whenever a child abuse report is contemplated or made. Healthcare providers experience a very real fear that angry parents will learn the providers identity and track him or her down. Providers may also feel that they have created a devastating emotional situation for all involved. Additionally, providers engage in "second guessing" and may feel anxiety about the inquisition from the authorities that will inevitably follow a report of child abuse. In essence, the healthcare provider is not treated as a professional making a professional judgment, but as an accuser in an adversarial forum.

The hidden risks of reporting abuse are often caused by overzealous enforcement of the reporting laws by the various state agencies. By comparison, the reporting requirements of elderly victims abuse or neglect, and suspected abuse of persons with mental or physical disabilities, garner almost no attention from state agencies. The force behind the tension is the perception, perhaps created by the media, that the state is unable or unwilling to take a hard stance when it comes to child abuse. Healthcare providers become easy targets of this undercurrent of frustration and public attention.

Despite the fact that there are nominal fines provided as penalties for failing to properly report suspected or known child abuse, in the past, agencies of the state have attempted to require institutional providers to pay fines in excess of tens of thousands of dollars in the face of a single isolated technical violation that did not result in any harm to the child. In such cases, these hefty fines were proposed as part of a consent decree offered as a behind-the-scenes deal, with the implicit threat to the facility, should it refuse to pay, that the State might encourage media attention against the institution. The clandestine nature of these proceedings makes it impossible to determine how wide spread the practice was (or potentially still is). Accordingly, healthcare attorneys and hospital administrators are well served to check the black letter law of the statute before agreeing to any settlement offer or consent decree with any agency or entity.

Another disturbing outgrowth of the States desire to bring the full force of the law down upon suspected child abusers came in the form of required reporting of all teen pregnancies. It became immediately obvious to the care providers who were asked to provide lists of pregnant teens that it did not serve the best interests of the patients or the community in many circumstances to disclose such information. Subsequently, it was determined that reporting of teen pregnancies was never an official policy of the State. Such enforcement turned out to be an honest and misguided interpretation by a particular state agency that could have had grave consequences, including but not limited to, discouraging access to vital prenatal care which ran the risk of making a bad situation tragic.

The interests of the children of the State of Connecticut would be best served by the combined efforts of healthcare providers and state agencies working together to address the issue of child abuse. Most of the time, this is how the system works. However, an adversarial climate is sometimes created by certain eager and well-intentioned child welfare workers. Even though this occurs in a minority of cases, the detrimental effects on the system are staggering. Providers and institutions find it difficult enough to defend themselves from the very real threat of angry and emotional parents, they should not also be required to expend energy to avoid potential punitive actions by the State when acting in good faith in an attempt to fully comply with the law.

On the brighter side, the trend does appear to be toward fostering a cooperative environment between healthcare providers and the State. But there is still much work to be done. Most importantly, healthcare providers need to understand their obligations and rights under the child abuse reporting statutes. At the same time, it is critical to keep in mind that not all state agencies apply the reporting statutes evenly or appropriately in every case. The statute itself is not the problem. Rather, finding a way to function within it is the challenge.