Suspected child abuse during a trip to the emergency room

2020-07-28T12:12:26-07:00

By: Gregg R. Woodnick


I have been practicing law for 20 years. Throughout that time I’ve lectured at Yale on issues of child abuse and neglect and I have also been a guest instructor at medical schools and PA programs where I would teach about mandatory reporting laws. Mandatory reporting requires that certain individuals report child abuse. The trainings I have done for medical providers is to help them understand the legal nexus behind what they are doing when they report a potential child abuse case.

In my career, I have had the opportunity to defend people that have been accused of child abuse and neglect after reports by medical providers. When training medical providers, I encourage them to err on the side of caution and make a report if they are concerned about the source of an injury or believe that a caretaker may have neglected a child. Although there may be rare exceptions, medical providers do not make these reports out of malice, but out of a desire to help the child and comply with their legal obligations. In defense of accused parents, however, I have found many reports that were made without much investigation or that did not account for more likely alternative explanations than abuse or neglect. 

Child abuse allegations happen to all types of parents from all types of backgrounds (although reports may not be consistently made or investigated in all circumstances—a topic for a different discussion). All parents who are accused of abuse or neglect face a similar task of overcoming a deep-seated desire to protect children—a desire shared by doctors, investigators, and the general public—which effectively reverses the “presumption of innocence” and places the burden on the parent to explain why their child’s injuries appear non-accidental.  

In many of these cases, the child is young and cannot explain the injury or illness. For example, a small child who falls out of a swing may suffer a spiral fracture—the kind of fracture that medical providers are trained to see as potentially indicating abuse. The foregoing events may unfold as follows:

The parents take the child to doctor, but neither parent witnessed the accident. At the emergency department, the physician examines the injury, orders x-rays, and finds a spiral fracture that he suspects is caused by non-accidental trauma (such as a parent twisting the child’s arm).

When the doctor reports his findings, the hospital contacts police and the Department of Child Safety, who send investigators to interview the parents and, if possible, the child. Sometimes, the hospital may even have its own team of providers specifically tasked with identifying and investigating child abuse and neglect. This team usually consists of doctors, physician assistants, nurses, social workers, and sometimes even a law enforcement liaison. They separate the parents from the child and from one another and begin gathering information about the family history, the events surrounding the child’s injury, etc.

It is not unusual for parents to exhibit what might be deemed as “suspicious behavior” once the investigation begins. For example, the parents may not have been present when the child was injured, or perhaps only one parent saw what happened. When probed, the parents may try to guess what occurred or provide a laundry list of possible scenarios: maybe the child fell out of the swing, or maybe the child injured his arm at school, or maybe the babysitter saw something yesterday evening while we were at the movies, and so on ad nauseam. It is natural and instinctual for a parent to give interviewers as much information as they can think of as they externally process the trauma of their child being injured and try to find an explanation themselves.

But to the investigators, the parents’ inconsistent accounts and recitation of possible injury sources may only cause further suspicion. Why does one parent appear calm and the other anxious? Why don’t both parents remember the details the same—did they go to the movies yesterday or the day before? Did the child get home from school early today or not? Was he outside swinging before he started crying, or in his bedroom playing with blocks? On the other hand, if the parents both have exactly the same recollection, is that simply because they planned to tell the same story to cover for themselves?

Once the investigators conclude that they believe there was some wrongdoing, it often does not matter how the parents respond. The investigative report may describe a calm response as “cold and unremorseful,” whereas a frantic affect is “emotionally dysregulated and impulsive.” The investigator’s perception of the parents becomes in many ways more important than their words and actions, who may be guilty of abuse or may simply be worried and trying to give doctors all the information they can think of to help determine what is wrong with their son.

The investigators may even issue an ultimatum to one parent: either impute your spouse for abusing the child or we will remove the child and seek prosecution for failure to protect. Before the parents really understand what is happening, their role in their child’s care becomes subordinate to the fact that they are suspects in an investigation and being asked to make life-altering decisions in the span of a few moments. The parent’s split-second decisions can be the difference between removal of the child and the child simply returning home with an order to follow up with their pediatrician. Unfortunately, however, sometimes it does not matter even if the parent says all the right things because the initial finding of suspected abuse steers the results of the entire investigation.

Understanding what to do after an encounter like the one described here is not just a legal question. There are dozens of variables in any suspect child abuse case that must be analyzed in order to determine the best course of action. It is important to remember, however, that an allegation of abuse or neglect can happen to anyone and the way that the parent responds is critical to the ultimate result. Even if the initial encounter goes badly, like the one described above, a parent can still prevail.


Gregg Woodnick has been practicing law in Arizona for 20 years. He is a former adjunct law professor and has lectured at Yale University, Midwestern College of Osteopathic Medicine, Arizona State University and Northern Arizona University.