Rapid Responses to:
|
|
Rapid Responses: Rapid Responses published:
-
![[Read Rapid Response]](/icons/misc/sectionDOWN.gif)
The right to make allegations without due care
- Peter Stephens (30 April 2005)
-
Bold Title;Not Exactly Right
- Jay Ilangaratne (1 May 2005)
-
Re: The right to make allegations without due care
- Heather J Lohr (1 May 2005)
-
Re: The right to make allegations without due care
- Michael D Innis (4 May 2005)
-
Doctors' liability 24 years for false abuse allegations
- Clifford G. Miller (4 May 2005)
-
Duty of care to child
- John P. Heptonstall (4 May 2005)
-
Re: The right to make allegations without due care
- Penny Mellor (4 May 2005)
-
The Ticking Clock
- Brian Morgan (5 May 2005)
|
|
|||
|
Peter Stephens, Forensic Pathologist (retired) Burnsville, NC 28714 U.S.A.
Send response to journal:
|
Dr. Craft is correct in stating that child care professionals should be able to raise suspicions of abusive injury in children without fear of lawsuits. However, such a privilege should not be abused and the law should provide some means of restraining unwarranted accusations. At the present time, most jurisdictions give no means for wrongfully accused parents to seek any form of redress. It is one thing to raise suspicion but an entirely different matter to act as an advocate for the prosecutor. Those of us who work in this area frequently see cases in which the first paediatrician to see the patient jumps to the conclusion of child abuse and thereafter every subsequent clinician acts as if the diagnosis has been established. Frequently such charts lack the barest outline of a differential diagnosis of the patient's signs and symptoms - especially when retinal haemorrhages are involved. In my practice, I commonly see such allegations made by university faculty members without their ever having reviewed the charts from referring rural hospitals. Many cases of abusive head injury in children can only be understood if every observation from the time of the paramedics arrival on the scene is integrated with a careful consideration of the differential diagnosis. There are also frequent cases out there where experienced police officers have doubts as to whether a crime occurred, but their hands (and those of the prosecutor) are too often tied by physicians with a "God complex" insisting that the only possible explanation is abusive injury, commonly without considering the opinions of the investigating officers. Surely Dr. Craft should have no objection to a Standard of Care requiring a listing of the differential diagnosis and a statement as to why each natural or accidental explanation was considered unlikely. Such a standard would, at least in the United States, save considerable investigative and court expense. As long as physicians can be sued and/or charged criminally for failure to report their suspicions but have no liability for making false allegations, they will take the path of least resistance and cost to themselves. The result will be parental bankruptcies and, more importantly, the worst form of child abuse - the deprivation of a child of innocent (and usually loving) parents. One wonders whatever happened to the legal maxim that it was better to acquit ten guilty than to convict one innocent. Competing interests: Consults for both prosecution and defence in cases involving allegations of abusive injury |
|||
|
|
|||
|
Jay Ilangaratne, Founder Medical-Journals.com
Send response to journal:
|
I think the title of this news item is a rather bold assertion,and not exactly accurate.First, the Law Lords did not make a blanket ban on suing doctors/social workers who are responsible for making wrongful accusations of child abuse.At the end of the day,this decision[1] is based on the facts of the cases which the Lords considered.One must not forget the dissenting view of Lord Bingahm who,among other things,said[1]: "I would not, for my part, strike out these claims but would allow them to go to trial. A judgment can then be made on the liability of the respective defendants on facts which have been fully explored. At present, we have only an agreed statement of what is, at this stage and for the purpose of legal argument, to be assumed. I take no account of additional factual allegations made by the appellants in their written case which, if true, may well be significant, but which have not been agreed. The facts which have been agreed are important and must be summarised." Whilst it is a fact that majority of the Lords concluded that a duty should not be imposed on relevant professionals,it should not be taken as they intended to impose such restriction in each and every case against professionals irrespective of the facts of a case. Hence, it would be unjust to suggest that victims of professionals "cannot sue"[2].Each case needs careful analysis,perhaps using the facts of the cases that the Lords considered as a yardstick,before concluding whether or not,there is a chance of imposing a duty on relevant professionals.After all,the law is supposed to develop to prevent obvious injustices,and probably, this is one particular area that needs some further attention. References [1]http://www.bailii.org/uk/cases/UKHL/2005/23.html (accessed 30 April 2005) [2]Clare Dyer. Parents wrongfully accused of child abuse cannot sue doctors BMJ 2005; 330: 981 Competing interests: None declared |
|||
|
|
|||
|
Heather J Lohr, parent Huntingdon, PA 16652
Send response to journal:
|
Stephens response is absolutely brilliant and makes perfect sense. I have read over and over about SBS being a diagnosis of exclusion. Experience has shown me that everything but the opinion of the doctor is excluded from the investigation. Once one doctor states his opinion, everyone else will follow even if it means making the same misdiagnosis over and over again .... until proven wrong. It is a rare physician who will deviate from the process and actually do differential diagnosis especially when working with a team who made up their minds 10 minutes into the examination. The absolute worse thing that can happen to any parent is have their child ripped from their life, and then to lose what precious time that child might have left, when that child was not a victim of abuse. This is a pain that will never go away, it will never decrease. This is an anger that goes beyond any definition of the word. I have seen the "God Complex" and I was not impressed. My experience with these self-proclaimed gods in their fields, has destroyed my complete trust in the medical profession save a handful a very decent physicians. A list of differential diagnosis should absolutely be indicated in this area. An open mind would not hurt either. Heather Lohr attaboof@yahoo.com Competing interests: previously stated |
|||
|
|
|||
|
Michael D Innis, Director Medisets International Home 4575
Send response to journal:
|
Editor, Peter Stephens says, “Surely Dr. Craft should have no objection to a Standard of Care requiring a listing of the differential diagnosis and a statement as to why each natural or accidental explanation was considered unlikely “ and I couldn’t agree more. Before submitting innocent parents to the torture inflicted on Heather Lohr and hundreds of others the medical profession must acknowledge that: 1.Some vaccines cause fatal subdural and retinal haemorrhages in some children who are then misdiagnosed as Shaken Baby Syndrome. I have more than a dozen such cases referred to me and many more are recorded in the paper by Dr Harold Butteram(http://www.vaccinetruth.org/dr_buttram.htm). Vaccine reactions, particularly those associated with apnoea occurring within 28 days of immunization, are particularly liable to be misdiagnosed as Shaken Baby Syndome. 2.Unless there is clear evidence that all steps have been taken to exclude deficiencies of Vitamins C and D the Courts should not accept “fractures” as evidence of child abuse. 3.The diagnose of “Death due to smothering” should not be entertained without investigating the Haemostatic System taking into account the integrity of both the Coagulation and Vascular mechanisms. 4.Unfamiliarity wirh the signs and symptoms of Atypical Kawasaki Disease, Congenital Toxoplasmosis and other Congenital Disorders has caused innocent persons to be incarcerated when in fact Liver Dysfunction was demonstrable and caused the haemorrhagic tendency. 5.Nose bleeds, conjunctival haemorrhabes and bruising require a thorough haematological investigation before declaring the child has been abused. If the Law is going to protect doctors from litigation it should also protect parents from false accusations by “requiring a listing of the differential diagnosis and a statement as to why each natural or accidental explanation was considered unlikely” The 5 listed above could be a start. I can provide examples of each of them. Michael Innis Competing interests: As previously declared |
|||
|
|
|||
|
Clifford G. Miller, Lawyer, graduate physicist, former university examining lecturer in law BR3 3LA
Send response to journal:
|
Dear Sir, DOCTORS' LIABILITY 24 YEARS FOR FALSE ABUSE ACCUSATIONS The House of Lords' decision reported in your 30 April article 'Parents wrongfully accused of child abuse cannot sue doctors' is to be welcomed at least in part. It confirms that paediatricians and likely others who make false, reckless or negligent allegations of abuse against a parent owe a duty of care to the child. Consequently, the guardians of the child may bring an action on the child's behalf any time up to its 18th birthday. Alternatively the child will have three years from the 18th birthday to bring a claim for personal injury. If other claims can be sustained then perhaps up to six years beyond the 18th birthday, such as where a prosperous family environment was destroyed and the child left in less advantageous circumstances in consequence. Accordingly, paediatricians are at risk for periods of between 21 to 24 years, as will be their employers. Unfortunately, the report failed to point this out to the profession and perhaps this might assist to clarify. ____________________________________________________________ email Clifford Miller = bmj050503"insert an at sign"millercompany.demon.co.uk Competing interests: None declared |
|||
|
|
|||
|
John P. Heptonstall, Director of The Morley Acupuncture Clinic and Complementary Therapy Centre. Practitioner of TCM -acu LS27 8EG
Send response to journal:
|
Surely the duty of care to the child owed by any person, including a physician, must include the duty not to destroy that child's family structure; not to create a situation that forces the innocent child into "care" separated from an innocent family; and not to be placed in a situation that may lead to extremely severe, perhaps lifelong, trauma for that child as a result of unprofessional and unfounded allegations against family when the child can be expected to be subjected to months or years of separation, court appearances, placements, very intrusive invasive investigations into personal circumstances etc. If the child has died, as in many cases known to have been decided on against family members by many judiciary, in situations related to the highly suspicious diagnosis of MSbP, what duty of care did the physician owe to that child when revealing imediate suspicions? What duty of care to that deceased child did physicians owe when giving expert evidence in court? What duty of care did those physicians owe to the people when disclosing their suspicions to ensure justice was done, the family being of the people yet the child being deceased and no longer 'of the people'? Do the Law Lords not see such aspects of a child's quality of life, or memory if deceased, as being owed an equal duty of care to that of accusations of criminal behaviour aimed at the child's family? One does not wish to see professionals inhibited from passing on timely and reasonable advice, or suspicions about possibly criminal conduct against a child by any suspect - family or no - but neither does one wish to see the duty of care owed every child, and every person, to be diminished thro' decisions which might place a limitation on the duty of care owed a child by a physician whose suspicions are aroused - not forgetting that they are nothing but suspicions until a proper investigation, by a properly convened authority, takes place yet the powers of certain statutory bodies, such as Social Services, allow for that child - subject of suspicions only - to be separated from family and friends immediately until that properly convened body and subsequent investigation occurs. Surely the Law Lords must ensure that every physician is aware not only of a duty to reveal suspicions to protect a child from criminal harm but also to protect a child from the harm that may be done by unfounded or unnecessary allegations against a childs' nearest and dearest which could impact drastically on that child for years to come. Before a police officer can make an arrest (effectively an accusation of criminal behaviour) he/she is expected to hold sufficient hard evidence - there must be no difference in degree of evidence required from a physician before "arrest/accusation" proceedings are aimed at a child and that child's family and equally, as with police officers, there must be some form of retribution payable for "false arrest/allegations" to deter physicians from acting inappropriately. Regards John H. Competing interests: None declared |
|||
|
|
|||
|
Penny Mellor, Advocate Home WV9 5HX
Send response to journal:
|
For those that have not read the House of Lords Judgement [1] there were many things that the judges said whilst handing it down, not least of which was to point out that in the UK as we have ratifed the Human Right's Act, professionals who were negligent in their diagnosis by failing to properly investigate can be sued under Article 8, they also pointed out that where the evidence supported that a professional had maliciously made an allegation which was unsupported by any evidence that this could be prosecuted as misfeasance in public office. " 77. Stated in this broad form, this is a surprising proposition. In this area of the law, concerned with the reporting and investigation of suspected crime, the balancing point between the public interest and the interest of a suspected individual has long been the presence or absence of good faith. Good faith is required but not more. A report, made to the appropriate authorities, that a person has or may have committed a crime attracts qualified privilege. A false statement ('malicious falsehood') attracts a remedy if made maliciously. Misfeasance in public office calls for an element of bad faith or recklessness. Malice is an essential ingredient of causes of action for the misuse of criminal or civil proceedings. " [1] All is not quite as black and white as was painted in the media. The final remarks by Lord Brown I think sums up their general feelings not withstanding the fact that all the Law Lords acknowledged that these allegations were false: LORD BROWN OF EATON-UNDER-HEYWOOD My Lords, 120. The appellants in these cases are parents who were wrongly suspected of child abuse through the misdiagnosis of their children by doctors. Each in consequence suffered psychiatric disorder. In each case the true explanation for the child's condition was not discovered until regrettably late. 121. In the first case a five-year old child with multiple severe allergies was wrongly thought instead to have been mistreated by his mother, misdiagnosed as suffering from Munchausen's Syndrome by Proxy. In the result the child was placed on the "at risk register" for some months. In the second case a nine-year old child presenting with discoloured skin patches, caused in fact by Schamberg's Disease, was instead provisionally diagnosed as having been sexually abused so that for some weeks her father was prevented from seeing her. In the third case a two month old child suffered a spiral fracture of the femur whilst being lifted from a settee, an injury wrongly regarded by the doctor as non-accidental although in fact resulting from osteogenesis imperfecta (brittle bone disease), a condition only diagnosed some eight months later when the child suffered bilateral femoral fractures whilst in the care of an aunt under an interim care order. 122. In each case it is to be assumed for the purposes of these appeals that the respective doctors failed in their investigation and diagnosis of the child's condition to exercise reasonable and proper professional care, failures which would render them liable in damages for injuries suffered by anyone to whom they owed a duty of care. If, indeed, the allegations made in these cases are well-founded (as for present purposes is to be assumed) the doctors appear to have displayed an egregious over-confidence in their own opinions and a marked reluctance to test them. 138. I return to where I began, readily acknowledging the legitimate grievances of these particular appellants, against whom no suspicions whatever remain, sufferers from a presumed want of professional skill and care on the part of the doctors treating their children. It is they, I acknowledge, who are paying the price of the law's denial of a duty of care. But it is a price they pay in the interests of children generally. The well-being of innumerable children up and down the land depends crucially upon doctors and social workers concerned with their safety being subjected by the law to but a single duty: that of safeguarding the child's own welfare. It is that imperative which in my judgment must determine the outcome of these appeals. For these reasons, together with those given by my noble and learned friends Lord Nicholls of Birkenhead and Lord Rodger of Earlsferry, I would dismiss them. [1]http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd050421/east-1.htm Competing interests: Campaigner against false alleagtions of MSbP etc |
|||
|
|
|||
|
Brian Morgan, Freelance Journalist Cardiff
Send response to journal:
|
Children who have been wrongly removed from genuinely caring parents on the basis of mistaken medical opinions and have been placed in care or with adoptive parents may not learn of what happened to them for many years after reaching majority. If they have a case against those whose actions caused this to happen, the clock starts ticking when they find out. And, furthermore, the House of Lords judgement gives hope that there may be changes in the law which give redress to the parents as well, when the medical opinions which led to their trauma were clearly negligent as was manifestly so in the three cases cited. No one has ever suggested that medical practitioners who give honest, fully researched and case history based opinions, should be culpable. Readers should check what was said after the Climbie inquiry, as to the very high standard of professionalism to be expected during child protection investigations and the training that needed to be put in place to achieve this. Competing interests: None declared |
|||