Health Professional Exams of Suspected Child Victims

The SANE Model
(Sexual Assault Nurse Examiner)

Beatrice C. Yorker, R.N., J.D.

One of the promising new models for expanding the availability of specialized health professionals trained to examine alleged sexual assault victims has been the SANE nurse model. SANE nurses follow guidelines established by the International Association of Forensic Nurses. For more information, visit the International Association of Forensic Nurses website (http://www.forensicnurse.org).

SANE nurses have reported generally positive experiences with the courts in being recognized as experts in conducting health care exams related to sexual assault and testifying as expert witnesses. Below is an article that describes more about this promising field:

Yorker, B.C. & Kelley, S.J. (2000) Excerpts from an unpublished manuscript to be submitted to Child Abuse and Neglect.

Acceptance of non-physician providers of forensic medical examinations varies. The rapid growth of nurse practitioners (NPs) and physician assistants (PAs) is a byproduct of the unmet consumer demand for primary health care during the 1960's (Hirsch, 1991). Government reports conclude that the continued success of NPs and PAs not only has a positive impact on patient outcomes, but patient satisfaction is also improved (Safriet, 1992). Concerns regarding the use of non-physicians include competition and scope of practice. Even in collaborative physician extender relationships, physicians may be vicariously liable for the practice of an employee, independently liable for poor protocols and inadequate supervision of mid-level providers in their practice, or liable for aiding and abetting the unauthorized practice of medicine if a provider exceeds his or her scope of practice (Sermchief v. Gonzales, 1983). Currently, the vast majority of states authorize independent practice and prescriptive authority for nurse practitioners and some mid-level providers such as physician assistants or nurse midwives are regulated under medical practice acts (Inglis & Kjervik, 1993). The courts have clearly interpreted state legislative intent to recognize the "existence of overlapping functions between physicians and registered nurses (RNs) and to permit additional sharing of functions within organized health systems" and are suspect of any attempt to restrict trade (Fein v. Permanente Medical Group, 1985).

The legal community needs to be aware that an increasing number of non-physicians are being qualified in court as able "to exercise that degree of skill practiced by the average prudent practitioner in the same or similar circumstances" (Avret v. McCormick, 1980; Fein v. Permanente Medical Group, 1985; Hirsch, 1991). The 1994 statewide survey of prosecutors and judges showed that judges are less likely to view non-physicians as qualified to testify in child abuse cases than do prosecutors (Doss, 1994). Although the current survey was limited to prosecutors, it also has implications for judges who conduct child abuse cases.

Two recently published studies provide data regarding the prevalence of non-physicians in the examination, diagnosis, and treatment of child abuse cases. Giardino, Montoya, Richardson & Leventhal (1999) designed a 16 item questionnaire regarding the staffing, service, and financial characteristics of a sample of medically-oriented child protection programs in the United States. They distributed 118 questionnaires to child protection programs identified by the Executive Committee on Child Abuse and Neglect of the American Academy of Pediatrics under the sponsorship of the Special Interest Group on Child Abuse of the Ambulatory Pediatric Association.

There were 73 returned surveys from 31 different states. The respondents were required to have either a physician or a nurse practitioner on staff in order to qualify as a medically-oriented child protection team. Forty-nine percent (49%) of the respondents had nurses on the teams. The article did not specify further qualifications such as physician assistant, nurse practitioner, registered nurse, etc. The inclusion of nurses in their survey, the requirement that either an MD or NP staff a "medically-oriented" child protection team, and the response that approximately half of these teams use nurses, demonstrates acceptance of non-physician practice by the Academy of Pediatrics.

Kelley and Yorker (1997) conducted a survey of 221 non-physician health care providers (nurse practitioners, physician assistants, and registered nurses) who provided child abuse examinations. Out of the 104 respondents, 95.2% performed examinations in cases of sexual abuse and 70% in cases of physical abuse. In order of frequency, the practice settings of the respondents were clinics (70%), emergency departments (41.4%), child abuse programs (27.9%), and child advocacy centers (23.4%).

The respondents had an average of six years of experience working in the field of child abuse and 76.9% provided colposcopic examinations. Almost 80% reported being supervised by an M.D.

The data from this study regarding court experiences of non-physicians who work in the field of child abuse are particularly relevant to the current study. Seventy-eight percent of the respondents had qualified as an expert witness and testified in court, only twelve percent ever had a judge refuse to qualify them as an expert, and the average number of times each had testified in court was 25.6 with a range from 0 to 360 times.

We specifically asked respondents if they perceived that their credibility was an issue with other disciplines involved in child maltreatment. Respondents believed they had credibility problems with the following professionals: defense attorneys (35.6%), physicians (16.7%), prosecutors (11.5%), judges (10.6%), police (6.8%), and child protective services (3.9%).

Case law

A Lexis search for cases regarding nurses or physician assistants who provided expert witness testimony in legal appeals yielded five published cases. The first of these was tried in Georgia (Hyde v. State, 1988) by a father who appealed his conviction for molesting his then four-year-old daughter. He alleged that the testimony of a nurse practitioner was improperly admitted because her qualifications were less than those of a medical doctor. He also appealed the portion of the nurse's testimony which identified the father/perpetrator as hearsay and therefore inadmissible.

The Court responded to the first issue by enumerating the qualifications of the expert witness. She held two advanced degrees in nursing, she had "been trained at [Atlanta's] Grady Hospital in the Rape Crisis Center to evaluate adult and child victims of sexual abuse" (Hyde v. State, 1988, p.188) and had recently "completed two days of intensive training in [the child sexual abuse area] in a Huntsville, AL medical facility" (p.189). The Court cited previous case law which recognized "an overlap of medical and nursing expertise" and overruled the objection (p.189).

The Court then responded to the hearsay objection and concluded that the portion of the nurse practitioner's testimony which identified the father as the perpetrator fell under "OCGA 24-3-4 which permits, as an exception to the hearsay rule, testimony concerning statements made as part of the medical history when relevant to diagnosis or treatment" (p. 189).

The published opinion referred to the nurse practice act, OCGA 43-26-1(3) which defines the practice of nursing as "the performance or compensation of any act in the observation, care, and counsel of the ill, injured, or infirm...which requires substantial specialized judgment and skill based on knowledge and application of the principles of physical...science" and concluded the nurse was "merely fulfilling her professional duty" (p.189).

Perhaps the most compelling conclusion of the appellate court, was it's decision to allow the expert to testify regarding causation. The court upheld her clinical findings from the examination of the child's pubic and pelvic areas and her testimony that her findings "were consistent with the history that [the child] related to me" and that vaginal scarring of the sort she found "would occur from an object being placed in the vagina, a blunt type" (p.189).

In 1991, Tennessee decided two appeals that involved expert testimony nurses in prosecutions (State v. Brunetti, 1991 & State v. Fields, 1991). In the Brunetti case, the defendant appealed a conviction for molesting his girlfriend's ten-year-old daughter, alleging error in permitting a nurse to qualify as an expert and error in allowing testimony regarding the cause of injuries. Specifically, the nurse stated "lesions on the girl's vagina and a tear in the hymen" were abnormal and could be caused by trauma, infection, or penetration (p.1). The Court responded that there was no abuse of discretion on the part of the trial court. They upheld the nurse's testimony and qualifications which included a master's degree, employment at the Memphis Rape Crisis Center since 1984, and over one thousand examinations of victims of sexual abuse. The defendant's sentence of 18 years in prison was affirmed.

The Fields case involved the testimony of a sexual assault nurse examiner in the rape of an adult female victim. Specifically, the Court upheld the qualifications of a master's degree, nine years of experience with the rape crisis program, and numerous prior occasions testifying in rape cases to allow her expert testimony regarding the nature and the cause of the genital injuries and the statements made by the victim describing her assailant.

Finally, Ohio heard two appeals of sexual assault convictions that challenged nurse's expert testimony. In Ohio v. Brooks (1996), the Court upheld a clinical nurse specialist and assistant professor of nursing's testimony that "evidence found in her examination was consistent with the type of abuse that was alleged by the victim" (p.3). They also allowed a presumption of force based on the age differential between the victim (age six) and the defendant (age forty) and the power relationship between parent and child. Furthermore, the Court permitted testimony that explained why the victim delayed reporting the abuse for over a year.

Ohio v. Brant (1995) involved the appeal of a conviction of date rape on a college campus. The Court upheld the opinion of a nurse practitioner at the children's hospital where the nineteen-year-old was examined that the trauma was caused by forcible rape. The Court concluded that since the defense had used this expert on cross-examination to establish a slight blood-alcohol level, her testimony regarding physical findings of trauma to the vaginal area, swelling, tearing, and discoloration that was consistent with forcible intercourse, should also be allowed.

Myers (1998) cites case law which permitted the following non-physician professionals to testify as experts in child sexual abuse cases: social worker (People v. Harlan, 1990), nurse (State v. Black, 1988), family counselor (People v. Beckley, 1990), psychologist (State v. McCoy, 1987), and school guidance counselor (State v. Jensen, 1987). This body of case law lends support to the credibility of those professionals who specialize in child abuse.

The Supreme Court recently clarified that in order for expert testimony to be admitted, it must be relevant and reliable (Daubert v. Merrell Dow Pharmaceuticals, 1993). The Court laid out four factors a judge may use in scrutinizing "scientific" evidence. These include:

1. Whether a theory or technique has been tested.
2. Whether it "has been subjected to peer review and publication".
3. Whether there is a known or potential rate of error.
4. The degree to which it has "acceptability in the relevant scientific community" (at 2786).

Very recently, this "gatekeeping" obligation of a trial court to limit scientific testimony has been extended to all expert testimony in Kumho Tire v. Charmichael (1999). Furthermore, the Supreme Court in General Electric v. Joiner (1997) upheld Daubert as a way to exclude "expertise that is false and science that is junky" (at 1165). The Court allows appellate review of the admission of expert scientific testimony only if the trial court showed abuse of discretion. Thus, it is unlikely that the cases permitting nurses to provide expert testimony will be overturned if they continue to comply with the Daubert factors.

A recent issue of Child Maltreatment was devoted to the medical issues of child abuse. Chadwick and Krous (1997) summarized irresponsible medical testimony in three child abuse prosecutions. The authors outline the following recommendations regarding the minimal credentials for any professional to testify regarding the medical findings of child abuse:

1. General training or experience in child abuse and neglect.
2. Specific training or experience relative to the particular type of case being adjudicated.
3. Membership in relevant professional societies.
4. Child abuse and neglect conference presentations and attendance.
5. Relevant professional publications (Chadwick & Krous, 1997, p. 320).

The authors do not restrict these criteria to physicians since specialization in child abuse is interdisciplinary.

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Daubert v. Merrell Dow Pharmaceuticals 113 S. Ct. 2786 (1993)

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General Electric Company v. Joiner 118 S. Ct. 512 (1997).

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Ohio v. Brant, No. 94-P-011 Ohio App. Lexis 4121 (1995).

Ohio v. Brooks, No. L-95-188 Ohio App. Lexis 4099 (1996).

People v. Beckley, 434 Mih. 691 (1990).

People v. Harlan, 222 Cal. App. 3d 439 (1990).

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State v. Black, 537 A. 2d 1154 (Me. 1988).

State v. Jensen, 131 Wis. 2d 333 (Ct. App. 1987).

State v. McCoy, 400 N. W. 2d 807 (Minn. Ct. App., 1987).

State of Tennessee v. Brunetti, 1991 WL 7818 (Tenn. Cr. App. Jan. 30, 1991).

State of Tennessee v. Fields, 1991 WL 35747 (Tenn. Cr. App. Mar. 20, 1991).

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