By Candace McPherson (3rd year law student, DePaul University College of Law) and Ben Margolis, M.D. (Director, Autopsy Center of Chicago).

As in other years, 2014 has seen the introduction of bills which protect our children from abuse and neglect. Here are a few:

SB3146 DCFS – Differential Response Programs
This bill mandates and supports ongoing use of Differential Response Programs – a multifaceted approach to child abuse investigation and intervention increasingly in use nationwide.

SB3223 DCFS – Child Abuse – Medical Reports
This bill mandates the timely inclusion of medical records during an investigation by the Department of Children and Family Services (DCFS).

HB5487 DCFS – Abuse Reports – Disabled Kids
This bill provides for the involvement of trained professionals when a DCFS investigation centers on a child with a language disability.

Why are these bills important? Child abuse is a major social issue. Last year, nearly 3 million cases of child abuse were reported in the United States. However, despite these numbers, child abuse often goes unreported. A study, which was reported in the international journal Child Abuse & Neglect in 2000, showed that 65% of social workers, 58% of physician assistants, and 53% of physicians were not reporting all cases of child abuse. Among the reasons for failing to report incidents included: lack of certainty that abused occurred, community resistance, belief that report would cause additional harm, the need to maintain good relationships with patients and clients, insufficient evidence, and confusion about what types of injuries required reporting. Although experienced in your own profession, you may have similar issues and concerns when it comes to child abuse reporting. It is important to do the right thing.

How are abuse and neglect defined with regards to children? Child abuse is the mistreatment of a child under the age of 18 by a parent, caretaker, someone living in their home or someone who works with or around children. The mistreatment must cause injury or put the child at risk of physical injury. Child abuse can be physical (such as burns or broken bones), sexual (such as fondling or incest), or mental and emotional. Neglect happens when a parent or responsible caretaker fails to provide adequate supervision, food, clothing, shelter, hygiene or other basics for a child.

What happens to abused children? The long-term effects of child abuse can be very damaging to the child being abused or neglected. Common problems for abused children as they age include emotional problems (e.g., low self-esteem and poor self-perception), behavior problems, and poor performance in school and at work. Remember, the effects of child abuse go far beyond the individual child. 95% of child abusers were themselves abused as children. Child abuse can become a vicious cycle across generations.

Who are mandated reporters of abuse and neglect? The list of mandated reporters is lengthy (please see the Illinois Department of Children and Family Services website). It includes funeral home directors, social workers, physicians, nurses, teachers, school personnel, child care workers, educational advocates, and so on. All are required to take action when there is a concern – either one they perceive or one they learn about.

What are the violations for willful non-report? Willful non-reporting or participation in schemes to prevent revelations of abuse are covered by law as well. Penalties range from Class A misdemeanor to Class 2 Felony depending on the degree of criminal participation and number of prior violations. The penalties are reviewed here (from least severe to most severe):
• Class A misdemeanor – usually results in a fine up to $2,500 and imprisonment in jail up to 12 months, or both.
• Class 4 felony – may include between 1 to 3 years in State Penitentiary and/or a fine up to $25,000.
• Class 3 felony – may include between 2 to 5 years in State Penitentiary; and/or a fine of up to $25,000.
• Class 2 felony – may include between 3 to 7 years in State Penitentiary and/or a fine up to $25,000.

How can a professional participate? Some professionals come into contact with families and children through defined roles which focus on children: pediatricians, teachers, school nurses, and so on. Other professionals interact with adults primarily, but children may be present during these times. For example, funeral directors may see children during the pre-need interaction. Children are often present at a funeral. And so on. Keep your eyes open. See the end of the article for tips on what to look for. If you have a concern, report directly to the Department of Children and Family Services (DCFS) or to a law enforcement agency in the county where the child lives. A majority of reports are initiated by calls from mandated reporters. You are joining many dedicated professionals by reporting if you have a concern.

Where to report? A report of abuse or neglect made to:
DCFS Child Abuse Hotline
(800) 25-ABUSE
(1-800-252-2873)
24/7

The Hotline is located at the Department’s State Central Register in Springfield and is available to take reports of abuse or neglect 24 hours a day, 7 days a week. Anyone may report suspected child abuse or neglect. The report should include the victim’s name and address, the reason that the abuse or neglect is suspected and information about the abuser.

References:
Reporting Child Abuse; Illinois Department of Children and Family Services. Available online.
Child Abuse & Neglect, The International Society for Prevention of Child Abuse and Neglect, North Carolina, 2000.

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GUIDELINES FOR IDENTIFYING CHILD ABUSE AND NEGLECT*
*Modified from: Helpguide.org, A Trusted Non-Profit Resource, Child Abuse & Neglect. Available online

What to look for:

Physical Abuse
Weight change Child is significantly underweight or obese.
Bruising Discoloration of the skin, unusual bruises, unexplained bruises or welts, difficulty walking or sitting.
Burns Multiple burns or in various stages of healing. Look for patterns (e.g., cigarette butt, grid).
Injuries Swellings to the face and extremities, fractures in unusual places, high incidents of accidents or frequent injuries. Injuries which appear to have a pattern such as marks from a hand or belt.
Behavior Shies away from touch and avoids physical contact with others, flinches at sudden movements, apprehensive when other children cry, wears clothing to conceal injury, seems frightened by parents or caregiver and makes strong efforts to avoid a specific person, overly compliant or withdrawn, or seems afraid to go home. Excessively withdrawn, fearful, or anxious about doing something wrong and shows extremes in behavior.

Emotional Abuse The behavioral signs of emotional abuse include negative statements about self, shy, passive, compliant, child lags in physical, mental, and emotional development, highly aggressive, overly demanding, and cruel to others.

Sexual Abuse Walking or difficulty sitting, torn clothing, pain or itching in genital area, venereal disease, or pregnancy. The behavioral signs include inappropriate displays of affection, sexual acting out, sudden use of sexual terms or new names for body parts, sleep problems including insomnia, nightmares, or refusal to sleep without a light, regressive behaviors including thumb-sucking, infantile behaviors, and a sudden change in personality.

Neglect Clothes are ill-fitting, dirty, or inappropriate for the weather (wearing a long-sleeve shirt to cover up injuries on a hot day). Hygiene is consistently bad (unbathed and unwashed hair), untreated illnesses and physical injuries. The child is frequently left unsupervised or alone or is allowed to play in unsafe situations.

Summary
In the fall of 2013, the AMA published new guidelines for communication between hospitals, coroners and families after an unanticipated or unexplained loss. These guidelines protect the interests of hospitals over the rights of families; and, in at least one state, the guidelines violate the law. Summary opinion: In need of revision.

The passages of concern are as follows:

“5. f. Upon request, the medical examiner should provide information to next of kin regarding options for obtaining an independent autopsy or a review of the medical examiner’s findings and conclusions….

6. e. Upon request, the hospital should provide information to next of kin regarding options for obtaining an independent autopsy or review of the hospital pathologist’s findings and conclusions.

7. When the medical examiner declines jurisdiction, and the hospital declines to conduct an autopsy, the hospital should provide information to next of kin regarding options for obtaining an autopsy elsewhere.”

Background
After a sudden or unexplained death, questions arise. When the state suspects a suspicious or criminal cause of death, the medical examiner will perform the autopsy. If there is no such concern, there may still be other parties interested in learning the information found through autopsy examination. These parties are typically the family and the medical provider (e.g., clinicians and hospital). At simplest, families may request an autopsy for purposes of closure — to learn why their loved on died. Hospitals and providers undertake an awesome responsibility in their care of patients. They may want to learn about undiagnosed medical conditions — undiagnosed despite the best medical care; or undiagnosed because the patient was previously well and not under care.

However, the time of loss is as complex as the system in which it occurs. Many times, the scent of litigation wafts in and out of what should ideally be tender interactions during a family’s difficult time.

Additionally, many families do not even know they have the right to request an autopsy. A larger fraction do not know they have the right to choose a service provider. The autopsy does not have to be performed at the hospital where the medical care was provided. Families who do know this sometimes opt to have their loved one’s autopsy performed at a location separate from where the care was provided. Rightly or wrongly, the decision is often guided by a “fox guarding the hen house” concern. Nonetheless, families are free to make a choice because they know they have one.

Concerns
These guidelines reflect the AMA’s understanding of the ever-present backdrop of litigation. They keep the autopsy under control of the hospital — where the patient death may have occurred. And, furthermore, the guidelines favor that the medical examiner participate with the same goal.

These guidelines keep families in the dark about service options thereby keeping the hospital “in control” of the case. They do not inform families that they may request an alternate service provider. They give the hospital “first dibs” on the autopsy. Only “upon request” will the hospital or coroner provide names of an “independent autopsy” service provider.

Furthermore, only when the hospital or medical examiner “declines” the case (e.g., neither wants the autopsy) are these institutions to recommend to the family that they may seek an independent provider or independent consultation.

While making no statement here in favor or against the practice of litigation, these guidelines are comparable to a hospital recommending their “in-house” lawyer review the family’s legal case before letting the family know they may seek their own counsel. While most families know they may find their own lawyer; most do not necessarily know they may find their own autopsy service provider. And these guidelines ensure that vulnerable families will continue to be kept in the dark.

Against the Law
Connecticut law (Sec. 19a-286) requires that hospitals inform families in writing that they may request an autopsy with a provider of their choosing.

“Any person authorized to consent to an autopsy….may make arrangements for an autopsy to be performed at any institution that routinely performs autopsies…. Information concerning the rights and responsibilities under this subsection shall be contained in the institution’s patient bill of rights….The institution shall provide such information in writing in a language understood by the person who assumes custody of the body of the deceased person prior to the signing of an autopsy consent form by the person who assumes such custody.”

The AMA, a national organization, therefore provides guidelines that would be illegal in this state. It does so by withholding rather than providing the family with information about service options at the time of death, unless certain criteria are met.

An alternative for the AMA
Lastly, if hospitals are interested in preventing litigation, the AMA should consider why families litigate. Medical mishap is but one factor. The quality of the relationships between families and providers is as important if not more so. And, for better of worse, a family’s perceptions (and misperceptions) drive their attitudes and behavior. Sometimes, it’s the difficulty and pain of a loss that turns into anger and blame. Law suits follow.

Nonetheless, there is the important option of actively rebuilding trust during these difficult times. And this comes from openness and communication.

The success of the current trend in “I’m sorry” laws supports this; as does the data for a hospital such as the University of Michigan, which routinely admits and addresses medical error. Litigation rates at the University of Michigan are well-below national average.

Recommendation
I recommend the AMA revise these guidelines with the Connecticut law in mind.

Let families know their options for autopsy service providers right at the time of the loss.

It is simply their right to know.

Maybe then the family will trust the hospital to do the case.