Ms. F has been a nurse practitioner in a suburban family practice for 10 years. While she treats a wide range of patients, most of her cases involve children. One of her most memorable patients was first brought in as a 3-year-old girl when Ms. F was fresh out of graduate school. The girl was accompanied in the examination room by her mother, who complained that the child had urinary frequency with burning and scalding, constipation, and some inflammation around the vulva. On examination, Ms. F could see that there was vaginal irritation and a rash around the perineal area, but she never suspected sexual abuse. Based on what the mother told her, Ms. F assumed that the areas of inflammation were due to bacterial infection and/or diaper rash. She cleaned the skin and gave the mother some instruction with regard to perineal care and diaper changing. Finally, Ms. F administered amoxicillin in a weight-related dose. She reported everything to her supervising physician, who reviewed the findings and signed off on the case.
Ms. F saw the patient once every year over the next 10 years for routine immunizations and acute illnesses. Through conversations with the girl’s mother, the NP learned of a live-in boyfriend. He eventually became the patient’s stepfather, but Ms. F never met him. Over the years, she sensed that the little girl was somewhat unhappy and tense but no more so than any other child with an unstable home life.
When the patient was 12, she told a trusted teacher at school about the sexual abuse she suffered at home. The girl’s mother, stepfather, and another male relative of the stepfather were arrested and charged with sexual abuse of a minor (the mother and the relative were later released for lack of evidence). The stepfather was charged and released on probation after a plea bargain. The litigation continued after the girl’s mother consulted a plaintiff’s lawyer and sued Ms. F and her supervising physician for failure to recognize sexual abuse. On receiving the court papers notifying her of the lawsuit, Ms. F sat alone in her office as waves of emotion washed over her. As a conscientious medical professional, she was devastated at the ongoing sexual abuse of a young child. But more than that, she was angry that she was being partially blamed for it.
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The lawsuit made its way through discovery and into the depositions, at which time the young woman described the physical and emotional abuse she had lived with for so many years. When the defense asked about Ms. F’s role in everything, the patient just shrugged her shoulders and said, “She was always nice to me.” The plaintiff’s lawyer quickly cut this sentiment off with an objection. “This person is not qualified to judge medical negligence,” he said with a sneer. “That determination ought to be left to the jury.”
Ms. F believed that the impetus for the lawsuit did not come from the child but originated with the mother and her lawyer. While delivering her deposition in the plaintiff’s lawyer’s opulently appointed conference room, Ms. F could not help but feel felt somewhat intimidated. But her courage held, and she worked through her clinical notes as she related the findings on each visit. Asked why she had not reported the “suspicious findings” of vulval irritation and UTI on the first visit, she replied that these are common findings in young children and, without other indications, not signs of sexual abuse. The deposition dragged on for eight hours, during which Ms. F carefully explained the entire chart, reviewing her notes and reconstructing each visit from her brief but adequate entries.
During expert testimony, the plaintiff’s expert offered the opinion that a routine diaper rash could be viewed as evidence of abuse, depending on the circumstances. The defense expert retaliated by arguing that diaper rash on its own could never be considered an indication of physical abuse. Settlement talks between the two sides broke down, and the case headed to court.
At trial, the now 14-year-old girl related the horrible details of years of systematic abuse suffered at the hand of her stepfather. The jurors’ eyes glistened as the young woman stoically repeated the facts of her nightmarish childhood. Ms. F was called to the witness stand on the second day. Although nervous, she presented to the jury a compassionate exterior as she calmly answered questions from the plaintiff’s lawyer. Finally, the experts reiterated their conflicting testimonies, and the jurors were excused to deliberate. Four hours later, they delivered a verdict in favor of Ms. F and her supervising physician.
Legal background
Every state has mandatory reporting laws for suspected child abuse. Through these, plaintiffs’ lawyers have discovered a new way to mine the natural sympathy felt for the victims of these crimes. The new strategy is to accuse the child’s provider of neglecting the statutory duty to report suspected abuse, thereby creating a malpractice claim that is covered by the provider’s insurance policy. Although the case against Ms. F was not successful (largely due to her excellent performance in the courtroom), similar lawsuits have ended in settlement. Insurance companies have been eager to avoid the risk of a megaverdict generated by jury anger and sympathy for the victim.
Medical experts play a central role in malpractice litigation, even though a typical outcome is for one set of experts to neutralize (and directly contradict) the other’s testimony. Nevertheless, if one side does not employ the services of an expert, its opponent’s expert testimony goes unchallenged. This has created a cottage industry of experts who review charts, prepare reports, and occasionally testify in cases that do not settle or get dismissed.
Risk-management principles
The relatively new strategy of using child abuse to create a claim against the victim’s provider is a particularly difficult one to counter. On the one hand, reporting all cases of unexplained bruises or UTIs in young children to child protective services is impractical and undesirable (not to mention likely to ruin your relationship with the patient’s parent). On the other hand, ignoring possible cases of child abuse is just as unacceptable. Perhaps the most effective risk-management strategy is to be alert to the possibility of child abuse in every clinical situation and take proactive steps when indicators of possible abuse are present.
A typical strategy would involve carefully recording your observations as well as the patient’s account of what happened. Call in a colleague to confirm your observations and report the case to the senior clinician available. Finally, report the case to child protective services as appropriate. The ongoing history of a patient can be revealing. Unexplained bruises on one occasion can be accidental in an active child, while repeated incidents require some explanation and perhaps further inquiry. This is a potentially explosive area that should be approached with caution and the assistance of your supervising physician.
