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IN WAKE OF THE KOWALSKI VERDICT

A CALL TO ACTION

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

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. 

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