Ms. N felt like she was living a nightmare. She had never been party to a lawsuit before and the thought made her panicky and fearful. Dr. J, however, with many more years of practice, had been party to lawsuits before and explained to Ms. N that they would have to speak with the defense attorney provided by their insurance company and that the attorney would advise them how to proceed.

After meeting with Ms. N and Dr. J, the defense attorney explained that state law requires the reporting of suspected child abuse. Furthermore, OI is rare and difficult to diagnose. He filed papers on the clinicians’ behalf alleging that there had been no deviation from the acceptable standards of care.

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At trial, the plaintiffs presented a strong case. A child psychologist testified to the long-term emotional effects on Mary caused by the incident and how these effects could last into adulthood. The plaintiffs also had a pediatrician testify that OI should have been suspected after Mrs. Q mentioned a family history of bone disease.

Ms. N testified that she suspected child abuse after seeing broken ribs. She described being told by Mrs. Q about how her husband was “rough” with their daughter. On cross-examination, the plaintiff’s attorney began battering Ms. N with questions. Had she seen this child before? Yes. Had she ever noticed anything wrong with the child in the past? No. Had she seen any bruises on the child? No. Any abrasions? No. Were there any signs of sexual abuse? No. Did the child act differently than a typical four-year old? No.

“So, Ms. N,” the attorney said, “you are telling me that never in the three years you’ve been seeing this child had you seen any evidence of abuse, other than the broken ribs on this last visit? In fact, what you always saw was two loving parents concerned about their child.”

Ms. N was forced to agree. When she finally got off the stand, she was shaking. The attorneys went into the hall to confer, and before the next witness was called to the stand, a settlement agreement had been reached. The parties agreed to a $950,000 settlement for the family.

Legal background

The purpose of cross-examination is to get a witness to contradict his or her testimony, impeach the credibility of a witness, and lessen the impact of unfavorable facts. Conducted by a skilled trial attorney, cross-examination can be an effective way of demolishing an opponent’s case. For the person being cross-examined, the experience can be nerve-wracking and confusing. For a witness who is not well-prepared, it can be devastating. Attorneys are allowed to use leading (and often antagonistic) questions during cross-examination to try to get witnesses to contradict previous testimony.

Protecting yourself

Clinicians have a mandatory duty to report suspected child abuse, and there may be a valid reason to err on the side of caution in these cases. But Ms. N and Dr. J had never seen any other evidence of abuse in three years of treatment. More important, they had the clues that should have suggested Mary was suffering from a condition rather than abuse. Before calling the authorities in this case, they should have questioned Mrs. Q more thoroughly about the family bone disease and attempted to determine whether Mary could be suffering from that rather than assuming the worst.

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.