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IN WAKE OF THE KOWALSKI VERDICT

A CALL TO ACTION

The recent verdict in the Kowalski v. Johns Hopkins case is a wake-up call, highlighting major concerns in child abuse pediatrics. In light of this historic ruling, the Family Justice Resource Center calls upon health care institutions and policymakers to institute key systemic changes.

The Kowalski verdict shines a light on child abuse pediatric practices and highlights a need for systemic reforms.

An Overview of the Historic Kowalski Ruling

On November 9, 2023, the jury in Kowalski v. Johns Hopkins All Children’s Hospital (JHACH) spoke; it awarded Maya Kowalski, her father, and her brother $261 million in compensatory and punitive damages on seven counts that included three periods of Maya’s false imprisonment at JHACH, medical malpractice, battery, and intentional infliction of emotional distress.  This verdict followed a reported individual settlement of $2.5 million with Dr. Sally Smith, the child abuse pediatrician who wrongly accused Maya’s mother, Beata Kowalski, of child abuse due to Munchausen’s Syndrome by Proxy. Smith’s actions at JHACH involving Maya and her mother were spotlighted in the Netflix documentary, Take Care of Maya.

 

The verdict and the settlement were predicated on Smith’s and JHACH actions in holding Maya at JHACH for nearly three months and denying Beata Kowalski contact with her daughter, Maya.

 

Unable to see her daughter, care for her, or secure her discharge from JHACH’s confinement, Beata Kowalski—in despair—committed suicide. Only then was Maya released from the hospital and returned home to her surviving family members.

Take Care of Maya

Image shared from Tribeca Film 

JHACH sought to reverse the verdict, but on January 16, 2024, the trial judge issued a ruling that excoriated JHACH for continuing to defend its actions as exemplary medical care in the face of clear findings by the jury of conduct towards Maya and her family akin to “torture.” The judge did, however, reduce multiple specific items of damage by a total of 47.5 million, leaving intact an award to the Kowalski family totaling 213.5 million.

An appeal is likely to ensue in Maya’s case. While this may result in some changes in the eventual outcome of Maya’s specific verdict, the practices highlighted by this case clarify an urgent need for change regardless of the specific details of the verdict. 

Months’ long hospital confinements that deprive parents of all contact with their children and end with a parent committing suicide are fortunately rare, but many aspects of the Kowalski story are far more common for families who come into contact with the child abuse pediatric system. Indeed, JHACH’s strong defense of its own conduct in the Kowalski case demonstrates how entrenched and systemic many of the practices documented actually are, insisting that its treatment of Maya was “ordinary" (see Jan. 16, 2024 Order on Post Trial Motions in the Kowalski case). Countless family members are left deeply traumatized by wrongful accusations initiated and perpetuated by child abuse pediatricians (“CAP”) who are embedded in the hospital setting while simultaneously acting as agents of law enforcement and child protective services (CPS).

 

Most of these family members’ stories never make the news, never become the subject of a Netflix documentary, and never reach a jury. Wrongly accused families suffer enduring and profound post-traumatic consequences due to the entanglement of the state-funded child protection system with hospitals, child abuse pediatricians, law enforcement, and prosecutors. 

Many families who are wrongly accused don’t have a fighting chance for exoneration or vindication. Maya’s family is white and middle class—Beata herself was a nurse, and Jack was a firefighter prior to Maya’s hospitalization. Families who are impoverished or from minority communities face punitive judgments and higher rates of state intervention across the board. Indeed, the same county in which Maya’s case arose—Pinellas County—is itself notorious for being the site of an early racial disproportionality study that demonstrated that Black families were reported to child services authorities at nine times the rate of white families. 

Child abuse pediatricians are central to each one of these cases.

 

Interlocking systems empower and even encourage doctors like Sally Smith to play a simultaneous role in influencing the treatment of children and the policing of families. These systems also fail to provide minimal checks and balances against the sorts of abuses that caused such a tragic outcome for Beata Kowalski and her family. It is these systemic policies and practices—defended as the status quo in hospitals across America—that operate with cruelty (in the words of the Kowalski judge) and urgently call out for change. 

The heartbreaking story of Maya Kowalski highlights the devastation that is enabled by prevalent child abuse pediatric policies.

The Heartbreaking Story of Maya Kowalski

In July of 2015, Maya Kowalski, then nine years old, suffered from a severe asthma attack and was admitted into Johns Hopkins All Children’s Hospital (JHACH). During her stay, Maya began exhibiting severe pain and weakness. After her hospitalization, Maya experienced several months of increasingly severe symptoms and was seen by a leading independent expert in pain management and anesthesiology. After a full workup, Maya was diagnosed with Chronic Regional Pain Syndrome (CRPS) in September of 2015. This CRPS diagnosis was confirmed by multiple independent experts (“the initial care team”) in anesthesiology, neurology, pain management, and psychology, including multiple JHACH-affiliated doctors. 

CRPS is a painful and debilitating condition that causes the brain to process normal nerve root stimuli as excruciating pain. It also causes bone tenderness, stiffness, spasms, limited mobility, and skin lesions. 

When other treatments failed to bring relief, Maya’s doctors recommended ketamine-infusion treatment, an FDA-approved treatment that temporarily blocks pain receptors and decreases sensitization. Because of the severity of her pain, her doctors recommended high-dose treatments, which were not available in the U.S. at that time. The family traveled to Mexico for these treatments at the recommendation of their doctors. The treatment was effective, and it temporarily reduced Maya's suffering; however, follow-up booster ketamine treatments were necessary under the care of Maya’s treating doctors back home to maintain her pain-free state.

Maya and Beata Kowalski
Maya Kowalski treatment
Maya and Beata Kowalski

Maya Kowalski receiving treatments & with her mother, Beata Kowalski

In March 2016, upon the request of members of the initial team, JHACH evaluated Maya and independently determined that she needed a surgically implanted port to assist with her treatment. With the port in place, she was able to continue ketamine treatments, IVIG, and specialized physical therapy. In May 2016, a JHACH pulmonologist sent a note to Maya’s pediatrician noting that Maya had improved significantly while undergoing these ketamine treatments. 

On October 7, 2016, Maya's father, Jack Kowalski, brought Maya to the JHACH emergency room for abdominal pain and vomiting. The JHACH Pain Management Team, unfamiliar with CRPS, questioned Maya’s treatment plan and recommended that she participate in a physical therapy and psychology program for children with chronic pain. When Maya’s mother, Beata Kowalski, disagreed with their alternate plan, the JHACH Pain Management Team called the Florida Child Abuse Hotline, alleging that Beata was “interfering with” Maya’s “treatment,” stating that Beata had “mental issues,” and claiming that Beata was “overmedicalizing” her daughter. 

A Department of Children and Families (DCF) Child Protection Team (CPT) Investigator immediately contacted one of Maya’s lead treating physicians overseeing her treatment for CRPS, who confirmed that Maya did indeed have CRPS. This doctor confirmed that the mother's requests for higher doses of ketamine administration were indeed necessary for Maya’s care, and were medically recommended for her treatment.

 

The child abuse hotline call was screened out, the DCF investigation was closed that same day, and DCF promptly notified JHACH that its investigation had been concluded.

The next day, October 8, 2016, the Kowalskis requested that JHACH discharge Maya so that she could be treated by doctors familiar with CRPS. Instead of allowing this discharge, however, JHACH staff immediately contacted hospital security and its Risk Management Team, who jointly decided that any such discharge would be against (its own) "medical advice.” JHACH then called child abuse pediatrician Dr. Sally Smith, who was the medical director for the Pinellas County Child Protective Services team and regularly worked on child abuse cases that were pending at JHACH.

 

Dr. Sally Smith provided the hospital with specific information and advice as to how to keep Maya at the hospital absent a court order and how to isolate Maya from her family.

 

Based on the limited information from the JHACH Pain Management Team, without support from any mental health provider, and without possessing psychiatry or psychology credentials, Smith further “diagnosed” Beata as a perpetrator of child abuse due to Munchausen’s Syndrome by Proxy, a highly controversial psychiatric diagnosis that presumes a parent is inducing a child’s symptoms to get attention. She also diagnosed Maya as a psychiatric patient suffering from “conversion disorder.” Smith did not consult with Maya’s initial care team or other treaters outside of the Pain Management Team in making these conclusion, nor did she rely on any psychological assessments of Maya or Beata. 

Dr. Sally Smith and Maya Kowalski

Image shared from UNILAD

Dr. Sally Smith worked in conjunction with child protective services authorities to keep Maya separated from her parents.

On October 9, 2016, Maya's parents once again requested that JHACH discharge Maya so that they could transfer her to another hospital. This request was again denied. The hospital’s reason for denying discharge (which was not revealed to the family) was that Dr. Smith was working with the Child Protective Services (CPS) authorities and attempting to secure a court order to "shelter" Maya from her parents.
 
Once armed with Dr. Smith's opinion that Beata was a suspected child abuse perpetrator due to Munchausen’s Syndrome by Proxy, JHACH called DCF's Florida Child Abuse Hotline a second time, instigating yet another investigation at the same time that Maya’s parents were actively requesting Maya’s discharge. Dr. Smith also began the process of isolating Maya from her parents while she remained in JHACH care. 

Even though JHACH itself had earlier prescribed at-home IV infusions and implanted a surgical port for her ketamine treatment, Dr. Smith interpreted these interventions as further grounds for leveling accusations of child abuse against Beata Kowalski. While internal JHACH records from March, May, and August of 2016 noted that Maya had CRPS, JHACH records at this point suddenly shifted to showing conclusions that Maya was not in pain and that her ketamine treatments were life-threatening.

During the period following the second hotline call, Maya’s primary treating physician, a leading expert on CRPS, spoke with Dr. Smith and urged her to desist in her accusations against Maya’s parents, specifically Beata Kowalski. Instead of considering the medical opinion of the primary treating doctor, however, Dr. Smith hid this information and continued to press her accusations against the family.

 

Note: Section 8 outlines an extensive list of medical ethics requirements which are all implicated by this conduct: 1.1.3 9(b) (g) (h) (i), 1.1.7 (e) (f), 1.2.3 (b), 1.2.6 (a), 2.1.3, 2.2.1 (h), 8.6 (a) (b) (c) (d) (h) (j) (k), 9.2.6, and 9.7.1 (e) (g) (i) (h).

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Image shared from Seventeen Magazine

Maya, Jack, Beata & Kyle Kowalski

Jack and Beata Kowalski continued to request Maya’s discharge from JHACH, unaware of the behind-the-scenes preparation of legal charges against them to remove Maya from their lawful custody (which they still maintained. Absent a court order, the Kowalskis had the right to direct where their child would be cared for and bring her home or to consult with other doctors of their choosing. The hospital continued to refuse their requests. 

During Maya’s stay at JHACH, Smith presented herself to the Kowalskis as a regular member of the hospital staff and Maya’s care team. She never told the family that she had a leading role—on behalf of the State—in the investigation of alleged child abuse. Members of the Kowalski family later stated, “If we would’ve known who she was, we never would’ve spoken to her.” 

The State of Florida took emergency protective custody of Maya on the afternoon of October 13, 2016, and a shelter care (temporary custody) petition was filed with the local court that hears petitions to legally deprive parents of custody and decision-making authority for their children. The court entered a shelter care (temporary custody) order on October 14, 2016, and designated JHACH as the “shelter location” for Maya. For at least three days prior to the entry of this order, however, Maya was imprisoned at JHACH without legal authority to hold her. The hospital had refused to discharge Maya to her legal custodians (her parents) based solely on the child abuse opinion of Dr. Smith. 

For three months, Maya remained in the hospital alone. Her mental and physical conditions deteriorated significantly in state legal custody, committed to the care of JHACH. Contact with her mother was prohibited. Maya endured an excruciatingly painful CRPS flare-up from the stress induced by her circumstances, but the hospital denied her previously prescribed CRPS treatments. She was also subjected to physical therapies that have been described as “akin to torture” for patients with CRPS.

 

As the Kowalski court found in its denial of JHACH’s post-trial motions, evidence showed that, as a result of JHACH’s pain management teams’ therapies, Maya experienced “Pain more intense than childbirth. Pain more intense than kidney stones. Pain more intense than amputating one’s limb."

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Image shared from New York Post

Maya Kowalski during court proceedings

The post-trial motions went further into detail regarding the pain Maya experienced, calling it "the worse pain imaginable, the degree and intensity which most of us cannot comprehend. Pain so intolerable that the condition is nicknamed the “suicide disease.” (Read the full Jan. 16, 2024 order on Post Trial Motions). 

Denied even the most modest of contacts with her child through the efforts of Smith and JHACH—all predicated on the conclusion that Beata had abused her child and fabricated Maya's reported pain—Beata was overcome with depression.

After 87 days of no contact with her daughter, Beata Kowalski committed suicide on January 7, 2017.

Maya was finally released to her grieving father’s custody on January 13, 2017, a week after her mother’s death. The court also allowed Maya to travel to Rhode Island to be examined by one of the country’s leading experts in complex pediatric pain. This pain anesthesiologist reported to the court that Maya had Complex Regional Pain Syndrome as well as a high suspicion of Ehlers Danlos Syndrome, and he recommended further genetic testing.

Numerous stories in the media, litigation, and auditor's reports emphasize these systemic issues in child abuse pediatrics.

Other High-Profile Cases of Wrongful Allegations

Medically-based wrongful allegations of abuse are not isolated or rare. While the Florida Kowalski case gained national attention, the reality is that similar cases are constantly unfolding at children’s hospitals across the country. The spotlight on troubling state and national child abuse pediatric practices has intensified, propelled by a growing number of recent media reports, films, lawsuits, and even a Pennsylvania County Auditor General’s report. States implicated in these reported accounts of Child Abuse Pediatric (CAP) practices encompass Alaska, Florida, Illinois, New York, Pennsylvania, Texas, Washington State, Mississippi, and Wisconsin, underscoring the widespread nature of this concerning issue:

  1. Krueger v. Petrak, 02 CV 01016 (C.D. Ill., 2022) is a pending federal civil rights suit in Illinois that alleges vindictive claim of Munchausen Syndrome by Proxy levied by child abuse pediatrician, Channing Petrak, following argument with parents and retaliatory reversal of opinion in favor of parents’ innocence where the child had a documented genetic disorder. Read After a False Abuse Allegation, Child Services Took This Mom's 3 Children Away and Take Care of Maya Verdict Could Help Mom Who Lost Kids After False Diagnosis
     

  2. Esteverne v. Essernio-Jensenn, 581 F. Supp. 2d 335 (EDNY 2008) is a case alleging a long history of misconduct by child abuse pediatrician Debra Essernio-Jensenn, who is also a primary subject of the Lehigh County Auditor General Report cited below; V.S.S. v. Essernio-Jensenn, 581 F. Supp. 2d 265 (EDNY 2008) cites a second instance of Dr. Essernio-Jennsen misdiagnosing child abuse. 
     

  3. Acker v. Providence Health & Services Washington (4:22-cv-00017, D. Alaska, 2022) (federal suit against child abuse pediatrician Dr. Barbara Knox). See articles describing history of her firing in Wisconsin, hiring in Alaska, and subsequent firing there following complaints of continuing misconduct similar to prior Wisconsin reports: Two Couples Sue Former UW Child Abuse Doctor for Alleged Misdiagnoses and Two Alaska Families File Federal Lawsuit Against Embattled Child Abuse Doctor, Providence Alleging Child Abuse Misdiagnoses
     

  4. Jennifer Del Prete v. Village of Romeoville, et al., #17-cv-06145 (federal civil rights case alleging that lead child abuse pediatrician Emalee Flaherty “authored report with fabricated scientific findings” and withheld exculpatory evidence leading to the 12-year-long prison sentence that was later vacated). See Woman previously freed by Medill Justice Project investigation to sue alleged conspirators (the case was dismissed on absolute immunity grounds; no finding as to the factual merit of the claims against Dr. Flaherty). 
     

  5. Pond et al. v. Woods and State Agents, (3:22-cv-05849, W.D. Wa. 2022) (Federal lawsuit in Washington State against Dr. Elizabeth Woods). See articles: Former Tacoma hospital director sued over handling of child-abuse cases as state expertTacoma doctor removed from expert role in diagnosing child abuse amid questions about her credibility, and When child abuse is a misdiagnosis: WA doctor pushes back on questionable cases (September 2023) 
     

  6. Cox and Dobrozsi v. The Medical College of Wisconsin et al, 2:2022 cv 00553, 651 F. Supp. 3d 965, E.D. Wisc. 2023 sustains claims of conspiracy between child abuse pediatrician, Lynn Sheets, and state authorities to deprive doctors & parents—who were employed at the same hospital—of their civil rights. See also 'Out of Control' Child Abuse Docs...alleging “climate of fear” among fellow doctors at Milwaukee children’s hospital due to actions against Dr. Cox. 
     

  7. “Do No Harm Series” articles and podcast by Journalist Mike Hixenbaugh, published by NBC News and the Houston Chronicle, reviews multiple cases of alleged misconduct & poor practice especially by child abuse pediatricians working out of the Texas Children's Hospital, which is home to one of the largest working groups of child abuse pediatricians in the country.
     

  8. Lehigh County Pennsylvania Auditor General Report presents dozens of cases of overreaching and cruel mistreatment of families. See also a news report: Lehigh County controller, parents blast child-abuse system over potential misdiagnoses.
     

  9. “When the Misdiagnosis is Child Abuse” by Stephanie Clifford for The Atlantic in August, 2020 is an article delving into heartbreaking cases where families experienced dramatic upheavals after child-abuse pediatricians played a pivotal role in wrongly separating their families.
     

  10. Interview with Dr. Eli Newberger, the “Founding Father of Child Abuse Pediatrics,” discussing the Kowalski case, documenting concerns regarding the direction of child abuse pediatrics, and outlining why the field of child abuse pediatrics should have instead been named “forensic pediatrics” from the very start.

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How did Dr. Sally Smith have the authority under Florida policies to affect the hospital’s treatment of Maya Kowalski and influence the state’s action against her mother?

How Child Abuse Pediatrics Has Become Embedded in Child Protection Investigations

In order to truly understand the power that child abuse pediatricians (CAP) hold and the subsequent impact on cases like Maya Kowalski's, it's important to examine the history and structure of child abuse pediatrics. 

 

The sub-specialty of child abuse pediatricians became embedded in child abuse investigation teams under federal policy and funding streams due to the Child Abuse Prevention and Treatment Act.

In 1974, Congress passed the Child Abuse Prevention and Treatment Act (CAPTA). CAPTA has been reauthorized ten times and continues to provide funding to states for their child abuse hotlines, investigations, and child abuse multidisciplinary teams.
 

Federal funding for child protection investigations also supports the National Children’s Alliance, which is a national non-profit organization which accredits, funds, trains, and sets practice standards for Children’s Advocacy Centers (CAC). In 2022, the National Children’s Alliance reported federal appropriations of $16,757,000. These funding sources include CAPTA and Department of Justice grants. The National Children’s Alliance, in turn, has established a standard of operations that requires any accredited CAC to have a multidisciplinary team (MDT). To receive the highest level of accreditation, a CAC must have a board-certified CAP on staff.
 

These "multidisciplinary practice” models endorsed by the National Children’s Alliance establish teams of police, prosecutors, child protection agency staff, medical professionals (typically CAPs), victim advocates, mental health providers, and CAC staff who work in partnership on child abuse investigations. The term “multidisciplinary” refers to various functions in child abuse investigation, evaluation, and prosecution, and not to any variety of medical subspecialties that are involved in these investigative and prosecutorial functions. While some hospital-based MDTs do include doctors from specialties other than child abuse, the CAP is envisioned as the person who synthesizes medical opinion across a variety of medical specialties.
 

CACs perform a wide variety of functions in child abuse investigations, but primarily provide settings in which children are often interviewed in sexual abuse cases, using one-way mirrors. CACs may also be a site for medical exams of children who are alleged victims of physical abuse. It is less common for these centers to play a role in neglect allegation investigations. Child abuse pediatricians may work out of a CAC, but in many states and localities, they work at hospitals or for a non-profit that is not a CAC.

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Map of CAC locations in the United States

Image shared from United States Children's Alliance

States typically combine their federal sources of funding with state funds and provide grants and contracts to specific institutions and centers in their state to carry out the investigative roles assigned to CAPs.
 

The funding of these functions is currently not coupled with any requirements of parental notification as to the CAP specialization and role, consent to access records of a child, other respect for parent rights, or any constraint on the role of the CAP as a prosecution team member or prosecution witness. At the same time, no federal funding is available to parents for obtaining independent medical expert witnesses to objectively evaluate the scientific validity of a CAP’s abuse conclusion. 
 

The level of funding for CAPs is not reported in any national data that is available to the FJRC. In a Texas Public Policy Report in 2019, funding at the level of $5.5 million was reported as appropriated by the state. In Illinois in 2022, at least $1.6 million was appropriated to CAPs and the centers in which they work. The contracts held by CAPs give them explicit authority to conduct medical evaluations of children in physical abuse cases (without specification of parental consent or other legal protections for the child and family).

 

[Note: the FJRC will include additional information in this toolkit regarding the funding of CAP positions as it becomes available.]
 

It is clear that federal and state taxpayers are subsidizing the CAP system, and that there are no meaningful legal restrictions on the use of such funding to support a CAP like Sally Smith.  

The Florida child abuse system conferred authority to Dr. Sally Smith to participate in Maya’s hospital care while simultaneously influencing the State’s actions to separate Maya from her family.

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Image shared from FreshersLive

Dr. Sally Smith, child abuse pediatrician

Dr. Sally Smith's role in Maya Kowalski's case was established through policies and practices of Florida's Department of Children and Families and other state departments. Smith's long-time boss, Dr. Robert Alexander, testified that he was Sally Smith's boss from 2004 to 2015 in his position as the statewide Medical Director for the child protection team (CPT) program in the state of Florida. This program, which Dr. Alexander termed "unique" to Florida, is an entity created by state law, first established in 1978.

 

Both Alexander’s and Smith’s positions were, by law, designed to assist the Florida Department of Children and Families in investigations of child abuse. CPT team members write reports about whether there is child abuse and report their recommendations to Florida’s DCF. They also perform outreach in the community. Alexander testified that there were approximately 100 medical staff in the CPT program with approximately 100 additional positions (social workers, caseworkers, and other health care team members).

At the time of Dr. Alexander’s testimony, the CPT system was organized into 22 geographic zones throughout Florida, each having its own CPT. These zones were not coextensive with counties or Department of Child and Families regional offices, but had their own geographic boundaries. State funding for CPT child abuse pediatricians came through the Florida Department of Public Health, which in turn created the public-private contracts. The types of specific contractual agents vary—they could be private companies, universities (e.g., the University of Florida administered the program in several zones), or other social service non-profit agencies. Smith reported to Dr. Alexander as the overall program director in her own position as a CPT Medical Director for Pinellas County. Her direct employer was a private company, Suncoast Center, which was the contractual agent for funds paid for her services through the Florida Department of Public Health. The Suncoast Center is also a CAC accredited by the National Children’s Alliance. It is the understanding of the FJRC that JHACH apparently served as the third-party beneficiary of the contract and/or grant funding that came from the Florida Department of Public Health and entities like Suncoast. 

Alexander also described the nature of Smith’s work related to JHACH as "simply performing the function of a 'CPT Medical Director.'" Those duties include advising hospital staff on the making of a child abuse hotline call, working on reports for DCF when a hotline call was accepted, and being available to help with questions. Reporting responsibilities included conducting interviews and exams.

Dr. Alexander forcefully denied that Dr. Smith bore any role as treating physician for Maya Kowalski or that she served as a member of Maya’s treatment team.

 

At the same time, however, he did not deny that she: (1) advised JHACH staff on whether the hotline should be called for the concerns relating to Maya and her mother; and (2) provided ongoing advice to treatment team members. He also asserted that when Smith told another doctor to “get [Maya] off as many meds as possible,” this was “advice” and not “treatment.” He clarified that Smith would only be providing “treatment” if she were the one directly removing Maya from medication. Similarly, he asserted that Smith’s direction to remove Maya’s surgically-implanted port was not a treatment directive, but also just “advice.” He stated this direction would only constitute treatment if Smith herself wrote the order for the port’s removal. He testified that Smith’s direction to initiate 48-hour surveillance of Maya without her knowledge was performed as a “CPT physician” who was neither treating the child nor serving as an investigator or prosecutor. He further stated that the child abuse team was “independent of the hospital” and the hospital itself does not have “child abuse teams.” He acknowledged that whether Smith had crossed the line between advice and treatment would be determined by “what the parties [involved in the treatment] would say.” He clearly stated that Smith’s job as a CPT physician was not to provide treatment. 

He further clarified that under Florida law, CPT physicians do not require hospital privileges to see the child, access their records, or perform their role; however, he failed to mention that Florida DCF policy explicitly states a preference for the opinions of CPT Medical Directors, such as Smith, over the viewpoints of treating doctors, as outlined in Chapter 9 of CFOP 170-5.

How do child abuse pediatricians have the power and authority under state policies to influence a hospital's treatment of a child?

The Role of Child Abuse Pediatricians in the State-Administered Child Protection System

Child abuse pediatricians often assume multiple, conflicting roles.
 

When a child is admitted to a hospital with medical findings that raise a possible concern for abuse, a process ordinarily ensues to determine whether a child abuse hotline call must be made under state law. Federal law requires that states maintain child abuse hotlines and that medical care providers are named as mandated child abuse reporters in every state. Within the hospital, an internal referral for consultation may be made to the hospital’s own child protection team, usually headed by a child abuse pediatrician, and including social workers, nurses, and residents. In such cases, child abuse pediatricians often play a direct role in deciding whether (and how) child abuse hotline calls should be made. When a hotline call is considered warranted, the child abuse pediatrician (CAP) or a staff person under the CAP’s direction will often make that call to the state child protection system’s (CPS) hotline, with the child’s parent or caregiver most commonly named as the alleged perpetrator of abuse.
 

Even child abuse pediatricians who are not members of the hospital’s direct staff may—through agreements with area hospitals—have hospital privileges or otherwise have direct access to the doctors who are treating pediatric patients there, and often interact directly with the child and family as if they are employees of the hospital assigned to the child’s care. The technical details as to who employs CAPs, who supervises and evaluates them, and to whom they report are often obscure, even to CAPs’ colleagues at the hospitals; however, for purposes of their interactions with children and families, they typically present themselves as a member of the hospital’s staff. 

 

If a child abuse hotline call is made, the child abuse pediatrician routinely becomes directly involved in investigating the merit of the hotline call and reporting to the state on their conclusions (even to the point of weighing in on the validity of calls they made themselves or directed a team member to make). Furthermore, once a child abuse investigation is opened, police, prosecutors, and child protection authorities will typically collaborate closely with child abuse pediatricians. The relationship—which is referred to as "multi-disciplinary"—is usually one that the governmental authorities rely upon extensively through policy, practice, training, and sometimes even explicit state statutes.

 

In this role, child abuse pediatricians' relationship with the governmental agencies that investigate, prosecute, and punish child abusers puts them into a position that is often directly and immediately adversarial toward the parent who brought the child to the hospital for care.

 

The CAP’s role as an accuser whose opinion is used to separate parents from their children shifts the hospital's primary focus away from the child’s medical care. Indeed, when the child has a rare and undiagnosed condition, the CAP’s involvement may deprive parents of access to untainted expert medical opinions, delay children’s diagnoses, and deprive children of the critical treatment they desperately need.
 

The forensic role child abuse pediatricians play in medical allegations that arise during a child’s hospital stay has three main components.
 

First, CAPs are expected to present an objective account of medical facts and opinions that inform police, prosecutors, and child protective investigations (all of whom are lay-people when it comes to medicine) as to whether they believe abuse or neglect occurred, all based on their gathering of medical evidence. Typically, they write reports that set out these conclusions, just as any expert witness would do in a case that proceeds to litigation.
 

The expectation that CAPs should play the role of impartial and objective reporter of medical information is complicated when CAPs are integrated into teams and maintain close, ongoing connection with (and influence over) the same staff whose information and opinions they are tasked with neutrally assessing. Most professional fields have ethical norms that forbid forensic experts in that field from giving opinions about the validity of the conclusions rendered by their own team of service providers. Furthermore, evaluating the merits of a hotline call the CAP personally made to state authorities is especially troubling, given the obvious likelihood of confirmation bias in such cases.
 

Secondly, CAPs’ forensic role has an investigation component. CAPs may urge further medical investigation of their abuse claims through medical tests and actions by the hospital against the parents to surveil their interaction with their child. For example, CAPs directly order investigative medical tests, such as skeletal surveys (including on other children in the home to check if they have any broken bones, even if no injuries to those children are suspected), MRIs, and ophthalmology scans. As in Maya’s case, the CAP may even direct the monitoring of the parent-child interaction (including through hidden video surveillance) so as to mount a case against the parent.
 

This second aspect of the forensic role can lead CAPs to seek medical procedures that serve no clinical or remedial purpose, aside from being a tool of the abuse investigation. [Note: See Section 8 regarding AMA Code of Medical Ethics 1.2.6(a).] The investigative role may also lead CAPs to share information gathered from their hospital interviews of family and other caregivers with governmental authorities for use in legal proceedings to limit parent-child interactions without the family members realizing that what they considered to be private medical information is being used in a state legal investigation in which they are considered suspected abuse perpetrators.
 

Thirdly, as practiced in many jurisdictions, CAPs act as strategic advisors to the state’s decision-making authorities when they provide opinions as to the strength of the abuse case against the parent, urge actions to limit parent access to the child, help prepare the medical information that state actors need for legal filings, and then turn around and serve as a critical witness for the prosecution.
 

Having direct access to the child and the other members of the child’s treatment team (by either being a member of the team or being perceived as a member of the team by the other doctors and the patients themselves) enables the potential abuse of power, with consequences for both the child’s medical care and the parents' rights. Through membership (or perceived membership) in the treatment team and hospital staff, CAPs typically gain full access to a child’s and family’s medical records, including records of care and conditions well beyond the immediate subject of the child abuse hotline call. Using information obtained in a treating relationship for these forensic purposes—without disclosure and explicit voluntary consent—raises serious questions about family members' rights and the potential abuse of the patient-doctor relationship.
 

In theory, there would be no legal or ethical problem with a state’s decision to retain independent forensic medical consultants to provide information and opinions to state decision-makers in CPS and law enforcement about whether child abuse is consistent with a child’s presenting medical condition. This would, however, require the assumption that the forensic consultant availed themselves of information through proper, available, and reasonable medical sources, and that the scientific basis of medical knowledge was sufficiently established to allow sound medically-based conclusions to be drawn. Such a system might improve the level of knowledge and ability of state investigators to digest technical medical information. In fact, this role was part of the vision for the CAP profession when it was founded.
 

Ethical and legal conundrums occur when CAPs wear too many hats, simultaneously participating in the care and treatment of a child and maintaining forensic roles affiliated with police, child protection authorities, and prosecutorial authorities.
 

What happened Maya and her family—and what continues to happens to countless other families—is due to the fact that CAPs are so embedded as members of both the child’s treatment team and the state’s investigative consortium (i.e. what advocates have recently been calling the “family policing system”), allowing CAPs to call the shots in both treatment and forensic decisions by the law enforcement and CPS officials. Hospital policies that give CAPs authority to wear these simultaneous hats create a precarious legal position for hospital themselves, as occurred in the Kowalski case.
 

Interestingly, CAPs themselves don’t seem to have a clear consensus of what they understand their primary role to be. As the Kowalski court itself found in Maya’s case, there is no “neat dividing line” between the role CAPs play in the hospital and the role they play with the state child protection system. In the Kowalski case, Dr. Smith’s supervisor, Dr. Robert Alexander, strained to present Smith’s role as entirely forensic, disavowing any effort to consider her a treating doctor; but in extended discussions between the FJRC and medical leaders in Illinois as to proposed policy changes to clarify the role of CAPs in Illinois and to require parental notification concerning that role, the CAPs insisted that their most essential role was the treatment of children. In fact, they balked at the proposal to define their role as “forensic.” Even so, it remains unclear to the FJRC as to what CAPs consider their so-called “treatment” to be.
 

In the Kowalski case too, it was unclear as to what constitutes treatment in the world of child abuse pediatrics. The Kowalski court noted confusion in what is considered medical treatment that ran through JHACH's defense of its conduct, first citing the contention that Maya’s isolation and surveillance within JHACH “was not actually ‘treatment’ of Maya Kowalski. It was primarily a non-invasive diagnostic test,” and then labelling this “a running problem for JHACH during the trial: either it was performing a medical procedure, or it was not, and JHACH was never clear and definitive with that quandary to the jury.” (Jan. 16, 2024 Order on Post-Trial Motions, pg. 9) Similar confusions appear to be endemic to child abuse pediatric practices and call out for the reexamination of fundamental questions as to the role of CAPs and abuse investigatory procedures within a hospital setting.

Can a role for CAPs as advisors and strategic consultants to police and prosecutors be squared with patient- and family-centered care of children being treated by that same doctor and their team? Does a child abuse allegation, when made in relation to a child in a hospital's care, alter doctors’ ethical duties to the child and their parents? Isn’t the necessary trust between patients and their doctors shattered by conjoining doctors' roles as both treaters and prosecutorial team members who often are seeking to separate the child from their parents? These pressing questions highlight a significant need for well-defined boundaries that would protect children from the outsized role that doctors like Sally Smith have come to play in separating innocent families. 

Regardless of how child abuse pediatricians ultimately define their treatment vs. forensic roles, they must also exercise caution before they become zealous advocates for abuse conclusions in specific cases. A CAP's medical opinion may be especially problematic if they also participated in the making of a hotline call and reached an opinion as to the guilt of an accused parent early in the investigation, before all the information about the child’s medical condition was made fully available.

Beyond this duplicity of roles, caution is also required where child abuse pediatricians assert diagnoses that are riddled with controversy among experts in their respective field.

 

The credibility of the scientific basis of certain diagnoses—such as Munchausen’s Syndrome by Proxy and Shaken Baby Syndrome (i.e., abusive head trauma)—is in sharp dispute. Indeed, “child abuse” itself is a contested diagnostic category that also operates as a legal conclusion, unlike, for example, a diagnosis of heart disease or cancer. By nature, this makes any overstatement of confidence in child abuse conclusions particularly troubling. 

Finally, cherry picking from various medical findings and opinions to endorse those that agree with a preordained conclusion is not good practice in any profession. Yet, in a large number of wrongful allegation cases, CAPs who stand accused of violating children’s and family’s rights frequently reached a pre-ordained conclusion after minimizing or completely disregarding significant medical exculpatory evidence made available. 

The lack of disclosure to families regarding child abuse pediatricians' forensic role is highly concerning.

Out of the hundreds of cases in which the FJRC has been contacted, approximately none of them include an occurrence of a CAP identifying him or herself to the child’s family as a “child abuse pediatrician.” CAPs across the U.S. do not tell parents that they hold contracts with state agencies that require them to share information freely with government investigative authorities; instead, CAPs typically present themselves to the family as a member of the “trauma team”, “treatment team”, or “emergency room staff”. Since parents interact with so many doctors when their child is newly admitted to a hospital, parents understandably do not question the role of yet another doctor who is asking them questions about their child.

 

Note: sometimes the person initiating interaction the family is in fact a nurse, social worker, or resident who instead reports directly to the CAP, and who similarly presents themself to the family as part of the team treating the child without disclosing their true role.

In the Kowalski case, the jury determined that Dr. Smith had “apparent authority” in her interactions with Maya and her family in presenting herself as a treating doctor for Maya, inferring that JHACH was responsible for her actions. The jury expressed concern about the lack of transparency about Smith’s simultaneous role as a key advisor to the state in its actions against Maya’s mother. Indeed, one of the jury’s questions for Dr. Smith’s supervisor was whether child abuse pediatricians “carried badges” that would identify their actual roles to patients and their families.

By design, child abuse pediatricians provide a critical link between suspected abuse, mandatory abuse reporting to legal authorities, and the decision-making processes of police, prosecutors, and child protection agencies. Unfortunately, that link is often obscured from parents’—and even fellow professionals’—view.  

Parents are never informed of their right to seek counsel prior to meeting with a CAP, nor that their role gives them direct access to police and child protective services officials engaged in high-stakes investigations and that they report directly to state law enforcement and child protection authorities on the contents of their interview.

There is an alarming absence of adequate checks for the reliability of CAPs' abuse determinations.

In many hospitals where CAPs practice, there is a culture of deference to the CAPs with no (or very limited) oversight structure—certainly not a system that an aggrieved wrongly accused family can readily access. At the same time, the culture of child abuse pediatric practice facilitates interaction and feedback between CAPs, prosecutorial authorities, and CPS investigators. In this system, the interests of families and the voices of their advocates are rarely heard. The FJRC has thousands of reports from wrongly accused families that they strongly feel their voices have not been heard.

Unfettered power in the hands of a CAP can create a climate of fear within hospitals themselves whenever a child abuse suspicion has been leveled against a family. Child abuse pediatric cases may pit different medical specialists against each other or marginalize those who raise any question against CAP-endorsed abuse claims. Specialists and treatment providers who question the “diagnosis” of abuse often find their medical opinions minimized, dismissed, or even misrepresented in the reports child abuse pediatricians provide to state authorities. Health care workers (and even doctors themselves) are often caught in the crosshairs of a CAP who refuses to listen to a medical opinion that contradicts their own conclusions. 

Quality control measures that exist in other areas of medicine and hospital practice appear to be underdeveloped in relation to CAP practice. Instituting (1) more robust peer review systems; (2) CAP evaluations by independent reviewers (including non-CAPs who practice in pediatric areas of medicine); (3) feedback loops (so that cases in which a CAP’s opinion was not credited by a court or administrative agency are critically examined by the hospitals where the CAP works); and (4) attention to “just culture” considerations in the hospital setting would begin to address some of the concerns that the Kowalski case and others present.

Unfortunately, rather than limiting the harmful aspects of CAP practices, some of the outsized influence of CAPs is fostered by CPS and police policies and practices. Line police and CPS staff are instructed to rely on CAPs. In Illinois, for example, caseworkers have been trained that CAP opinion is the “gold standard” and should be weighed more heavily than the opinions of doctors with expertise relevant to the case at hand (e.g., orthopedists in a fracture case or neurosurgeons in a subdural hematoma case). In Florida, DCF policy explicitly states a preference for the opinions of CPT Medical Directors, such as Smith, over the viewpoints of treating doctors, as outlined by Chapter 9 of CFOP 170-5.


The systemic result is caseworkers and prosecutors routinely deferring to child abuse pediatricians over doctors with arguably greater knowledge of the child’s specific medical condition. Indeed, on many occasions, these governmental authorities are not even informed that contrary medical opinions exists

Parents themselves do not have ready access to either the CAP opinions or to second opinions that might contradict or raise questions about the CAP’s conclusions. Oftentimes, parents are unaware of CAP reports about their child until after criminal or juvenile court cases are filed against them or a substantiated finding is placed into a child abuse register. By that point, they face a significant disadvantage in accessing resources that will help establish a level playing field and a potentially contrary narrative to the one the CAP presents to the authorities. 

All these policies and practices set the stage for abuse of power in cases like Maya Kowalski’s and others.

What does a typical parent experience when they find themselves facing a medically-based wrongful allegation of abuse?

Interacting With a Child Abuse Pediatrician: A Parent's Perspective

The Family Justice Resource Center (FJRC) has encountered hundreds of stories from parents navigating the child welfare system due to a wrongful allegation of abuse. The story below is a condensed portrayal of a typical parent’s encounter with a child abuse pediatrician—a scenario that, unfortunately, is not at all unusual. This amalgamated account is crafted from the true stories of several FJRC client families and the in-depth experiences of our staff, volunteers, and board members. Specific sources are listed in the endnotes.

Parent Experience.png

Sarah Clark and her 18-month-old son

This is the story of Sarah Clark's encounter with Dr. Johnson, a child abuse pediatrician operating out of the local children’s hospital.

 

Sarah Clark is reading to her 18-month-old son, Jaden, before bed when she notices that he seems to be favoring his left arm when reaching up to help turn the pages. Jaden is a very active child, and clearly a right-handed toddler. Sarah tells herself, “it's probably nothing,” but makes a quick mental note to check his arm in the morning.
 

After waking up, Jaden seems not to want to lift his right arm to dress, but he doesn’t cry out when Sarah puts his arm through the tee-shirt sleeve. When she hands him his favorite wooden toy truck, he grabs it with his left arm—“that’s odd,” she thinks to herself. Throughout the day, she notices he won’t use the right arm at all, even though the truck is a bit heavy and he’s having trouble holding it with just his left arm. Her husband, Darren Clark, also notices and shares Sarah’s concern. Before he leaves for work, they agree that a visit to the pediatrician would be wise.
 

Sarah calls the pediatrician’s office and gets an appointment scheduled after she drops off Devan, her three-year-old, at preschool. The pediatrician notices some faint bruising on Jaden’s arm and orders an x-ray at the local children’s hospital. After the x-ray, they pick up Devan from preschool and head home to wait for the results. Back home, Jaden continues to favor his left arm as he eats his lunch, but he doesn’t cry or appear to be in apparent pain. “Maybe he just bruised it somehow,” Sarah thinks to herself. 
 

Someone from the hospital—with a name she doesn’t catch—calls her back at 2:30 pm to say that Jaden has a fractured humerus and that he needs to come to the emergency room to be seen immediately. Sarah asks a neighbor to watch Devan and then races back to the hospital with Jaden, eager to get his arm attended to as soon as possible. 

She checks in at the hospital at about 3:30 pm. After a brief wait, they are placed in an exam room where Jaden is briefly examined by a nurse. Then, a nurse practitioner comes in and starts asking questions about what could have happened to Jaden’s arm. Sarah has nothing to hide, so she answers all the questions—which she assumes are routine— without hesitation. She shares about how Jaden hasn’t been using his right arm and about how she hasn’t noticed the faint bruising, likely because he’s been wearing long sleeves due to the cold weather. When asked when the injury might have occurred, she answers honestly that she has no idea what happened to cause the injury. The nurse practitioner then asked who else, besides her, has taken care of Jaden, to which she replies, “No one,” forgetting that her mom did watch him briefly four days ago for a few hours. 
 

After the nurse practitioner leaves the room and they wait for another doctor to care for Jaden, Sarah realizes that it’s nearly dinner time. Thankfully, she came prepared with drinks, snacks, and activities to keep Jaden comfortable. She calls her husband to tell him he should pick Devan up at the neighbor’s by 6:30 p.m. and that it’s better if he doesn’t come to the emergency room (ER) so that Devan can get to bed on time. She wonders when someone is going to come and take care of Jaden’s arm. 
 

It's a long wait. Another doctor, Dr. Melissa Johnson, comes to talk to Sarah at about 7:30 pm and introduces herself as a member of the hospital's “trauma team.” Sarah doesn’t know it yet, but a child abuse hotline call was already placed by the nurse practitioner, who reports to this doctor. 
 

Dr. Johnson is, in fact, a child abuse pediatrician who works directly with child welfare investigators, police, and prosecutors. The hospital, which doesn’t directly employ her, refers to her as the director of its child protection team and the hospital’s treating doctors are required to call Dr. Johnson anytime a child presents with findings that could raise suspicions of child abuse. She and her staff— which includes nurses, social workers, and a nurse practitioner—have a contract with the state to conduct medical evaluations for suspected child abuse. She also sits on the multi-disciplinary team at the Children’s Advocacy Center, alongside law enforcement representatives, child welfare investigators, and the prosecutors’ office. 
 

Dr. Johnson does not tell Sarah that her role in Jaden’s care is to assess whether he is the victim of abuse and then report her conclusions to the Children’s Advocacy Center (and the team of CPS investigators and police who will be staffing Jaden’s case). She also doesn’t mention that she may become a prosecution witness against the family if either the State child welfare system or its criminal system decides to bring charges or substantiate a child abuse report in the state’s child abuse register. She doesn't tell Sarah that she’ll participate in the discussion of whether the case should be screened into court (or that if she thinks it should, the state almost always goes along with her opinion). Sarah, who has never dealt with any legal issues, has no reason to suspect that she is talking to someone who is anything other than a treating doctor who is there to help her son feel better and provide the medical care he needs.
 

Naturally, if Dr. Johnson did tell Sarah her true role, Sarah might be reluctant to continue talking openly and she might even consider calling an attorney to find out her rights. But since she isn’t aware of the real reasons why Dr. Johnson has come to see Jaden, she speaks freely with the doctor. Could Jaden have low Vitamin D, as she herself does? Is there a genetic disorder? Could this have something to do with Sarah’s family’s history of Ehlers Danlos syndrome? Could it have happened when he slipped and fell while playing a week ago? Why hasn’t Jaden shown any signs of pain, such as crying or irritability? All possibilities are openly discussed between Sarah and Dr. Johnson. 
 

Dr. Johnson doesn’t answer any of Sarah’s questions, but instead begins questioning Sarah. She asks if Sarah and her husband have had any recent arguments. Sarah thinks this is an odd question, but she has no reason not to answer. Sarah tells the doctor she and her husband had a recent argument about who was going to put the kids to bed after Sarah had a long day of childcare. The doctor also asks about family mental health issues and Sarah responds by telling her that she just started a new medication for mild depression. When Sarah mentions that she hasn’t noticed any bruising on Jaden’s arm or any indications of pain, Dr. Johnson seems unconvinced. 
 

By the time that Dr. Johnson leaves the room, it is 8:00 p.m. and Sarah is confused why no one is tending to Jaden’s broken arm. She and Jaden are exhausted, and they haven’t been able to eat anything but snacks brought from home.  
 

Around 9:15 p.m., a child protective services investigator comes in and tells Sarah that she is there because the child abuse hotline has been called about Jaden’s injury. She doesn’t tell Sarah that the hotline call was made by the nurse practitioner who works with Dr. Johnson. “Maybe it’s just standard protocol?” Sarah wonders. She has no clue that Dr. Johnson has already met with the investigator and reported that there is “no explanation for the fracture other than child abuse.” She also doesn’t know that Dr. Johnson’s contract with the State allows her to assess the validity of her team’s own hotline call. 
 

Still waiting for care at the hospital, Sarah answers the investigator’s questions. No one gives her any notice of rights or cautions her as to the potential use of her statements against her in any kind of legal case. She assumed that all the information she gave Dr. Johnson was confidential, but now she wonders if the doctor told the investigator about the argument with her husband or her mild depression. She doesn’t have anything to hide, but she wouldn’t want that information shared. The investigator never asks for the name of Jaden’s treating pediatrician or about any family history. She also doesn’t ask to talk to any family members or friends, including Sarah’s husband, Darren. Sarah doesn’t know it, but the investigator has already made up her mind that Jaden was abused. While it’s her job to investigate abuse allegations, when an allegation is medical in nature, her agency’s conclusions depend almost entirely on Dr. Johnson’s opinion. 
 

Dr. Johnson comes back to the room and tells Sarah that Jaden must undergo a full skeletal scan, to see if he has other fractures. Sarah is also told that her older son, Devan, will need a full skeletal scan, as well. When Dr. Johnson tells Sarah this, she begins to respond in an irritated tone. She’s exhausted. “Why couldn’t you have told me this right away? You needed to wait until we’d been here all day?! And why do we need to subject Devan to x-rays? Don’t you know that’s not good for kids!”
 

Dr. Johnson doesn’t explain the reason for this additional procedure, and she minimizes the amount of radiation that will be involved. Dr. Johnson leaves Sarah with the impression that the purpose of the skeletal scans is just to ensure the boys don’t have a genetic bone disease. In reality, Dr. Johnson has no intention of ordering any tests to check for genetic conditions or other alternate medical explanations; after all, she is not a member of Jaden’s treating team—she is only there to conduct a medical evaluation for child abuse.

 

At this point, pieces are moving about which Sarah knows nothing: (1) she is now a suspected child abuse perpetrator and skeletal scans are viewed as a mandatory part of the medical evaluation for child abuse; (2) if new fractures are found, they will be used as evidence of abuse (at the same time, if no new fractures are found, it will not help clear her of suspicion); and (3) if Sarah refuses to comply with these skeletal scans, the state will seek a court order. 

At 10:30 pm, a fourth-year orthopedics resident finally arrives in the room. The resident puts a cast on Jaden’s arm and advises Sarah on how to wash Jaden with the cast on. The resident can’t give Sarah any information as to how the fracture came about, nor advise her as to whether Jaden’s bones are more fragile than normal. The resident does say this sort of fracture is quite common in toddlers of Jaden’s age. He calls the bruising near the fracture line “minor.” He even tells her that, to his knowledge, this isn’t the kind of fracture ordinarily seen in abuse cases. That’s the first good news Sarah has gotten all day. The resident does give Sarah his name, but she forgets to write it down. She is exhausted and didn’t think to ask how she can reach him to make sure he lets the investigator knows his medical opinion about this kind of fracture. She mistakenly assumes that the investigator will be reaching out to the orthopedics resident who cared for Jaden’s arm.

After the resident leaves at about 11:30 pm, Sarah assumes Jaden is ready for discharge. Much to her surprise, the investigator comes in to notify Sarah that, since she and her husband are under investigation, they cannot be alone with their children. She’s told that Jaden will be kept in the hospital overnight, and that, in the morning, after both Jaden and Devan have skeletal scans, there will be a meeting about how the state plans to keep the boys safe until the investigation is completed. 

The next morning, Darren Clark takes Devan to the hospital, and both boys are subjected to full skeletal scans. After waiting over two hours for results, the Clarks are told that neither scan shows anything concerning. Despite this, the investigator arrives at the hospital by noon to initiate a “safety plan”. The Clarks are told the “safety plan” will require that the boys stay with a family member or friend. Darren asks, “So our kids will be in foster care?” The investigator responds, “No, safety plans are voluntary.” Darren looks at the investigator and says, “Well, if it’s voluntary, we don’t agree to this!” The investigator snaps back, “If you don’t agree to the safety plan, we’ll have no choice but to put your kids in foster care.” Confused and scared by this coercion, Sarah and Darren sign the safety plan, feeling their hands are tied. 

The Clarks only have one local relative, Darren’s Aunt Linda. Thankfully Linda is recently retired and can come right away to the hospital. Sarah, Darren, and Linda are all made to sign the safety plan, which specifies that the children will reside with Linda. They are all warned that the Clarks can only visit during daytime hours and that all of their time with the children must be supervised by Linda. After Jaden is finally discharged, the boys have to leave with Linda. The Clarks hold back tears while they tell the boys they need to stay with Aunt Linda for a “few days."

 

A few days quickly turned into weeks.

 

Every day, the Clarks go to Linda’s house to visit the boys, trying to make things feel as normal as possible. While the boys love their great aunt, they end every visit by clinging to their parents and begging to go home with them. The Clarks regularly call the investigator, who continues to tell them that the agency is “working on the investigation.” A week into the investigation, Darren asks “Did you talk to the resident who treated the fracture? Or to Jaden’s pediatrician?” The investigator doesn’t answer. She says she followed child protection investigation protocol and that her agency “relies on Dr. Johnson’s expertise”. 

Five weeks later, the Clarks are told that no charges will be filed in court and that the boys can finally return home. They are also told, however, that Sarah will be indicated by the state for medical neglect for “delaying getting Jaden seen by a doctor.” As a result, Sarah’s name will be listed on the State Central Child Abuse Register. This means that she will not be able to volunteer at her kids’ schools or go back to work in any field involving children for at least five years.

The Clarks are confused as to how the state can put Sarah on a child abuse register even though she isn’t facing any juvenile or criminal charges, and they believe there must be some mistake. They find out that they can appeal the register placement, but they have to hire a private attorney at their own expense. Once they retain an attorney, they are told that they need to get Jaden’s full medical records. When they go through the records, they see a note from Dr. Johnson, who wrote a short report that briefly states that Jaden’s fracture is “highly suspicious for child abuse.”

When the Clarks finally get a copy of the full child abuse investigation file, they are stunned to learn the true extent of Dr. Johnson’s involvement in their case. They read that the hotline call was made only an hour after Sarah brought Jaden to the emergency room, just after Jaden was examined by the nurse practitioner who they now understand works under the direction of Dr. Johnson.  

In the file, there are notes of her 9:15 pm conversation with Dr. Johnson that includes her impressions that Sarah was “overwhelmed with childcare responsibilities... deflects questions about supervision of child... expresses anger at husband/may have anger management issues... seeks to explain fracture with low Vitamin D history/questionable Ehlers Danlos connection.” There are no notes of any contact between Dr. Johnson and the resident who put the cast on Jaden. 

They also learn that after Dr. Johnson left the ER exam room, she called the investigator and said definitively that, “There is no explanation other than child abuse. This fracture is large, displaced, and only could have resulted from the parents intentionally twisting the arm.” 

The Clarks are shocked to realize that the investigator relied upon Dr. Johnson without consulting with Jaden’s treating pediatrician or the orthopedic resident who examined and placed the cast on Jaden’s arm, the same resident who stated that this kind of fracture is common in toddlers. 

Both Sarah and Darren are overwhelmed with a sense of betrayal. Sarah tells her attorney, “I can’t believe that the same child abuse pediatric team that called the child abuse hotline was allowed to investigate their own allegation! Dr. Johnson didn’t even tell me who she was. I had no idea that her only role was to investigate child abuse! The state shouldn’t allow a single doctor to put families through this without some kind of checks and balances!”

Jaden is fine now—his arm is fully healed, and after months of delays and thousands of dollars in legal fees, Sarah finally wins her register appeal. However, the Clark’s trust in the local children’s hospital and the child welfare system is shattered, and their children now suffer from separation anxiety. 

See the following published accounts that bear a direct similarity to this amalgamated story: Dupuy v. Samuels, 141 F. Supp. 2d 1090, aff’d in relevant part 397 F. 3d 493 (7th Cir. 2005) (A.H. case); Hernandez v. Foster, 657 F. 3d 463 (7th Cir. 2011) (Humerus Fracture Case), “Linda” case and Chapter 18 story reported in D. Redleaf, They Took the Kids Last Night: How the Child Protection System Puts Children at Risk (ABC-Clio 2023), D. Redleaf, How Faint Bruises on Baby Ava Nearly Destroyed her Family (Reason, 8/6/19).

The Family Justice Resource Center calls upon health care, law enforcement, and child protection leaders to consider and adopt the following policies and practices to create a more equitable system of child abuse evaluation and treatment. 

Specific Steps from the Family Justice Resource Center for Instituting Systemic Reform

The Kowalski verdict, the Take Care of Maya documentary, and the other high-profile cases documented in the toolkit serve as an unmistakable wake-up call for change. Health care, child welfare, and law enforcement systems are needlessly putting children like Maya and their families at risk. What happened to Maya's family can easily happen to any family in America, it is imperative that hospitals, healthcare providers, and governmental agencies undertake comprehensive reforms in child welfare policies and practices so that families can seek treatment from health care providers without fear. 

 

Below, we present practical steps that we believe are essential to safeguarding children and families, while also aiding healthcare providers in mitigating their risk of future verdicts due to tragedies similar to the one endured by Maya's family.

We urge hospital leadership, hospital boards, risk management offices, general counsel, healthcare providers, medical societies, advocacy organizations, policymakers, personally-impacted families, and members of the general public to advocate for these overdue changes.

I.  CHANGES TO HOSPITAL POLICIES & PRACTICES

A.  Changes to hospital policy to ensure treating doctors remain distinct from forensic processes. 

  1. Prohibit child abuse pediatricians from participating directly in the care and treatment of children when they are—or may be asked to be—a forensic investigator and advisor to prosecutors and child protection.
     

  2. Revoke or limit hospital access privileges that allow child abuse pediatricians to directly access children receiving treatment in the hospital in matters for which they are playing a forensic investigative role. 
     

  3. Ensure no child abuse pediatricians are assigned to evaluate the merits of hotline calls placed by any person under their own supervision, their team, or which they placed themselves. 

B.  Changes to hospital policy to ensure parents’ rights are protected.

  1. Require child abuse pediatricians to identify themselves accurately as a child abuse pediatrician and explain their role in reporting information and opinions to CPS and law enforcement authorities in cases wherein the child abuse pediatrician is acting in a forensic role and has contact with a parent being investigated.
     

  2. Make information regarding state contracts and other funding sources for child abuse pediatrics transparent and publicly available (see the ways these contracts are hidden from public knowledge and accountability).
     

  3. Prohibit hospitals from divulging records to child protection authorities, law enforcement authorities, or a CAP consulting those authorities (even when the CAP is part of hospital staff or has hospital privileges) without the informed consent of the parents, other than the information directly required to be provided with a hotline call related to a child’s medical condition.  
     

  4. Require specific parental consent before administering medical tests ordered by a CAP solely for the purpose of an abuse investigation, such as skeletal surveys, additional MRIs, and ophthalmology exams. In obtaining such consent, parents should be made aware the test is not medically necessary, but is requested for investigative purposes, recognizing that once a child abuse hotline call has been made, the family is subject to heightened coercive intervention that makes informed consent to such tests problematic and potentially unlawful.
     

  5. Forbid hospitals billing parents' insurance for tests administered without medical necessity—and to which the parents did not specifically consent—when undertaken in conjunction with an ongoing child abuse investigation for solely investigative purposes
     

  6. Ensure parents are allowed to direct the discharge of their children from care—even if “against medical advice”—absent a court order or emergency authority under state law. 

C.  Changes to hospital policy to ensure that child abuse and conclusions allegations are well founded.

  1. Adopt practices that provide robust medical input as to the basis for child abuse suspicion prior to the making of hotline calls by medical staff
     

  2. Assure that medical mistakes (such as misread x-rays) as well as misinterpreted symptoms and conditions do not become the basis for false child abuse hotline calls (see a false allegation caused by motion artifact).
     

  3. Ensure that differential diagnostic processes are applied to the formulation of each child abuse diagnosis and conclusion to the extent child abuse pediatricians or other practitioners in hospitals and affiliated practices are providing “diagnoses” of child abuse; ensure that presumptions of abuse-based claims of statistical likelihood (and other assumptions that lack a solid scientific basis) are not operative.
     

  4. Create collaborative processes with doctors and other medical personnel who treat children and ensure inclusion of doctors with relevant subspecialties in the formation of conclusions about causation or origination of the child’s injury or symptoms.
     

  5. Ensure, to the extent possible, that child abuse pediatricians’ opinions are rendered in consensus with the child’s treating medical specialists or other independent evaluators of the child’s condition. Where disagreements occur, affirmatively reveal those discrepancies to the parents of the patient. 
     

  6. Create peer review systems (see AMA Code of Medical Ethics 1.1.6 and  9.4.1) that include independent outside medical experts who regularly review CAP opinions, processes, and methodologies, as well as the science behind child abuse opinions. Include a process for review of all cases in which a child abuse pediatrician's opinion was rejected by a court or administrative agency. Review panels should also include individuals with patient and family advocate experience. 

II.  CHANGES TO STATE POLICIES & PRACTICES

A.  Changes to CPS policies to ensure parents’ rights are protected. 

  1. Require that child abuse pediatricians who will be providing opinions to state authorities disclose their role to a parent before conducting any interview of that parent. 
     

  2. Require that child abuse pediatrician interviews of parents be conducted only with full disclosure to parents of their right to counsel and disclosure that the interview may be reported to law enforcement and child protection authorities without further notification to the parents. 
     

  3. Require that any interview between a child abuse pediatrician and parents be recorded and made accessible to the parents. 
     

  4. Require that a child abuse pediatrician's opinion be provided to the parents in writing before making a final determination as to whether abuse has occurred.
     

  5. Mandate that, if the above protections are violated, the ensuing child abuse pediatrician opinion will not be relied upon as part of any CPS investigation or related court proceedings.

B.  Changes to CPS policies to ensure CAP determinations of abuse are neutral and reliable.

  1.  Develop a plan for feedback and corrective action to mitigate future harm to children and families that may result from erroneous child abuse opinions in cases where a court or the agency has reached a conclusion about causation that differs from the child abuse pediatrician's opinion.
     

  2. Provide parents the right to seek out independent alternative medical opinions and inform them of that right. Ensure that child abuse pediatricians themselves consider second opinions whenever practicable before rendering an opinion as to whether the child’s signs or symptoms were caused by abuse.
    Note: Independence and access to neutral opinion is important as many child abuse pediatricians serve on interlocking boards and societies, commissions, and task forces with a relatively small group of colleagues, which can create a culture of immunity to criticism and create barriers to objective consideration of contrary opinion. Innocent families’ ability to access fair and objective opinion will be impaired if systems of providing second and third opinions rely on outside CAPs who are close colleagues of the primary CAP.  
     

  3. Prohibit any child abuse pediatrician who plays a role in determining whether a hotline call should be made from also evaluating the merits of such an allegation of abuse. Similarly, ensure that any child abuse pediatrician evaluating the merits of a hotline call for a governmental agency does not have a direct professional relationship with the maker(s) of the hotline call or the treaters of the child, including serving on any board or commission with such individuals.
     

  4. Establish race neutral/race blind child abuse evaluation processes and systems to the extent possible.
     

  5. Conduct periodic audits of in-court testimony provided by child abuse pediatricians to ensure they are not over-representing their degree of medical certainty about child abuse or minimizing (or even ignoring) legitimate disagreements with their abuse opinion. Testimony should be limited to opinions as whether a child’s condition is consistent with abuse rather than subject to a standard of likelihood or medical certainty, recognizing that the conclusion as to whether abuse has occurred is one for the court to make under applicable legal standards.

C.  Court And Law Enforcement Policies

  1. Ensure resources are available to accused parents to secure access to independent second opinions. 
     

  2. Support expanded access to counsel for parents prior to the initiation of legal action against accused parents. 
     

  3. Provide for evenhanded access to a child abuse pediatrician's opinion and documentation for both prosecutors and defense attorneys. 

III.  CHANGES TO PUBLICLY AVAILABLE RESOURCES

A.  Changes to build public awareness and access to information about child abuse pediatric practices.

  1. Make improved practices and accountability measures transparent, known, and accessible to families and their advocates. 
     

  2. Adopt a specific code of ethics for child abuse pediatric practices that builds on the AMA Code of Ethics and guidance as well as generally applicable forensic ethical principles to protect against biases and promote objectivity and neutrality. 
     

  3. Train personnel who work in health care, CPS, and law enforcement, on the policies and practices that protect patients’ and family rights when a child abuse pediatric issue has been raised. 

B. Changes to public attitude toward and awareness of allocation of funding.

  1. Support funding for family advocacy organizations that aid families encountering a medically-based wrongful allegation of abuse. 
     

  2. Support funding for independent medical resources for second and third opinions for families who are facing allegations of abuse endorsed by a child abuse pediatrician. 

The Kowalski case brings up numerous medical ethics concerns that show a clear need for reforming child welfare policy to meet ethical standards.

Medical Ethics Considerations in the Kowalski Case

The integrity of our medical system hinges on adherence to fundamental principles of medical ethics. However, many current child abuse pediatric practices outlined in this toolkit violate crucial provisions within the American Medical Association (AMA) Code of Ethics. These violations have far-reaching consequences, endangering the well-being of children and placing hospitals at considerable legal risk.


In addressing these challenges, hospitals should proactively review and amend practices within their own institutions. Only then will families like Maya Kowalski's and the other families who encounter child abuse pediatricians in hospital settings begin to regain trust in the health care system that is failing them.

RELEVANT AMA CODE MEDICAL ETHICS

1.    Preamble

The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient.


Principles

I.     A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.

II.    A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.

III.   A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.

IV.   A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.

V.    A physician shall continue to study, apply, and advance scientific knowledge, maintain a commitment to medical education, make relevant information available to patients, colleagues, and the public, obtain consultation, and use the talents of other health professionals when indicated.

VI.   A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.

VII.  A physician shall recognize a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health.

VIII. A physician shall, while caring for a patient, regard responsibility to the patient as paramount.

IX.   A physician shall support access to medical care for all people.

Specific Code Provisions With Direct Application to CAP Practices:

1.1.3 Patient Rights

The health and well-being of patients depends on a collaborative effort between patient and physician in a mutually respectful alliance. Patients contribute to this alliance when they fulfill responsibilities they have, to seek care and to be candid with their physicians, for example. Physicians can best contribute to a mutually respectful alliance with patients by serving as their patients’ advocates and by respecting patients’ rights. These include the right:


(a) To courtesy, respect, dignity, and timely, responsive attention to his or her needs.


(b) To receive information from their physicians and to have opportunity to discuss the benefits, risks, and costs of appropriate treatment alternatives, including the risks, benefits, and costs of forgoing treatment. Patients should be able to expect that their physicians will provide guidance about what they consider the optimal course of action for the patient based on the physician’s objective professional judgment.


(c) To ask questions about their health status or recommended treatment when they do not fully understand what has been described and to have their questions answered.


(d) To make decisions about the care the physician recommends and to have those decisions respected. A patient who has decision-making capacity may accept or refuse any recommended medical intervention.


(f) To obtain copies or summaries of their medical records.


(g) To obtain a second opinion.


(h) To be advised of any conflicts of interest their physician may have in respect to their care.


(i) To continuity of care. Patients should be able to expect that their physician will cooperate in coordinating medically indicated care with other health care professionals, and that the physician will not discontinue treating them when further treatment is medically indicated without giving them sufficient notice and reasonable assistance in making alternative arrangements for care.

1.1.6 Quality


While responsibility for quality of care does not rest solely with physicians, their role is essential. Individually and collectively, physicians should actively engage in efforts to improve the quality of health care by:


(a)    Keeping current with best care practices and maintaining professional competence.


(b)    Holding themselves accountable to patients, families, and fellow health care professionals for communicating effectively and coordinating care appropriately.

1.1.7 Physician Exercise of Conscience


In following conscience, physicians should:


(e) Uphold standards of informed consent and inform the patient about all relevant options for treatment, including options to which the physician morally objects.

1.2.3 Consultation, Referral & Second Opinions


When physicians seek or provide consultation about a patient’s care or refer a patient for health care services, including diagnostic laboratory services, they should:


(b) Share patients’ health information in keeping with ethics guidance on confidentiality.


(c) Assure the patient that he or she may seek a second opinion or choose someone else to provide a recommended consultation or service.

1.2.6 Work-Related & Independent Medical Examinations


Physicians who are employed by businesses or insurance companies, or who provide medical examinations within their realm of specialty as independent contractors, to assess individuals’ health or disability face a conflict of duties. They have responsibilities both to the patient and to the employer or third party. Such industry-employed physicians or independent medical examiners establish limited patient-physician relationships. Their relationships with patients are confined to the isolated examination; they do not monitor patients’ health over time, treat them, or carry out many other duties fulfilled by physicians in the traditional fiduciary role. In keeping with their core obligations as medical professionals, physicians who practice as industry- employed physicians or independent medical examiners should:


(a) Disclose the nature of the relationship with the employer or third party and that the physician is acting as an agent of the employer or third party before gathering health information from the patient.


(a)    Explain that the physician’s role in this context is to assess the patient’s health or disability independently and objectively. The physician should further explain the differences between this practice and the traditional fiduciary role of a physician.


(b)    Protect patients’ personal health information in keeping with professional standards of confidentiality.


2.1.1    Informed Consent


In seeking a patient’s informed consent, physicians should:


(b) Present relevant information accurately and sensitively. The physician should include information about:


1.    the diagnosis (when known);
2.    the nature and purpose of recommended interventions;
3.    the burdens, risks, and expected benefits of all options, including forgoing treatment.

.
2.1.3 Withholding Information from Patients


Truthful and open communication between physician and patient is essential for trust in the relationship and for respect for autonomy. Withholding pertinent medical information from patients in the belief that disclosure is medically contraindicated creates a conflict between the physician’s obligations to promote patient welfare and to respect patient autonomy.

2.1.5 Reporting Clinical Test Results

Patients should be able to be confident that they will receive the results of clinical tests in a timely fashion.


(a) The patient (or surrogate decision maker if the patient lacks decision-making capacity) is informed about when he or she can reasonably expect to learn the results of clinical tests and how those results will be conveyed.

2.2.1 Pediatric Decision Making


As the persons best positioned to understand their child’s unique needs and interests, parents (or guardians) are asked to fill the dual responsibility of protecting their children and, at the same time, empowering them and promoting development of children’s capacity to become independent decision makers. In giving or withholding permission for medical treatment for their children, parents/guardians are expected to safeguard their children’s physical health and wellbeing and to nurture their children’s developing personhood and autonomy.

(h) When there is ongoing disagreement about patient’s best interest or treatment recommendations, seek consultation with an ethics committee or other institutional resource. 


8.6  Promoting Patient Safety 


In the context of health care, an error is an unintended act or omission or a flawed system or plan that harms or has the potential to harm a patient. Patients have a right to know their past and present medical status, including conditions that may have resulted from medical error. Open communication is fundamental to the trust that underlies the patient-physician relationship, and physicians have an obligation to always deal honestly with patients, in addition to their obligation to promote patient welfare and safety. Concern regarding legal liability should not affect the physician’s honesty with the patient. 


Even when new information regarding the medical error will not alter the patient’s medical treatment or therapeutic options, individual physicians who have been involved in a (possible) medical error should: 


(a)  Disclose the occurrence of the error, explain the nature of the (potential) harm, and provide the information needed to enable the patient to make informed decisions about future medical care. 


(b)  Acknowledge the error and express professional and compassionate concern toward patients who have been harmed in the context of health care. 


(c)  Explain efforts that are being taken to prevent similar occurrences in the future. 


(d)  Provide for continuity of care to patients who have been harmed during the course of care, including facilitating transfer of care when a patient has lost trust in the physician. 


Physicians who have discerned that another health care professional (may have) erred in caring for a patient should: 


(e) Encourage the individual to disclose.


(f) Report impaired or incompetent colleagues in keeping with ethics guidance. 


As professionals uniquely positioned to have a comprehensive view of the care patients receive, physicians must strive to ensure patient safety and should play a central role in identifying, reducing, and preventing medical errors. Both as individuals and collectively as a profession, physicians should: 


(g)  Support a positive culture of patient safety, including compassion for peers who have been involved in a medical error. 


(h)  Enhance patient safety by studying the circumstances surrounding medical error. A legally protected review process is essential for reducing health care errors and preventing patient harm. 


(i)  Establish and participate fully in effective, confidential, protected mechanisms for reporting medical errors. 


(j)  Participate in developing means for objective review and analysis of medical errors. 


(k)  Ensure that investigation of root causes and analysis of error leads to measures to prevent future occurrences and that these measures are conveyed to relevant stakeholders. 


8.10 Preventing, Identifying & Treating Violence & Abuse


All patients may be at risk for interpersonal violence and abuse, which may adversely affect their health or ability to adhere to medical recommendations. In light of their obligation to promote the well-being of patients, physicians have an ethical obligation to take appropriate action to avert the harms caused by violence and abuse.


(b) Consider abuse as a possible factor in the presentation of medical complaints.


(h) Protect patient privacy when reporting by disclosing only the minimum necessary information.


(j) Provide leadership in raising awareness about the need to assess and identify signs of abuse, including advocating for guidelines and policies to reduce the volume of unidentified cases and help ensure that all patients are appropriately assessed.

9.7.4 Physician Participation in Interrogation


Interrogation is defined as questioning related to law enforcement or to military and national security intelligence gathering, designed to prevent harm or danger to individuals, the public, or national security. Interrogations of criminal suspects, prisoners of war, or any other individuals who are being held involuntarily (“detainees”) are distinct from questioning used by physicians to assess an individual’s physical or mental condition. To be appropriate, interrogations must avoid the use of coercion--—that is, threatening or causing harm through physical injury or mental suffering.


Physicians who engage in any activity that relies on their medical knowledge and skills must continue to uphold principles of medical ethics. Questions about the propriety of physician participation in interrogations and in the development of interrogation strategies may be addressed by balancing obligations to individuals with obligations to protect third parties and the public. The further removed the physician is from direct involvement with a detainee, the more justifiable is a role serving the public interest.


Applying this general approach, physician involvement with interrogations during law enforcement or intelligence gathering should be guided by the following:


(b) Physicians must neither conduct nor directly participate in an interrogation because a role as physician-interrogator undermines the physician’s role as healer and thereby erodes trust in the individual physician-interrogator and in the medical profession.


(c) Physicians must not monitor interrogations with the intention of intervening in the process, because this constitutes direct participation in interrogation.

 

See here for updated and complete code sections and see here for principles.

II.  SUMMARY OF THE 2014 FAMILY DEFENSE CENTER REPORT: MEDICAL ETHICS CONCERNS IN PHYSICAL CHILD ABUSE CASES

Calls for addressing the medical ethics violations associated with child abuse pediatrics originated nearly a decade ago with the release of "Medical Ethics Concerns in Physical Child Abuse Investigations: A Critical Perspective" by the Family Defense Center (now Ascend Justice). Authored by George J. Barry and Diane L. Redleaf, the report sheds light on how child abuse pediatric practices routinely breach core ethical principles established by the American Medical Association Code of Ethics and the Committee on Child Abuse and Neglect of the American Academy of Pediatrics. The executive summary asserts that, "the current system of child abuse investigation and medical assessment is failing children and families. This failure, we contend, is partly due to practices that are ethically questionable at best or plainly unethical at worst... [W]e believe the medical profession has turned a blind eye to the treatment of children and families victimized by misplaced child abuse allegations."

The key findings and insights from this report are outlined below:

 

A.  Physicians Have an Ethical Obligation Not to Become Law Enforcement Officers or to Engage in Interrogations or Detentions of Persons Against Their Will

See AMA Code of Medical Ethics Opinion 2.068 – Physician Participation in Interrogation)


Opinion 2.068 permits physicians to fulfill their core professional role— medical diagnosis and treatment of the person who may be sick as a result of the interrogation--- but with special safeguards of that person’s rights that are necessary in the context of the ongoing interrogation. Physicians may perform physical and mental assessments of detainees to determine the need for and to provide medical care. When so doing, physicians must disclose to the detainee the extent to which others have access to information included in medical records. Treatment must never be conditional on a patient’s participation in an interrogation. (Note that this Opinion defines the term “detainee” as a “criminal suspect, prisoner of war, or any other individual who is being held involuntarily.”)

B.  The Patient-Physician Relationship Requires Deference to the Parent Except in Cases Where the Parent Has Legally Forfeited That Right

AMA Code of Medical Ethics Opinion 10.016 -- Pediatric Decision-Making consistently treats the child, not the parent or legal guardian, as the patient.14 That does not mean, however, that the parent or guardian is a stranger or mere bystander to the patient-physician relationship that exists between the injured child described in any of the illustrative cases and his treating doctor(s). It is clear from Opinion 10.016 and the other ethics opinions about the relationship between physician and patient that the parents of children as young as those in the illustrative cases are to be treated as speaking for the child insofar as the child’s relationship with the physician is concerned. Under AMA Code of Medical Ethics Opinion 10.015 – The Patient-Physician Relationship, an injured child would not be in a patient-physician relationship with his treating doctors at all, but for the initial consent of the parents to that relationship.

Under Opinion 10.016, once the patient-physician relationship is established, while the parent is not entitled to absolute control over the treatment of the child’s illness or injury, deference to the parent’s views about treatment based on the child’s best interests is generally required, with the exception being cases in which there is immediate danger to the child that the parent is unable or unwilling to prevent. Even if there is such a danger, however a prompt judicial order after the procedure is undertaken is legally required. Deference to the parents as the persons responsible for directing the course of treatment for a child harmonizes the doctor’s ethical standard in determining a pediatric patient’s treatment with the applicable legal standards which also command deference to parental decision-making about treatment.

C.  Parents Have the Right to Information in Order to Give Informed Consent to Treatment. 

The basic medical ethics policy of informed consent fully applies to pediatric patients who are too young to make medical decisions for themselves. AMA Code of Medical Ethics Opinion 10.016—Pediatric Decision-Making--says in relevant part: “Medical decision making for pediatric patients should be based on the child’s best interest. . .. Physicians treating pediatric patients generally must obtain informed consent from a parent or legal guardian. . ..”

D.  The Right to Confidentiality of Information Is not Abrogated by Hotline Calls

AMA Code of Medical Ethics Opinion 10.01--- Fundamental Elements of the Patient-Physician Relationship.. The patient has the right to confidentiality. The physician should not reveal confidential communications or information without the consent of the patient, unless provided for by law or by the need to protect the welfare of the individual or the public interest. AMA Code of Medical Ethics Opinion 5.05 -- Confidentiality states the general rule that a patient’s information disclosed to the doctor is confidential. AMA Code of Medical Ethics Opinion 5.059 – Privacy in the Context of Health Care establishes that the scope of the information that a physician is ethically precluded from divulging is not limited to a narrowly defined category of technical medical information, but also generally includes “information which is concealed from others outside of the patient-physician relationship.” Opinion 5.05 recognizes an exception to the general rule of confidentiality for situations in which disclosure to civil authorities is required by law. However, it states unequivocally that in such situations mandated reporters should provide “the minimum amount of information required.”

AMA Code of Medical Ethics Opinion 7.025-Records of Physicians: Access by Non-Treating Medical Staff explicitly requires that patients consent to non-treating doctors being given access to their medical records.

E.  The Child Abuse Pediatrician Has a Duty to Protect the Parent-Child Relationship. 

Related to the deference to parental direction in the course of care, doctors have a duty to protect the parent-child relationship. In 2003, the American Academy of Pediatrics issued a policy statement on this subject: Family-Centered Care and the Pediatrician’s Role; Committee on Hospital Care; Pediatrics Vol. 112 (3), pp. 691-695, (Sept. 1, 2003). That policy statement was revised in 2012 by a new policy statement: Patient and Family-Centered Care and the Pediatrician’s Role, Committee on Hospital Care and Institute for Patient and Family-Centered Care, Pediatrics Vol. 129, No. 2, pp. 394-404 (Feb. 1, 2012).

This policy provides that “patient- and family-centered care is an innovative approach to the planning, delivery, and evaluation of health care that is grounded in a mutually beneficial partnership among patients, families, and providers that recognizes the importance of the family in the patient’s life. . .. Health care professionals who practice patient- and family-centered care recognize the vital role that families play in ensuring the health and well-being of children and family members of all ages. These practitioners acknowledge that emotional, social, and developmental support is integral components of health care. They respect each child and family’s innate strengths and cultural values and view the health care experience as an opportunity to build on these strengths and support families in their caregiving and decision-making roles. Patient- and family-centered approaches lead to better health outcomes and wiser allocation of resources.

F.  Child Abuse Pediatric Opinion Must Be Based on Medical Science

AMA Code of Medical Ethics Opinion 9.07-Medical Testimony is unequivocal in articulating the duty of doctors to be honest, objective, independent, and guided by “current scientific thought” in providing their opinions on medical matters to the legal system.

G.  Child Abuse Pediatricians Have a Duty to Consult and Collaborate with Other Medical Professionals with Expertise in Relevant Areas of Medicine.

Related to the duty to give opinion based on medical science, doctors are under a specific ethical duty to consult with doctors with knowledge of relevant areas of medicine. AMA Code of Medical Ethics Opinion 8.04--Consultation was issued prior to 1977 and updated in June 1992 and June 1996. Under the opinion, there is a duty of consultation. 

H.  Child Abuse Pediatricians Should Not Misrepresent Their Credentials and Knowledge

Opinion 9.07 recites in part: “In various legal and administrative proceedings, medical evidence is critical. As citizens and as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice. When physicians choose to provide expert testimony, they should have recent substantive experience or knowledge in the area in which they testify…. All physicians must accurately represent their qualifications…”

I.  Child Abuse Pediatricians Who Render Forensic Opinions as Evaluators Must Not Be Advocates Too.

Unlike lawyers, doctors who serve as opinion experts are expected to maintain objectivity and neutral and not advocate for specific actions against parents of children in their case. Opinion 9.07 clearly expresses the obligation of a physician who chooses to provide expert testimony to be an objective evaluator, not an advocate. When physicians choose to provide expert testimony, they should be . . . committed to evaluating cases objectively and to providing an independent opinion. In the memorandum of the Council on Ethics and Judicial Affairs in support of Opinion 9.07, under the caption, “Honesty and Independent in the Provision of Medical Testimony,”doctors are admonished against taking on the position of the party that brought them to the legal contest: “Although the testifying physicians’ services may have been sought primarily by one party, they testify to educate the court as a whole. 

J.  The Duty to Mitigate Harm

AMA Code of Medical Ethics Opinion 8.121—Ethical Responsibility to Study and Prevent Error and Harm requires that the mistake be acknowledged and that measures be taken to mitigate the damage done to the family. AMA Code of Medical Ethics Opinion 8.121—Ethical Responsibility to Study and Prevent Error and Harm discusses physicians’ ethical duties to take remedial actions with respect to health care errors and situations in which those errors have caused harm to patients and others. One of the remedial actions that is prescribed is “to provide for continuity of care to patients who may have been harmed during the course of their health care.”

K.  The Child Abuse Pediatrician Is Required to Make Disclosures of Third-Party Relationships. 

AMA Code of Medical Ethics Opinion 10.03--Patient-Physician Relationship in the Context of Work-Related and Independent Medical Examinations. This opinion requires physicians who are “Industry Employed Physicians (IEPs)” or “Independent Medical Examiners (IME’s)” (physicians who are employed or contracted by a third-party business, employer, or insurance company to conduct medical examinations on specific individuals who have been identified for such examination by that third party) must disclose that relationship.

L.  Independent Ethical Review of Controversial Decisions Affecting Patients’ Best Interests

AMA Code of Ethics Sec 2.2.1 (h) envisions an ethics committee or other institutional resource … “when there is ongoing disagreement about a patient’s best interest or treatment recommendations.

A vast literature exists concerning the health care system, child welfare system, and law enforcement system.

Additional Reading & Resources

In addition to the citations in this toolkit, a vast literature concerning the health care system, the child welfare system, and the law enforcement system exists. Books, articles, and links to other resources that are pertinent to this call to action include the following. You can suggest additional resources for us to include by contacting us here.

BOOKS & MEDIA 

 

 

ARTICLES 

 

Articles Related to the Kowalski Case

Note: media accounts regarding Dr. Sally Smith did not start with the Maya Kowalski case, see also:

Articles and Reports Related to CAP Practices & the Health Care System

Articles Describing Best Practices/Use of Child Abuse Pediatrics
 

  • Christian, C., “The Evaluation of Suspected Child Abuse,” Pediatrics, May 2015 (American Academy of Pediatrics)

  • Leventhal, J.. “Personal Practice: Thinking Clearly About Child Abuse Pediatrics”
    Written by the leading child abuse pediatrician who recommends the accurate identification of CAPs to families when meeting them in a hospital setting.

  • National Association of Children’s Hospitals and Related Institutions, “Defining the Hospital Role in Child Maltreatment,” (2nd Edition). 

  • National Children’s Alliance Annual Reports 

Articles Raising Concerns About CAP Practices

LINKS & WEBSITES

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