Legal Issues and Documentation

Abstract

The investigation of suspected child abuse is a multidisciplinary effort; police officers, child protective services (CPS) workers, prosecutors, and healthcare professionals all have vital roles to play in the identification and protection of the abused child. There are tensions inherent in the multidisciplinary approach. Professionals must maintain their distinct roles and perform individual responsibilities while recognizing that their actions have a great impact on the efficacy of the investigative effort. Because physicians, nurses, hospital social workers, and paramedics are often the first professionals to have contact with the abused child and his or her family, healthcare providers become crucial participants in the gathering of information for the investigation and potential prosecution of the perpetrator. The safety of a child often depends on the healthcare provider’s awareness of the information needed by law enforcement officials and prosecutors to identify and prosecute the perpetrator successfully.

This chapter provides a discussion of the legal aspects of the medical professional’s evaluation of suspected physical abuse and neglect. It addresses (a) mandatory reporting requirements for the healthcare professional, (b) medical record documentation in cases of suspected abuse and neglect, (c) guidelines for preparation and presentation of testimony, and (d) hearsay evidence.

The authors express their appreciation to Susan Perlis Marx, JD, for her contribution to this chapter in the first edition of this text.

Appendices

Appendix: Pointers for Expert Witnesses

• 1. Maintain a ready file of literature pertaining to the specialty area in which you will be offering expert testimony, including monographs, articles, and books.

• 2. If you are going to be interviewed by opposing counsel, avoid doing so in your office. A neutral place like a conference room or even the attorney’s office is a better place for your meeting.

• 3. Remember, when approaching or inside the courthouse, anyone you pass may be a judge, juror, opposing witness, or opposing attorney. Always conduct yourself accordingly.

• 4. When testifying, sit alertly in your chair and maintain good body posture. Do not slouch.

• 5. When answering an open-ended question, on direct or cross-examination, turn and face the fact-finder (i.e., jury or judge).

• 6. When anxious, calm yourself by taking a deep breath and consciously pausing for three counts before answering the question.

• 7. When answering questions, don’t guess. If you don’t know, say you don’t know.

• 8. Understand the question before you attempt to give an answer. You can’t possibly give a truthful and accurate answer unless you understand the question.

• 9. Keep a sharp lookout for questions with a double meaning and questions that assume you have testified to a fact when you have not done so.

• 10. Answer the question that is asked and then stop, especially on cross-examination. Don’t volunteer information not called for by the question you are asked.

• 11. Choice of words is very important. Develop your ability to use words that not only depict what happened but also convey the impression you intend.

  Positive “Soft” Words

  • mother

  • father

  • child

  • cut

  • molest

  • bruise

  Negative “Hard” Words

  • woman, respondent, abuser

  • subject, suspect, defendant

  • juvenile, youth

  • laceration, open wound

  • rape, sexual assault

• 12. Talk loudly enough so everyone can hear you, yet not too loudly such that your tone seems abrasive or arrogant.

• 13. Avoid distracting mannerisms such as eating mints, chewing gum, or fumbling through a file.

• 14. Give an audible answer so the court reporter can hear it. Don’t nod your head yes or no. Remember that the court reporter is recording everything you say for appellate review.

• 15. Avoid joking, wisecracks, and condescending comments or inflections. A trial is a serious matter.

• 16. An opposing attorney may cross-examine you with articles, books, other people’s opinions, or things you have said previously. You may be confronted with something that appears contradictory in an effort to show that your opinion is inconsistent with these other sources. Ask to see the book or article the opposing attorney refers to. Read it, compare it, and almost every time you will find that something has been taken out of context or misinterpreted by the attorney.

Copyright by American Prosecutors Research Institute—National District Attorneys Association (APRI—NDAA).

Summary

Dos

• Describe medical findings clearly and simply.

• Use diagrams and photographs to supplement written descriptions of injuries.

• Document thoroughly any statements given by the child or caregiver, using, if possible, the speaker’s exact words.

• Document statements throughout contact with the child and the family. Urge the entire clinical staff to do likewise.

• Question caregivers separately from each other and from the child.

• Document speaker’s demeanor and behaviors.

• Note inconsistency of explanations with the nature of injury.

• Consult with your local multidisciplinary investigative team.

• Prepare with the attorney calling you to testify.

• Listen carefully to all questions put to you by attorneys and judges and answer clearly and truthfully.

Don’ts

• Don’t include personal opinions about the patient or the patient’s family in the medical record.

• Don’t record inflammatory language or judgmental comments.

• Don’t testify without adequate preparation.

• Don’t destroy notes or other documentations.

• Don’t guess; if you cannot answer with certainty, say so.

• Don’t answer a question unless you are sure you understand it.