When a parent is unable to care for their child, the child may end up in foster care. Children in foster care are uniquely vulnerable; they may have suffered trauma, abuse, or neglect, and are separated from the only home they know, imperfect as it may be. Most foster parents are deeply dedicated to caring for these children and supporting them through a traumatic time. Unfortunately, as most of us are aware, not all foster parents give the children in their charge the support and protection they need. Some are neglectful, or actively abusive, to children who have already been traumatized in their original homes.
One would hope that if a foster child is being harmed, other adults might raise the alarm to help get the child to safety and get them the support they need to heal. Sadly, that’s not always the case. Even educated professionals like medical providers can fall short in their duties, resulting in even more serious harm. Can they be held liable for those failures?
Let’s take a look at how a claim might arise against a medical provider when they fail to act on suspected abuse of a child in foster care. Here’s a common scenario: a six year old boy who has been in foster care for nine months is brought to a doctor by his foster mother because of a respiratory infection and high fever. During the examination, the doctor notices that the boy has some injuries: bruises on his arms and legs in various stages of healing, and a burn on the palm of his hand. He also looks very thin, possibly malnourished.
The doctor asks the child how he got his bruises and burns, but the foster mother rushes in to answer with an explanation that sounds a little rehearsed. The child remains silent. The doctor observes that the child also looks scared and withdrawn. Neither the foster mother nor the child can answer when the child was last seen by a doctor.
The doctor feels that the foster mother’s explanations for the injuries don’t quite add up; he’s troubled by the child’s apparent withdrawal, but he chalks that up to the child feeling ill. He prescribes some antibiotics and sends the foster mother and child home with instructions to follow up if things don’t get better within a few days. He takes no further action, not wanting to cause trouble for the foster parents in case the injuries really were accidental. His hurried notes in the chart vaguely reflect his observations.
In reality, the little boy was being beaten and underfed in the foster home; the burn on his hand came from being “disciplined” by having his hand held against a hot burner. Because the doctor didn’t report his suspicions, the abuse and neglect continued and worsened for several more months until the child was finally removed from the foster home.
Doctors in Oregon and Washington with a reasonable suspicion that a child is being neglected or abused have a duty to report those suspicions to the appropriate agency (DHS in Oregon, DSHS in Washington) or to law enforcement if the child appears to be in imminent danger. This reporting is supposed to take place immediately, usually by phone, with a written report following within 48 hours. Dentists, nurses, and other healthcare professionals are also mandated reporters.
While it’s understandable that a medical provider would be hesitant to accuse a foster family (or any family) of child abuse, state law prioritizes the protection of the child. For that reason, professionals are required to make a report if they even suspect child abuse. They are not obligated to have conclusive proof.
The law also grants immunity to professionals who make a report of suspected abuse in good faith. That means that they can’t be sued in civil court or criminally charged for reporting suspected abuse or neglect. In other words, the system is supposed to make it easier for health care workers to protect the most vulnerable.
Legally speaking, “reasonable cause” means that there are facts or circumstances that would suggest the possibility of abuse or neglect to a reasonable health care provider. Reasonable cause is more than a simple hunch; there must be some facts to back up the suspicion. But it’s far less than proof beyond a reasonable doubt.
Some examples of facts that would support reasonable cause to suspect abuse might be:
Failure to report suspected child abuse may or may not constitute medical malpractice, depending on the situation. But if a doctor’s inaction worsened a child’s condition or allowed abuse to continue, there may be legal recourse.
If your child was abused in foster care, and their medical providers failed to report suspected abuse, you may have legal rights. These cases are complicated, but it’s worth speaking to an experienced injury attorney to learn whether you may have a claim against a doctor or nurse for their failure to prevent further abuse. To learn more about foster home abuse leading to medical malpractice, please contact the Fraser Law Firm to schedule a consultation.
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