The Mandated Reporter

Friday’s witness in the Dr. William Ayres trial, Dr. Lynn Ponton, was my reason for having interest in attending these proceedings. She and I have something in common—we are both mandated reporters.

I had not heard of Dr. Ponton before this trial. Honestly, why would I? Child and adolescent psychiatry and child and adolescent abuse isn’t something I think about every day. And honestly, I was not fully positive of the defendant’s guilt (though as part of my nursing training, I learned to believe what a child tells you until what he or she says is known or proven by people with more expertise than I that the child is being deceitful). Just how far does a doctor (or nurse, in my case) have to go for something to cross the line and become abuse? Neglect is pretty easy to see—a hungry, dirty, perhaps socially isolated child. Physical abuse such as a child with bruises or broken bones is pretty easy to observe and diagnose with certainty as well. But sexual abuse is pretty hard to objectively see—and short of intercourse, exactly when does a physical exam given by a medical professional cross the line into lewd and lascivious behavior?

I thought back to my own career and wondered if I’d ever crossed that line. I used to do most of my work in two areas: maternal/child (specifically labor and delivery) and ER. Obviously when monitoring a pregnant woman and her baby in labor requires plenty of intimate touching. Had I ever crossed the line? Had anyone ever felt I’d gone too far during an internal exam for cervical dilatation? And worse yet—I’d been the monitoring nurse for adolescent girls in labor. Just because they are “old” enough to have intercourse and get pregnant doesn’t mean they are necessarily ready developmentally.

So really, in the back of my mind I could have been convinced that this was all a huge misunderstanding. Hasn’t happened yet.

What did I mean when I wrote Dr. Ponton and I are both mandated reporters? In California, people who work in certain occupations are required by law to report suspected child abuse. We don’t need to be able to prove it, but even the slightest suspicion means we must report it.

The law requiring reporting of child abuse, PC Section 11164-11174.3, specifically describes exactly what sexual abuse is in the subheading 11165.1. It also provides a list of mandated reporters in subheading 11165.7—item 21 lists licensed medical professionals who are required to report.

I have reported suspected child abuse in the L & D setting. I can think of one specific instance where I watched the woman (who had hepatitis) and her significant other drive up to the hospital’s emergency room, pull out her “kit” and give herself a shot of heroin before she came in to deliver her third addicted baby (that was in short order removed from her custody, just like the two previous and the two she’d have later). But I never encountered child sexual abuse—at least none that I ever recognized (and a pregnant girl wasn’t something I could report).

Dr. Ponton was only one in a very short list of mandated reporters in this case. Others had tried and been shrugged off because of the good doctor’s esteemed reputation. However, she was the one that the authorities finally listened to. She had evaluated Steven A. when he finally sought to right the wrong that had been done to him so many years before. Despite the fact Steven was an adult in his 40s at the time, Dr. Ponton was obliged to report the abuse—and she did.

As always, I refer the reader to the William Hamilton Ayres Watchdog site for additional description and insider information. I would like to add something about the morning’s proceedings, which were very well summarized by that site's corespondents.

Dr. Ponton, a tall and very attractive blonde woman who has a quick sincere smile and who looks years younger than her chronological age (she attended medical school in the 1970s) listed several conditions, part of a standard of care, that need to be met whenever a psychiatrist elects to perform a physical exam on a child.

1. Consent of the parents is utterly necessary

2. Assent of the child is necessary

3. The child’s modesty must be protected with drapes and while disrobing. Having a third person present for genital exams is a consideration.

4. The child’s genitals are never massaged or masturbated or examined to the point of ejaculation.

5. Results of the physical exam are noted in the chart and discussed with the parents and the patient.

6. The physical exam is never performed for the benefit of the physician.

7. The doctor must be aware that children have special needs, and that a child in a psychiatric setting is being seen because of a psychiatric health issue.

Perhaps having learned what happened in the Spector trial regarding dueling expert witnesses, San Mateo County Deputy District Attorney Melissa McKowan queried Dr. Ponton very early in her testimony regarding her fees ($650 an hour as a private expert witness; $300 an hour discounted to the county). I have no doubt she will ask about fees when defense attorney Doron Weinberg trots out his expert witnesses, one of whom is known to be Dr. Elizabeth Loftus, yes, the memory expert who testified in the Phil Spector trial.

At least once during Dr. Ponton’s testimony I saw Weinberg do “that thing” with his lips.

Right off the bat Weinberg objected to Dr. Ponton’s testimony of the “red flags” list. He claimed he’d not been given the medical records, police records or her report in a timely manner. He said he was not prepared and could not conduct a proper cross-examination because he did not know what materials Dr. Ponton had used to create the red flag list.

He’d already tried to delay Dr. Ponton’s testimony on Tuesday, saying that the prosecution hadn’t gotten her report to him in a timely manner (he was offered the report Sunday, June 21, but did not have a decent fax machine. The report was delivered early Monday afternoon, June 22).

Weinberg asked that Dr. Ponton’s testimony regarding the red flags be delayed until Monday, June 29, so he could better prepare.

McKowan was ready for this now well-known Weinberg tactic (delay delay delay) and stated he has had the police reports and the available medical charts in his possession from the beginning. Dr. Ponton is unavailable on Monday morning—she starts a new child and adolescent pediatric psychology rotation with new students on Monday. McKowan also noted she'd not yet received one of the defense's expert witness reports yet either—one she'd asked for a couple of times.

Dr. Ponton was asked if she could be available on Monday, and she reluctantly said she could try to shift some responsibilities, but she had to be back in San Francisco by 2 p.m.

Judge Beth Freeman asked Weinberg if he could look over the charts during lunch, and he obligingly said he’d try.

Weinberg was not allowed to delay Dr. Ponton’s testimony though there was the possibility she would have to return on Monday. As it turned out, her testimony finished early Friday afternoon.

The red flags list, which is summarized on the Watchdog blog, were created by Dr. Ponton by reading through the alleged victims’ medical charts (when available; read into evidence later in the day is the reason some charts might not be available: records from 1977 to 1982 were destroyed because of a corporate decision [Dr. Ayres was in a group practice at the time]) and police reports.

The red flag list was the source of plenty of objections from Weinberg (irritating a few jurors in the process—I observed a few heavy sighs and rolling eyes in the jury box whenever the defense attorney got nit picky [rightly so] over McKowan forgetting to preface a case history by saying “in a hypothetical case where …” I also overheard her [from across the room] say “This is ridiculous” when a sidebar was called because of one of Weinberg’s objections). The red flags are the areas where Ayres failed to maintain a proper standard of care when administering physical exams in a psychiatric setting.

An interesting remark made by Dr. Ponton regarding testing for learning disabilities and ADD/ADHA tend to be more in the realm of psychologists. Psychiatrists are of course aware of the tests, but a psychiatrist would be involved in prescribing medication, something, of course, a psychologist (who may have a Ph.D. but not a medical license which is needed to prescribe medication) cannot legally do.

There are contrasting schools of thought regarding the appropriateness of physical exams of children in a psychiatric setting. As revealed in a noted psychiatric textbook, there are a group of practitioners who believe that physical exams are nearly never done (One thing lay people must understand about the practice of medicine: one cannot say something is “never” or “always” done. Even though medicine is a science, it is not an exact science where absolutes can be assigned.), and another group (Greenhill and others) that believe physical exams are underutilized in the psychiatric setting.

But even in making that statement, there are ways to mislead a jury, and Weinberg did an excellent job of getting the jury to take notice of the “physicals are underutilized” school of thought. What he cleverly did was read a partial passage from a psychiatric textbook that made that statement.

What McKowan equally as cleverly did to shoot that statement down was to have Dr. Ponton read additional passages from the section—statements that further defines the specific situations in which a psychiatrist could perform a physical exam.

ADD, ADHD, self-esteem, and impulse issues aren’t on the list. And the few things that are on the list—including an evaluation of enuresis (bedwetting)—qualify the need for a physical exam, but assumes no physical exam has been done by the child’s pediatrician (and the doctor should never hold the cup, or the penis, or observe the child urinating). Very importantly, a great deal of warm-up and relationship building must be done by the psychiatrist who performs those physicals—which are seldom done at the first visit. Nearly never is there an acute need for a physical, and a practitioner would usually refer the child back to his or her pediatrician is there was need for a physical exam. A non-strangulated hernia is not a reason for a physical exam by a psychiatrist! In the rare case of a physical exam given in a psychiatric outpatient setting, the child must be fully engaged by the psychiatrist and the psychiatrist must fully meet the child’s need for modesty and comfort.

There is never a reason for a child to be fully naked and exposed, or have his pants down around his ankles. Consent for a genital exam must be very specific—the psychiatrist must specifically say “genital exam,” a very different exam than a “physical exam” which traditionally includes height, weight, vital signs, and auscultation of the lungs, heart and abdomen, and perhaps palpation and percussion of the upper body.

Chances are the child’s pediatrician has all of that information anyway, though it is at times necessary for the psychiatrist to take vital signs, usually heart rate, blood pressure and the child’s weight when monitoring a child taking certain medications, especially those for ADD and ADHD.

Late in Dr. Ponton’s testimony, she clarified and reinforced the psychiatrist’s role in caring for a pediatric patient—is the psychiatrist a consultant, which is usually the case—or is he or she the primary care physician (rarely, if there is no family pediatrician)? And if there is a pediatrician, check with that physician first to repeat anything—don’t overlap and do the same thing twice to a child regarding a physical exam.

I saw one female juror have an ah-ha moment after that remark was made. I’ve seen that look—I’ve done it plenty of times. Of course I also saw jurors yawning, examining their fingernails, staring off into space. There is a male juror who always listens and takes notes. A female juror asked for a new notebook.

None of the common-sense things were revealed in the existing medical records of the six former patients of Dr. Ayres who have testified thus far. Dr. Ponton admitted she was unable to read 100 percent of Dr. Ayres’ handwriting in the available medical records, but she was unable to find any reasons given for the need for a physical, and parents, even those who did consent to a physical exam, were not informed a genital exam had been done.

Dr. Ponton stated that children, especially males, do not tend to make false allegations of sexual abuse. In this case, of course, there are memory and cognition concerns, with the abuse having been 20 or 30 years previously. When Weinberg tried to get into a discussion about memory, he asked Dr. Ponton if she was an expert in the area of memory and she said no. He then made a statement about Dr. Elizabeth Loftus being the leading expert in memory—and Dr. Ponton said Loftus was not the leading expert on memory! Let the dueling experts begin!

Weinberg did make attempts to get under Dr. Ponton’s skin, but she is a child psychiatrist for a good reason—she is a level-headed cool customer! She did an excellent job of making her points, even though one of her answers was later called non-responsive and struck from the record. But it’s very hard to take remarks back once they’ve been made. Nor did she ever raise her voice, and she chose to not address Weinberg as "Doron" even after he said it was acceptable, because she'd been referring to McKowan by her first name (she stopped doing that shortly thereafter).

Once Dr. Ponton’s testimony was over, parts of a deposition transcript taken from Dr. Ayres during the Steven A.’s civil case were read into evidence with McKowan reading the role of questioner, and Deputy District Attorney Chuck Finney reading Ayres’ words.

Dr. Ayres claimed that there were children who asked him to perform physical exams, and that he did not initiate the process! He also claimed he asked children if the child would “like for him” to look at something—to examine his stomach if he had a stomach ache, to look at his groin if he had poison oak or another rash.

But he always recommended the child see the pediatrician for the exam, and did it only if it was an emergency (a hernia is not an emergency!) or the child consented. The penis would be more closely examined if the kid offered complaints of itching, or was worried something was wrong with his reproductive organs, and of course sometimes boys masturbate so much they cause sores.

(Male readers: Please leave a comment if you have ever masturbated yourself to having sores. I refuse to believe adolescent boys are that crazy!)

Dr. Ayres also claimed that he did not think he’d ever asked a child to pull his pants down, and that most parents were grateful the exam had been done!

I believe that defense attorney Weinberg is doing a fine job with the material he’s been given. One of the parents of an out-of-statute victim remarked to me that she felt Weinberg “enjoyed” defending child molesters. I would not go so far as to say he “enjoys” it—but it is his job to ensure the accused person’s rights are upheld, and Weinberg is no doubt a challenging adversary for any district attorney. All he can do in a case like this is make sure his client’s rights aren’t stepped on, and to try to plant seeds of doubt in at least one juror’s mind. The average juror does not have the knowledge base I have in this case—I wonder if there are any health care practitioners or social workers on the jury? I'm betting no. A defense attorney would not want me on a jury like this, so I have to assume anyone who night understand child abuse (even just a little bit like me!) was not chosen. However, no doubt some of the jurors are parents, and there is no way they can totally put their feelings aside in this case—what if that had been my child? What would I want the jury to do to help make things right?

Even though she was full of fire and very passionate and effective on Friday, I hope that Melissa McKowan will be studying the transcripts of Alan Jackson’s cross-examination of Dr. Loftus during the Spector trial when the time comes.

Questions I hope McKowan answers somehow and is able to introduce into evidence:

1. Is there a reason that no juvenile referral patients have testified? Are those medical records sealed or destroyed or unavailable? How many San Mateo county juveniles passed through Ayres’ doors? Were there kids from other counties?

2. I would like for her to get on the “no gloves” thing a bit more. Dr. Ponton mentioned that gloves are worn in the rare case of a genital exam to make the child feel more at ease, but I think that if the jury could be skeeved out about the lack of universal precautions—something every medical practitioner knew about from the late 1980s—they might better understand the inappropriateness of the exams themselves. The lack of gloves is a huge hint that the exams were for the benefit of the doctor.

On Monday’s schedule are the four corroborating out-of-statute witnesses. The prosecution might rest next week.

California Codes: PENAL CODE SECTION 11164-11174.3

Expert: No reason for exams performed by psychiatrist accused of child molestation

The Trial: Week Four, Day Four

A CONVERSATION WITH/Lynn Ponton; An Expert's Eye on Teenage Sex, Risk and Abuse