IN WAKE OF THE KOWALSKI VERDICT
A CALL TO ACTION
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.