Liability Issues

There are, of course, mandated reporting demands on professionals to protect children, and the possibility of a suit by the nonabusing parent of a child victim against a hospital and staff for not vigorously protecting a child certainly exists. The danger of false diagnosis has received attention elsewhere, and the number of such cases may increase. MBP accusations have now appeared with increasing frequency in divorce proceedings involving custody. Given the contentious bent of people with this disorder, there is the likelihood that forensic experts could come under fire and be sued for damages as well.

Physicians have been sued for malpractice for misdiag-nosing MBP, as well as for violating a mother’s constitu-tionally protected right to have access to her family. In a recent federal court case, reporting doctors and an expert hired by the prosecution were sued for violating the mother’s civil rights to due process through their court testimony. However, Judge Wexler of the U.S. District Court for the Eastern District of New York stated “it is without question that these doctors are entitled to abso-lute witness immunity with respect to their testimony in court regarding Ellen Storck’s MBP. That such testimony is alleged to have been without basis and contradictory to acceptable medical practice is irrelevant” (Storck v. Suf-folk County et al.).

PITFALLS

• Failure to suspect MBP and lack of familiarity with the disorder.

• Not being aware of the ability of the perpetrators to con staff and other professionals.

• Allowing the mother unsupervised visits. If the visits are supervised, not cautioning the visit supervisors about what to expect. Not having the supervisors keep careful written observations.

• Failure to review all medical records and interview all other available caretakers.

• Failure to anticipate and prepare with great care for the possibility of going to court either as witness or defendant.

• Minimizing parental pathology and being overly opti-mistic about prognosis.

CASE EXAMPLE EPILOGUE

At the trials of the mother who was accused of starv-ing her infants, one nearly to death, the father testi-fied that he believed his wife. There was a community outpouring of support for the family, particularly from their church. The mother’s lawyer argued unsuccess-fully for the return of the children to the mother after her original therapist testified that she did not have MBP and did not harm her children. At her criminal trial, in which the issue of MBP was permitted to be raised in a hypothetical question as to what might motivate a woman to engage in this kind of abuse, MBP was not offered as a diagnosis for the mother.

She was sentenced to 90 days in a state psychiatric forensic unit for evaluation and then ordered into therapy with a local expert in MBP who felt she made progress. The mother became pregnant by another man and the baby was immediately placed into cus-tody pending the outcome of an evaluation of her rela-tionship during visitations over a 6-month period. She will continue to be on probation and see her therapist.

The case presentation hallmarks many features of MBP cases: the intense power of the process, even in the hospital; cognitive slippage in the mother’s think-ing, as she increases the child’s fabricated stomach drainage to impossible amounts; the likelihood of pro-fessionals, such as inexperienced therapists and court personnel, to be fooled by MBP perpetrators; the pas-sive and sometimes active support of spouses, despite possible grave risk to their own children by the stance they take.

ACTION GUIDELINES

A. Team management is essential and should include joint meetings with all of the treating staff.

B. Develop a plan involving people knowledgeable about MBP in the investigation of the case.

C. Compile a list of possible factitious illnesses and con-sider means of symptom induction.

D. Preserve samples of toxicology studies, using a high degree of security.

E. Careful review of all medical records and contact with all prior providers of treatment is essential.

Records of siblings and mother may be extremely valuable.

F. Ask involved staff to document their observations of mother’s behavior.

G. Only involve evaluators who are truly familiar with all or most aspects of MBP.

H. Consider the use of covert surveillance. It is best to have a protocol for exactly how this will be imple-mented in advance of needing it.

I. Be ready to document, for the courts if necessary, the importance of separation of the child from the mother for diagnostic purposes.

J. Monitors need to be trained to be exceedingly cau-tious and document all behavior of the mother. Typi-cally the mother will want to spend more time talking to them than visiting with her child.

REFERENCES

American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision.

Washington, DC, American Psychiatric Association, 2000 Ayoub D, Alexander R, Beck D, et al: Definitional Issues in

Munchausen by proxy. APSAC Advisor 11(1):7–11, 1998 Chadwick DL, Krouse HF: Irresponsible testimony by medical

experts in cases involving the physical abuse and neglect of children. Child Maltreat 2(4):331–341, 1997

DiMaio VJM, Bernstein CG: A case of infanticide. J Forensic Sci 19:745–754, 1974

Firstman R, Talen J: The Death of Innocents: A True Story of Murder, Medicine, and High-Stakes Science. New York, Bantam Books, 1997

Hall DE, Eubanks L, Meyyazhagan S, et al: Evaluation of covert video surveillance in the diagnosis of Munchausen syndrome by proxy: lessons from 41 cases. Pediatrics 105(6):1305–1312, 2000

Kumho Tire Co., Ltd. v Carmichael, 119 S Ct 1167 (1999) McClure RJ, Davis PM, Meadow SR, et al: Epidemiology of

Munchausen syndrome by proxy, non-accidental poison-ing, and non-accidental suffocation. Arch Dis Child 75:57–

61, 1996

Meadow R: Munchausen syndromy by proxy: the hinterland of child abuse. Lancet [2]:343–345, 1977

People v Phillips, 175 Cal Rptr 703 (Ct App 1981)

Rosenberg D: From lying to homicide: the spectrum of Mun-chausen by proxy, in MunMun-chausen Syndrome by Proxy: Is-sues in Diagnosis and Treatment. Edited by Levin AV, Sheridan MS. New York, Lexington Books, 1995

Schreier HA: The perversion of mothering: Munchausen syn-drome by proxy. Bull Menninger Clin 56:421–437, 1992 Schreier HA: Factitious presentation of psychiatric disorder by

proxy. Child Psychology and Psychiatry Review 2(3):108–

115, 1997

Schreier HA, Libow JA: Hurting for Love: Munchausen by Proxy Syndrome. New York, Guilford, 1993

Southall DP, Plunkett MC, Banks MW, et al: Covert video re-cording of life-threatening child abuse: lessons for child protection. Pediatrics 100(5):735–760, 1997

Storck v Suffolk County et al, 97 Civ 2880 United States v Shay, 57 F3d 126 (1st Cir 1995)

Yorker B: Legal issues in factitious disorder by proxy, in The Spectrum of Factitious Disorders. Edited by Feldman M, Eisendrath S. Washington, DC, American Psychiatric Press, 1996

CASES

People v Phillips, 175 Cal Rptr 703 (Ct App 1981). MBP al-lowed in a murder case, and appeals court upholds the moth-er being diagnosed with MBP without hmoth-er being intmoth-erviewed by the expert witness.

Commonwealth v Robinson, 565 NE2d 1229 (1991). Circum-stantial evidence leads to conviction, though MBP not ad-mitted.

Tanya Thaxton Reid v State of Texas, 964 SW2d 723 (1998).

Expert testimony regarding MBP admitted for motive. Also admitted was case of another child who had similar symp-toms to the deceased until removed from mother’s care.

Murder conviction upheld on appeal.

Jessica A., 515 NYS2d 370 (1987). Conviction through res ipsa loquitor reasoning.

Clinical and Forensic Aspects of Sexual

Dalam dokumen Child and Adolescent (Halaman 182-186)