IN WAKE OF THE KOWALSKI VERDICT
A CALL TO ACTION
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
The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient.
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.
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.
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.