Good faith immunity protections would no longer apply to Illinois physicians who are mandated child abuse reporters, and instead of reporting child abuse when there is “reasonable cause” they would need to report abuse for any cause—or even mere suspicion—if a trial court decision is allowed to stand.
The change in the interpretation of Illinois’ Abused and Neglected Child Reporting Act (ANCRA) would stop professionals from using their experience and expertise to base reporting upon reasonable cause, inundating an already overloaded Illinois Department of Children & Family Services (DCFS) with unreasonable alleged child abuse reports. That is according to an amicus brief that the Litigation Center of the American Medical Association and State Medical Societies, the Illinois State Medical Society and more than a dozen other organizations filed in the case, Mercado v. Rosado.
That, the brief tells the Appellate Court of Illinois 1st Judicial District, will divert resources from children who are truly in harm’s way.
“To be effective, child abuse statutes must mandate intervention when appropriate, and the holding of the Circuit Court of Cook County would result in large-scale, inappropriate, unreasonable overreporting thereby endangering victims of child abuse,” the brief tells the court.
It would also open physicians up to lawsuits when they are acting in good faith. In this case, a jury returned a $48 million verdict against a board-certified child abuse pediatrician.
“There are an extremely limited number of board-certified child abuse pediatricians in Illinois, and lack of immunity protections will negatively impact their ability to provide treatment to children,” the AMA Litigation Center brief tells the court.
A tragic death
These potential new interpretations of the law arise from a case involving an 8-year-old Chicago girl, Gizzell Ford, that was brought by the girl’s family, which has the surname Mercado. In June 2013, Gizzell for the second time told DCFS that a boyfriend of her mother’s had sexually penetrated her. Gizzell and her grandmother, Helen Ford, whom DCFS determined was a “nonoffending caregiver,” went to the Chicago Children’s Advocacy Center (CCAC) where Norell Rosado, MD, performed a medical exam.
Dr. Rosado, a board-certified child abuse pediatrician, noticed two parallel, linear scabbed abrasions on the back of each thigh and a “very, very, very faint” mark in the shape of a loop over the left buttocks, court records show. He determined the marks were nonsuspicious for abuse and a genitourinary exam came back normal, leading him to conclude that the sexual abuse allegations were unconfirmed.
Dr. Rosado discussed appropriate disciplinary measures with the grandmother, Helen. After the appointment, the physician sent the records to DCFS and discussed his findings with a DCFS employee, including the skin marks and his discipline conversation.
The following month, Gizzell was strangled to death. Less than a year later, her grandmother was sentenced to life in prison for the murder. A Cook County jury then awarded $48 million to the girl’s family finding that the pediatrician was medically negligent.
Upending law to protect children
If the trial court decision is allowed to stand, it will damage the measures the state legislature took to protect abused children and it will hurt children’s advocacy centers and child abuse pediatricians’ ability to provide services in Illinois, the AMA Litigation Center brief says.
The brief says that lawmakers purposely included a section in ANCRA that plainly states good faith is presumed “except in cases of willful or wanton misconduct.”
In addition, the lower court ruling puts physicians in a catch-22 position as they try to comply with ANCRA: They would be reporting cases where they didn’t believe there was “reasonable cause” for a report; yet ANCRA also says anyone who knowingly files a false report to DCFS can be charged with a Class 4 felony, punishable by one to three years in prison and fines of up to $25,000. The brief urges the appellate court to overturn the trial court ruling.