Under Social Services Law §413, health care providers are mandated to make a report to Child Protective Services (CPS) whenever there is “reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child, or when they have reasonable cause to suspect that a child is an abused or maltreated child.” When a report is made, there is a presumption that it was made in good faith, and the individual making the report is given immunity from any civil or criminal liability (Social Services Law §419).
At times, a health care professional may be uncertain as to whether a child being treated is the victim of abuse or maltreatment and must make a difficult decision on whether there is “reasonable cause” to make a CPS report. This was the situation in Hunter v. Lourdes Hospital, 2019 NY Slip Op. 05831, a recent case decided by a NY appellate court on July 25, 2019.
In Hunter v. Lourdes Hospital, a couple noticed a lump on their two-year-old’s head and after consulting with their child’s pediatrician and another physician, they decided to bring the child to Lourdes Hospital for an outpatient x-ray. The x-ray report revealed a “narrow skull fracture.” The parents then brought their child to the emergency room, where the defendant physician on duty affirmed the skull fracture diagnosis. During the course of his examination the parents were unable to identify how their child had sustained the serious head injury and offered two different possible explanations related to incidents that happened up to 10 days prior.
Because of the seriousness of the injury and the fact that the parents were unable to explain how it happened, the physician suspected the skull fracture “could possibly have been the result of non-accidental trauma.” He made a report to CPS, which then opened an investigation that ultimately determined the report was unfounded. The parents then brought a lawsuit against the hospital and the physician asserting a claim for defamation per se based upon the unsubstantiated CPS report.
The lower court denied the defendants’ motion for summary judgment, finding there were triable issues of fact. On appeal, the Appellate Division, Third Department disagreed and reversed the lower court’s decision. The Appellate Division found that the physician had reasonable cause to suspect the child’s skull fracture may have been the result of abuse or maltreatment, and that he was acting in good faith when he discharged his duty to report that suspicion. Because of the presumption of good faith and the lack of any evidence showing willful misconduct or gross negligence, the physician was entitled to the statutory immunity, and, therefore, the defamation claim was dismissed.
This decision gives comfort to health care professionals who are sometimes torn when deciding whether to make a report to CPS. Here, a report was found to be justified based on suspicious circumstances when the parents could not adequately explain how the child sustained a severe injury. The provider was shielded by the strong presumption that he made the report in good faith, and he had no intent other than discharging his statutory duty to protect the interests of his patient.
Although the physician was ultimately found to be immune from civil liability, he received no protection from being sued in the first instance. The physician and hospital were required to obtain legal counsel to defend against the suit, resulting in legal fees and other expenses associated with the proceeding. Such defense costs may be covered under the provider’s liability insurance policy. Therefore, it is important for providers to review their policies to understand their coverage and, more important, any exclusions from coverage.
If you have any questions regarding the content of this blog post, please contact Fran Ciardullo, special counsel, at fciardullo@barclaydamon.com or another member of the firm’s health care or health and human services providers teams.