Understand limits to legal immunity in child abuse cases
Sandeep K.Narang, M.D., J.D., FAAP
Pediatricians and the Law
Pediatricians and pediatric subspecialists who report child abuse may assume that
immunity provisions within state statutes protect them from lawsuits. However, parents
are suing physicians under US Code 42§1983 for assisting state protective agencies
with their investigations of child maltreatment allegations.
In post-Civil War torn 1871, violent acts against freed African-Americans were commonplace.
To stem this violence, Congress passed the Anti-Ku Klux Klan Act of 1871 (also known
as the Civil Rights Act of 1871), which afforded all American citizens a remunerative
cause of action in federal court for violence perpetuated by KKK-type conspirators.
Thus, the Civil Rights/Anti-KKK Act of 1871 became known as the “agent of peace” and
was codified as US Code 42§1983.
The pertinent language of US Code 42§1983 states that a person “who, under color of
any statute” causes any U.S. citizen to be deprived “of any rights, privileges or
immunities secured by the Constitution” shall be liable to that party. More simply
stated, a U.S. citizen has redress against another individual if: 1) that offender
is a “state actor” (i.e., “acting under color of state law”), and 2) the offender’s
action deprives the citizen of a “clearly established constitutional right” (such
as the “right to privacy” under the 14th Amendment).
In recent decades, parents have used US Code 42§1983 to assert their right to violently
discipline their children. These legal actions are referred to as “1983 suits.”
In Backlund v. Barnhart (9th Circuit, 1985), foster parents asserted that the Washington State Department
of Social and Health Services interfered with their “right” to exercise their religious
beliefs by spanking their foster child and sued under US Code 42§1983. The 9th Circuit,
however, held that the foster parents failed to demonstrate a clearly established
A similar suit was filed in Sweaney v. Ada County (9th Circuit, 1997), where a parent asserted her right to strike her son with a belt
on school grounds without law enforcement investigation of her conduct.
Currently, 1983 suits are being filed increasingly against pediatricians and pediatric
subspecialists. Once an allegation of child abuse has been deemed unfounded by a state
department or a court, caregivers are suing pediatricians (and investigative agents)
for setting in motion a course of events that led to the deprivation of their constitutional
rights (i.e., their “right to familial relations” under the 14th Amendment, right
to privacy or their right to be free from unlawful search and seizure under the 4th
Amendment, if the physician hospitalized the child during the initial social investigation).
In essence, pediatricians who are acting to protect children from violence are being
sued pursuant to what historically has been known as an anti-violence statute.
Pediatricians may assume that immunity provisions within state child abuse reporting
statutes protect them from such frivolous suits. However, it depends on the language
of their state reporting statute, the extent of action taken by the pediatrician/pediatric
subspecialist and the degree of uncertainty that remains about the abuse diagnosis.
Many state reporting statutes have vague or limited language about protected actions
of mandatory reporters. In fact, then-U.S. Department of Health and Human Services
Secretary Kathleen Sebelius submitted a report to Congress in 2013 outlining legal
concerns with loopholes in the immunity provisions of many state reporting statutes.
She recommended that Congress broaden the immunity language in the Child Abuse Prevention
and Treatment Act (CAPTA) to cover associated actions that go beyond the mere “making”
of a report. Despite this recommendation, Congress did not alter the immunity language
in the most recent CAPTA reauthorization bill, and these loopholes remain.
So what can pediatricians do to reduce their risk of being sued as they protect children
from abuse and comply with state mandates to report abuse?
While 1983 suits are rare, pediatricians should recognize that we live in a litigious
society and take the following steps to protect themselves:
Be a steadfast advocate, at both federal and state levels, for legislative change
to the immunity provision language of reporting statutes.
Carefully review your state reporting statute. When reporting abuse, ensure your actions
and documentation are in accordance with the statutory language (i.e., formal notification,
documentation, provide records only within statutory framework, etc.).
When issues/questions arise in suspected child maltreatment cases, in reporting abuse
or in interactions with state protective agencies, it may be prudent to consult with
a child abuse specialist, hospital counsel or both.
Review your malpractice insurance policy and have a detailed discussion with hospital
counsel or your insurance carrier about the scope of your activities that are covered,
whether civil actions such 1983 suits are covered under the malpractice policy and
the limitations of coverage.
Dr. Narang is a member of the AAP Committee on Medical Liability and Risk Management.