Know the civil case you can file for past or current child abuse and negligence
Child Abuse and Neglect is a particularly distressing topic, mainly because children are often defenseless and highly dependent on adults. If the adults in their lives cause them harm, they likely have so little way out. If a child's parents abuse them, it's hard for them to imagine where else they'll go. If their caretaker or babysitter hurts them, it's their word versus the adult caretakers' who may be able to brush things off as a child's dramatic imagination.
How to Spot the Signs (As an Adult making Observations)
People who have regular contact with the child may also detect child abuse, such as neighbors, teachers, pediatricians, therapists, or the police. Bruises, bruises, broken bones, and burns — particularly repeated injuries that the child refuses to explain or for which the child gives an unusual explanation — are all signs of child abuse
Poor grooming, an untidy appearance, a lack of weather-appropriate clothes, excessive exhaustion or hunger, repeated illnesses, or school absences are all signs of neglect. Children who are overly withdrawn, afraid, recoil from touch, or desiring to return home should be given special attention.
Abuse may also be detected by emotional outbursts or inappropriate babyish activity. Many of these symptoms are also indicators of sexual assault. Abnormal shame, insufficient sexual sensitivity, or sexually suggestive conduct are all signs that a child has been sexually abused.
Many of the symptoms listed may be due to something else, such as hyperactivity that leads to impulsive actions, envy or frustration at a new baby in the house, autism spectrum disorder, marital strife in the household, a death in the family, or any number of other factors.
Here's a more simplified checklist:
(Note that these are just common red flags that parents, legal guardians, or friends have noticed in children. One symptom might account for more than one type of abuse, but it's best to look out for them when you're suspicious.)
Unexplained bruising
Bruises are explained away by either the child or perpetrator, but some of them are contradictory or missing details
Ligature or bite marks, pressure marks from fingers on the face, stomach, or back
burns that look suspicious
Avoiding returning home (particularly if the abuser is in the family home)
Escaping or living at friends' houses regularly
Fear of the dark, aversion to going to bed, bedwetting, or nightmares is all common symptoms.
Stealing or lying
Low self-esteem signs indicate bad self-image/self-esteem, poor academic performance, and poor peer relationships.
Behavior that is secretive, demanding, or destructive.
Delay in progress
Prone to falling ill
A sickly or sallow look/appearance
Stealing or hoarding food, abnormally high appetite
Unkempt or unhygienic
Whatever the reasons for suspicion, it is never reasonable to presume child abuse and then do nothing about it. It is preferable to take an unnecessary risk than to see a child suffer. Even if a member of your own family perpetrated the abuse, it is still the right thing to do if you think your child has been abused and has sustained physical or psychological harm.
Who Can Be Held Liable?
Many children are advised to be wary of strangers from an early age, but most child sex abuse cases include someone the child knew. Family members, neighbors, coaches, priests, babysitters, teachers, or someone else who has regular contact with the child may be perpetrators.
This may include the following:
Churches and Schools
Daycare centers
Clubs for athletes
America's Boy and Girl Scouts
Camps for teenagers
Hospitals are a form of a healthcare facility.
Child Violence may take the form of any of the following:
Another person intentionally inflicts physical harm on a child.
Willful harm, endangering the child's health, or sexual harassment, assault, or exploitation.
Inhumane corporal punishment or trauma caused by injury.
Threats of treating the child like the ones mentioned above.
It's important to remember that we're all responsible for protecting any child who might be neglected or abused. Although teachers, counselors, clinicians, coaches, religious figures, and those who frequently supervise children are held to a higher standard in terms of disclosing adult mistreatment of children, everyone who has reasonable suspicion of being responsible for a child being abused or neglected is legally obliged to report the abuse or neglect to the appropriate authorities.
Defining it in California Law Terms
There are four major categories of the Child Abuse Prevention and Treatment Act (CAPTA):
Physical abuse occurs when an infant or baby is hurt – from bruises to broken bones to brain injury to death – due to physical abuse such as punching, kicking, shaking, throwing, or beating, regardless of purpose.
Emotional abuse - This is characterized as a pattern of care that harms a child's emotional development over time. This may include denying love or encouragement, threats, harsh criticism, or confining the child unnecessarily.
Child Neglect - Is the failure to adequately supervise or care for a child, failure to fulfill a child's basic needs, exposing or subjecting a child to domestic abuse, and failure to provide education or make provisions for a child's special educational needs all examples of child neglect.
Sexual Abuse - Persuading, tricking, or coercing a child to participate in or assist with sexual activity, such as rape, child trafficking, indecent exposure, or exploitation of a child through the creation of pornographic materials.
California Laws
On Physical Abuse
Child physical abuse can be prosecuted as a felony or a misdemeanor under California Penal Code Section 273d(a). Still, it's highly subjective to the circumstances and criminal background of the defendant. "Any person who intentionally inflicts on a child any cruel or inhuman corporal punishment or an accident resulting in a traumatic condition is guilty of a felony," according to California Penal Code Section 273d. If the punishment was not considered "cruel" or inhumane or did not put the child in a stressful situation, it could be reduced to a misdemeanor or charged as a misdemeanor.
On Child Neglect
Child neglect is described in California Penal Code Section 11165.2 as "the negligent or maltreatment of a child by an individual responsible for the child's welfare when there is a risk of harm to the child's health or welfare. The definition encompasses both the responsible person's behavior and omissions."
California law divides this into two categories: severe neglect and general neglect:
When defendants fail to protect the child or children, they are responsible for extreme malnutrition or "medically induced failure to survive," and they are charged with severe neglect. Severe neglect may also be described as knowingly causing or permitting the child to be put in a position where his or her health is jeopardized.
An individual responsible for the care or custody of a child commits general neglect when he or she fails to provide the child with appropriate clothing, food, medical care, shelter, and supervision. There must not have been any physical damage to the child for a crime to be defined as general neglect rather than extreme neglect.
On Sexual Abuse
Child sexual abuse covers any interaction with a child's genitals other than for purely legitimate medical reasons, any contact with the child's genitals or intimate parts for any sexual purposes, and any sexual activity performed in the presence of a child, according to California Penal Code Section 11165.1.
Anyone who promotes, approves, facilitates, helps, or aids a child in engaging in prostitution, a live production of obscene sexual content, or posing for the portrayal of obscene sexual content, whether or not they are responsible for the child's welfare, may be charged with sexual exploitation.
Sanctions, Penalties for Perpetrators
The nature of the crime and the injuries sustained on the child determine whether the crime is charged as a felony or a misdemeanor, which is dependent on the nature of the crime and the injuries inflicted on the child. The violence that results in a "traumatic disorder" is a crime, with sentences ranging from two to six years in prison under the California Penal Code Section 273d.
However, if this is the second time you've been convicted of the same offense, your sentence could be lengthened by four years. Suppose the child dies, enters a comatose state, or suffers permanent paralysis as a result of the violence. In that case, the abuser faces a sentence of 25 years to life in state prison under California Penal Code 273ab.
Child sexual exploitation is a crime under California Penal Code Section 288, with sentences ranging from three to eight years in state prison. This sentence is increased to five, eight, or ten years if the crime is committed through the use of force, assault, or other forms of coercion. A fine of up to $10,000 can also be levied, and the convicted person may be obligated to register as a sex offender for the rest of his or her life under California Penal Code Section 290.
When child abuse is classified as a misdemeanor, the penalty can include up to one year in county jail and a fine.
How and What to Report
While the Department of Children and Family Services encourages anyone to report alleged child abuse and neglect, no occupations are required by law to do so.
While the reporter's identity should be kept secret, a name should be provided so that the department can follow up with the reporter if necessary.
For allegations of alleged child abuse or neglect made in good faith, the one who reports a case is exempt from civil and criminal liability.
What kind of information should be shared?
The precise nature of the incident(s) you're reporting
Injuries or threats; their dates and descriptions
The identity of the perpetrator(s) and their relationship(s) with the child
The child's current location
The child's current situation
Any physical evidence that is available should be described in detail.
Present access to the infant by the attacker
Witnesses to the incident and how to get in touch with them
When possible, comments from the child/children
Every state has a separate agency or department that collects and investigates child abuse and neglect allegations. Child protective services (CPS) under a Department of Social Services or a Department of Human Resources is normally in charge of this.
Failure to report child abuse will result in fines, prison time, and being held liable in a civil case for the injured child's physical injury, disability, pain and suffering, medical costs, and potential lost earnings.
An Example of Failing to Report A Case
Ethical and legal standards require physicians to maintain patient confidentiality, but this is not an absolute requirement. Confidentiality can be broken ethically when the patient's or a third party's safety is jeopardized or the law requires it. There are several legislative and court-ordered exceptions to maintaining patient confidentiality.
By rule, physicians must report communicable diseases, quarantine or isolate patients, and report alleged violent acts such as gunshot wounds. By requiring physicians to break confidentiality, they are forced to behave as state agents rather than solely as agents of the patient. Physicians work on behalf of third parties or the general public in all of these reporting positions. On the other hand, some of the reports represent the patient directly, and failure to report may result in legal action on behalf of the patients who claim to have been harmed.
Mandatory child abuse reporting laws indirectly benefit the public by helping to minimize the prevalence of abuse and thereby protect a significant portion of the population, but their primary goal is to protect patients. Physicians must report alleged violence to law enforcement authorities in order to comply with them. What happens, though, if a doctor fails to report child violence to the relevant authorities and the child suffers more injuries?
The California Supreme Court considered whether a physician might be held responsible for failing to diagnose battered child syndrome (BCS) and disclosing the diagnosis to law enforcement officials in Landeros v. Flood. Dr. Flood, the defendant's physician, treated an 11-month-old infant at the hospital. Baby Landeros had a fractured leg that seemed to be caused by a bending motion, bruises on her back, and a fractured skull (that was undiagnosed by Dr. Flood).
The infant's mother was baffled by the injuries. In addition to the injuries, Baby Landeros displayed other BCS symptoms: she became afraid and apprehensive when Flood approached her.
Dr. Flood did not take any further precautions that a suspected BCS diagnosis may have caused. He did not X-ray the entire skeletal structure of Baby Landeros, which would have revealed the skull fracture. Flood also failed to alert law enforcement of the injuries, as mandated by a newly enacted law. Baby Landeros was sent to another hospital for a subsequent injury as a result of his inaction, where a separate physician promptly assessed her condition and reported it to the authorities. Landeros' mother and stepfather were also found guilty of child molestation.
Landeros' guardian ad litem (a person named to represent a child in court) filed a lawsuit against Dr. Flood and the hospital, claiming that the baby had sustained permanent physical injuries as a result of the defendants' negligence, including the potential loss of use or amputation of her left hand. Flood's failure to report the injuries to law enforcement as required by statute, according to the plaintiff (Landeros' guardian), contributed to the baby's later injuries.
The quality of treatment is still an issue in malpractice cases. BCS had been tentatively identified in the 1950s, and numerous medical trials backed it up as a legitimate diagnosis. The testimony of a physician who reported BCS features in 1971 was accepted by a California court, further legitimizing the diagnosis. Will a reasonable cautious physician evaluating Baby Landeros have concluded she was a victim of BCS, verified the diagnosis through additional testing, and reported the case to the relevant authorities [2]? The trial court was asked to make a decision on this issue.
Only proving that the doctor's treatment fell short of the standard of care isn't enough; a plaintiff must also show that the doctor's failure to provide standard care resulted in the injuries sustained after the initial examination:
Was it fairly foreseeable that Dr. Flood's inability to adequately diagnose BCS would lead to subsequent injuries in this situation? Did he fail to treat according to the standard of care? If BCS is correctly diagnosed, a physician should anticipate further violence because "the attack on the victim is not an unusual, atypical occurrence but part of an environmental mosaic of frequent beatings and abuse that will not only continue but will become more serious."
While all states have mandatory child abuse reporting legislation, the extent to which a practitioner may be held civilly responsible for a breach of the statute rather than for neglect or malpractice varies by state. Failure to report is punishable only criminally, not civilly, in the majority of nations.
On the other hand, California has a provision that presumes a lack of due care if an injury is caused by a breach of another state statute. If a plaintiff in California can show at trial that the defendants in the case violated any state statute, such as the mandatory abuse reporting statute, and that the violation resulted in injury, the plaintiff has established a basis for civil liability.
In such cases, the statute's presence can be used to explain the quality of treatment. In a recent Minnesota case, the court distinguished between using the law to assert a violation of the standard of treatment and using it as an independent ground for physician liability (as in Landeros).
Nykkole, a 22-day-old boy, was taken to the hospital with bruises and an arm fracture in Becker v. Mayo Base. When asked about the injury, her father told the doctor and other hospital staff that she had fallen out of his arms. No one reported the injuries as child abuse because the father's story was repeated several times.
Nykkole was rushed back to the hospital with several injuries less than a month later. Nykkole had hit her head on the bathtub, according to her mother, but no one believed her, and she was diagnosed with the shaken baby syndrome.
Unlike the California law in Landeros, no Minnesota legislation established general legal liability for failing to fulfill a statutory obligation, and the child abuse reporting statute did not include punitive penalties for failure to report. The Becker trial court refused to allow the child abuse reporting statute to be introduced because it did not include any civil penalties. The Minnesota Supreme Court also ruled that the hospital owed Nykkole no statutory obligation for which she could sue directly under the law. This decision, however, did not put an end to the investigation.
Plaintiffs in medical negligence cases must have a standard of care, which is described as the "degree of skill and care possessed and practiced by practitioners engaged in the same form of practice under similar circumstances," as discussed in the Landeros discussion.
In Becker, the plaintiff had to demonstrate that other doctors might have diagnosed shaken baby syndrome correctly and reported the case to authorities. The presence of a law intended to avoid such accidents and prosecute those who cause them may prove the quality of treatment in some jurisdictions.
The Minnesota Supreme Court upheld the trial court's decision, holding that the statutory reporting provision could be used to show what a physician of ordinary ability would do if abuse was suspected. Of course, the complainant had to show that the physician had reason to presume wrongdoing, but the statute was accepted as proof of a common-law (non-statutory) obligation.
The extent to which a practitioner may be held liable for failure to detect and report alleged child abuse is determined by the physician's practice position. The majority of states impose criminal charges without allowing patients to sue for damages. New York and Colorado are two states that specifically allow rehabilitation for a deliberate and knowing (or willful) failure to report.
Other states, as Becker demonstrates, do not allow a statute to be used as proof in a negligence case of what the physician should have done but do allow the statute to be used as evidence in a negligence lawsuit of what the physician should have done.
When a doctor suspects that a child has been abused, he or she must report the injuries to the appropriate authorities. Failure to do so could result in criminal charges as well as neglect lawsuits if the child is hurt further.
Even if an investigation finds that there was no wrongdoing, physicians who report in good faith are usually immune from responsibility for any damages (loss of custody, slander, etc.) that the report could have caused. Physicians should be familiar with their state's laws in order to understand what reporting standards exist, and they should always follow legal guidelines.
Companies (and their HR) Are Now Required to Report Child Abuse
The California Child Abuse and Neglect Reporting Law, enacted in 1980, mandates that some "mandated reporters" report alleged child abuse to law enforcement authorities.
According to the statute, physical harassment, sexual abuse (including both sexual misconduct and sexual exploitation), willful violence or unjustified punishment, unlawful corporal punishment or harm, and neglect are all examples of child abuse.
The legislation has been changed many times over the years, including the inclusion of new categories of people that are required to report. Certain California human resources staff and frontline managers will also be known as mandatory reporters, starting Jan. 1, 2021.
According to AB 1963, which was recently passed into law by Gov. Gavin Newsom, "human resources workers" working for companies with at least five employees that also hire minors are required to report child violence. As specified by California's Fair Employment and Housing Act, a human resources employee is someone appointed by the employer to tolerate reports of discrimination, abuse, retaliation, and other forms of retaliation.
Frontline managers working for companies with five or more workers whose jobs include direct contact with and supervision of minors are also required to reporters of sexual harassment, according to the statute. It's worth noting that managers are only required to disclose sexual abuse, not all forms of child abuse.
Employers who are subject to the legislation must offer instruction to workers who have reporting responsibilities. Both the detection and documentation of child abuse and neglect must be included in the training.
The general online training for mandated reporters provided by the Office of Child Violence Prevention in the State Department of Social Services can be used to fulfill the training requirement.
Personal Injury and Criminal Lawsuits: What's the Difference?
Personal injury claims are different from criminal lawsuits in that they are civil in nature. Civil lawsuits do not end in the defendant being imprisoned; instead, if you win, you will be awarded punitive damages to cover medical, therapeutic, psychiatric, and therapy costs, as well as to compensate the victim for physical pain and distress, and mental anguish.
Criminal prosecution and a civil personal injury case can also be prosecuted at the same time. Since a civil case needs a good amount of relevant facts while a criminal case requires "proof beyond a reasonable doubt," the requirements for proving personal injury are less strict than those for proving the crime. In the unfortunate event that the criminal case falls through (or the penalties are inadequate), complainants can at least sue for the physical damages, as well as possible future damages to the victim.
What Sorts of Damages Can Be Awarded? (For a Personal Injury Claim)
Economic Damages. Compensation for any monetary expenses made as a result of the abuse. These might include:
Immediate or emergency treatments
Rehabilitation
Medication and other hospital bills
Psychiatric therapy; including fees and other expenses
A perpetrator could also be liable for some damages if they subjected victims to threats of abuse and harassment without necessarily following through.
Harms to one's emotional and psychological well-being. Survivors of sexual abuse will suffer substantial physical, mental, and psychological damage. If an abuser's actions resulted in these intangible damages, a jury could award compensation to help compensate you.
Impairment of one's ability to move on with one's daily activities. A victim of childhood violence is often influenced for the remainder of his or her life. Survivors may need counseling or medical treatment to continue their lives. In California, these are compensable losses.
Damages for future financial consequences. You might include financial damages as part of a settlement demand if child abuse resulted in financial damages later in life, such as lost income while taking mental health days.
Other things that might count:
Physical disability that will hamper one's capacity to work
Debilitating psychological disorders (as a result of the abuse) that either reduces a victim's capacity to maintain jobs or have jobs at all
Punitive Damages. Punitive damages are only awarded in California, where there is gross negligence, excessive recklessness, or deliberate intent to injure. Victims of child abuse may be eligible for compensation of punitive damages.
The specific damages a victim will be entitled to recover, and the amount granted to them by a judge or jury will be determined by how the case is handled. Whether or not you yourself have been a victim or the legal guardian of a young victim, it's best to find the legal counsel that can handle both criminal and civil claims.
Are There Damage Caps in California Law?
The amount of money a personal injury victim may receive in compensation for their losses is limited in some jurisdictions. These restrictions are referred to as "damage limits." The amount of money a person may sue for economic damages after an accident in California is not limited. This program protects all medical bills, lost income, monetary costs, and other compensatory damages.
In most personal injury cases, there are no limits to the amount of money that can be awarded for pain and suffering damages (also known as non-economic damages). You have the right to sue for as many damages as you want if you have sustained a personal injury of any kind, including abuse.
Does it Have a Deadline?
If you file a personal injury lawsuit after more than two years have elapsed after the underlying accident or event, the defendant (the person you're using) will almost certainly point this out to the judge. The case will be dismissed in its entirety by the court.
If that happens, you will forfeit the right to sue for damages for your injuries, no matter how serious they are or how clear the defendant's liability is; unless you are entitled to a rare exception to a statute of limitations extension (more information on these exceptions in the next section).
It's important to note that the California personal injury statute of limitations is not just a concern if you intend to take your injury case to court in a formal lawsuit. However, there are exceptions, and they are favorable to child abuse and negligence claims.
Personal Injury Statute of Limitations Exceptions in California
California has identified a variety of different factual scenarios that may help to postpone or avoid the operation of the statute of limitations "clock," effectively extending the two-year filing deadline set by section 335.1.
Here are a few scenarios that could require the standard two-year time period for filing a California personal injury case to be extended:
The injured person was unaware that he or she had been harmed by someone else's wrongful acts (the "delayed discovery" rule) and was unaware of any facts that would have led a reasonable person to believe it.
The injured victim was under the age of 18 or lacked the legal capacity to make decisions when the initial incident caused the injury (California Code of Civil Procedure section 352). (i.e., due to temporary or permanent mental illness).
The person who supposedly caused the injury (the defendant) left the state of California at some point after the initial accident and before the lawsuit could be filed (California Code of Civil Procedure section 351).
California Law is Changing! (At least in 2023)
Beginning in 2023, a victim could file a complaint before turning 40, or within five years of discovering (or should have discovered), that their psychological damage was caused by childhood sexual abuse.
Victims of molestation can also sue the third party for negligence in giving a suspect access to a child victim under the California Code of Civil Procedure Section 340.1.
A lawsuit could be filed if a school district, religious organization, social organization, daycare, or other entity that employed or gave the perpetrator access to children knew, had reason to know, or was otherwise aware of the perpetrator's unlawful sexual conduct and failed to take reasonable steps or implement reasonable safeguards to prevent the perpetrator's unlawful sexual conduct.
California Penal Code 647.6 provides a definition of sexual harassment that includes "annoying or molesting any child under the age of 18." As a result, sexually explicit overtures made by an instructor, scout leader, youth sports coach, or other adults with access to a minor can fall under this category, making it illegal for child molesters to use common grooming techniques. Since sexual harassment of a minor normally involves obtaining the child's trust and then allowing for unwanted sexual contact, California law has not substantially changed to allow for legal action to deter such misconduct.
Furthermore, the current California statute of limitations provides for treble penalties against someone who is found to have "covered up" a sexual attack by trying to conceal evidence of it.
Finding Legal Assistance for A Personal injury Claim
At the state or local level, there are bar associations. Every state has its own bar association, which is responsible for licensing, tracking, and disciplining all lawyers who practice in that state. Several state bar associations provide attorney referral services to the general public for a nominal fee. Cities and counties will have their own bar associations and offer lawyer referral services, primarily through the bar associations' non-profit branches.
There are private referral services available. Private companies can also provide referral services. 1000Attorneys.com matches you with lawyers after a free initial case evaluation.
There are many legal clinics in the city. Some clinics can only refer clients to lawyers with the necessary expertise and experience, which are more professional and costly. Around the same time, others may have on-staff lawyers that can handle the case for a reduced fee or for free. Look for legal aid clinics in your area by searching for Legal Aid Society or Legal Services in the phone book or contacting the nearest law school.
Non-profit organizations. Organizations that lobby for oppressed groups' legal rights, like children and abuse victims, normally offer legal assistance to victims they swear to protect. They might also help with fine if needed.
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