PEDIATRICS Vol. 107 No. 6 June 2001, pp. 1427-1430

EXPERIENCE AND REASON:
"You Are Hereby Commanded to Appear": Pediatrician Subpoena and Court Appearance in Child Maltreatment

	ABSTRACT

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Objective.  To determine the frequency of court appearance by pediatricians evaluating child abuse and neglect cases and to identify case characteristics associated with actual court appearance or case adjournment.

Design.  Retrospective review of subpoenas received between 1995 and 1999 for child maltreatment cases personally evaluated by 2 pediatricians during the years 1995 to 1998. Information was collected regarding patient age, gender, race/ethnicity, type of suspected maltreatment, date of evaluation, date of subpoena, type of court hearing, whether the pediatrician actually testified in court, and legal outcomes. Case characteristics were compared between pediatricians and were used to predict physician appearance and case continuance or adjournment in logistic regression models.

Results.  Four hundred forty-five subpoenas concerning 260 patients were received. Although significant differences were noted between the pediatricians in type of abuse, no differences were found in patient age, gender, ethnicity or legal outcomes. The pediatricians received subpoenas in <15% of child maltreatment cases, and <5% of children seen resulted in the physician being required to actually appear in court. No case characteristics significantly predicted court appearance or case continuance or adjournment.

Conclusions.  Although pediatricians are sometimes subpoenaed to appear in court to explain the medical evaluation and the needs of the child in cases of child abuse and neglect, most court cases were continued, adjourned, or settled before physician testimony. Most subpoenas did not result in the pediatrician going to court, and it is unclear which child factors may predict court involvement. Pediatricians can take steps to minimize (but not eliminate) the potential dissatisfaction and inconvenience associated with receiving and responding to subpoenas in child maltreatment cases.  Key words:  subpoena, court appearance, child maltreatment, child abuse.

Professionals who care for children who are suspected victims of abuse and neglect are sometimes required to appear in court to explain the results of their evaluation and the needs of the child.^1-3 Court testimony, however, has not traditionally been considered part of routine pediatric practice although Abraham Jacobi noted the physician's role as "legitimate advisor to the judge and jury" in 1904.⁴ Despite their important role in protecting children, pediatricians have reported uneasiness evaluating and reporting suspected abuse and have cited their apprehension with the adversarial process in court for a variety of reasons, including their lack of familiarity with legal procedures and the inconvenience of court attendance.^5-9 Others have postulated that physicians "fear" participation in the legal system because of professional liability or countertransference issues.^10,11

It has been suggested that pediatricians should come to understand the legal process if they are to fulfill their role as advocates for the child's needs.¹² Involvement in the legal system begins with the issuance of a subpoena by an attorney for a litigant, the clerk of the court, or the judge. A subpoena is a document "commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply."¹³ Subpoenas are issued to produce the factual or expert testimony that enables the court to make an informed determination either in a criminal matter (a trial of a defendant accused of a crime) or in a civil court dependency matter (the determination of abuse, neglect, parental supervision, rights or custody). Physicians and other health professionals who care for children with suspected abuse and neglect have historically provided invaluable information to courts regarding medical diagnoses, prognosis, and statements made by the child patient. Although subpoenas note the date and time of required court appearance, attorneys and judges may continue, adjourn, or cancel hearings with little or no notice to witnesses because of last minute agreements, physician expertise or availability, past record of the defendant, or other court procedures. The impact of subpoenas and court testimony on pediatric practice in child maltreatment cases has not been reported.¹⁴

We hypothesized that many subpoenas are issued that do not actually result in physician court appearance and that the need for the pediatrician in court depends on several factors, including case characteristics and type of court proceeding.

	METHODS

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We retrospectively reviewed all subpoenas received between 1995 and 1999 requesting court appearance related to child maltreatment cases evaluated between 1995 and 1998 by 2 pediatricians with expertise in the evaluation of child abuse and neglect. Information regarding patient age, gender, ethnicity, type of alleged maltreatment, timing of subpoena, timing of court appearance, type of court, and location was collected. Court outcomes were also recorded, including whether the physician had actually been required to appear in court and the disposition of the matter necessitating the subpoena (postponement, finding of guilt, plea of guilt, finding of not guilty, dismissal, or acceptance of responsibility). Cases that are postponed without being dismissed are considered to be adjourned or continued; these are interchangeable terms that are variably used in different jurisdictions.

Subpoenas were collated based on individual patients, and multiple subpoenas were sorted based on type of court (civil versus criminal) and nature of hearing (adjudication, determination of supervision or custody, deposition, preliminary examination or grand jury indictment, or trial of the accused). Time delays were calculated from actual patient visit to issuance of subpoena and need for appearance in court. Baseline information concerning the number of maltreatment cases evaluated by these physicians was used for comparison. Child maltreatment types were compared with patient characteristics, and rates of court appearance were calculated based on the total number of subpoenas received. Case characteristics and court outcomes were compared for the 2 pediatricians using ² and 2-sample independent t test analyses; they were then used as independent variables with court appearance and case adjournment/continuance as dependent variables in multiple logistic regression models using the SAS statistical program (SAS Institute Inc, Cary, NC). We then conducted power analyses for these regression models using the SAS and PASS 2000 programs (NCSS Statistical Software, Kaysville, UT).

The study protocol was approved by the applicable human subjects research committees at our institutions.

	RESULTS

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Four hundred forty-five subpoenas were received between 1995 and 1999, pertaining to 13% of the 2018 patients personally evaluated for child maltreatment by the 2 physicians in 2 different states. Significant differences were noted between the physicians in patients' type of suspected maltreatment, but not age, race/ethnicity, or gender (Table 1). Children were primarily evaluated for suspected sexual (51%) and physical abuse (46%), although the type of maltreatment was different between the physicians (P = .025).

Most of the subpoenas were issued in the county where the physician's practice was located, although both physicians received subpoenas from >15 counties from a distance of over 250 miles. Most (63%) of subpoenas received were related to criminal proceedings (preliminary hearings or criminal trials), but 37% were related to civil (probate or family court) hearings designed to determine parental custody, adjudicate abuse, or dependency issues (Table 2). Most court proceedings resulted in a plea or finding of guilt of the perpetrator or responsibility of the family (52%), but 38% of the proceedings were adjourned or continued to a later date. On average, 1.7 subpoenas were issued per child (range: 1-8) over a period of 0 to 50 months after evaluation. Mean time delay from patient evaluation to subpoena issuance was 4.3 months, with shorter time periods for preliminary examinations (1.6 months) and civil actions (3.4 months), and there were longer time delays in criminal trials (6.7 months). Physician appearance in court was actually required for 21% of the subpoenas issued, only being needed for <5% of children evaluated for possible maltreatment.

Despite differences in patient abuse type, no difference in court outcomes or appearance in court were noted between the physicians (P > .05). Patient age and gender were significantly related with maltreatment type, with more physical abuse and neglect seen in younger, male patients (71% of males were referred for physical abuse or neglect, mean age 2.5 years, standard deviation = 3.7), and more sexual abuse was noted in older, female children (67% of females were referred for sexual abuse, mean age 7.31 years, standard deviation = 4.1, P < .0001). Rate of appearance in court was not related to receiving more subpoenas in a case for a particular type of court.

Actual physician court appearance and case adjournment or continuance were not predicted by patient characteristics or type of suspected maltreatment in logistic regression models, although significant differences for maltreatment type and case adjournment/continuance were noted in univariate analysis. Using a method modified from O'Brien¹⁵ for log-linear models, the power of this sample of 260 children for detecting significant effects of maltreatment type and gender differences in court appearance or case adjournment/continuance was 0.7 and 0.6, respectively, with  = 0.05.

	DISCUSSION

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This review of subpoenas and court appearance by 2 pediatricians in 2 different states offers a glimpse into the participation of health care professionals in the legal system. Courts and litigants have come to rely on physician-generated evidence and testimony in settling on litigation strategy and making their determinations regarding the handling of cases, yet most subpoenas will not result in the need for physician court appearance. It is surprising that <15% of these patients resulted in the issuance of a subpoena. Furthermore, only 4.3% of patient visits for medical evaluation of child abuse and neglect resulted in the physician going to court. Most cases resulted in adjournment/continuation or were adjudicated with a plea of guilt or the family's acceptance of responsibility without physician testimony. This is different from the experience of forensic pathologists, for example, who in one study were subpoenaed in 64% of their homicide cases, only one third of which required court testimony.¹⁶

Why are so many subpoenas issued that do not result in physician appearance in court? Sometimes a legal finding is made before or during a hearing without the physician's participation, and we suspect that many courts determine that the physician's testimony is not necessary after subpoena because the medical issues are not in question and/or the physician is not available to appear in court. The vast majority of criminal cases are resolved when the accused pleads guilty thereby eliminating the need for a trial. In 1996, 91% of all felony charges filed in state courts and 93% of such cases filed in the federal system were resolved by a plea of guilt in 1997.^17,18 Less physician testimony may also be needed with good medical documentation or in states that permit the admission of medical records without the testimony of a live witness, if the records are accompanied by a certification that they are complete.¹⁹ Court procedures can also require subpoenaing all potential witnesses regardless of whether their testimony is actually important to the legal case. Comparisons with the experience of other professionals in child maltreatment cases may be helpful, but little published information is available.

Predicting court appearance is problematic. Although some have suggested that physicians will appear more often in court with younger patients or with certain types of abuse, these were not predictive in our study.³ Although the majority of our subpoenas were issued in the first year after a patient visit, some subpoenas were issued more than 3 years after medical evaluation. Time elapsed was related to the type of court in that preliminary hearings or probate or family matters occurred sooner after the patient visit than do criminal trials. It can take many months for a subpoena to be issued, thereby increasing the practitioner's uncertainty as to a court date. We hypothesize that time delay to subpoena is related to the purpose of the hearing, with issues concerning protection of the child necessitating more prompt hearings, and the statutory procedures related to the defendant in the criminal justice system which can cause greater delay.

Physicians received >1 subpoena per child in many cases when a subpoena was issued, and cases with multiple court proceedings or multiple adjournments generated several subpoenas. More subpoenas, however, did not increase the likelihood of court appearance in a particular case. Although the power of this study was limited, no factors significantly predicted appearance in court, and there was no significant association with patient age, gender, ethnicity, type of abuse, or type of court. In our experience, the most effective way to predict actual court appearance is to contact the court officer issuing the subpoena to discuss the matter and to assess our potential role in the legal determination. When available, court-sponsored victim-witness units can also provide invaluable information.

There are significant differences between the 2 physicians in this study with respect to type of suspected maltreatment and rates of adjournment or continuance that undoubtedly reflect population and practice differences. Differing referral patterns and availability of additional community resources may affect patient characteristics. Gender-based differences associated with types of alleged abuse have been noted nationally, with more physical abuse among boys seen and more sexual abuse seen among girls.²⁰ Neglect cases represented <5% of all subpoenas, which may reflect fewer criminal prosecutions, less disagreement of the parties, less need for physician interpretation, or a less well-defined role for physicians in the evaluation of neglect.²¹

When controlled in a regression model, physician differences did not explain the low frequency of court appearance. The specific circumstances surrounding subpoena issuance and a decision by court officers to not compel physician appearance requires additional study. It is unfortunate that so many unnecessary subpoenas are issued because receiving a subpoena and planning to attend a court hearing may significantly disrupt a physician's professional schedule and inconvenience patients, families, colleagues, and institutions, particularly when there are multiple adjournments. It is our experience that each case requires 1 to 3 hours to schedule, prepare, and testify. We sometimes have to wait an hour or more outside the court in addition to any travel time. This requires us to cancel and reschedule 4 or more hours of patient care; this is worsened when last-minute changes are made or when we arrive at court only to find the case adjourned or continued. Inconvenience to patients and physicians could be improved by providing sufficient time (>72 hours) and a time certain for testimony to allow proper patient scheduling. We suspect that the process as is currently practiced of receiving subpoenas, scheduling court appearance and adjournment has contributed to physicians' dissatisfaction with the legal system and that significant improvements could be made to improve attorney-physician communication before and after subpoena issuance. Some have suggested the use of pretrial meetings and the need for additional research in this area.¹⁴

There are several limitations to this study. It reflects the experience of 2 pediatric practitioners specializing in the care of children with concerns of abuse and neglect. "Forensic pediatrics" has been noted to include expertise in the medical evaluation and treatment of maltreated children and court appearance, and we can only speculate what the experience would be of pediatric generalists.²² Nonpediatric health professionals may receive a substantially different number of subpoenas, with some (such as forensic pathologists and emergency physicians) routinely receiving subpoenas for a variety of concerns beyond child maltreatment. This study also reflects physician experience and practices in a limited geographic area; wide variations in court practices have been noted in different jurisdictions.¹⁷

The nature of any differences between general and forensic pediatricians in the rates of subpoena or court appearance requires additional study. Although most child maltreatment cases are adjudicated within 1 year, additional subpoenas may yet be issued in our cases; this could increase the percentage of cases resulting in subpoenas and court appearance. It appears that subpoenas are often issued at the discretion of the prosecutor or defense attorney who may demonstrate wide variation in their use of this power. Because information was not available regarding patient characteristics of those cases that did not result in a subpoena, we are unable to predict whether a subpoena will be issued in the first place. These are areas for future research as we refine our knowledge of the role of medical professionals in the legal system.

	CONCLUSION

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Pediatricians and other health care providers may become concerned about the possibility of being required to appear in court at the time of initial patient encounter and may wonder if and when this case will go to court. Based on the experience of 2 pediatricians with expertise in the evaluation of child abuse and neglect, the proportion of child maltreatment cases requiring court appearance by the pediatrician is low. The issuance of a subpoena indicates that the physician's involvement is recognized by litigants or the court as being important to resolution of the legal issues in the case, but the pediatrician should not interpret the issuance of a subpoena to mean that court appearance will eventually be required. Case characteristics of the child in question do not reliably predict court outcome or whether actual court appearance will be mandated.

We recommend contacting the issuing court officer directly after receiving a subpoena to determine if the physician's court appearance will actually be required and to determine a mutually convenient time for that appearance. Additional research is required to understand why subpoenas are issued in particular cases, the impact of the subpoena process on different physician and professional groups, and whether changes in the legal system could result in improved subpoena issuance with more efficient use of physician time and testimony in child maltreatment cases.

	ACKNOWLEDGMENTS

We thank Anthony Richtsmeier, MD, and Adrienne Stolfi, MSPH, for their review of the manuscript and statistical analyses.

Vincent J. Palusci, MD
Child Protection Team
DeVos Children's Hospital
Michigan State University College of Human Medicine
Grand Rapids, MI 49503

Ralph A. Hicks, MD
Wright State University School of Medicine
Child Abuse Department
Children's Medical Center
Dayton, OH 45404

Frank E. Vandervort, JD
Child Welfare Law Resource Center
University of Michigan Law School
Ann Arbor, MI 48104

	FOOTNOTES

Received for publication Jun 13, 2000; accepted Sep 25, 2000.

This paper was presented, in part, at the Seventh Annual National Colloquium of the American Professional Society on the Abuse of Children; June 3, 1999; San Antonio, TX.

Reprint requests to (V.J.P.) Child Protection Team, DeVos Children's Hospital, 100 Michigan St, NE, MC-178, Grand Rapids, MI 49503. E-mail: vincent.palusci{at}spectrum-health.org

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