Court: Doctors Who Misdiagnose Sexual Abuse Not Liable For Malpractice Under Kansas Law

Jan 10, 2017

Kansas doctors who mistakenly diagnose a case of child abuse are not liable for malpractice, a court has ruled.

In a case of first impression, the Kansas Court of Appeals found that the Kansas law requiring health providers to report suspected cases of physical, mental or emotional abuse of children protects physicians and other health providers from civil liability.

The case involved the parents of a nine-month-old girl who brought her to The University of Kansas Hospital for a respiratory infection.

The pediatrician who examined the baby, Dr. Francesca Perez-Marques, suspected she had been the victim of chronic sexual abuse and alerted the police. She also had the baby tested for HIV and sexually transmitted diseases.

Authorities eventually ruled out sexual abuse. But the parents sued, claiming Perez-Marques misdiagnosed the case and caused them extreme emotional distress.

The trial court threw out the lawsuit after finding the parents had failed to allege malice – the one exception to the Kansas statute's grant of immunity. Otherwise, the law makes it a misdemeanor to fail to report abuse when it’s suspected.

The parents appealed, claiming the trial court wrongly read the statute to provide immunity for malpractice. Last week, the Kansas Court of Appeals upheld the dismissal.

“Allowing a suit in the event that a doctor incorrectly diagnoses abuse would have a chilling effect on reporting—doctors would be hesitant to report suspected abuse, absent absolute certainty that abuse was taking place, for fear of liability,” a three-judge panel of the court wrote.

“Episodes of suspected abuse would go unreported, and children would remain in potentially dangerous situations subject to additional harm.”

Oddly, although Kansas courts had not addressed the issue before, the Missouri Court of Appeals applied the Kansas law more than two decades ago.

The Missouri court reasoned that, without immunity, physicians would open themselves up to malpractice actions if they reported abuse and face possible misdemeanor charges if they failed to report it.

The court concluded the Kansas Legislature could not have intended to put health providers in such a bind.

“The statute is designed to protect health care providers and provide them with immunity,” says Overland Park lawyer Brad Watson, who represented Perez-Marquez. “Except in the face of malicious intent, which is not present in a situation like this.”

The parents, however, did not allege malice in their lawsuit – which the Kansas Court of Appeals said  was fatal to their case.

“ … there is no explanation for why a doctor would fabricate a horrific story about a child, report the story to the police, and share the story with the child's parents all for the purpose of inflicting emotional distress,” the court wrote.

Lenexa lawyer James M. Crabtree, who represented the unidentified parents, declined to comment.

Alissa Shull, a social worker at KU Hospital, says the hospital takes the position that if there is any reason to suspect abuse or neglect, “our staff are all mandated reporters.”

“And so we do report that to the police or to the Department for Children and Families in Kansas,” she says. “And that reporting allows for further investigation by authorities to ensure safety of children when they're not within our four walls.”

Dan Margolies is KCUR’s health editor. You can reach him on Twitter @DanMargolies.