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Legal Services

by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the October 1998 issue of the Journal

Question: I understand that dentists and other health care professionals are required to report physical abuse with respect to adults and children, but there appears to be considerable confusion as to when such reporting is required, whether reporting is confidential, and whether dentists have legal protection in making the report.

Would you please clarify these requirements?

Answer: You have raised some excellent and important questions. I will first discuss the issue of adult abuse, then child abuse.

Adult abuse

The requirement that adult abuse be reported is based upon a specific statute. Dentists and other persons employed, licensed, registered, or certified to provide health care, educational, social welfare, mental health or other human services, among others, who suspect or have reasonable cause to believe that an adult has been abused, neglected, or exploited, must immediately make an oral report to the county department of social services. The person must subsequently file a written report with the county department.

"Adult" means a vulnerable person, not less than 18 years of age, who is suspected of being or believed to be abused, neglected, or exploited. "Vulnerable" means a condition in which an adult is unable to protect himself or herself from abuse, neglect, or exploitation because of a mental or physical impairment or because of advanced age. This language leaves room for subjective judgment by the dentist in that the requirement involves a decision as to whether the adult is "vulnerable," as defined in the statute.

The report should contain the name of the adult and a description of the abuse. If possible, the report should also contain the adult's age, and the name and address of the adult's guardian or next-of-kin, and of the persons with whom the adult resides.

The dentist-patient privilege of confidentiality is rendered inapplicable by the reporting statute. The identity of the dentist or other person making the report is, however, confidential, subject only to disclosure with the consent of that person or by judicial process.

Failure to report may result in civil liability, as well as a fine of not more than $500. A dentist or other person acting in good faith who makes a report or who assists in the implementation of the reporting process under this statute is immune from civil liability that might otherwise be incurred by making the report or by assisting in the making of the report. Such person is also presumed to have acted in good faith. The civil liability immunity extends only to the reporting process and does not extend to a negligent act, which causes injury or death.

Child abuse

The requirement that child abuse be reported is also based upon a specific statute. It applies to dentists and a wide array of other professionals, including physicians, registered dental hygienists, medical examiners, nurses, licensed emergency medical care technicians, audiologists, psychologists, family therapists, social workers, school administrators, school counselors or teachers, law enforcement officers, and regulated child care providers.

A dentist or such other professional who has reasonable cause to suspect child abuse or neglect must immediately make an oral report of suspected child abuse to the county department of social services. Within 72 hours after making the oral report, the reporting person must file a written report. The written report must contain the name of the child and a description of the abuse or neglect. If possible, the report should contain the names and addresses of the child's parents, guardian or the persons with whom the child resides, and the child's age. The report should also contain other information available to the reporting person, which might establish the cause of the abuse or neglect, and the manner in which the abuse or neglect occurred.

"Child abuse" is defined as harm or threatened harm to a child's health or welfare by a parent, legal guardian, or any other person responsible for the child's health or welfare, or by a teacher or teacher's aid, that occurs through non-accidental physical or mental injury; as well as sexual abuse, sexual exploitation, or maltreatment.

"Child neglect" is defined as harm or threatened harm to a child's health or welfare by a parent, legal guardian, or any other person responsible for the child's health or welfare that occurs through either of the following: negligent treatment, including the failure to provide adequate food, clothing, shelter, or medical care; or placing a child at an unreasonable risk to the child's health or welfare by failure of the parent, legal guardian, or other person responsible for the child's health or welfare to intervene or eliminate that risk when that person is able to do so and has, or should have, knowledge of the risk.

The statute abrogates the dentist-patient privilege of confidentiality to the extent that the dentist is obligated to report under this statute. Except with respect to legally mandated child protective agency and law enforcement agency investigations, the identity of a reporting person is confidential, subject to disclosure only with the consent of that person or by judicial process.

Failure to report under circumstances where a report should have been made could cause a dentist or other person to be civilly liable for damages, and possibly guilty of a misdemeanor if the person knowingly fails to report. The civil liability would be limited to the child who may have been damaged, and not to any other third person.

A person acting in good faith who makes a report or assists in implementing the reporting procedures is immune from civil or criminal liability which might otherwise be incurred. The reporting person is also presumed to have acted in good faith.

The immunity extends only to the reporting process under the act, and does not extend to a negligent act or malpractice, which may cause injury or death.

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