Child Abuse: Mandatory Reporter Immune From Lawsuit.

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Child Abuse: Mandatory Reporter Immune From Lawsuit.

Legal Eagle Eye Newsletter for the Nursing Profession

Nurses, physicians and other professionals who encounter children in their work are mandatory reporters of suspected child abuse. A mandatory reporter of child abuse who fails to report evidence of suspected abuse can face criminal prosecution and professional licensure sanctions.

In return for this strict legal duty the law provides immunity to mandatory reporters for good-faith reporting of evidence of child abuse. Good faith means a mandatory reporter of child abuse was not motivated by actual malice, that is, the reporter had no intent to harm the child, parent, relative or guardian suspected of abusing the child.

An accusation of child abuse, even if it proves to be false, can have a major negative impact on the life of the person accused. However, the severity of that impact is not relevant. The only relevant factor is the reporter’s state of mind at the time of the report. Unless actual malice can be proven as the reporter’s motivation, any civil lawsuit stemming from a mandatory report must be dismissed. COURT OF APPEALS OF KANSAS January 6, 2017

The parents brought their nine-month-old daughter to the hospital with a respiratory infection. The emergency department physician suspected the child was a victim of chronic sexual abuse.

The physician alerted the local police and with assistance from the emergency department nurses conducted HIV and STD testing on the child.

After the physician’s suspicion proved wrong the parents sued the physician and the hospital claiming damages for the pain, suffering, mental anguish, medical intrusion, humiliation, medical expense and economic loss they suffered due to the physician’s misdiagnosis. The Court of Appeals of Kansas dismissed the lawsuit.

The nurses were not brought in by the parents as defendants in the case. However, the Court pointed out that the same law that protects their employer, the hospital, and the physician would also protect the nurses if they were personally sued. A nurse or physician is required by law to report any evidence believed to point to sexual or other abuse of a child, or a vulnerable adult for that matter, encountered in the course of professional practice.

Criminal prosecution and sanctions on a professional license are potential legal consequences for a mandatory reporter who fails to report.

The other side of the coin is that the law provides legal immunity to mandatory reporters which protects them from being sued over a mandatory report. A lawsuit actually can be filed against a mandatory reporter. However, the opening salvo of a successful legal defense would be the reporter’s lawyer pleading immunity and demanding dismissal as in his case where a dismissal was granted. The only time immunity from legal action would be unavailable would be when the reporter acted with actual malice.

Actual malice means an intent to harm the child, parent, guardian, caregiver or other person accused of abuse. The law makes actual malice very difficult to prove as the state of another person’s mind. T.H. v. Hospital, __ P. 3d __, 2017 WL 66392 (Kan. App., January 6, 2017).