Suits Over Charges of Child Abuse May Intimidate Doctors

The stigma of being accused of murdering her own child still haunts Carol Phinney.

The one-time Oceanside resident has moved to Florida and remarried, and she is the mother of a child by her new husband.

But her attorney says Phinney, who once tried to commit suicide because of the charges against her, is still receiving emotional therapy and will be paying $50 a month for virtually the rest of her life on legal bills to clear her name.

Phinney is out to prove in civil court that doctors at Children’s Hospital in San Diego unfairly cast her as a child abuser who killed her 2-year-old son, Travis, in October, 1984.

Calls Doctors Overzealous

Her lawsuit alleges that the doctors who treated her child for a month before he finally died from complications of a head injury were overzealous in reporting their suspicions of child abuse. They overstepped their legal mandate to report possible abuse and virtually campaigned for her prosecution as a child killer, the lawsuit maintains.

The suit further alleges that one of those same doctors then performed the autopsy on the toddler to validate their accusations that he died from physical abuse.

Based largely on the doctors’ contentions, murder charges were filed against her by the district attorney’s office. But a Vista Municipal Court judge threw out the charge, saying there was insufficient evidence. She was still taken to trial for felony child abuse--and acquitted by a Vista Superior Court jury in October, 1985, a year after the boy’s death.

Trial testimony suggested that one of the medical procedures used in treating the boy may have itself led to his death.

Judge Lawrence Kapiloff said at the conclusion of the trial that Phinney was victimized by “too many people who wanted, frankly, to cover their own hides.”

“I think this is a case which cries out for a civil action and, for one, I hope you bring one,” Kapiloff told Phinney and her attorney, David Thompson.

And so they have.

Similar lawsuits have been filed in San Diego and elsewhere in California, alleging that doctors have improperly reported possible child abuse. Thompson, a Carlsbad attorney, is also representing two couples who were charged with murdering their children. The children died of abuse, say Dr. David Chadwick, head of the Center for Child Protection at Children’s Hospital in San Diego, and other doctors. But criminal charges against both couples were dismissed, and those parents, too, are now seeking civil redress.

A Chilling Factor

Such civil lawsuits against doctors for aggressively reporting suspected child abuse have not yet been resolved in favor of the parents who contend they were maligned. But the battle against child abuse could be chilled, professionals say, if a doctor is held liable for not only reporting but also actually investigating child abuse when it is later determined that none existed. Doctors, teachers and others who already are hesitant to intervene in possible child-abuse cases might become even less willing to report their suspicions if they fear that doing so might haunt them through litigation.

“We already hear people talk about concern about being wrong,” said Dr. Michael Durfee, coordinator for child-abuse prevention for the Los Angeles County Department of Health Services. “So they do the safe thing for them, which is to do nothing. There is incredible hesitancy among some doctors to get involved. It may take something like this lawsuit to now justify doing nothing.”

A San Diego physician agrees that, if the Phinney lawsuit or a similar one is successful, doctors might reassess reporting child-abuse suspicions.

“If I see a case where I think the child has been abused, I am going to report it. Just because people threaten lawsuits, I’m not afraid. That doesn’t affect me,” said Dr. Tom Lohner, a pediatrician at Kaiser Permanente Hospital, who for 12 years headed the child-abuse committee at the Naval Hospital in Balboa Park before retiring from the Navy in 1986.

“But if someone successfully wins a suit like that,” Lohner added, “that would be something quite different.”

Chadwick, perhaps the county’s most respected authority on child abuse, is himself one of the targets of Phinney’s lawsuit. Chadwick declined to be interviewed for this article. His attorney, Cary Miller, who also is representing the hospital, did not return several phone calls.

Phinney claims that Chadwick and two other doctors at Children’s Hospital, Dr. Steven Phillips and Dr. Bradley C. Peterson, made up the child-abuse assessment team that pursued her case.

Phillips, who according to court documents was later fired from Children’s Hospital, also performed the autopsy on Travis Phinney. He concluded that the boy died of bronchial pneumonia because of swelling in the brain caused by “blunt trauma.” He further certified that Travis Phinney’s death was “non-accidental,” according to court papers on file in Vista Superior Court. His finding led to the prosecution of Carol Phinney.

These facts are undisputed: On Sept. 3, 1984, Phinney put Travis into a bathtub after he soiled his pants and left him unattended for about five minutes. When Phinney returned, she found her son face down and unconscious in 3 inches of water.

Put on Respirator

Phinney called paramedics, and her son was taken first to Tri-City Hospital in Oceanside, then transferred to Children’s Hospital. The boy was on a respirator in a medically induced coma, and doctors inserted a bolt-like monitor inside his head to measure pressure.

Travis Phinney died a month later of pneumonia.

Phinney, and expert witnesses called to the trial in her defense, said the boy had a history of seizures. The defense claimed that the child had had such an attack and fell face-down into the water.

But Chadwick and the other two doctors maintained, according to court documents, that the mother “had, in anger, assaulted, abused, battered, shaken or jerked her son . . . which caused swelling in Travis’ brain cavity,” ultimately causing his death.

Peterson told Oceanside police that the boy could not have received such a serious head injury--which he likened to falling 10 to 12 feet or being in a head-on collision in a football game--simply by falling in the tub. Peterson later suggested that the injury was caused by “violent shaking” or an “open-palm-to-the-head type blow,” court papers show.

Peterson told police investigators that, “taking everything into consideration, it appears that (Carol Phinney) abused her child,” according to the lawsuit.

Chadwick told police that Travis was probably hit “with a soft object, with a blow to the head, possibly a padded rug . . . or shaken very hard,” the suit says.

Mother Had Been Drinking

Furthermore, the doctors reported that Carol Phinney was intoxicated when her son was admitted for emergency treatment, even though she maintains she had only one glass of wine that evening.

Carol Phinney was thus characterized as “a criminal, a drunk, a poor mother, a felonious child abuser and a murderess,” the lawsuit states.

Doctors called by the defense suggested that the inflammation in Travis’ brain, which led to the pneumonia, might well have been caused by the very pressure-monitoring bolt that the doctors placed in his head to assess the damage from a less-serious fall, perhaps from the seizure.

Phinney’s lawsuit also attacked the county coroner’s office for allowing Phillips, a member of Chadwick’s child-abuse team, to perform the autopsy on the child. She maintains that Phillips conducted the autopsy to validate the notion that Travis was abused, and without taking into account other explanations.

Phillips erred, for instance, by failing to check for bite marks on the boy’s tongue, which might have indicated whether he suffered a seizure, according to testimony from Dr. Hormez Guard, a former county pathologist and a frequent critic of the coroner’s office at that time.

Thompson, Phinney’s attorney, also criticized Phillips for failing to check for other injuries to the child--such as retinal hemorrhaging, other bruises or changes to the spinal cord--that would have reinforced the opinion that he was violently shaken.

Because of this case, the coroner’s office has since halted the hiring of doctors from Children’s Hospital to perform autopsies on children who had been under the hospital’s care.

sh Went Too Far

Thompson said he does not fault Chadwick and the other doctors for reporting possible abuse against Travis Phinney. They just went too far in their fervor, he maintains.

State law not only requires that certain people, including doctors and teachers, report possible child abuse; it also protects them from criminal or civil prosecution for doing so.

Other law protects the reporting party from liability when testifying in court about the possible abuse.

But there is ambiguity, Thompson said, about whether the reporting party is protected from liability after he reports the possible abuse and before he testifies in court.

“Child Protective Services and the Police Department will naturally come back, after the initial report is received, and ask the reporting physician why he filed the report and to get more information,” Thompson said. “That’s a logical and natural consequence to reporting the possible abuse.

“But there are (court) cases that say a doctor has no duty to answer the investigating officer’s questions. The doctor’s duty only runs up to the point where he files his initial report.

“So, if he has no duty to speak (after the initial report), we reason that he then has no privilege (against liability) or, at best, has a qualified privilege which is defeated if there is a showing that he is malicious or reckless.

“Mrs. Phinney is alleging there was malice and recklessness because they went on a campaign against her,” he said. “It’s our allegation that Dr. Chadwick was exhibiting his predisposition to find abuse where no one else could. I think he takes a professional pride in that.”

Champion Against Abuse

Others who know Chadwick characterize him as a champion in the fight against child abuse.

Jack Dugan, director of the state’s Crime Prevention Center, said he knows and admires Chadwick, whom he includes in a group of doctors “who tend to be zealots in their own way. They’ve been seeing this stuff for so many years. You can never accuse them of anything other than doing the best they can to reduce child abuse.”

Durfee described Chadwick as “a passionate child advocate. He is strongly vested in what he does.”

And Deputy Dist. Atty. Harry Elias, who prosecutes child-abuse cases, said that, in his experience, Chadwick is as accurate as any doctor in San Diego County in identifying child abuse.

Chadwick simply handles more child-abuse cases, Elias noted, because so many such cases are handled by Children’s Hospital and Chadwick’s unit.

Elias said questioning doctors after they file their report is essential to police investigation so the doctor is not later put on the stand “and we don’t know what they’re going to testify to.”

“But I can imagine that, if there is a window (of possible liability to the doctor), that could have a chilling effect,” Elias said.

Durfee acknowledged that such a “window of liability” might exist, giving lawyers a loophole to sue doctors alleging child abuse.

But he said he would nonetheless prefer to err on the side of over-reporting child abuse.

“The big lawsuits won’t come for cooperating with the police investigation,” Durfee said. “They’ll be filed on behalf of the children who are notably damaged by child abuse because of the failure of a doctor to have addressed it.”

If Phinney wins her lawsuit, a practical doctor will question checking a child’s medical records if child abuse is suspected after an examination, Durfee said.

“If I look into my earlier records and find previous injuries that add to what I’m seeing now, that means I’ve done my own investigation, and maybe (the parents) might sue me for that, since I’ve gone beyond simply reporting what I saw at that moment,” he said.

Vista Superior Court Judge Jeffrey Miller recently rejected a defense motion that Phinney’s lawsuit be summarily dismissed. He said he could not decide, based on the facts before him, whether all of the statements made by doctors in the case were privileged and protected by law, as defense attorney Miller maintained.

Thompson characterized Judge Miller’s decision as having passed a major threshold in getting Phinney’s suit to trial, which he said is probably 1 1/2 years away.