Bad Medicine Parents the State and the Charge of “Medical Child Abuse”

248 University of California, Davis [Vol. 50:205
has received unnecessary, potentially risky medical care. Third, and
finally, it must be determined whether, given the first and second
inquiries, the parent’s actions rise to the level that she should be held
responsible for (in MCA terminology, be deemed to have “instigated”)
the unnecessary medical care. 197 Although MCA proponents treat
these three determinations as together comprising the “diagnostic”
determination for MCA, in truth, only the first inquiry — which
medical diagnoses a child genuinely possesses — constitutes a
diagnostic determination. The second inquiry — whether the child has
received unnecessary, potentially risky medical care — although not
properly a diagnostic determination, is still within the proper expertise
of a medical expert’s testimony. In fact, this second inquiry is quite
similar to that performed by experts in medical malpractice cases. 198
However, it is the third and ultimate inquiry — whether the parent
seeking medical care committed “medical child abuse” by “instigating”
the medical care — that is the subject of this Part. This third inquiry,
in which the doctor “diagnoses” MCA, this Part shows, allows doctors
to pronounce as a medical expert what is properly a legal
determination. In doing so, this “diagnosis” undermines the parent’s
right to a fair legal proceeding for three separate reasons. First, section
A shows that the third inquiry exceeds the proper province of a
diagnosis by going beyond the internal cause of a child’s condition to
point blame at the parent. Second, section B demonstrates that even if
MCA were a proper medical diagnosis, a medical expert would still be
prohibited from testifying to its presence in a child abuse proceeding
since whether the parent has committed child abuse is the ultimate
issue before the court. This section also shows that a physician’s
diagnosis of MCA at trial is particularly problematic because the
medical standards used by doctors to “diagnose” MCA are far less
strict than the legal definitions of abuse. Third, and finally, section C
explains how admitting evidence of a “diagnosis” of MCA functions
the same way in trial as does admitting personality profile evidence,
and should be banned for the same reasons that courts ban such
profile evidence.
197 The 2013 AAP Report recognizes that these determinations are lumped together
into the diagnostic determination, although it frames them slightly differently: “1. Are
the history, signs, and symptoms of disease credible? 2. Is the child receiving
unnecessary and harmful or potentially harmful medical care? 3. If so, who is instigating
the evaluations and treatment?” 2013 AAP Report, supra note 29, at 593-94.
198 See generally 2 STEVEN E. PEGALIS, AMERICAN LAW OF MEDICAL MALPRACTICE § 8:1
(3d ed.2016) (“Expert testimony is almost always required in the medical malpractice
case to establish the departure from the standard of care and causation.”).