DePaul Law Review Volume 45 Issue 2 Winter 1996 Article 2 Battered Spouses' Damage Actions against Non-Reporting Physicians James T.R. Jones Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation James T. Jones, Battered Spouses' Damage Actions against Non-Reporting Physicians , 45 DePaul L. Rev. 191 (1996) Available at: https://via.library.depaul.edu/law-review/vol45/iss2/2 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. BATTERED SPOUSES' DAMAGE ACTIONS AGAINST NON-REPORTING PHYSICIANS James T. R. Jones* INTRODUCTION The national disgrace of spouse abuse' continues to be an immense * B.A., University of Virginia; J.D., Duke University School of Law; Associate Professor of Law, University of Louisville School of Law. The author wishes to express his special thanks to Travis A. Fritsch, domestic violence consultant and former Staff Assistant, Office of the Attor- ney General, Commonwealth of Kentucky, for her invaluable assistance. 1. As one domestic violence scholar recently stated about the name for the type of behavior about which this Article is written: In the social science literature, various terms have been used to describe violence and abuse within an intimate relationship (including spouse abuse, domestic violence, mari- tal assault, woman abuse, and battering), although there is little substantive difference among them in the types of phenomena described. Throughout this Article and in the scientific field generally, these terms are. used interchangeably to refer to the broad range of behaviors considered to be violent and abusive within an intimate relationship. Mary Ann Dutton, Understanding Women's Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21 HoFsmRA L. REV. 1191, 1204 (1993) (footnotes omitted). This Article adopts this same approach to domestic violence terminology. Exactly what sort of behavior qualifies as "abuse/domestic violence" is somewhat controver- sial. Kentucky basically defines spouse "abuse" as "a situation in which a person inflicts physical pain or injury upon a spouse .... " Ky. REV. STAT. ANN. § 209.020(7) (Michie/Bobbs-Merrill 1991). California defines "abuse of spouse or cohabitant" as "corporal injury resulting in a trau- matic condition" where "'traumatic condition' means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force." CAL. PENAL CODE § 273.5(a), (c) (West Supp. 1995). Most commentators define abuse far more broadly, focusing on both physical and emotional/mental injury and suffering. E.g., Jean Abbott et al., Domestic Violence Against Women: Incidence and Prevalence in an Emergency Depart- ment Population,273 JAMA 1763, 1764 (1995) ("either an injury (hitting, punching, slapping, or other trauma) or stress (from threats or violent behavior..."); Council on Ethical & Judicial Affairs, American Medical Association, Physicians and Domestic Violence: Ethical Considera- tions, 267 JAMA 3190, 3190 (1992) [hereinafter Physicians and Domestic Violence] ("physical, sexual, and psychological abuse"); Dutton, supra, at 1204 ("physical, sexual, and psychological"); Howard Holtz & Kathleen K. Furniss, The Health Care Provider's Role In Domestic Violence, 8 TRENDS IN HEALTH CARE, L. & Elrncs 47, 47 (1993) ("physical abuse, emotional abuse, sexual abuse, economic control or destruction of pets or cherished property"); Christine A. Picker, The Intersection of Domestic Violence and Child Abuse: Ethical Considerationsand Tort Issues for Attorneys Who Represent Battered Women With Abused Children, 12 ST. Louis U. PUB. L. REV. 69, 73 (1993) ("physical, sexual and psychological abuse within the family or household"). Obvi- ously, a jurisdiction must settle on an exact definition of what behavior constitutes "spouse abuse/domestic violence" before it can hold physicians civilly liable for not reporting it. In many cases, the abuse will be physical and obvious, so no definitional problem should exist there. In cases involving non-physical harm, counsel for battered spouses must research the issue carefully and then be prepared to argue that what their clients suffered qualifies as "abuse." 192 DEPAUL LAW REVIEW [Vol. 45:191 modern tragedy2 which afflicts large numbers 3 of mostly female 4 vic- 5 tims. Various authors have suggested that one way to attack this ter- In this Article terms like "abused spouse," "battered spouse," "spouse abuse victim," and "domestic violence victim" refer to both the person who currently is legally married to her abuser and to the one who is not now (and may never have been) married to the abuser, i.e., to past or present intimate partnership relationships. See EVE S. BUZAWA & CARL G. BUZAWA, DOMESTIC VIOLENCE: THE CRIMINAL JUSTICE RESPONSE 9 (1990) (defining domestic violence as violence between adults who are living together or who have previously lived together in a conjugal relationship); [FLORIDA] GOVERNOR'S TASK FORCE ON DOMESTIC VIOLENCE, THE FIRST REPORT OF THE [FLORIDA] GOVERNOR'S TASK FORCE ON DOMESTIC VIOLENCE at v (Jan. 31, 1994) [hereinafter TASK FORCE REPORT] (indicating that a "partner" can be a wife, a hus- band, former spouse, or a co-habitating intimate in a heterosexual or homosexual relationship); James T. R. Jones, Battered Spouses' State Law Damage Actions Against the Unresponsive Police, 23 RUTGERS L.J. 1, 2 & n.4 (1991) [hereinafter Battered Spouses' State Law Damage Actions] (noting that many domestic violence situations involve those who never were married to each other). 2. For citations to some of the vast literature on this subject, see Daniel J. Jacobs, Battered Women and Related Domestic Violence Issues: A Selective Bibliography, 49 REC. ASS'N B. CITY N.Y. 786 (1994); Jones, Battered Spouses' State Law Damage Actions, supra note 1, at 1 n.1. For an interesting discourse on the history of domestic violence, see Henry Ansgar Kelly, Rule of Thumb and the Folklaw of the Husband's Stick, 44 J. LEGAL EDUC. 341 (1994). 3. See, e.g., BEVERLY BALOS & MARY LOUISE FELLOWS, LAW AND VIOLENCE AGAINST WOMEN: CASES AND MATERIALS ON SYSTEMS OF OPPRESSION 183 (1994); Michele Lang, Re- cent Development, Professionals,Activists, Crows: The Family Violence Programat Boston Uni- versity School of Medicine (Notes From the Field), 14 HARV. WOMEN'S L.J. 222, 223 (1991) ("One-third to one-half of all American women will be in violent relationship during their life- time."); Joyce E. McConnell, Beyond Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 YALE J.L. & FEMINISM 207, 229 n.119 (1992) (stating that some au- thors estimate that battering occurs in 28 percent of all marriages): Antonia C. Novello, A Medi- cal Response to Domestic Violence, 267 JAMA 3132, 3132 (1992) ("Domestic violence may touch as many as one-fourth of all American families."); M. VandeCastle et al., Physical Violence Dur- ing the 12 Months Preceding Childbirth-Alaska, Maine, Oklahoma, and West Virginia, 1990- 1991, 271 JAMA 1152, 1152 (1994) (noting that public and private health care settings indicate that four to seventeen percent of women experience violence during pregnancy). 4. See, e.g., BALOS & FELLOWS, supra note 3, at 183; Physicians and Domestic Violence, supra note 1, at 3190 (indicating that "domestic violence is predominately perpetuated by men against women"); Council on Scientific Affairs, American Medical Association, Violence Against Women: Relevance for Medical Practitioners,267 JAMA 3184, 3185-86 (1992) [hereinafter Vio- lence Against Women] ("In general, men perpetrate more aggressive actions against their female partners .... "); Nancy S. Jecker, Privacy Beliefs and the Violent Family: Extending the Ethical Argument for Physician Intervention, 269 JAMA 776, 776 (1993). A recent Kentucky state pro- file of spouse abuse reports disclosed that from 1992-94 roughly 90% of Kentucky spouse abuse victims were women. KY. DEP'T FOR SOCIAL SERVS., CABINET HUMAN RESOURCES, PROFILE ON ADULT ABUSE FISCAL YEAR 1994, at 7 (1994) [hereinafter PROFILE ON ADULT ABUSE]. 5. Many scholars agree that concepts of power and control are the key issues in domestic violence, as they are what the batterer really strives to gain through his behavior. See generally ELLEN PENCE & MICHAEL PAYMAR, POWER AND CONTROL: TACTICS OF MEN WHO BATTER: AN EDUCATIONAL CURRICULUM (1986); Mary E. Asmus et al., Prosecuting Domestic Abuse Cases in Duluth: Developing Effective Prosecution Strategies From Understandingthe Dynamics of Abusive Relationships, 15 HAMLINE L. REV. 115, 132-34, app. A (1991); Andrea Brenneke, Civil Rights Remedies for Battered Women: Axiomatic & Ignored, 11 LAW & INEO. J. 1, 11-14 (1992); Karla Fischer et al., The Culture of Battering and the Role of Mediation in Domestic Violence Cases, 46 SMU L. REV. 2117, 2126-39 (1993); Martha R. Mahoney, Legal Images of 1996] BATTERED SPOUSES' DAMAGE ACTIONS 193 ribly costly6 problem is to compel the police 7 to get involved in Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1, 34 (1991); Joan S. Meier, Notes From the Underground: Integrating Psychological and Legal Perspectives On Do- mestic Violence in Theory and Practice, 21 HOFSTRA L. REV. 1295, 1317-21 (1993). A recent article described the most accepted theory as to the dynamics