Is failure to report child abuse governed by medical malpractice laws?

In Lee v. Detroit Medical Center and Children's Hospital, a panel of the Court of Appeals was presented with the thorny question of whether an abused child's representative must comply with medical malpractice rules in order to hold a medical professional responsible for the breach of the professional's statutory duty to report suspected child abuse.  Two judges concluded that since the statute creates a duty in both professionals and non-professionals, it does not create a "professional" duty and the malpractice rules are irrelevant to the statutory claim.  The third judge would have defined the duty based on the professional occupation of the person alleged to have committed the statutory breach.  The case is likely to end up before the Michigan Supreme Court before we have a final answer.

The child's legal representative argued that his four year old brother was murdered after DMC representatives failed to report abuse he suffered at the hands of a foster parent.  The DMC physician had recorded a dramatic weight loss, "failure to thrive" and "multiple bruises suggesting history of abuse." No Form 3200 was filed to report the suspected potential abuse to authorities, as required under MCL 722.623.

When sued, DMC representatives argued that since the alleged statutory violation occurred during the rendition of medical care and involved the exercise of medical judgment, the family was required to comply with the restrictions governing medical malpractice claims, including the duty to file a Notice of Intent and Affidavits of Merit, and application of evidence rules and caps enacted as part of tort "reform."  The Court of Appeals majority disagreed.  The two judges in the majority held that since the statute by its terms applies to laypersons as well as professionals, the claim does not required proof of expert medical judgment to prove a statutory violation:  therefore the alleged statutory breach is not a malpractice claim. 

The majority noted that in criminal actions under the statute, the courts have previously held that a professional "is not free to arrogate to himself the right to foreclose the possibility of a legal investigation...Therefore, doctors are left with little, if any, discretion in reporting."  The majority also concluded that common law principles of vicarious responsibility applied to render the DMC responsible for the mistakes of its agents, if they violated the statute.

In a thoughtful opinion by Judge Peter O'Connell, the dissenting Judge questioned whether it was consistent with a doctor's role in society to "presume" and report abuse and neglect to the state.  The dissenting judge would have made the question of "reasonable suspicion" a matter of professional discretion, a position  that the criminal actions under the statute have rejected.