A. Definitions

Child abuse and neglect is medically defined as non-accidental injury to a minor child without adequate explanation and/or failure to provide for the needs of the child (medical, environmental, nutritional, educational, and emotional).

Legal definitions vary according to individual state laws. Note the following legal definitions, which are typical of state laws throughout the country.

An "abused child" is any unemancipated person under 18 years of age whose parent or immediate family member or any person who is responsible for the child's welfare, who resides in the same home as the child or who is a paramour of the child's parent does one or more of the following:

1. Inflicts, causes to be inflicted, or allows to be inflicted upon the child physical injury, by other than accidental means, which causes death disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function.
   
2. Creates a substantial risk of physical injury to the child by other than accidental means, which would be likely to cause death, disfigurement ....
   
3. Commits or allows to be committed any sex offense against the child, as such sex offenses are defined in the Criminal Code...
   
4. Commits or allows to be committed an act or acts of torture upon the child.
   
5. Inflicts excessive corporal punishment.
   

Equally important for the emergency physician is the state definition of the "neglected child":

A "neglected child" means any person under 18 years of age whose parent or other person responsible for the child's welfare:

1. Withholds or denies nourishment or medically indicated treatment including food or care denied solely on the basis of the present or anticipated mental or physical impairment as determined by a physician acting alone or in consultation with other physicians.
   
2. Otherwise does not provide the proper or necessary support, legally required education, or medical or other remedial care recognized by law as necessary for a child's well-being, including adequate food, clothing, and shelter.
   

A practical definition to discriminate corporal punishment from abuse is that if the injury requires medical attention, it is child abuse.

B. Reporting Child Abuse.

Emergency physicians are mandatory reporters of child abuse, as are hospital administrators, nurses, EMTs and social workers. Most reporting statutes require physicians to report to a state agency any suspicion of child abuse or neglect. The requirement to report is not discretionary.

The emergency physician may be exposed to civil liability for failure to report. Several states now have held physicians in malpractice for subsequent reinjury of a child abuse victim after physician failure to diagnose the syndrome in a prior examination and failure to initiate state intervention.

C. Immunity from Liability in Connection with Reporting

Emergency physicians have been sued for reporting child abuse and neglect. The cases range from allegations of defamation to civil rights actions. Most state laws provide physicians with complete immunity from civil and criminal liability. Some provide immunity whether the report is made in good or bad faith. Nothing can prevent the filing of a lawsuit, but the physician should prevail on a motion to dismiss.

D. Temporary Protective Custody

The key to the ED management of a child abuse case is understanding the law, and taking swift and decisive action. Emergency physicians have strong powers under the child abuse laws. In most states, a physician treating a child may take or retain temporary protective custody of the child without consent of the person responsible for the child's welfare under the following circumstances:

1. The physician has reason to believe that the circumstances and conditions of the child are such that continuing in the child's place of residence or in the care and custody of the person responsible for his or her welfare, presents an imminent danger to the child's life or health; and
   
2. There is no time to apply for a court order under the state law.
   
   

"Temporary protective custody" is defined to mean custody within a hospital or other medical facility or a place designated for such custody by the state child protection agency, subject to review by a court. After taking protective custody the physician must immediately make every reasonable effort to notify the person responsible for the child's welfare and must immediately notify the child protection agency. Typically, the physician then contacts the administrator in charge at the hospital who is then responsible for the further care of the child in the hospital.