Children as patients
JOSEPH P. McMENAMIN, M.D., J.D., F.C.L.M.*
JASON C. BUCKEL, J.D.
Although much of the law governing the medical care of children is indistinguishable from that
governing the medical care of adults, certain features of the former are unique. These features arise
in large part because minors are seem to need special protection from others and from themselves
and are generally deemed incompetent (except in specific circumstances) to grant valid consent for
their own treatment. The law's solicitude for the special needs of minors sometimes gives rise to
poignant conflicts between the desires and values of parents, often inviolable in other settings, and
those of the child or those of the state as parens patriae. Resolution of these conflicts often falls to
the courts. In this chapter, some of the legal issues peculiar to the care of children are explored.
II. STATE INTERVENTION
The standard of care applicable to parents obliged to provide medical attention for their children is
analogous to the standard of care for physicians accused of malpractice. As the New York Court of
Appeals wrote when construing a state statute, "The standard is at what time would an ordinarily
prudent person, solicitous for the welfare of his child and anxious to promote its recovery, deem it
necessary to call in the services of a physician." 1
In many jurisdictions, statutes permit the state to take custody of a neglected or dependent child,
terms that are variously defined 2 but which have been construed to include a child deprived of
medical services by the parents. 3 Examples of such deprivation include the denial of smallpox
vaccination viewed by the parents as "harmful and injurious," 4 refusal to submit to surgery
necessary to save the life of a fetus, 5 refusal to permit blood transfusion required for surgery to
correct congenital heart disease, 6 and withholding chemotherapy from a child suffering from
malignancy. 7 Statutes finding neglect under such circumstances have been upheld against attacks
under the freedom of religion clauses of federal and state constitutions and under the due process
clause of the U.S. Constitution. 8 In such circumstances, however, courts may instruct state
authorities to respect the religious beliefs of the parents and to accede as much as possible to their
wishes without interfering with the court-ordered medical care. 9
Although the precise limits of the requirement for the provision of medical care by parents are
difficult to set, the Illinois statute construed in Wallace v. Labrenz 10 may be fairly typical:
[T]he statute defines a dependent or neglected child as one which "has not proper parental
care." . . . Neglect, however, is the failure to exercise the care that the circumstances justly
demand. It embraces willful as well as unintentional disregard of duty. It is not a term of
fixed and measured meaning. It takes its content always from specific circumstances, and its
meaning varies as the context of surrounding circumstances changes. . . . [I]t is of no
consequence that the parents have not failed in their duty in other respects. 11
In many jurisdictions, a child treated in good faith solely by spiritual means in accordance with the
tenets of a recognized religious body is exempt from the definition of a neglected child.. 12 Such
statutes do not necessarily prevent a court from concluding in a proper case that spiritual treatment
alone is insufficient or from ordering conventional medical therapy where needed, including, if
necessary, ongoing monitoring after the acute problem is rectified. 13 These statutes may,
however, raise thorny equal protection, First Amendment, and other constitutional issues, because
they may give preference to one group of potential offenders over others based on that group's
self-proclaimed religious tenets and because they may involve the state in excessive entanglement
with such questions as what a recognized religious body is, what its tenets are, and whether the
accused acted in accord with such tenets. 14 Some courts, however, have no trouble finding that a
parent's decision to "let God decide if the child is to live or die" is not the kind of religious belief
protected under such statutes. 15
Where medical intervention may be deemed elective, parental refusal of such intervention may be
permitted if the court does not find neglect or dependency. 16 In some instances, courts have
refused to intervene despite medically compelling circumstances. The Illinois Appeals Court, for
example, declined to find a child neglected whose sibling had been sexually abused at home, who
herself had twice gone into diabetic ketoacidosis probably because of "misuse of insulin" at home,
and whose mother--suffering from a psychiatric disorder exacerbated by the stresses of child
care--had a history of suicide attempts, sexual promiscuity, and placing the diabetic child in a foster
Where, however, a parent's refusal to provide medical care is deemed egregious, criminal liability
may be found. 18 Religious beliefs are no defense to neglect of this magnitude. 19 Significant
neglect, however, even including neglect sufficient to cause death, may not necessarily be sufficient
to sustain a charge of manslaughter. 20 This appears to be particularly true where the neglect is not
shown to be willful. 21
A. Parens Patriae
The power that permits courts to intervene to mandate medical care for children whose parents fail
to provide it is known as parens patriae. 22 This is distinct from the police power that justifies, for
example, fluoridation of water:
The rationale of parens patriae is that the State must intervene . . . to protect an individual
who is not able to make decisions in his own best interest. The decision to exercise the
power of parens patriae must reflect the welfare of society as a whole, but mainly it must
balance the individual's right to be free from interference against the individual's need to be
treated, if treatment would in fact be in his best interest. 23
The parens patriae power allows the state constitutionally to act as the "general guardian of all
infants." 24 Its origins are found in antiquity:
In ancient Times the King was regarded as " Parens Patriae " of orphaned or dependent
infants. . . . Under our system of government the state succeeds to the position and power of
the King. Both King and State exercise this power in the interests of the people. Society has
a deep interest in the preservation of the race itself. It is a natural instinct that lives of
infants be preserved. 25
Under the doctrine of parens patriae , courts are empowered to consent to treatment when the
parents are unavailable to do so. This is seen where the parents have abandoned the child 26 or
where they are just temporarily unavailable. 27 Court intervention in mandating therapy need not
be predicated on an immediate threat to life or limb. 28 Although the criteria vary, one frequently
invoked standard is the substituted judgment test: "In this case, the court must decide what its ward
would choose, if he were in a position to make a sound judgment. Certainly, he would pick the
chance for a fuller participation in life rather than a rejection of his potential as a more fully
endowed human being." 29 Not only can the court overrule objections of both parent and child, but
under the right circumstances it can overrule the objection of the surgeon who is to perform the
A serious threat to life, however, is not per se grounds for the intervention of the court under the
parens patriae doctrine. If, for example, an infant is born with myelomeningocele, microcephaly,
and hydrocephalus, and failure to operate would not place the infant in imminent danger of death,
surgery may not be ordered over parental objection despite its efficacy in significantly reducing the
risk of infection. In Weber v. Stony Brook Hospital the court noted:
Successful results could also be achieved with antibiotic therapy. Further, while the
mortality rate is higher where conservative medical treatment is used, in this particular case
the surgical procedures also involved a great risk of depriving the infant of what little
function remains in her legs, and would also result in recurring urinary tract and possibly
kidney infections, skin infections, and edemas of the limbs. 31
The court concluded that the child was not neglected even though the parents had chosen the
arguably riskier of two alternatives, both of which were considered valid choices by the available
expert medical testimony.
1. Life-Threatening Situations
The most commonly accepted situation in which medical therapy may be ordered for children over
the wishes of their parents is where the life of the child is at stake. 32 In life threatening situations,
courts will generally find that the parents are violating state statutes concerning child neglect or
endangerment if they withhold medical treatment. 33 Courts have concluded that the strong
interests of the state, coupled with the best interests of the child, outweigh the parents’ religious
beliefs and rights. 34
Such intervention may be ordered even when the likelihood of success is only 50 percent. 35 State
intervention, however, may be predicated on less critical medical need. Parental objection is
insufficient in most states to overcome state requirements for prophylaxis against gonococcal
ophthalmia neonatorum. 36 Surgery has been ordered, despite opposition by the patient’s father,
where necessary to stabilize and prevent aggravation of a deformed foot when the surgery was
deemed to be in the best interest of the child. 37 Even a tonsillectomy may be ordered over the
objections of parents with religious reservations about the procedure, at least where the child is in
the hands of a state department of social service. 38 Over parental objection, a court may order
medically necessitated dental attention, including plastic surgery for treatment of cleft lip and cleft
palate. 39 Surgery may also be ordered if, despite the absence of a present threat to physical health,
the court considers it necessary for the psychological well-being of the child. 40 Accordingly,
surgery has been ordered even though it was dangerous and offered only partial correction without
cure of a facial deformity. 41 In addition, an autopsy may be ordered, notwithstanding religious
proscription, where state law requires the authorities to determine the cause of death. 42
2. Non-Life-Threatening Situations
Parental refusals of medical intervention are most likely to be upheld where the child's condition is
not life-threatening and where the treatment itself would expose the child to great risk. 43 Such
refusals are sometimes upheld even when the proposed therapy would offer great benefit to the
child. 44 The court may also stay its hand if it is persuaded that the child is antagonistic to the
proposed therapy and that his or her cooperation would be necessary to derive any benefit from the
Most of the time, a court will avoid intervening when the malady sought to be treated is not
life-threatening. 46 As we have seen, though, courts sometimes fail to intervene even in the
presence of disorders that are clearly life-threatening. In In re Hofbauer 47 the parents of a seven
year-old boy with Hodgkin's disease treated him not with radiotherapy and chemotherapy but with
nutritional or metabolic therapy including Laetrile. There was expert testimony that Laetrile is
effective and the father indicated he would agree to conventional therapy if the physician
prescribing the placebos advised it. Persuaded that the parents were concerned and loving--that the
child was not neglected, the court held that "great deference must be accorded a parent's choice as
to the mode of medical treatment to be undertaken and the physician selected to administer the
same." 48 The statute at issue in Hofbauer allowed the following interpretation:
Adequate medical care does not require a parent to beckon the assistance of a physician for
every trifling affliction that a child may suffer. . . . We believe, however, that the statute
does require a parent to entrust care to that of a physician when such course would be
undertaken by an ordinarily prudent and loving parent, "solicitous for the welfare of his
child and anxious to promote its (sic) recovery." 49
The court refused to find as a matter of law that the boy's parents had undertaken no reasonable
efforts to ensure that acceptable medical treatment was being provided him, given the parents'
concern about side effects from medical management, the alleged efficacy of the nutritional therapy
and its relative lack of toxicity, and the parents' agreement that conventional treatment would be
administered to the child if his condition so warranted. So long as they had provided for their child
a form of treatment "recommended by their physician and not totally rejected by all responsible
medical authority as, implied the court, treatment with Laetrile had been, the parents' position
would be upheld." 50
A different approach was taken in Custody of a Minor . 51 Applying the best interest of the child
rule, the court decided that the trial court was justified in concluding that "metabolic therapy was
not only medically ineffective [in the management of leukemia] but was poisoning the child . .
.and, contrary to the best interests of the child." 52 This conclusion, in the court's opinion, justified
the finding that the child was without necessary and proper medical care and that the parents were
unwilling to provide the care required of them by the parental neglect statute.
The best interest of the child may justify intervention even when life itself is not threatened, as
illustrated by In re Karwath . 53 There, the parents had given their child up for adoption because
of the mother's emotional illness and the father's unemployment and financial problems. Concern
about possible hearing loss and rheumatic fever prompted the child's physician to recommend a
tonsillectomy, but the father demanded that surgery be withheld unless necessary beyond the
shadow of a doubt. 54 Although the court's opinion does not elaborate on the point, this position
was based on the father's religious faith. The father would agree to surgery as a last resort and only
after the failure of chiropractic procedures and medicine. The father also requested that the court
require second and third opinions to confirm that the procedure was "necessary with reasonable
medical certainty to restore and preserve the health of these wards of the State” before surgery
could be undertaken. 55 Despite the father’s wishes, the court ordered that the surgery be
performed. 56 The fact that the parents' objection was religiously based made no difference.
Our paramount concern for the best interest and welfare of the children overrides the
father's contention that absolute medical certitude of necessity and success should precede
surgery. Nor is it required that a medical crisis be shown constituting an immediate threat to
life and limb. 57
Only flesh with its soul—its blood—YOU must not eat. And, besides that YOUR blood of YOUR
souls shall I ask back. From the hand of every living creature shall I ask it back; and from the hand
of man, from the hand of each one who is his brother, shall I ask back the sould of man. 58
If anyone at all belonging to the house of Israel or the proselytes who reside among them
eats any blood at all, against the person who eats blood will set my face, and I will but him
off from his people; the life of every creature is identical with its blood. 59
These and other scriptural passages 60 provide the theological underpinning for the belief of certain
religious groups, notably the Jehovah’s Witnesses, that blood transfusions are contrary to the law of
God. Since transfusions are a well-accepted component of the therapeutic armamentarium, many
cases have examined the right of the state as parens patriae to protect the health of children with its
jurisdiction as against the right of parents to raise their children according to their religious beliefs.
Parens patriae, defined in this context as “a sovereign right and duty to care for a child and protect
him from neglect, abuse and fraud during his minority,: has been the basis in a number of cases for
compelling transfusion of a child whose parents objected on religious grounds. 61 As we have
seen in other instances, the courts distinguish between religious beliefs and opinions, which are
held inviolable, and “religious practices inconsistent with the peace and safety of the State.” 62
One court, in justifying a decision to order transfusion, wrote:
[I]t was not ordered that he eat blood, or that he cease to believe it that the taking of blood,
intravenously, is equivalent of the eating of blood. It is only ordered that he may not
prevent another person, a citizen of our country, from receiving medical attention necessary
to preserve her life. 63
A party seeking court intervention to a uthorize transfusion over parental objection is not exposed
to civil liability. 64
As in other areas where religious beliefs and children’s welfare may conflict, a court may stay its
hand where “the proposed treatment is dangerous to life, or there is a difference of medical opinion
as to the efficacy of a proposed treatment, or where medical opinion differs as to which of two or
more suggested remedies should be followed."” 65 At least one court refused to order transfusions
where the patient had no minor children, the patient had notified the physician and hospital of his
belief that acceptance of transfusion violated the laws of God, the patient had executed documents
releasing doctor and hospital from civil liability, and his refusal appeared to pose no clear and
present danger to dociety. 66 A court may refuse to order transfusions if the child is not faced
with a threat to his or her life.
If we were to describe this surgery as “required,” like the Court of Appeals, our decision
would conflict with the mother’s religious beliefs. Aside from religious considerations, one
can also question the use of that adjective on medical grounds since an orthopedic specialist
testified that the operation itself was dangerous. Indeed, one can question who, other than
the Creator, has the right to term certain surgery as “required.” The fatal/nonfatal
distinction also steers the courts of this Commonwealth away from a medical and
philosophical morass: if spinal surgery can be ordered, what about a hernia or gall bladder
operation or a hysterectomy? . . . [A]s between a parent and the state, the state does not have
an interest of sufficient magnitude outweighing a parent’s religious beliefs when the child’s
life is not immediately imperiled by his physical condition. 67
A court will be most inclined to order a transfusion when life is threatened. In some situations, this
has been done even when the patient was an adult. 68 As a general matter, the willingness of the
court to intervene increases in the case of a minor, 69 notwithstanding parents’ arguments on due
process 70 and free exercise grounds. 71 Although courts are generally more reluctant to order
transfusion for adults, when the adult is an expectant mother the court may well ignore the question
of the right to transfuse the adult and proceed with the transfusion order based on the right to treat
the child. 72
Where a child’t life is in danger, the court may adopt streamlined procedures to preserve life that
would not be followed or tolerated under other circumstances. For example, a transfusion can be
ordered first and the hearing over the propriety of the order may be held later. 73 A hearing may
be held in advance of the need for transfusion, for instance, where a mother near term has a history
of Rh incompatibility and has given birth in the past to other children with erythroblastosis fetalis
requiring transfusion. 74 Even in a state where a statute provides immunity from criminal
prosecution for parents treating their children in accordance with their religious beliefs, the state
may nevertheless appoint a guardian to approve transfusions when necessary to save the life of the
child. 75 This is the mechanism by which most courts enter transfusion orders. While courts
ordinarily find neglect only where parents abandon their children or otherwise fail to provide for
their basic needs, such a finding can be and often is reached where, over the sincere religious
objections of parents, transfusion is required. In State v. Perricone 76 a child was afflicted with
congenital heart disease that, from the court'’ description, suggests tetralogy of Fallot. Transfusions
were required for propr management of his condition. The parents, Jehovah'’ Witnesses, refused to
permit such transfusions, and they were found guilty of neglect of their son even though the court
found them to have "“incere parental concern and affection for the child.” 77
A group of Jehovah’s Witnesses in the state of Washington brought a class action seeking to have
declared unconstitutional a state statute that declared a child dependent, and hence eligible for
appointment of a guardian, where transfusion was or could be vital to save the patient and the
parents refused to permit it. 78 The court upheld the statute as constitutional, and the Supreme
Court of the United States affirmed per curiam. 79 The parents “have not failed in their duty to the
child in other respects provides them no more shelter under such a statute than does the sincerity of
their religious beliefs.” 80 In analyzing the tension between the free exercise claluse and statutes
of this type, the court in People v. Pierson 81 wrote: We place no limitations upon the power of
the mind over the body, the power of faith to dispel disease, or the power of the Supreme Being to
heal the sick. We merely declare the law as given us by the legislature.” 82
A threat to the very life of a child is not always deemed necessary for a court to order transfusion
over parental objection. Where brain damage was threatened by rising bilirubin in a child with
erythroblastosis fetalis, the court found sufficient grounds to order transfusion, even though no
mention was made of an actual threat of life. 83 In In re Smapson 84 the parents did not oppose
plastic surgery required for palliation of massive disfigurement of the right side of the face and neck
secondary to von Recklinghausen’s disease (neurofibromatosis) in a fifteen year-old boy; they did,
however, object to the transfusions that such extensive surgery would required, although there was
no threat to life and, to diminish the surgical risks, the physicians advised delay until the boy was
old enough to consent. The trial court ordered surgery and was upheld on appeal. The court
rejected as too restrictive the argument that it could intervene only where the life of the child is
endangered by a failure to act. The Court of Appeals distinguished its earlier opinion in In re
Seiferth 85 noting that Seiferth turned on the question of a court’s discretion and not the existence
of its power to order surgery in a case where life itself was not at stake. The court had no trouble
finding that religious objection to transfusion does not “present a bar at least where the transfusion
is necessary to the success of the required surgery.” 86
Where a child is approaching the age of maturity, and where his or her life is not in imminent
danger, the minor patient may have the right to express an opinion about the morality of
transfusions and his or her willingness to submit to them. In In re Green 87 a sixteen year-old boy
with scoliosis required surgery to prevent his eventually becoming bedridden. His parents,
Jehovah’s Witnesses, opposed the use of transfusions that the surgery would necessitate. The
record did not disclose whether the patient himself was a Jehovah’s Witness or planned to become
one. The court wrote:
Unlike Yoder and Sampson, our inquiry does not end at this point, since we believe the
wishes of the sixteen year-old boy should be ascertained; the ultimate question, in our view,
is whether a parent’s religious beliefs are paramount to the possibly adverse decision of the
child. While the records before us gives us no indication of the child’s thinking, it is the
child rather than the parent in this appeal who is directly involved which thereby
distinguishes Yoder’s decision not to discuss the beliefs of the parents vis-à-vis the children.
In Sampson the Family Court judge decided not to “evade the responsibility for a decision
now by the simple expedient of foisting upon this boy the responsibility for making a
decision as some later date . . .” While we are cognizant of the realistic p roblem of this
approach . . . we believe that the child should be heard. 88
More recently, however, both the Illinois and the United States Supreme Courts stopped short of
imposing their authority when the unborn child’s life was endangered because the mother refused,
on religious grounds, to undergo a cesarean section. The Illinois Supreme Court declined to review
an appeallate court decision that upheld a Pentecostal’s right to refuse a cesarean section delivery,
even though physicians deemed it essential for her unborn child’s survival, and the United States
Supreme Court, in Baby Boy Doe v. Mother Doe, 89 followed suit by declining to order the lower
court to convene an emergency hearing in the case.
B. Police power
Certain public health measures are enacted pursuant to police power and upheld by the courts
despite parental objection on a variety of grounds. The two best examples of this in the health care
area are the vaccination of school children and fluoridation of water supplies, performed primarily
for the benefit of children. Police power is an umbrella term not readily susceptible to precise
While it is perhaps, almost impossible to frame a definition of the police power which shall
accurately indicate its precise limits, so far as we are aware, all courts that have considered
the subject have recognized and sanctioned the doctrine that under the police power there is
general legislative authority to pass such laws as it is believed will promote the common
good, or will protect or preserve the public health; and the power to determine what laws are
necessary to promote or secure those objects rests primarily with the general assembly,
subject to the power of the courts to decide, whether a particular enactment is adapted to
that end. 90
Often, regulations are promulgated not by the legislature but rather by a municipality, a board of
public health, or some other arm of the state. In general the courts will give deference to
determinations made by these bodies:
[D]etermination by the legislative body that a particular regulation is necessary for the
protection or preservation of health is conclusive on the courts except only to the limitation
that it must be a reasonable determination, not an abuse of discretion, and must not infringe
rights secured by the Constitution. 91
Under this standard, most such regulations such as this one will be upheld, because "abuse of
discretion" is seldom found.
Some health professionals today may be surprised to learn that there is a long history of disputes,
continuing to recent times, concerning the validity of state and local regulations that require
vaccination of school children as a prerequisite for attendance in public schools. 92 A number of
early decisions upheld these regulations only because an epidemic of smallpox in the patient’s
community warranted vaccination as an emergency measure. 93 In some cases the constitutionality
of the vaccination requirement was upheld only because the court construed it to mean not that
vaccination was mandated but rather that school attendance without vaccination was not permitted.
94 More recently, it has been held that a child has no absolute right to enter school without
immunization, and the school board has full authority to compel it. 95
Questions of federal constitutionality, at least, were essentially laid to rest in the case of Jacobson
v. Massachusetts . 96 In Jacobson an adult fearful of side effects as a consequence of a bad
experience with immunization as a child refused to submit to vaccination despite a compulsory
vaccination law. The court upheld his conviction:
There is, of course, a sphere within which the individual may assert the supremacy of his
own will, and rightfully dispute the authority of any human government . . . to interfere with
the exercise of that will. But it is equally true that in every well-ordered society charged
with the duty of conserving the safety of its members the rights of the individual in respect
of his liberty may at times, under the pressure of great dangers, be subjected to such
restraint, to be enforced by reasonable regulations as the safety of the general public may
The court found no violation of equal protection in the statute's exception favoring children who
are medically unfit to be vaccinated, despite the absence of such an exception for adults in like
condition, both because there was no reason to suspect that an unfit adult would be required to
submit to vaccination and because regulations appropriate for adults are not always safely applied
to children. 98 Few cases before and apparently no cases after Jacobson have found vaccination
requirements to be unconstitutional. 99 The courts have rejected constitutional attacks on both
equal protection and due process grounds. 100
Despite the special solicitude of the courts for First Amendment rights, compulsory vaccination has
been upheld even when it conflicts with the religious beliefs of citizens. 101 This is true even
where, under state law, a board of education was empowered, although not required, to exempt a
child whose parents object to immunization on religious grounds. 102 Personal liberty, including
freedom of religion, is a relative and not an absolute right, which must be considered in the light
of the general public welfare. 103 The right to practice religion freely does not include liberty to
expose the community or the child to communicable diseases or the latter to ill health or death. 104
Nevertheless, some courts, generally in earlier cases only, have found it necessary to point out that
vaccination requirements do not prevent children from attending schools, and children who are
thereby excluded are excluded by their own consciences. 105 In other cases the courts have
questioned whether the plaintiff's religious beliefs really did compel the conclusion that vaccination
was immoral. 106
Where, however, a statute provides an exemption for members of a recognized church or religious
denomination whose tenets conflict with the practice of vaccination, a mother's opposition based on
her personal belief in the Bible and its teachings was sufficient to entitle her and her children to the
exemption. 107 A similar statute was held not applicable to a man objecting to immunization
because one of his children had earlier contracted hepatitis secondary to a diphtheria shot. In so
holding, the court found no violation of equal protection or due process. 108 Where exemptions are
enacted for persons religiously opposed to vaccination, a local school board may not be given
discretion to determine who can qualify. 109
The vaccination regulations have been repeatedly upheld as a reasonable exercise of the police
power. 110 There need no longer be evidence of an epidemic, 111 nor even of a single case, 112
to warrant imposition of the regulation. The regulation does not involve the state in the practice of
medicie. 113 Evidence impugning the value of vaccination need not even be considered by the
courts because such evidence is more appropriately presented to the legislature or its duly
constituted agencies, such as the State Board of Health. 114
Finally, there is no violation of the right to a free public education, nor is it a violation of state
compulsory education laws to make vaccination a prerequisite to school attendance: "[H]ealth
measures prescribed by local authorities as a condition of school attendance do not conflict with
statutory provisions conferring on children of proper age the privilege of attending school, nor with
compulsory education laws." 115 This is true even though it leads to the exclusion of children
whose physical condition precludes vaccination. 116 It has been held that, where a father did
nothing to prevent the vaccination of his son, the child was not neglected under a regulation that
barred him from school because he was unvaccinated. 117 More often, however, failure to provide
for vaccination of a child may warrant a finding of parental neglect and the resultant appointment of
a guardian to consent to and arrange vaccination. 118
III. CHILD ABUSE
The prevalence of child abuse in the United States is alarming, and the harm it causes is enormous.
119 Estimates range from more than 1 million to as many as 4 million reported incidents per year.
120 In 1997 alone, child protective services agencies investigated an estimated 2 million reports
alleging the maltreatment of approximately 3 million children and determined that just under 1
million children were victims of substantiated or reported child abuse and neglect. 121 While this
number is alarming, it actually reflects a slight decrease in the number of victims of substantiated or
reported child maltreatment between 1996 and 1997, going from slightly over one million in 1996
(1,030,751) to just under one million in 1997 (984,000). 122 This was the first decline recognized
in the 1990’s, as overall rate of child maltreatment increased 18 percent during the period from
1990 to 1996. 123
Child abuse is the most common cause of death of small children in the United States. 124 In fact,
children age 3 and under accounted for more than three-quarters of the estimated 1,196 child deaths
that occurred nationwide in 1997 as a result of abuse of neglect. 125 The problem has reached
epidemic proportions despite the fact that abusers can be convicted of such serious crimes as assault
and battery or manslaughter. 126 Additionally an abuser who fatally injures a child may, in certain
circumstances and jurisdictions, be sentenced to death. 127 Tragically the perpetrators of child
abuse have often been victims of child abuse themselves; the problem poses the very grave threat of
Perpetrators of child abuse have been characterized as psychopaths and sociopaths who are prone to
alcoholism, drug abuse, sexual promiscuity, unstable marriages, and criminal activity. A 1999
study by the National Center on Addiction and Substance Abuse found c hildren of s ubstance
abusing parents 3 times more likely to be abused and 4 times more likely to be neglected than
children of non-substance-abusing parents. 129 Abuse most commonly occurs at the hands of the
parents. In fact, in over 75 percent of the reported cases, the parents are the perpetrators of the
abuse, and in another 10 percent of the cases, the perpetrators are other relatives of the victim. 130
People in other caretaking relationships to the victim, such as foster parents, account for only about
2 percent of all reported cases of abuse. 131 While 80 percent of all perpetrators are below the age
of 40, women are more likely to be perpetrators of physical abuse and men are more commonly
found to be perpetrators of sexual abuse. 132
While children from families of all income levels suffer maltreatment, some data link child abuse to
socioeconomic status. In a recent study, the National Center on Child Abuse and Neglect found
that children from families earning $15,000 or less annually were 25 times more likely to have been
abused or neglected than children from families earning $30,000 or more annually. 133 Such data
suggest that stress and poverty may be related to abuse and neglect.
Caffey, however, whose pioneering work in 1946 was in large measure responsible for the now
widespread recognition of the battered child syndrome, challenges many of the prevalent theories
on causation of child abuse::
Perpetrators . . . are characteristically of normal intelligence and represent all races, creeds,
in all cultural, economic, social and educational levels and are distributed proportionately in
all parts of the country. As a group, with a few exceptions, they suffer from the same
neuroses, the same emotional and character problems in the same range and degree as any
randomly selected group of same milieu and size. Less than 10% are psychopaths. 134
It may be that different authors base their conflicting conclusions on their experiences with patient
populations of different socioeconomic classes. Alternatively, underreporting may be even more
common in middle and upper class families than it is among the poor. 135
A. Battered Child Syndrome
In their classic article on child abuse, Hefler and Kempe wrote that "the syndrome should be
considered in any child exhibiting evidence of fracture of any bone, failure to thrive, soft tissue
swellings or skin bruising, in any child who dies suddenly, or where the degree and type of injury is
at variance with the history given regarding the occurrence of the trauma." 136 The authors supply
The battered-child syndrome may occur at any age but, in general, the affected children are
younger than three years. . . . [T]he child's general health is below par, and he shows evidence of
neglect including poor skin hygiene, multiple soft tissue injuries, and malnutrition. One often
obtains a history of previous episodes suggestive of parental neglect or trauma. A marked
discrepancy between clinical findings and historical data as supplied by the parents is a major
diagnostic feature. . . . The fact that no new lesions . . . occur while the child is in the hospital . . .
lends added weight to the diagnosis. . . . Subdural hematoma, with or without fracture of the skull,
is . . . an extremely frequent finding. . . . The characteristic distribution of these multiple fractures
and the observation that the lesions are in different stages of healing are of additional value in
making the diagnosis. 137
Pattern scars or bruises, such as cigarette or immersion burns; lacerations or abrasions of areas not
normally so injured, such as the palate or external genitalia; and behavior changes (noncompliance,
anger, isolation, destructiveness, developmental delays, excessive attention-seeking, and lack of
separation anxiety) are also characteristic. 138 It would seem, then, that a physician confronted
with this clinical picture would be justified in entertaining a diagnosis of child abuse. 139
Neglect, in contrast to physical abuse, is more apt to present as malnutrition, recurrent pica, chronic
fatigue or listlessness, poor hygiene, inadequate clothing for the circumstances, or lack of
appropriate medical care, such as immunizations, dental care, and eyeglasses. 140 Behavioral
signs, including poor school attendance, age-inappropriate responsibility for tasks such as
housework, drug or alcohol abuse, and a history of repeated toxic ingestions, also may be present.
Sexually abused children may have difficulty walking or sitting; thickened and/or hyperpigmented
labial skin; torn, stained, or bloody underclothing; bruised or bleeding private parts; vaginal
discharge, pruritus, or both; recurrent urinary tract infections; venereal disease; pregnancy; and lax
rectal tone. It is reasonable to expect that these unfortunate children may be at increased risk for
AIDS, although the most common cause of this syndrome in children is undoubtedly maternal-fetal
infection. 142 A vaginal opening greater than 4 mm in horizontal diameter is said to be
characteristic of the sexual abuse of prepubescent girls. 143 Victims of sexual abuse may also have
poor self-esteem, attempt suicide, display regressive behavior such as enuresis, masturbate
excessively, be sexually promiscuous, withdraw from reality, express shame or guilt, and
experience distortion of body image. 144
Not all cases, of course, will present in classic fashion, nor will typical findings always be caused
by child abuse. "Any one may coincidentally show a variety of types of physical marks (e.g., a black
eye, cut lip, bruised ears, scratches, and diaper rash burns), even though their parents may be loving,
concerned and reasonably careful." 145 Hence, diagnosis may not be straightforward, particularly
since the history is unlikely to be easily obtained from intimidated young patients or from their
B. Reporting Child Abuse
In every American jurisdiction, it is the legal obligation of the examining physician to report
suspected cases of child abuse to authorities designated by statute. 146 Significantly, all the
statutes provide immunity from civil liability for physicians reporting suspected child abuse in good
faith (vide infra). Typically the immunity extends to suits for slander, libel, breach of confidence,
or invasion of privacy. Some statutes, such as North Dakota's, extend this protection to any
reporter, other than the alleged child abuser, whether acting under statutory compulsion or not. 147
Almost all states now require professionals in other fields to report as well, including those in
education, social work, child care, and law enforcement. 148 In 1997, more than 80 percent of all
reports of child abuse that led to an investigation came from professionals in numerous areas,
including educators, law enforcement and justice officials, social service workers, and medical and
mental health personnel. 149
Abusive parents have attacked these laws on a variety of grounds. In several cases the
constitutionality of interrogating the suspected abusers without first issuing Miranda warnings was
challenged. In all cases this argument was rejected. 150 An alleged abuser attacked as
unconstitutionally vague a statute permitting an inference of neglect to be drawn where there is
evidence of illness or injury to a child in the custody of a parent, guardian, or custodian who is
unable to give satisfactory explanation for the illness or injury. Here, too, the statute was upheld.
151 A reporting statute was also upheld under a father's claim that it unconstitutionally infringed
on his interest in seeking psychiatric help; there was no violation of his privilege against
self-incrimination where the statute did not impose investigative duties on the psychiatrist and did
not compel him to reveal details given by the patient. 152
Some parents have tried to invoke the physician-patient privilege to shield themselves from the
effects of disclosure. This argument has been rejected on grounds that the policy considerations
underlying the reporting statutes trump those justifying the doctor-patient privilege. 153 In Alaska,
however, a clinical psychologist successfully invoked the privilege between himself and his
child-molesting client, despite a reporting law abrogating the privilege, because the abrogation
applied only to child protection proceedings instituted to identify and protect victims, not to
criminal proceedings resulting from a report of abuse. (The decision neither required nor provided
any answer to the question whether the psychologist's client could have invoked the privilege.) 154
In California, communication between psychotherapist and defendant-patient was privileged,
where the information that could be gleaned was mere repeated data already obtained from the
victim. 155 Thus, with few exceptions, then, the courts have upheld reporting statutes.
Notwithstanding the existence and validity of these laws, many cases of child abuse are believed to
go unreported, as noted above. Numerous reasons have been proffered to explain this phenomenon.
Until relatively recent times, of course, the battered child syndrome was not regularly recognized
even by medical specialists. 156 The common law imposed no duty to report, even when the
syndrome was recognized. 157 As noted, the diagnosis is not always clear to the clinician 158 and
the legal definition may vary with the jurisdiction. 159
Physicians knowledgeable about child abuse suspect that reporting may make the parents both more
abusive and more reluctant to seek further medical care for their child in the future. 160 Hence,
unless it is possible to hospitalize the patient long enough to ensure that a satisfactory foster home
for the victim or effective counseling for the parents can be secured, the physician might be
justified in concluding it is in the child's best interest not to report. The physician may anticipate
that the child will remain in the parents' care, despite their abuse, as often happens in all but the
most egregious cases. The physician may conclude that the best hope for serving the child is to
maintain good rapport with the parents and work to prevent recurrences privately without the
intervention of the authorities. The physician may also hesitate to report questionable cases so as
not to contribute to the undeserved but heartfelt guilt of blameless parents whose children's injuries
are unrelated to abuse. 161
Some physicians may be unwilling to believe that parents could willfully injure their own child. 162
Other practitioners may remain silent from a misplaced loyalty to confidentiality, failing to
recognize that the patient is not the parent but the child. Some may simply not know correct
reporting procedure. 163 Some may fear the economic consequences of antagonizing the patient's
parents who, if not patients themselves, are at least the minor patient's financial guarantors. Parents
may also be willing and able to harm the physician's reputation in the community by claiming that
he or she has made terrible and unwarranted accusations about them. 164
One powerful reason physicians fail to report cases of abuse may be a fear of civil liability for doing
so. Many may be unaware that, under the reporting statutes in effect at the time of this printing, in
all U.S. jurisdictions, they enjoy immunity from suit even if they misdiagnose child abuse. 165
This immunity has been upheld under state constitutional due process attack. 166 A physician may
not be able to rely on such a statutory grant of immunity, however, if he or she informs some person
or agency of his or her suspicions but fails to report the suspected child abuse in the manner
required by law. In a 1992 California case, Searcy v. Auerbach , 167 a child's mother was allowed
to sue a psychologist for libel, professional negligence, and intentional, as well as negligent,
infliction of emotional distress after he told her ex-husband in writing that he suspected her child
was abused while in her custody. Merely telling the father, who related the suspicions to Texas
authorities, did not comply with the California statute and therefore no immunity attached.
Similarly, in Missouri a physician could not rely on the immunity granted under a child abuse
reporting statute because he reported the abuse he erroneously suspected to the police, not to the
Division of Family Services, as required by the statute. 168
Even where a physician is quite confident of a diagnosis of child abuse, he or she may fail to report
because of the threat of mere possibility of legal entanglement. 169 It has been argued that
immunity provisions are unnecessary because such causes of action as defamation, malicious
prosecution, or breach of confidence are all defeated by a showing of good faith. 170 The weakness
of this argument is apparent, however, because physicians are unlikely to be aware of the
effectiveness and availability of this defense and because, even if they were so aware, they might
still dread the possible need to mount a defense at all. 171
In general, physicians are probably also unaware that in at least 42 states, a failure to report child
abuse can result in criminal prosecution. 172 As a rule, such failures are classified as
misdemeanors, 173 and criminal penalties have been criticized because the symptoms of battered
child syndrome may be subtle. 174 A search of reported state cases reveals no criminal
prosecutions for failure to report, however. 175 It is unlikely that misprision of a felony remains
viable as a theory on which to ground criminal prosecution for non-reporting. 176
On the other hand, some commentators have claimed that mandatory reporting laws are
meaningless if toothless, that sanctions make it easier for the physician to placate parents irate
about mistaken reporting, and that even small penalties create a stigma physicians would seek to
avoid. 177 Considering the rarity of criminal actions against non-reporting doctors, however, these
arguments seem, at least at present, to have more theoretical appeal than practical value.
C. Allegedly Negligent Failure to Report
Rarely have malpractice claims been reported in which the theory of liability was negligent failure
to report child abuse (as opposed to negligent diagnosis and/or reporting as alleged in Searcy v.
Auerbach 178 ). In Landeros v. Flood, 179 however, the California Supreme Court held that such
a theory stated a cause of action under California law. In Landeros an 11-month-old girl was
brought to codefendant hospital for diagnosis and treatment of a comminuted spiral fracture of her
right tibia and fibula, for which the mother could offer no explanation. The child demonstrated
numerous bruises and abrasions and, unbeknownst to the defendant examining physician, a non-
depressed linear skull fracture as well. Although the physician properly set the child's leg, he failed
to diagnose and report child abuse. The patient was released to the care of her parents, who inflicted
multiple subsequent injuries, including human bites and second- and third-degree burns sufficient
to render likely the loss of use or the amputation of her left hand. Later, the child's new foster
parents sued both doctor and hospital for negligence for failing to report the case on initial
presentation, on theories of common law negligence, noncompliance with the penal code section
requiring reports of injuries related to any violation of state law, and noncompliance with the child
abuse reporting statutes. 180
The Supreme Court of California held that the plaintiff was entitled--although because of the
reporting statute, not required 181 --to show by expert testimony that the standard of care at the
time of the events in the case included reporting and that therefore the trial court was in error in
sustaining the defendant's demurrer on this issue. 182 The court rejected the defendant's theory
that the parents' later beating of the patient was a superseding cause absolving the defendant of
responsibility, because if such beatings were reasonably foreseeable they would not give rise to a
defense. 183 The court held further that the plaintiff was entitled to show noncompliance with the
reporting statutes to raise a presumption of failure to exercise due care as an alternative legal theory
to common law negligence. 184 Hence, in California, a physician who negligently fails to report a
suspected case of child abuse may be found liable in a civil action. The California court did
indicate, however, that to establish criminal liability, one must show that the physician was actually
aware of the child abuse, so that the failure to report is not merely negligent but willful. 185 There
is at least one other unreported California case in which negligence per se was alleged against the
defendant physician for breach of statutory duty to report, but the $5 million suit was settled out of
court for $600,000. 186
The few reported cases since Landeros have adopted a different position on the issue of civil
liability for failure to report child abuse. The Georgia and Minnesota courts of appeals have held
that no private right of action is created by their respective child abuse reporting statutes.
Accordingly they have refused to allow civil suits against doctors. In Cechman v. Travis 187 an
administratrix sued a hospital and treating physicians on behalf of a deceased child who was killed
by her abusive father after being treated at the defendant institution. Although a criminal statute
required that a licensed physician report suspected cases of child abuse, the court held that the
statute created no private right of action in tort, in favor of an abused victim. 188 Furthermore, the
physician had no common law legal duty to protect the child from the father, thus no common law
medical malpractice claim would lie. 189
Likewise, in Valtakis v. Putnam 190 the Minnesota Court of Appeals held that Minnesota's Child
Abuse Reporting Act did not create a private right of action. The case involved a suit against a
psychologist and others for failure to make a proper report of a child's sexual abuse. The victim
alleged that Minnesota Statute Section 626.556 created two penalties--a misdemeanor sanction and
a civil suit. 191 The court disagreed. The court found that (1) the defendants had complied with the
statute, (2) "no common law duty existed before the statute was enacted," and (3) a reading of the
statutory language revealed that no such right of action was either expressed or implied. 192
In Marcelletti v. Bathani 193 the Michigan Court of Appeals likewise declined to extend a private
right of action to an injured infant, despite clear statutory language creating civil liability for failure
to report suspected child abuse. In Marcelletti the injured infant sued a physician, Dr. Bathani, for
failing to report the abuse of another unrelated child by a babysitter common to both children. The
court refused to extend a right of action to the plaintiff because the statute provided an action for
civil liability only to a child whose harm was proximately caused by a failure to report. The court
found that the Marcelletti infant's injury was not proximately caused by failure of the defendant to
report the abuse of another unrelated child. 194 Moreover, ruled the court, no common law duty
existed in Michigan that would support a civil action against Dr. Bathani. 195 The ability to sue,
where otherwise appropriate, was a creature of statute only.
Despite Landeros, the more recent decisions suggest that in the absence of explicit statutory
authorization, the courts may be reluctant to extend a private right of action to plaintiffs alleging
harm from failure to comply with reporting statutes.
D. State Liability
Agencies charged with responsibility for placement of foster children have in some cases been held
liable under the reporting statutes for abuse by the foster parents they have selected, where the
agencies knew or should have known of the abuse. 196 Some courts have found an affirmative
obligation under the Fourteenth Amendment to protect or to intervene on behalf of a known or
suspected child abuse victim where a special custodial relationship is created or assumed by
governmental agencies. 197 Another court, ruling that a child confined to a state mental health
facility has a substantive due process liberty interest in reasonably safe living conditions, found a
violation of that interest where foster parents with whom the state had placed the child severely
injured him and the state failed to intervene. 198 Where, however, a child is abused by his father
while in the father's custody, a county agency is under no duty to protect the child, even though it
knew of the abuse, as the state had played no part in the creation of the dangers the child faced, nor
had it done anything to render the child any more vulnerable to such dangers. 199 That the state
had once taken temporary custody of the child did not alter this conclusion, since in returning the
child to his father's custody it placed him in a position no worse than that in which he would have
been had it not acted at all. 200
1. People v. Pierson, 68 N.E. 243, 244 (N.Y. 1903); see also Owens v. State, 116 P. 345
(Okla. Crim. App. 1911); see also People v. Edwards, 249 N.Y.S. 2d 325 (N.Y. Co. Ct.
1964); see, e.g., In re Carstairs, 115 N.Y.S. 2d 314 (N.Y. Dom. Rel. Ct. 1952).
2. See, e.g., Ala. Code *** 12-15-1(10) (2000); see also Jehovah's Witnesses v. King County
Hosp. Unit No. 1, 278 F. Supp. 488 (W.D. Wash.), aff'd, 390 U.S. 598 (1968).
3. See, e.g., Heinemann's Appeal, 96 Pa. 112, 42 Am. Rep. 532 (Ct. App. 1880); see also
Mitchell v. Davis, 205 S.W. 2d 812 (Tex. Civ. App. 1947).
4. In re Marsh, 14 A. 2d 368 (Pa. Super. Ct. 1940).
5. Jefferson v. Griffin Spalding County Hosp. Auth., 274 S.E. 2d 457 (Ga. 1981).
6. See State v. Perricone, 181 A. 2d 751 (N.J.), cert. denied, 371 U.S. 890 (1962); In re
Santos, 227 N.Y.S. 2d 450 (N.Y.A.D. 1 Dept.), appeal dismissed, 185 N.E. 2d 552 (N.Y.
7. See Custody of a Minor, 393 N.E. 2d 836, 846 (Mass. 1979); but see Newmark v. Williams,
588 A. 2d 1108 (Del. 1991).
8. See State v. Perricone, supra note 6, at 757; see also Levitsky v. Levitsky, 190 A. 2d 621
(Md. 1963); but see Osier v. Osier, 410 A. 2d 1027 (Me. 1980).
9. See In re Hamilton, 657 S.W. 2d 425 (Tenn. App. 1983).
10. People ex rel Wallace v. Labrenz, 104 N.E. 2d 769 (Ill.), cert. denied , 344 U.S. 824
11. Id. at 773.
12. See, e.g., In re Eric B., 235 Cal. Rptr. 22 (Cal. App. 1987), review denied.
13. See id. The court need not "hold its protective power in abeyance until harm to a minor
child is not only threatened but actual. The purpose of dependency proceedings is to prevent
risk, not ignore it." Id. at 26. See also In re Ivey, 319 So. 2d 53 (Fla. App. 1975); see
also In re Jensen, 633 P. 2d 1302 (Or. App.), review denied, 639 P. 2d 1280 (1981).
14. See State v. Miskimens, 490 N.E. 2d 931 (Ohio Com. Pl. 1984).
15. See e.g., In re Application of Cicero, 421 N.Y.S. 2d 965, 966 (N.Y. Sup. 1979).
16. See, e.g., Newmark v. Williams, 588 A. 2d 1108 (Del. Super. 1991); In re Frank, 248 P.
2d 553 (Wash. 1952).
17. See In re Gonzales, 323, N.E. 2d 42, 46-47 (Ill. App. 1974); see also People in the Interest
of D.L.E., 614 P. 2d 873 (Colo. 1980).
18. State v. Chenoweth, 71 N.E. 197 (Ind. 1904); see also Stehr v. State, 139 N.W. 676
(Neb.), aff'd, 142 N.W. 670 (1913); see also Beck v. State, 233 P. 495 (Okla. Crim. App.
1925); see also People v. Vogel, 242 P. 2d 969 (Cal. App. 4th Dist. 1952); see also State
v. Dumlao, 491 A. 2d 404 (Conn. App. 1985); see also State v. Clark, 261 A. 2d 294
(Conn. Cir. A.D. 1969); see also State v. Staples, 148 N.W. 283 (Minn. 1914); see also
State v. Beach, 329 S.W. 2d 712 (Mo. 1959); see also State v. Watson, 71 A. 1113 (N.J.
Sup. 1909); see also Pennsylvania v. Barnhart, 497 A. 2d 616 (Pa. Super. 1985), appeal
denied, 538 A. 2d 874 (Pa.), cert. denied, 488 U.S. 817, (1988); see also New York v.
Edwards, 249 N.Y.S. 2d 325 (N.Y. Co. Ct. 1964); State v. Barnes, 212 S.W. 100 (Tenn.
1919); Oakley v. Jackson, 1 K.B. 216 (1914); Rex. v. Lewis, 6 Ont. L. 132 1BRC
732-CA (1903). See Nozza v. State, 288 So. 2d 560 (Fla. App.), cert. denied, 295 So. 2d
301 (Fla. 1974); Pennsylvania v. Barnhart, 497 A. 2d 616 (Pa. Super. 1985), appeal
denied, 538 F.2d 874 (Pa.), cert denied, 488 U.S. (1988); Faunteroy v. U.S., 413 A. 2d
1294 (D.C. App. 1980); State v. Zobel, 134 N.W. 2d 101 (S.D.), cert. denied, 382 U.S.
833, (1965), overruled on other grounds, State v. Waff, 373 N.W. 2d 18 (S.D. 1985).
19. See cases cited supra note 18.
20. See Eversley v. State, 748 So. 2d 963 (Fla. 1999); see also Singleton v. State, 35 So. 2d
375 (Ala. 1948); Craig v. State, 155 A. 2d 684 (Md. 1959); New York v. Osborn, 508
N.Y.S. 2d 746 (1986), appeal denied, 505 N.E. 2d 251 (N.Y. 1987); New York v.
Northrup, 442 N.Y.S. 2d 658 (1981).
21. See State v. Watson, 71 A. 1113, 1114 (N.J. 1909); see also State v. Osmus, 276 P. 2d 469
(Wyo. 1954); Howell v. State, 350 S.E. 2d 473 (Ga. App. 1986); Justice v. State, 42 S.E.
1013 (Ga. 1902); Michigan v. Mankel, 129 N.W. 2d 894 (Mich. 1964); Missouri v.
Shouse, 186 S.W. 1064 (Mo. 1916); In re Appeal in Chochise County, Juvenile Action
No. 5666-J, 650 P. 2d 459 (Ariz. 1981). But see State v. Clark, 261 A. 2d 294 (Conn.
1969); Eaglen v. State, 231 N.E.2d 147 (Ind. 1967); State v. Williams, 484 P.2d 1167
(Wash. Ct. App. 1971).
22. Parens patriae empowers the state to "care for infants within its jurisdiction and to protect
them from neglect, abuse, and fraud. . . . That ancient, equitable jurisdiction was codified in
our Juvenile Court Act, which expressly authorizes the court, if circumstances warrant, to
remove the child from the custody of its (sic) parents and award its custody to an appointed
guardian." People ex rel Wallace v. Labrenz, 104 N.E. 2d 769, 773 (Ill.), cert. Denied, 344
U.S. 824 (1952).
23. In re Weberlist, 360 NY.S. 2d 783, 786 (1974).
24. Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972).
25. Morrison v. State, 252 S.W. 2d 97, 102 (Mo. Ct. App. 1952).
26. See Commissioner of Social Servs re D., 339 N.Y.S. 2d 89 (N.Y. Fam. Ct. 1972); see also
Weberlist , 360 N.Y.S. 2d 783; In re Tanner, 549 P. 2d 703 (Utah 1976). See, e.g., People
v. Sorensen, 437 P. 2d 495 (Cal. 1968); Karin T. v. Michael T., 484 N.Y.S. 2d 780 (Fam.
Ct. 1985); Wener v. Wener, 312 N.Y.S. 2d 815 (1970). But see, Pamela P. v. Frank S.,
443 N.Y.S. 2d 343 (Fam. Ct.1981), aff'd., 462 N.Y.S. 2d 819 (1983).
27. See Browning v. Hoffman, 111 S.E. 492 (W. Va. 1922).
28. See, e.g., Commissioner of Social Serv. and Tanner, supra note 26; Weberlist, supra
29. Weberlist, 360 NY.S. 2d 783, 787.
30. In re Sampson, 317 NY.S. 2d 641, 658 (Fam. Ct. 1970), aff'd, 323 N.Y.S. 2d 253
(App.Div. 3 Dept.), appeal denied, 275 N.E. 2d 339 (1971).
31. Weber v. Stoney Brook Hosp., 467 N.Y.S. 2d 685, 686-87 (App. Div.), aff'd., 456 N.E. 2d
1186 (N.Y.), cert. denied, 464 U.S. 1026 (1983).
32. In re Eric B., 189 Cal. App. 3d 996 (Ct.App. 1987); People ex rel. D.L.E., 645 P.2d 271
(Colo. 1982); In re Ivy, 319 So.2d 53 (Fla. Dist. Ct. App. 1975); People ex rel. Wallace v.
Labrenz, 104 N.E.2d 769 (Ill.), cert. denied, 344 U.S. 824 (1952); Custody of a Minor, 393
N.E. 2d 836 (Mass. 1979); Morrison v. State, 252 S.W.2d 97 (Mo. Ct. App. 1952); In re
Willmann, 493 N.E.2d 1380 (Ohio Ct. App. 1986); In re Clark, 185 N.E. 2d 128 (Ohio Op.
33. See, e.g., People ex rel. D.L.E., 645 P.2d 271, 272-75 (Colo. 1982) (interpreting a Colorado
state statute and holding that an epileptic child was neglected when her mother failed or
refused to provide medical care because of her religious beliefs).
34. See In re McCauley, 565 N.E.2d 411, 414 (Mass. 1991).
35. See In re Vasko, 263 N.Y.S. 552 (1933).
36. See Office of Attorney General, No 81-57, slip op. (Utah Dec. 14, 1981).
37. See In re Rotkowitz, 25 N.Y.S. 2d 624 (Dom. Rel. Ct. 1941).
38. See In re Karwath, 199 N.W. 2d 147, 150 (Iowa 1972).
39. See In re Seiferth, 127 N.E. 2d 820 (N.Y. 1955); see also In re Gregory S., 380 N.Y.S. 2d
40. See In re Ray, 408 N.Y.2d 737 (City Fam. Ct. 1978), see also In re J.M.P., 669 S.W.2d 298
(Mo. App. 1984).
41. See Sampson, 317 N.Y.S. 2d 641.
42. See Snyder v. Holy Cross Hosp., 352 A. 2d 334 (Md. App. 1976).
43. See In re Hudson, 126 P. 2d 765 (Wash. 1942); accord Custody of a Minor, 379 N.E. 2d
1053 (Mass. 1978).
44. See Custody of a Minor, 379 N.E. 2d at 1062.
45. See In re Seiferth, 127 N.E.2d 820, 822 (N.Y. 1955).
46. See In re Hudson, 126 P. 2d at 778; see also Wash. Rev. Code Ann. Sec. 26.440.020
(West Supp. 1982). See Comment, Relief for the Neglected Child: Court-Ordered Medical
Treatment in Non-Emergency Situations, 22 Santa Clara L. Rev. 471 (1982).
47. In re Hofbauer, 393 N.E. 2d 1009 (N.Y. 1979).
48. Id. at 1013.
49. Id. (quoting People v. Pierson, 68 N.E. 243 (N.Y. 1903)).
50. Id. at 1014.
51. Custody of a Minor, 393 N.E. 2d 836 (Mass. 199).
52. Id. at 845.
53. In re Karwath, 199 N.W. 2d 147 (Iowa 1972).
54. Id. at 149.
55. Id. at 150.
56. See id.
58. Genesis 9:4-5 (quoted in Perricone, supra, n. 6, 181 A.2d at 756).
59. Leviticus 17:10-14 (quoted in Morrison v. State, 252 S.W.2d 97, 99 (Mo. Ct. App. 1952)).
60. See Leviticus 3:17, 7:26, 27; Deuteronomy 12:23; 1 Chronicles 11:16-19; 2 Samuel 23:15-
17; Acts 15:28, 29, 21:25; 1 Samuel 14:32, 33 (cited In re Sampson, 317 N.Y.S.2d 641, 646
(Fam. Ct. 1970), aff’d, 323 N.Y.S.2d 253 (App. Div.) appeal denied, 275 N.E.2d 339
61. See State v. Perricone, 181 A.2d 751, 758 (N.J.), cert. denied, 371 U.S. 890 (1962); see also
Hoener v. Bertianto, 171 A.2d 140 (N.J. Juv. & Dom. Rel. Ct. 1961).
62. Hoener, 171 A.2d at 143.
63. Morrison v. State, 22 S.W.2d 97, 100 (Mo.Ct.App. 1952).
64. See Harley v. Oliver, 404 F.Supp. 450 (W.D. Ark. 1975), aff’d, 539 F.2d 1143 (8th Cir.
1976); see also Staelens v. Yake, 432 F.Supp. 834 (N.D. Ill. 1977).
65. Morrison v. State, 252 S.W.2d 97, 102 (Mo. Ct. App. 1952).
66. See In re Brooks’ Estate, 205 N.E.2d 435 (Ill. 1965).
67. In re Green, 292 A.2d 387, 392 (Pa. 1972).
68. See Applicatioan of President & Directors of Georgetown College, Inc., 331 F.2d 1000,
reh’g denied, 331 F.2d 1010 (D.C. Cit.), cert. denied, 377 U.S. 978 (1964); John F.
Kennedy Memorial Hosp. V. Heston, 29 A.2d 670 (N.J. 1971).
69. See People ex rel Wallace v. Labrenz, 104 N.E.2d 769 (Ill.), cert. denied, 344 U.S. 824
(1952); see also Application of Brooklyn Hosp., 258 N.Y.S.2d 621 (Sup. Ct. 1965); In re
Clark, 185 N.E.2d 128 (Ohio C.P. 1962); see also State v. Perricone, 181 A.2d 751 (N.J.),
cert. denied, 371 U.S. 890 (1962).
70. See In re Clark, 148 N.E.2d 128 (Ohio C.P. 1962).
71. See id.
72. See U.S. 985 (1964).
73. See In re Clark, 184 N.E.2d 128 (Ohio C.P. 1962).
74. See Hoenere v. Bertinato, 171 A.2d 140, 143-44 (N.J.Jub. & Dom. Rel. Ct. 1961).
75. See State v. Perricone, 181 A.2d 751 (N.J.) cert. denied, 371 U.S. 890 (1962).
77. Id. at 759.
78. See Jehovah’s Witness v. King Co. Hosp., 278 F.Supp. 488 (W.D. Wash. 1967), aff’d 390
U.S. 598 (1967).
79. See id.
80. Hoener v. Bertinato, 171 A.2d 140, 143 (N.J. Juv. & Dom. Rel. Ct. 1961).
81. People v. Pierson, 68 N.E. 243 (N.Y. 1903).
82. Id. at 247.
83. Muhlenberg Hosp. v. Patterson, 320 A.2d 518 (N.J. Super. 1974).
84. In re Sampson, 317 N.Y.S.2d 641 (N.Y. Fam. Ct. 1970), aff’d, 323 N.Y.S.2d 253 (N.Y.A.D.
3 Dept.), appeal denied, 275 N.E.2d 339 (N.Y. 1971).
85. In re Seiferth, 127 N.E.2d 820 (N.Y. 1955).
86. In re Sampson, 278 N.E.2d 918 (N.Y. 1971); see also Santos v. Goldstein, 227 N.Y.S.2d
450 (N.Y.A.D. 1 Dept. 1962), appeal dismissed, 232 N.Y.S.2d 1026 (N.Y. 1962).
87. In re Green, 292 A.2d 387 (Pa. 1972, appeal after remand, 307 A.2d 279 (Pa. 1973).
88. Id. at 392.
89. Baby Boy Doe v. Mother Doe, 510 U.S. 1168 (1994).
90. State ex rel Milhoof v. Board of Educ., 81. N.E. 568, 569 (Ohio 1907).
91. DeAryan v. Butler, 260 P.2d 98, 102 (Cal. App. 1853), cert. denied, 347 U.S. 1012 (1954).
92. Seem e,g,m McCarney v. Austin, 293 N.Y.S.2d 188 (Sup. Ct. 1968), aff’d, 298 N.Y.S.2d 26
(App. Div. 1969); In re Elwell, 284 N.Y.S.2d 924 (Fam. Ct. 1967); State ex rel. Mack v.
Boad of Educ., 204 N.E.2d 86 (Ohio Ct. App. 1963); State ex. rel. Dunham v. Board, 96
N.E.2d 413 (Ohio), cert. denied, 341 U.S. 915 (1951).
93. See Hagler v. Larner, 120 N.E. 575 (Ill. 1918); Hill v. Bickers, 188 S.W. 766 (Ky. 1916);
State ex rel. Freeman v. Zimmermann, 90 N.W. 783 (Min.. 1902); City of New Braunfels v.
Waldschmidt, 207 S.W. 303 (Tex. 1918); see also Rhea v. Board of Educ., 171 N.W. 103
94. See, e.g., McSween v. Board of School Trustees, 129 S.W. 206 (Tex. Civ. App. 1910).
95. State ex rel Mack v. Board of Educ., 204 N.E.2d 86 (Ohio Ct. App. 1963).
96. Jacobson v. Massachusetts, 197 U.S. 11 (1905).
97. Id. at 29.
98. See id. at 30, 39.
99. See, e.g., French v. Davidson, 77 P. 663 (Cal. 1904); Abeel v. Clark, 24 P. 383 (Cal.
1890); Bissell v. Davison, 32 A. 348 (Conn. 1894); Hagler v. Larner, 120 N.E. 575 (Ill.
1918); Board of Educ. v. Maas, 152 A. 2d 394 (N.J. Super. 1959), aff'd, 158 A. 2d 330
(N.J.), cert. denied, 363 U.S. 843 (1960); Sadlock v. Board of Educ., 58 A. 2d 218 (N.J.
1948); State ex rel. Milhoff v. Board of Ed., 81 N.E. 568 (Ohio 1907); Field v. Robinson,
48 A. 873 (Pa. 1901); Commonwealth v. Pear, 66 N.E. 719 (Mass. 1903), aff'd. sub nom.
Jacobson v. Massachusetts 197 U.S. 11 (1905); State ex rel. Cox v. Board of Educ., 60 P.
1013 (Utah 1900); see also Ritterbaud v. Axelrod, 562 N.Y.S. 2d 605 (N.Y. Sup. 1990).
100. See, e.g. Maas, 152 A.2d at 394.
101. See, e.g., Mosier v. Barren County Bd. of Health, 215 S.W.3d 967 (Ky. 1948)
(chiropractors); Mannis v. State ex rel. DeWitt School Dist., 398 S.W.2d 206 (Ark.); cert.
denied, 384 U.S. 972 (1966) (members of the General Assembly and Church of the First
Born); see also Wright v. DeWitt School Dist., 385 S.W.2d 644 (Ark. 1965); State ex. rel.
Dunham v. Board of Educ., i6 N.E.2d 413 (Ohio 1951).
102. See Maas, 152 A.2d at 407-408.
103. See Sadlock v. Board of Educ., 58 A.2d 218 (N.J. 1948).
104. See People v. Pierson, 68 N.E. 243 (N.Y. 1903); accord In re Whittmore, 47 N.Y.S.2d 143
(N.Y. 1944); Wright v. DeWitt School Dist., 385 S.W.2d 644 (Ark. 1965); Cude v. State,
377 S.W.2d 816 (Ark. 1964).
105. See Staffle v. San Antonio, 201 S.W. 413, 415 (Tex. Civ. App. 1918).
106. See Board of Educ. v. Maas, 152 A.2d 394 (N.J. Super. Ct. 1959) aff’d, 158 A.2d 330 (N.J.),
cert. denied, 363 U.S. 843 (1960); see malso McCartney v. Austin, 293 N.Y.S.2d 188
(Suup. St. 1968), aff’d, 298 N.Y.S.2d 26 (App. Div. 1969); In re Elwell, 298 N.Y.S.2d 924
(Fam. Ct. 1967).
107. See Dalli v. Board of Educ., 267 N.E.2d 219, 223 (Mass. 1971); accord Maier v. Besser,
341 N.Y.S.2d 411 (N.Y. Sup. 1972); see also Kolbeck v. Kramer, 202 A.2d 889 (N.J.
Super. Ct. 1964); Davis v. State, 451 A.2d 107 (Md. 1982); accord Campain v. Marlboro
Cent. School Dist., 526 N.Y.S.2d 658 (App. Div. 1988).
108. See Itz v. Penick, 493 S.W.2d 506 Itec.); appeal dismissed, 412 U.S. 925, reh’g denied 414
U.S. 882 (1973).
109. See Avard v. Dupius, 376 F.Supp. 479 (D.N.H. 1974).
110. See, e.g., Zucht v. King, 260 U.S. 174 (1922); Duffield v. Williamsport School Dist., 29 A.
742 (Pa. 1894); Hartman v. May, 151 So. 737 (Miss. 1934); State v. Hay, 35 S.E. 459 (N.C.
1900); McSween, supra note 94.
111. See Maas, supra n. 106, 152 A.2d at 394; Mosier v. Barren County Bd. of Health, 215
S.W.2d 967 (Ky. 1948); Hartman v. May, 151 So. 737 (Miss. 1934).
112. See Maas, 152 A.2d at 405; Pierce v. Board of Educ., 219 N.Y.S.2d 519 (Sup. Ct. 1961).
113. SeeState v. Drew, 192 A.629 (N.H. 1937).
114. See Seubold v. Fort Smith Special School Dist., 237 S.W.2d 884 (Ark. 1951); Wright, 385
115. Maas, 152 A.2d at 408; accord Viemeister v. White, 72 N.E. 97(N.Y. 1904); Blue v. Beach,
56 N.E. 89 (Ind. 1900); Hartman v. May, 151 So. 737 (Miss. 1934); McSween, 129 S.W.
206 (Tex. Cir. App.); Staffle, 201 S.W. 413; Zucht v. King, 260 U.S. 174 (1922); City of
New Braunfels v. Waldschmidt, 207 S. W. 303 (Tex. 1918); Freeman v. Zimmerman, 90
N.W. 783 (Minn. 1902); State v. Hay, 35 S.E. 459 (N.C. 1900); Bissell v. Davison, 32 A.
348 (Conn. 1894); Morris v. Columbus, 30 S.E. 850 (Ga. 1898); Duffield v. Williamsport
School Dist., 29 A. 742 (Pa. 1894).
116. See Hutchins v. School Committee, 49 S.E. 46 (N.C. 1904).
117. See State v. Dunham, 93 N.E.2d 286 (Ohio 1950).
118. See In re Elwell, 284 N.Y.S.2d 924 (Fam. Ct. 1967); Cude v. State, 377 S.W.2d 816 (Ark.);
In re Marsh’s Case, 14 A.2d 368, 371 (Pa. Super Ct. 1940); Mannis v. State ex rel. DeWitt
School Dist., 398 S.W.2d 206 (Ark.); cert. denied, 384 U.S. 272 (1966).
119. See N.J. Mitrichen, Child Abuse: An Annotated Bibliography (1982), cited in Heins, “The
Battered Child” Revisited, 251 JAMA 3295, 3298 n. 19 (1984).
120. See National Briefs, The Houston Chronicle, Oct. 28, 1993, at A4; The Child Abuse
Epidemic, 1974, U. Ill. L. Rev. 403, 404 (1974).
121. See U.S. Department of Health and Human Services, National Center on Child Abuse and
Neglect, (1999), Child Maltreatment 1997; Reports from the States of the National Child
Abuse and Neglect, Data System Washington, D.C.: U.S. Government Printing Office
(hereinafter 1997 National Child Abuse and Neglect Data System Report).
124. See The Child Apuse Epidemic, supra note 120, at 403.
125. See 1997 National Child Abuse and Neglect Data System Report, supra notes 121-23.
126. See New York v. Steinberg, 595 N.E.2d 845 (N.Y. 1992); Massachusetts v. Gallison, 421
N.E.2d 757 (Mass. 1981). Abusers may also be convicted for criminal negligence. See,
e.g., Brewer v. Stae, 274 S.E.2d 817 (Ga. Ct. App. 1980); State v. Fabritz, 384 A.2d 275
(Md. 1975); Pennsylvania v. Humphfreys, 406 A.2d 1060 (Pa. Super Ct. 1979) overruled on
other grounds, Pennsylvania v. Burchard, 503 A.2d 936 (Pa. Super Ct. 1986); Pennsylvania
v. Morrison, 401 A.2d 1348 (Pa. Super. Ct. 1979); Williams v. State, 680 S.W.2d 570 (Tex.
App. 1984). In homicide prosecutions, physician testimony has been held admissible to
show death was caused by child-battering, see Utah v. Morgan, 865 P.2d 1377 (Utah Ct.
App. 1993); see also Illinois v. Secton, 334 N.E.2d 107 (Ill. App. 1975); Massachusetts v.
Boudreau, 285 N.E.2d 915 (Mass. 1972); Minnesota v. Durfee, 322 N.W.2d 778 (Minn.
1982); North Carolina v. Wilkerson, 247 S.E.2d 905, (N.C. 1978); Martin v. Oklahoma, 547
P.2d 396 (Okla. Crim. App. 1976), or by nontreatment after battering, Bergman v. State,
486 N.E.2d 653 (Ind. App. 1985). In prosecutions for child abuse, courts may similarly
receive expert physician testimony to establish that the child was battered. See California v.
Jackson, 95 Cal. Rptr. 919 (Cal. Ct. App. 1971); California v. Ewin, 140 Cal. Rptr. 299
(Cal. Ct. App. 1977); Cohoon v. U.S., 387 A.2d 1098 (D.C. 1978); New Jersey v. Nuniz,
375 A.2d 1234 (N.J. Super. Ct. 1977), cert. denied, 391 A.2d 488 (N.J. 1978); North
Carolina v. Mapp, 264 S.E.2d 348 (N.C. Ct. App. 1980), North Carolina v. Fredell, 193
S.E.2d 587 (N.C. Ct. App. 1972), aff’d, 195 S.E.2d 300 (N.C. 1973). See generally,
Annotation, Validity and Construction of Penal Statute Prohibiting Child Abuse, 1 A.L.R.
127. House, Senate Pass Death Penalty for Child Killers, United Press International, May 28,
1993, § Regional News (Texas Legislature); see also Karen Peterson, Abuse of Children Is
on the Rise, USA Today, April 7, 1993, § Life, at 1D.
128. See Clark J, Stein MD, Sobota M, Marisi M, Lucy H. Victims as victimizers: physical
aggression by persons with a history of childhood abuse, 159 Arch Intern Med, 1920-
129. See Reid, J., Macchetto, P., & Foster, S. (1999), No Safe Haven: Children of Stubstance-
Abusing Parents. The National Center on Addition and Substance Abuse at Columbia
University, New York, NY.
130. See 1997 National Child Abuse and Neglect Data System Report, supra.
131. See id.
132. See id.
133. U.S. Department of Health and Human Services, National Center on Child Abuse and
Neglect, Third National Incidence Study of Child Abuse and Neglect: Final Report (NIS-3)
(Washington, DC: Government Printing Office, 1996).
134. Caffey, The Parent-Infant Traumatic Stress Syndrome; (Caffey-Kempe Syndrome),
(Battered Baby Syndrome), 114 Am J. Roentgenology, Radiaon Therapeutics, and Nucl.
Med. 218, 227 (1972).
135. See Council on Scientific Affairs, American Medical Association, AMA Diagnostic and
Treatment Guidelines Concerning Child Abuse and Neglect, 254 JAMA 796 at 797, 798
136. See R. E. Hefler & C. H. Kempe, The Battered Child 51 at 105 (1968).
137. Id. at 106.
138. See Council Report, supra note 135, at 797, 798.
139. Most courts have held admissible expert testimony on the diagnosis and manifestations of
child abuse See generally, Annotation, Admissibility of Expert Medical Testimony in
Battered Child Syndrome, 98 A.L.R.3d 306. Compare Annotation, Admissibility at
Criminal Prosecution of Expert Testimony in Battering Parent Syndrome, 43 A.L.R. 4th
1203. See also, n. 126, supra.
140. See Council Report, supra note 135 at 798.
141. See id.
142. See id.
143. See Cantwell, Vaginal Inspection as it Relates to Child Sexual Abuse in Girls under
Thirteen, 7 Child Abuse and Neglect 171 (1983).
144. See Council Report, supra note 135.
145. Ganley, The Battered Child: Logic in Search of Law, 8 San Diego L. Rev. 364, 365, note 2
(1971); see also Silver, Child Abuse Syndrome: The “Grey Areas” in Establishing
Diagnosis, 44 Pediatrics 595 (1969); In re Jertrude O., 466 A.2d 885 (Mad. App. 1983);
cert. denied, 469 A.2d 863 (Md. 1984).
146. These laws are compiled and compared in, e.g., Note, Physician’s Liability for
Noncompliance with Child Abuse Reporting Statutes, 52 N. Dak. L. Rev. 736 (1976)
(hereinafter cited as Physician’s Liability); Fraser, A Pragmatic Alternative to Current
Legislative Approaches to Child Abuse, 12 Am. Cirm. L. Rev. 103 (1974); Donovan, The
Legal Response to Child Abuse, 11 Wm. & Mary L. Rev. 960 (1970). In California the
reporting statute lodges substantial reports in a statewide data bank. The law does not
require a professional, with no knowledge or suspicion of actual abuse, to report a minor as
a victim solely because the child is under 14 years old and indicates that he engages in
voluntary consensual sexual activity with another minor the same age. Planned Parenthood
Affiliates v. Van de Kamp, 226 Cal. Rptr. 361 (Cal. App. 1 Dist.), review denied (1986). In
Florida a psychiatrist treating an abusive father for emotional difficulties was not required to
report the abuse under the reporting statute’s mandate, which was limited to “any person…
servicing children,” since the psychiatrist had never cared for the abused child but only for
the father. Geoff. v. State, 390 So.2d 361 (Fla. Dist. Ct. App. 1980), aff’d after remand, 409
So.2d 44 (Fla. Dist. Ct. App. 1981). In Minnesota, however, a man convicted of criminal
sexual conduct with a 13-year-old boy was held properly convicted when the state acted on
information from a crisis intake worker whom the defendant had phoned to discuss the
incident; no privilege attached to the relationship between the worker and the defendant.
State v. Sandberg, 392 N.W.2d 298 (Minn. App. 1986), aff’d in part, reveresed in part on
other grounds, 406 N.W.2d 506 (Minn. 1987). For a discussion of the consequences of
reporting on parental rights, see Annotation, Physical Abuse of Child by Parent as Ground
for Termination of Parent’s Right to Child, 53 A.L.R. 3d 605, and Annotation, Sexual
Abuse of Child by Parent as Ground for Termination of Parent’s Right to Child, 58 A.L.R
3d 1074. See also Annotation, Validity of State Statute Providing for Termination of
Parental Rights, 22 A.L.R. 4th 774, and Annotation, Validity of State Statute providing for
Termination of Parental Rights, 22 A.L.R. 4th 774, and Annotation, Validity and Application
of Statute Allowing Endangered Child to Be Temporarily Removed from Parental Custody,
38 A.L.R. 4th 756. For a discussion of the consequences when the authorities fail to
intervene on behalf of abused children, see generally Annotation, Tort Liability of Public
Authority for Failure to Remove Parentally Abused or Neglected Children from Parent’s
Custody, 60 A.L.R. 4th 942.
147. See Physician’s Liability, supra note 146, at 740; see also ND Cert. Code § 50-25.1-09.
148. See Malpractice—Physician’s Liability for Failure to Diagnose and Report Child Abuse, 23
Wayne L Rev. 1887, 1191 (1977) (hereinafter cited as Malpractice—Physician’s Liability).
Besharov, ‘Doing Something’ About Child Abuse: The Need to Narrow the Grounds for
State Intervention, 8 Harv. J.L. & Pub. Pol’y 539 (1988). Such laws have been criticized as
too vague and hence conducive to both overreporting and underreporting, Weisberg &
Wald, Confidentiality Laws and State Efforts to Protect Abused or Neglected Children: The
Need for Statutory Reform, 18 Fam. L.Q. 143 (1984), and as self-defeating, Paulsen, The
Legal Framework for Child Protection, 66 Colum. L. Rev. 679 (1966) (“Everyone’s duty
may easily become nobody’s duty,” Id. at 713). The Attorney General of Texas has read his
state’s reporting requirements to apply even to clerics learning of abuse in their professional
capacities. Op. Tex. Atty. Gen. No. JM-342 (Aug. 5, 1985). For an analysis of this
position, see Note, The Clergy—Penitent Privilege and the Child Abuse Reporting
Statute—Is the Secret Sacred?, 19 John Marshall L. Rev. 1031 (1986). See also Mullen v.
United States, 263 F.2d 275 (D.C. Cir. 1958).
149. See U.S. Department of Health and Human Services, National Center on Child Abuse and
Neglect (1999). Child maltreatment 1997: Reports from the States to the National Child
Abuse and Neglect Data System. Washington, DC: Government Printing Office.
150. See, e.g., People v. Battaglia, 203 Cal. Rprt. 370 (Cal. Ct. App. 1984); People v. Salinas,
182 Cal. Rptr. 683 (Cal. Ct. App. 1982); Pennsylvania v. Anderson, 385 A.2d 365 (Pa.
Super. Ct. 1978).
151. See In re LE.J., 465 A.2d 374 (D.C. 1983); see also Hunter v. State, 360 N.E.2d 588 (Ind.
App.), cert. denied, 434 U.S. 906 (1977).
152. See People v. Younghanz, 202 Cal. Rptr. 907 (Cal. Ct. App. 1984). However, said the
court, to protect the patient’s expectation of privacy, the therapist should warn the patient of
his or her statutory duty to testify against the patient concerning instances of child abuse; if
the patient then continues therapy, he or she waives any right to challenge admissibility of
the evidence later. Once a psychotherapist advised the defendant of this duty at their
psychotherapeutic session, she was not required to warn him of her duty or to testify to
admissions made in subsequent sessions. People v. John B., 237 Cal. Rptr. 659 (Cal. Ct.
153. See, e.g., State v. Fagalde, 539 P.2d 86 (Wash. 1975); State v. Jacobus, 348 N.Y.S.2d 907
(Sup. Ct. 1973). See, e.g., People v. Battaglia, 203 Cal. Rptr. 370 (Cal. Ct. Appl. 1984);
Hunter v. State, 360 N.E.2d 588 (Ind. App.), cert. denied, 434 U.S. 906 (1977); State v.
Odenbrett, 349 N.W.2d 265 (Minn. 1984); Alexander v. State, 534 P.2d 1313 (Okla. Crim.
App. 1975); State v. Anderson, 616 P.2d 612 (Wash. 1980) appeal after remand, 538 P.2d
1205 (Wash.); cert. denied, 459 U.S. 842 (1982); State v. Fagalde, 539 P.2d 86. But see
State v. Andring, 342 N.W.2d 128 (Minn. 1984). Compare, Taresoff.
154. See State v. R.H., 683 P.2d 269 (Alaska Ct. App. 1984); see also Daymude v. State, 540
N.E.2d 1263 (Ind. Ct. App. 1989).
155. See People v. Stritzinger, 668 P.2d 738 (Cal. 1983).
156. See Landeros v. Flood, 123 Cal. Rptr. 713 (Cal. Ct. App. 1975( (dicta), vacated on other
grounds, 551 P.2d 389 (Cal. 1976).
157. See id. at 720.
158. See Silver, supra note 139.
159. See 2 Am. Jur. Proof of Facts 2d 365, 390.
160. See Brown, Medical and Legal Aspects of the Battered Child Syndrome, 50 Chi. Kent L.
Rev. 45, 60 (1973).
161. See Karelitz, Maltreatment of Children, 37 Pediatrics 377, 379 (1966).
162. See Goodpastrue & Angel, Child Abuse and the Law: The California System, 26 Hastings
L.J. 1081, 1094 (1975).
163. See Silver, Child Abuse Laws—Are They Enough?, 199 JAMA 65 (1967).
164. See Wolff, Are Doctors Too Soft on Child Beaters?, 43 Med. Econ. 84, 85 (1966).
165. See, e.g., Harris v. City of Montgomery, 435 So.2d 1207, 1213 (Ala. 1983); Brown v. Scott,
259 S.E.2d 642 (Ga. Ct. App. 1979). In California, a mandatory reporter enjoys immunity
from liability even for knowingly false reports—although a voluntary reporter can be liable
for a false report if he or she knew the report was false or if it was made with reckless
disregard for the truth or falsity of the report. Legislation also provides state reimbursement
for legal expenses incurred by mandatory reporters who successfully defend against claims
resulting from reporting. Krikorian v. Barry, 242 Ca. Rptr. 313, 316 (Cal. Ct. App. 1987);
see also Storch v. Silverman, 231 Cal. Rptr. 27 (Cal. Ct. App. 1986) (Physician reporting
sexual abuse of child immune from suit for negligent infliction of emotional distress
brought by parents alleging defendant lacked reasonable suspicion of existence of abuse).
166. See, e.g., Harris, 435 So.2d at 1213.
167. Searcy v. Auerbach, 980 F.2d 609 (9th Cir. 1992).
168. See Comstock v. Walsh, 848 S.W.2d 7 (Mo. Ct. App. 1992).
169. See Sussman, Reporting Child Abuse: A Review of the Literature, 8 Fam. L.Q. 245, 293
170. See id. at 293, 294.
171. See generally Hansen, Doctors, Lawyers and the Battered Child Law, 5 J. Trauma 826, 827
172. See Besharov, The Vulnerable Social Worker: Liability for Serving Children and Families
(National Association of Social Workers, 1985). (Hereinafter cited as Besharov.)
173. See, e.g., Cechman v. Travis, 414 S.E.2d 282, 284 (Ga. Ct. App. 1991) (in dicta), cert.
denied (1992); see also Sussman, supra note 169.
174. See Shepherd, The Abused Child and the Law, 22 Wash. & Lee L. Rev. 182, 192 (1968).
175. See, e.g., Kohlman, Malpractice Liability for Failure to Report Child Abuse, 49 Ca. St. B. J.
118, 121 (1974). A search of cases since 1974 also reveals no criminal prosecutions for
failure to report.
176. See Pope v. State, 396 A.2d 1054 (Md. 1979).
177. See Sussman, supra note 169.
178. Searcy, supra note 167.
179. Landeros v. Flood, 551 P.2d 389 (Cal. 1976).
180. See id. at 391-392.
181. See id. at 394, n. 8.
182. See id. at 394.
183. See id. at 395.
184. See id. at 396-397.
185. See id. at 397.
186. See Robinson v. Wical, C.A. No. 37607 (Cal. Super. Ct. San Luis Obispo, filed Sept. 4,
1970), cited in Note, Torts: Civil Action Against Physician for Failure to Report Cases of
Suspected Child Abuse, 30 Okla. L. Rev. 482, 485 note 21 (1977).
187. Cechman v. Travis, 414 S.E.2d 282.
188. See id.
189. See id.
190. Valtakis v. Putnam, 504 N.W.2d 264 (Minn. Ct. App. 1993).
191. See id. at 266.
193. Marcelletti v. Bathani, 500 N.W.2d 124 (Mich. Ct. App.) appeal denied, 502 N.W.2d 382
(Mich. 1993) (citing Michigan’s Child Protection Law, M.C.L. § 722.621 et seq.; M.S.A. §
194. See id. at 126.
195. See id. at 129-130.
196. See Doe v. New York City Dept. of Social Servs., 649 F.2d 134 (2d Cir. 1981), cert. denied
sub nom., Catholic Home Bureau v. Doe, 446 U.S. 864 (1983); see also Bartels v.
Westchester County, 429 N.Y.S.2d 906 (Appl Div. 1980). But see Blanca C. v. Nassau
County, 480 N.Y.S.2d 747 (App. Div. 1984), aff’d, 481 N.W.2d 545 (N.Y. 1985).
197. See Jensen v. Conrad, 747 F.2d 185 (4th Cir. 1984), cert. denied, 470 U.S. 1052 (1985).
198. See Taylor ex rel Walker v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) (en banc), cert. denied,
489 U.S. 1065.
199. See DeShaney v. Winnebago County Dep’t. of Soc. Serv., 489 U.S. 189 (1989).
200. See id. cf. Estate of Bailey v. County of York, 768 F.2d 503 (3d Cir. 1985); see also Doe v.
Bobbitt, 665 F. Supp. 691 (N.D. Ill. 1987), motion granted in part and denied in part, 682 F.
Supp. 388 (N.D. Ill. 1988).
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