Ethical Lapses in Pediatrics Can Lead to Unjustified Custody Loss: The “Take Care of Maya” Case Is a Good Time for Reflection on Laws and Practices
 |
Adapted and including significant excerpts from Zimmerman, A. “Our System for Reporting Child Abuse is Unethical” Hastings Center Forum, September 29, 2023.
“Take Care of Maya” documents the tragic circumstances of powerful child abuse pediatrician Sally Smith and social worker Cathi Bedy, who, with doctors and the infrastructure of the Department of Children and Families (DCF), wielded complete power over the child and her parents. Similarly, in the NBC News podcast “Do No Harm”, Mike Hixenbaugh chronicles the stories of two Texas families, the Brights and the Butlers, who lost custody (and one parent went to prison) when child abuse pediatricians reported child abuse, but were incorrect. Both the Netflix makers of Take Care of Maya and the NBC producers noted that hundreds of families came forward to say they had been victimized similarly. There are countless other examples. In my own book, Medicine, Power, and the Law, I examine several. Chapter five covers child abuse and family separation and chapter six the racial and socioeconomic disparities. And I highly recommend Dorothy Roberts’ Shattered Bonds and Torn Apart on how child protective services agencies subject families to surveillance, threat of custody loss, and actual custody loss. The Marshall Project, also explores two medical cases in Two Families, Two Fates.
Monday, September 11, Kowalski v. Johns Hopkins All Children’s Hospital, the Take Care of Maya case begins in Florida. Beata and Jack Kowalski brought their daughter Maya, who had a medical history of complex regional pain syndrome (CRPS), to the emergency room. There, despite medical records to the contrary, doctors concluded the mother had Munchausen syndrome by proxy, a name for making up fake symptoms or causing real ones to attribute a disease to another person. The parents lost Maya to state custody despite evidence of a painful illness that the parents wished to have treated. She was held in the hospital for 92 days. On day 87 of state custody in the hospital, Maya’s mother died by suicide, unable to tolerate being treated like a criminal, helpless in her efforts to direct Maya’s medical care, and upset by her inability to see Maya.
Child protective services and mandatory reporters of child abuse in most states enjoy generous immunity from criminal charges and civil claims. I argue that immunity should be limited and the system reformed. The web of child abuse pediatricians, social work case managers, and their often-private employers demonstrates a noteworthy exception to the legal standard of “innocent until proven guilty”. There are important bioethical issues in child abuse pediatrics. Family separation causes severe harm. Temporary custody loss harms children and parents and should be deemed a cruel and unusual punishment in most cases, and should carry a high burden of proof, because it is sometimes imposed based on false charges and mistakes.
The evidence necessary for custody loss must be raised to protect families. Family court is civil as opposed to criminal. States vary on standards of proof required. At the point of substantiation, states have very low standards, with 25 states requiring a preponderance of the evidence, the rest requiring even less. Kansas is an exception in that it does require clear and convincing evidence. Research shows that increasing the burden of proof decreases the likelihood that a report of abuse is unsubstantiated. Public concern over unsubstantiated claims has led to raising the standard of proof required.
There are inherent problems in the system of mandatory reporting. First, child abuse is not a medical diagnosis. It is a legal finding. Injuries can happen in many ways. Child abuse pediatricians’ training is notably scant, and doctors often ignore the many other possible explanations. In fact, in some cases they are trained to be suspicious rather than to explore all possible causes with equal inquiry. While they use the term suspected child abuse, their testimony carries significant weight. Additionally, Munchausen syndrome by proxy, the accusation in the Kowalski case, in many cases can be easily refuted by medical records. In many cases, doctors call in a case worker before a full evaluation of the medical history. Medical neglect mandatory reporting also forces parents to follow one medical path when there are multiple possible solutions to complex medical problems. In some cases, accusations of medical neglect interfere with parents seeking multiple opinions. (See the statement on the Noah McAdams case by that family’s lawyer, Brooke Elvington.)
In New York, the state where I reside, like many states, mandatory reporters face penalties for failing to report suspicion of child abuse. These penalties lead to overreporting for fear of criminal charges and civil liability. And there is immunity for those who report in “good faith”. The immunity is too broad as it allows for terrible mistakes. The law makes it difficult for wrongly accused parents as they need to meet the hurdle of gross negligence and it is very difficult to counter claims of good faith as that is a subjective concept. Any child abuse pediatrician or social worker may feel they entered the field in good faith and that all their work is in good faith. Evidence shows incentives and an entire industry including private companies, training organizations, and rewards for aggressive actions. An improved process that properly reflects the rights of parents, children, and families could protect families from overreach by social services, child abuse pediatricians, the private companies that often operate through government and hospital contracts, and the many enablers in the system. Some refer to it as the poverty industrial complex.
In New York, the laws that should change are Social Services Laws 419 and 420. All laws in the state should comply with the US Constitution and meet the rigors of the 4th, 8th, and 14th Amendments. There are articles presenting the other side that argue in favor of broad immunity – I acknowledge and disagree as broad immunity exacerbates the problem and allows the false accusations to continue. Limiting the use of civil justice undermines a fair process. Getting rid of mandatory reporting would lessen the need for immunity. I understand that some people sincerely believe that false accusations are not as problematic as cases of unreported child abuse. But that is a false choice. Child abuse and neglect are serious crimes. The justice system works well for serious crime. Regardless of mandatory reporting, any person may report a crime. Members of the public do not have or need special immunity when they do so. If they are wrong (mistaken or intentionally) there are some situations in which they may face a charge or liability and others in which they would not.
I propose various solutions: First, eliminate mandatory reporting (there are many advocates for this; the group Mandatory Reporting Is Not Neutral says, “Faced with confusion around mandatory reporting, many mandated reporters think it’s best to just report anything they think might be violence or abuse”); second, ban child abuse pediatricians yet allow qualified pediatricians to testify about injuries/sicknesses as expert witnesses in fair trial conditions where both sides can present medical viewpoints; third, if child abuse pediatricians continue to see patients, require a Miranda-rights style disclosure and a lawyer for the family; fourth, reword the immunity provisions as good faith is not enough – accusations by mandatory reporters do not deserve this much special protection. Child abuse pediatricians should have to announce who they are and their role. They should explain to parents that anything the parents say may be used against them by social services organizations and in court, despite the normal doctor-patient privacy rules. All parents should have the opportunity to refuse an assessment by a child abuse pediatrician and the option to have a lawyer present for any discussion including the refusal.
While this short post cannot cover it completely, the complex system of family surveillance penalizes the poor and people of color disproportionately, violates parental rights, and interferes with loving, dedicated parents who have the child’s best interests at heart. The system is bigger than medicine, but it certainly includes it. The process of punishing abuse has given way to identifying “risk”, permitting errors and pre-punishing or falsely accusing those deemed at risk. It is a system of guilty-until-proven-innocent that has harmed thousands of families, many of whom have been later exonerated. I implore people, and especially bioethicists, to learn about those innocent families.
The Kowalski trial is going on. The family is seeking compensatory and punitive damages. A hospital employee “says staff at Johns Hopkins All Children’s Hospital followed state law by reporting a situation that raised red flags for the medical staff. However, the Kowalski family claims that while hospital staff was accusing them of lying about CRPS and refusing to treat Maya, the facility was billing the family and their insurance more than half a million dollars for that exact cause of illness.”
