I’ve just posted to the Social Science Research Network my forthcoming article (“Duty Per Se: Reading Child Abuse Statutes to Create a Common-Law Duty in Favor of Victims”).
My argument, for the non-lawyers out there, is that laws that impose a duty on medical professionals to report child abuse should also provide the basis for a tort claim against those same providers. I wrote the piece for a symposium about “Dr.” (ugh) Earl Bradley, a deranged man who molested hundreds of children and even infants over the course of many years. And it became obvious to me that existing laws weren’t doing enough to stop this sort of madness, and that only the threat of tort law could get the medical professionals to speak out against one of their own. (I’m speaking in gross generalities here, of course.)
We’ve learned from the Penn State horror story involving Jerry Sandusky, from the exhausting spectacle of the Catholic cover-up, and from too many other sources that institutions protect themselves. Tort liability won’t stop this, but it might put a dent in it. And that’s well worth doing.
For those who want to get their law geek on, here’s the link, and here’s the abstract (in case this isn’t enough to stop you, you can download and read the whole thing by toggling over there….)
This article examines recent high-profile cases involving the sexual abuse of children. It focuses on a case involving a Delaware pediatrician convicted of sexually molested hundreds of children, and also discusses cases of alleged abuse by priests and by a Pennsylvania State University football coach, Jerry Sandusky. The article proposes that courts use “duty to report” statutes to recognize a common law duty for medical professionals who know or suspect abuse to report it. Failure to discharge that duty should result in liability where the causal connection between that failure and subsequent abuse can be established.
The article introduces the concept of duty per se, and, building on insights from the Restatement (Third) of Torts, distinguishes cases of affirmative duty to act from cases of misfeasance that are considered under a negligence per se analysis. It proposes that courts consider four questions in deciding whether a statutory duty to act should create a corresponding duty under common law: (1) How important is the state’s interest in preventing the harm the statute covers? (2) How closely connected is the class of actors upon whom the duty is imposed to the harm suffered? (3) Is the prospect of tort liability for failure to follow the statutory directive likely to cause unintended consequences for those upon whom the duty is imposed? (4) How likely is it that this harm will be adequately addressed by other means?
In the case of child abuse statutes, the answers strongly counsel courts to recognize a duty by medical professionals to report child abuse, under penalty of tort liability for failing to do so.