ASH's Preliminary But So Far Unsuccessful Attempts
to Persuade the American Academy of Pediatrics to Recognize –
and to Alert its Members About – the Obligation of Physicians to Report
as Possible or Suspected "Child Abuse"
or "Child Neglect" or  "Reckless Endangerment"]
Situations in Which a Parent's Secondhand Smoke Creates
Unnecessary Medical Problems for a Child

Below are copies of correspondence from law professor John Banzhaf of Action on Smoking and Health (ASH) to members of the American Academy of Pediatrics [AAP] requesting the organization to recognize – and to alert its members about – the obligation of physicians to report as possible or suspected "child abuse" [or "child neglect" or  "reckless endangerment"] situations in which a parent's secondhand smoke creates unnecessary medical problems for a child. 

Also included is contact information for the Board of Directors and members of key committees of the AAP.

To date the AAP has refused to take any action in response to this well documented request from America's first antismoking organization.

EMAIL FROM PROF. BANZHAF TO DR. WINICKOFF OF 05/24/07

As a followup to our discussions at the FAMRI Symposium in Miami, and your kind agreement to cooperate with me on this project, I write to respectfully suggest that the policies of the American Academy of Pediatrics [AAP] designed to protect children from the very serious adverse health effects of unnecessary exposure to secondhand tobacco smoke [SEE APPENDIX BELOW] should be updated and strengthened in light of several major developments. These developments include:

1. The growing body of medical and scientific evidence since those policies were issued which demonstrates even more forcefully and effectively than before how exposure to secondhand tobacco smoke causes a wide variety of diseases in children, exacerbates many additional diseases and health conditions in children; and results in a myriad of other health problems in children (e.g., decrease in lung function).

2. The authoritative determination and public report by the U.S. Surgeon General that there is no level of exposure to secondhand tobacco smoke which is safe; i.e., no level of exposure which does not cause health harm and place even the most healthy child at significant risk.

3. Although it was well known by pediatricians when the prior AAP policies [SEE APPENDIX BELOW] were issued that secondhand tobacco smoke caused lung cancer and lung cancer deaths in nonsmokers, this fact has only recently come to be known and accepted by many members of the general lay public, including all too many public officials. Thus, in light of this “new” knowledge, in evaluating whether or not exposing a child to secondhand tobacco smoke can constitute child abuse and/or otherwise warrant governmental intervention, the analogy would no longer be to compare exposing a child to dusty air in a cellar or attic, but rather to unnecessarily exposing a child to asbestos, benzene, or Polonium 210 – all of which, just like secondhand tobacco smoke, have been officially classified as known human carcinogens.

4. The growing recognition on several different fronts of the appropriateness and the need for governmental intervention to protect children from the very serious adverse health effects of unnecessary exposure to secondhand tobacco smoke in cars and homes – especially since changes in governmental policy and perceptions regarding this problem obviously affect their expectations with regard to physicians, and the special responsibilities imposed upon pediatricians. These changes include:

     4A. Courts in almost three dozen states have ruled that it is appropriate – in determining the “welfare of the child” – to consider whether a parent smokes (or permits others to smoke) in a home or car when the child is present, and to consider that as a factor in awarding custody. In thousands of custody proceedings, judges have issued court orders prohibiting smoking in a home or car when a child is present, and often 24 or even 48 hours before the child arrives. While many of these situations have involved children who have a pre-existing medical condition (such as asthma) which makes them especially sensitive to tobacco smoke, in some of the cases the child had no such condition. This clearly indicates the courts' growing concern with the health risk posed to even the healthiest children by exposure to secondhand tobacco smoke – much less to those who have asthma or other medical conditions which make them especially susceptible – and their recognition of the need for effective governmental action to protect children even prior to any direct medical evidence of harm.

     4B. Almost a dozen states have banned (or are in the process of banning) smoking in homes and cars when foster children are present. Since the rulings – by statute as well as by administrative action – involve all foster children in the state, it is clear that legislators and regulatory officials see the need to protect all children, regardless of whether or not the children have some pre-existing medical condition, and even in the absence of any direct medical evidence of harm.

     4C. In at least two states so far, and in several local jurisdictions, smoking by adults is banned whenever a child is in a car. This step is much more far reaching and arguably more intrusive, since it involves all children, and unlike governmental regulations aimed at protecting foster children or those involved in custody disputes (where governmental intervention has always of necessity been far more intrusive), this involves governmental restrictions on private conduct by ordinary parents affecting their own children.

     4D. There are a growing number of institutions and individuals which have publicly declared that unnecessarily exposing children to secondhand tobacco smoke can constitute (or is a form of) child abuse. While such statements may seem to be exaggerations to many laymen who associate the term “child abuse” with descriptions of the extraordinary situations they read about in newspapers of children being starved, kept in cages, savagely beaten, etc., pediatricians and others should recognize that the term "child abuse" applies to many far less extreme situations which simply present a risk (rather than documented harm) to a child’s health or safety. This includes young children being left home alone too long, failure to properly refrigerate perishable foods, failure to dispose of waste in a sanitary manner, failure to safely store firearms or even hazardous household products, etc.

   4E. Although difficult to document, it appears that child welfare agencies are beginning to recognize that unnecessarily exposing children to secondhand tobacco smoke can constitute “child abuse” (or “child neglect” or “reckless endangerment”) at least under certain circumstances, and that in some circumstances where parents continue to subject children to such exposure, governmental intervention may be appropriate and necessary. For example, once a child has been diagnosed with a special sensitivity to a substance, and parents have been warned about the dangers of exposing that child to the substance but still unnecessarily continue to do so, governmental intervention would seem to be warranted, whether that substance is peanut residue or apples (if the child is allergic to these) or to secondhand tobacco smoke (especially if the child has asthma or other allergic reactions to it).

5. Pediatricians must now acknowledge and accept that fact that, despite their own educational efforts as mandated by prior AAP policy statements, the percentage of parents who still regularly expose their own children to tobacco smoke in homes and cars is totally unacceptable – especially in view of the deaths, serious illnesses, and huge medical care costs its causes – and actions by pediatricians beyond that called for in prior AAP policy statements is now required. Thus this new proposed policy statement, in addition to mandating inquiries as to unnecessary childhood exposure to secondhand tobacco smoke, and strong warnings about the consequences of any such exposure (including cancer), also calls upon physicians to seek governmental assistance in protecting their patients from secondhand tobacco smoke in the same manner they have always done from other clear health risks. Indeed, it reminds them of their legal duty to report situations where they have reasonable cause to believe that such exposure is causing harm, or substantial risk of harm, to the appropriate authorities.


DRAFT 1 OF NEW PROPOSED AAP POLICY ON PEDIATRICIANS' DUTY TO PROTECT PATIENTS FROM EXPOSURE TO SECONDHAND TOBACCO SMOKE

1. Pediatricians must now recognize that their efforts – and the efforts of others – to persuade parents and guardians not to smoke in the presence of their children have not been sufficiently successful. As a result, preventable exposure to secondhand tobacco smoke each year kills thousands of children, causes needless illness and suffering by tens of thousands of youngsters, results in millions of unnecessary pediatric visits to doctors and hospitals, and requires the expenditure of billions of dollars in excess medical care costs; a significant portion of which is paid by taxpayers.

2. Pediatricians should ask the parents and guardians of children, and also children of appropriate age, the extent to which the child is being exposed to secondhand tobacco smoke in the family home or car, and in other places frequented by the child, including in the homes of relatives, in child care facilities, while visiting with friends, etc. The results of both inquiries should be prominently recorded in the patient's chart or in the problem list.

3. In situations where children are exposed to any secondhand tobacco smoke, the parents and guardians, and also children of appropriate age, should be advised that there is no safe lower level of exposure, and that any such exposure can both exacerbate existing health problems and cause new ones, including lung cancer.

4. In situations where children are regularly exposed to secondhand tobacco smoke in the family home or car, and especially where there is reasonable cause to believe that such exposure may already be contributing to a health problem, parents should be asked not to smoke in the family home or car when a child is present, and should be warned of the possible consequences if they continue to do so.

5. If, after being warned, parents or guardians persist in smoking around a child in the family home or car, and pediatricians have reasonable cause to believe that such exposure is causing harm or substantial risk of harm to the child's health, the physician should bring the matter to the attention of the appropriate authorities in the same manner as exposure to other substances, and other unhealthy conditions.

6. In deciding when to report such exposure, pediatricians should remember that the child (and not the parent or the guardian) is the patient to whom the physician owes a fiduciary duty; that many situations triggering reports to authorities result when it is the parents themselves which create unnecessary health risks; that authorities may be in a better position to take appropriate action if a physician’s repeated warnings are not being heeded; and that all states both require doctors to report when they have reasonable cause to believe there are situations unnecessarily causing harm or the substantial risk of harm to children, and provide legal immunity for filing such reports.


APPENDIX: EXISTING AAP POLICIES REGARDING SECONDHAND TOBACCO SMOKE

It appears that the AAP has two existing policies which deal in whole or in part with secondhand tobacco smoke.

The first more specific one is: AAP Policy, Environmental Tobacco Smoke: A Hazard to Children, Committee on Environmental Health, PEDIATRICS Vol. 99 No. 4 April 1997, pp. 639-642,
http://aappolicy.aappublications.org/cgi/content/full/pediatrics;99/4/639

The second covers a wider range of tobacco-related topics, but includes secondhand tobacco smoke: AAP Policy, Tobacco's Toll: Implications for the Pediatrician, Committee on Substance Abuse, PEDIATRICS Vol. 107 No. 4 April 2001, pp. 794-798,
http://aappolicy.aappublications.org/cgi/content/full/pediatrics;107/4/794
(reaffirmed May, 2006), PEDIATRICS Vol. 118 No. 3 September 2006, pp. 1266 (doi:10.1542/peds.2006-1697),
http://aappolicy.aappublications.org/cgi/content/full/pediatrics;118/3/1266

The recommendations from the Environmental Health Committee policy are as follows:

# Pediatricians should take smoking histories from parents and guardians of children.
# Pediatricians should inform parents about the health hazards of passive smoking and provide guidance on smoking cessation.
# Pediatricians should set an example by not using tobacco products.
# Pediatricians should promote policies that ensure their offices, waiting rooms, and hospitals are smoke free.
# Pediatricians should urge that sales of all tobacco products be banned in pediatric hospitals and other facilities in which children receive care.
# Pediatricians should work with school boards to ban smoking in schools and on school property, including in teachers' lounges.
# Pediatricians and American Academy of Pediatrics (AAP) chapters should urge their state and local governments to pass legislation prohibiting smoking in child care centers, family child care homes (where care givers care for children who are not their relatives), restaurants, and other public places.
# Pediatricians should work to eliminate cigarette sales from vending machines.
# Pediatricians and AAP chapters should encourage Congress and the Federal Trade Commission: (1) to ban all advertising in all media for tobacco products; (2) to sponsor counter advertisements, particularly on television, to inform the public of the dangers of tobacco; (3) to strengthen the health warnings printed on cigarette packages; such messages should specifically warn of the hazards of environmental tobacco smoke; and (4) to increase the federal excise tax on all tobacco products. Higher excise taxes have been shown to deter the purchase of tobacco effectively.
# Pediatricians and AAP chapters should urge Congress to dismantle the tobacco price support program.

The relevant recommendations from the Substance Abuse Committee policy include:

# Inquiry about tobacco use and smoke exposure is critical at all pediatric office visits. Responses should be prominently recorded in the patient's chart or in the problem list.
# As important role models, pediatricians are urged not to smoke or use tobacco products and should maintain a tobacco-free office environment and attempt to limit reading materials containing tobacco advertising. They should be firm advocates of nonuse by children and their parents and advocate for a smoke-free environment wherever children are present.
# The dangers of ETS and the risk of role modeling tobacco use should be discussed with parents and caretakers who smoke and reinforced with culturally and ethnically appropriate written information and cessation referrals.
# Discussion and anticipatory guidance about smoking and tobacco use should ideally begin by age 5 years, with particular emphasis on resisting the influence of advertising and rehearsal of peer-refusal skills. This deserves special attention when a parent or regular caretaker is a smoker, including repeated nonjudgmental efforts to encourage the parent to quit smoking (accompanied by appropriate referral), a high index of suspicion for early onset of smoking in the child, and encouragement of protective factors.
# Pediatricians should be knowledgeable about tobacco cessation and routinely offer help and referral to those who are nicotine-dependent, including those who are recovering from alcohol and other drug dependence.
# Hospitals, medical offices, schools, child care programs, and other places frequented by children should maintain a tobacco-free environment.
# Pediatricians should support comprehensive tobacco prevention, education, and cessation programs and policies within schools and be available to provide consultation for these programs.38
# Pediatric residency training programs and continuing medical education programs should implement training programs for medical students, residents, and pediatricians that discuss tobacco prevention, intervention, and cessation.
# Pediatricians should support research into effective treatments for tobacco dependence in teens as well as efforts to secure appropriate funding for such treatment.
# Pediatricians should urge adolescent substance abuse treatment programs to treat tobacco dependence in their patients and their families and consider adopting a tobacco-free policy.
# Pediatricians should advocate for state and federal legislation that provides the Food and Drug Administration with authority to regulate nicotine and tobacco products including restricting sales, access, marketing, and promotion of tobacco products. They should also work with state authorities to promote programs that contribute to decreased tobacco use by youth.
# Pediatricians should encourage health insurance companies to provide coverage for comprehensive tobacco cessation treatment, including individual and group counseling and pharmacologic modalities.


EMAIL FROM PROF. BANZHAF TO DRS. KLEIN AND WINICKOFF OF 05/31/07

I am writing to thank both of you for your cooperation and assistance regarding my proposal [see below] to persuade the American Academy of Pediatrics to adopt policies to encourage pediatricians to take effective action when parents continue to endanger the health and welfare of their own children by smoking indoors in their presence; to supplement my original draft proposal in TWO regards [see below]; and to make a suggestion and request for endorsement prior to formal AAP action.

FIRST, I would like to supplement my original submission by adding an additional paragraph based upon a very recent report, as well as adding a document I had sent to Dr. Winickoff in hard copy form which probably was not included in the email.  Both are set forth below.

SECOND, may I most respectfully suggest and request that it would be most useful and persuasive, and an important first step in helping to encourage and empower pediatricians to be more effective in protecting their patients from ETS, for the Julius B. Richmond Center for Excellence for Children and Secondhand Smoke, as well as the AAP Tobacco Consortium, to formally adopt a policy along the lines I have suggested and/or endorse action in this direction by the full AAP.

Both bodies have considerable influence in their own right, and have a well-publicized purpose of protecting children from tobacco smoke.  Therefore the adoption by each of some written policy -- without waiting for formal action by the entire AAP -- would carry great weight and could be effective immediately upon adoption.  Indeed, in light of the many developments I outlined in my draft, some may well wonder why neither organization seems to have a policy on this issue.

Needless to say, I would be delighted to work with both the Julius B. Richmond Center for Excellence for Children and Secondhand Smoke, and the AAP Tobacco Consortium, to help develop and formulate such policies, just as I would be happy to work with the AAP in its consideration of this proposal.


PLEASE ADD THE FOLLOWING PARAGRAPH TO MY DRAFT PROPOSAL

6. A very recent study [ http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5620a3.htm ] shows that, as early as the end of 2003,  in the overwhelming majority of homes [72.2%], smoking is not permitted.  It also showed that the percentage of homes with a smoker in which smoking is banned increased by over 300%..  Since much of the increase in smoking bans in homes was linked to increased public knowledge and concern about the dangers of secondhand tobacco smoke – something which has continued to grow since 2003 – it seems clear that the percentage of homes in which smoking is banned today is almost certainly far higher than reported for 2003.  This is important because  laws, regulations, and standards designed to protect children frequently change over time, and may  provide ever increasing protection as the public finds such requirements to be “reasonable” in light of current acceptance.  Just as it has only become "reasonable" over the past ten years to require parents to place infants in child safety seats in cars – now that the dangers are better appreciated and such seats are now very widely used – so to has asking parents not to smoke in the family home has now become generally accepted and therefore "reasonable."  Today – unlike even a few years ago – it is no longer unreasonable to require smokers to step outside their homes to smoke because that policy is now clearly the norm.  This dramatic change both in attitude and practice should make it easier for pediatricians to make such a request, and make it more likely that child welfare authorities would take appropriate action if a parent refuses to comply with such a reasonable request.

PLEASE ADD THE FOLLOWING ARTICLE FROM THE SMOKING AND HEALTH REVIEW [May-June 2006] AS AN ATTACHMENT

  A recent article dramatized a major public health problem: children are being made sick –  even to the point of endangering their lives – by parents who continue to smoke around them after having been warned.
  The author, a physician, said the practice constitutes nothing short of "child abuse," and that "I'd like to see what six months in a non-smoking foster home would do for the breathing of some of my pediatric asthma patients. Maybe that would be a wake-up call for their parents.”
  Below are excerpts from the Wall Street Journal piece, followed by ASH's letter to the publication and to the physician author.

  At 11 p.m., I arrived in the emergency department to see a twelve-day-old infant with a runny nose, cough and fever.  It turned out the baby had a respiratory infection. I'm confident she got it mainly because her parents smoke.
  I see a scene like this unfold nearly every day in the office or hospital. The parents are concerned about the child's illness and would like a quick fix for their feverish, fussy infant who is having difficulty breathing.
  They just don't seem to see that their children's problems are inflicted by second-hand smoke exposure. Or they see it but don't want to deal with it.
  Smoking around children isn't illegal of course, but I view it as a legal form of child abuse. Children are harmed by it and they can't get away from it.
  When I smell smoke on patients as they come in for their appointments, I'm sure their children's little noses can smell it and breathe it in, too.
  What's at stake? Increased risk of sudden infant death syndrome (SIDS), ear infections, respiratory infections, asthma, as well as increased risks long-term for cancer and many other illnesses.
  When talking with parents who are smokers, I try to be sensitive and non-judgmental about discussing the health effects of their smoking behaviors. Some parents are conditioned to ignore most messages about smoking but will respond to a more assertive approach.
 Sometimes humor helps get the message across. Sometimes I get though to smoking parents in a teachable moment when their child is ill. A minority of patients are ready for some help with quitting.
  Others aren't. They may appear concerned about the effects of smoking on their children, but not concerned enough to quit. Or they seem annoyed and defensive when I bring it up.
  I hear all kinds of excuses. Some parents tell me they only smoke outside or always roll the window down in the car when they smoke. Sometimes they take false comfort in having a relative that lived a long time despite smoking heavily.
  I've had patients leave my practice because we've told them that they were harming their children's health and their own by smoking. (My staff is instructed to ask about smoking status at each office visit.) I feel bad for the kids, but I don't miss dealing with their stubborn parents.
  I'd like to see what six months in a non-smoking foster home would do for the breathing of some of my pediatric asthma patients. Maybe that would be a wake-up call for their parents.
  We have emissions standards for automobiles but we don't have clean-air quality standards for the air that children breathe.
  As much as I'd like to see it, I don't expect anyone to outlaw cigarettes or tax them out of existence anytime soon.
  If we had the courage to do that, I'd be making fewer late-night trips to the emergency department and my littlest patients would be breathing easier.

ASH's Letter to the Editor

  Dr. Brewer writes very movingly about children brought to his office with serious breathing problems and other conditions caused by parents smoking around them, and says that talking – even "a more assertive approach" –  often doesn't get them to change their behavior, which he characterizes as "a legal form of child abuse."  It is!
  We recommend that if talking doesn't work, physicians should file a formal complaint of suspected child abuse (or child neglect or reckless endangerment) the same as they would if a child were regularly being subjected to other toxic and carcinogenic substances like asbestos or benzene.
   Courts and social welfare agencies are beginning to react, and have issued thousands of orders prohibiting smoking in a car or home when a child is present.
  The law not only requires physicians to report cases of suspected child abuse, but also shields them from legal liability for doing so.

Example of a Typical Child
Abuse Statute – Massachusetts

  Massachusetts statutes provide that a physician must report to the authorities for investigation and possible intervention if he or she has "reasonable cause to believe" that a child under 18 is suffering from "serious physical injury" or "maltreatment."

  The State's Attorney General has determined that the term "serious physical injury" includes "all but the most negligible or de minimis injuries to children." In one case mere bruises satisfied this minimal requirement.

The Attorney General has also ruled that the statutory term "reasonable cause to believe" means only a "relatively low degree of accuracy," suspicion, suspected, etc.


EMAIL FROM PROF. BANZHAF TO DRS. KLEIN AND WINICKOFF OF 01/03/08

I write to inquire whether any real progress has been made towards protecting children from unnecessary exposure to secondhand tobacco smoke in the home -- especially regarding a proposal I made more than 6 months ago as to which you agreed to cooperate -- and to most respectfully suggest recent developments which raise concerns about whether it may now be time to begin using direct legal action (i.e., malpractice law suits against pediatric physicians) before even more children suffer needlessly.

As you will recall, you and I agreed at the FAMRI conference in the Spring of 2007 that despite the current efforts of the American Academy of Pediatrics [AAP] -- and especially the FAMRI-funded AAP Julius B. Richmond Center of Excellence for Children -- tens of millions of children were still being needlessly exposed to secondhand tobacco smoke in their family homes and cars.

I pointed out that a growing number of bodies have concluded that such exposure can constitute "child abuse" (or "child neglect" or "reckless endangerment") as the law defines those terms; that physicians are required by law in virtually all states to report any SUSPECTED or POSSIBLE "child abuse" (or "child neglect" or "reckless endangerment") to child welfare authorities for appropriate corrective action; that intervention by these authorities is likely to prevent such unnecessary exposure in many if not most situations which are reported; but that physicians (including those who treat such children, and therefore have a fiduciary legal duty to them as patients) have generally failed to report such situations despite the mandatory reporting requirements.

I therefore suggested to you and to others at the FAMRI conference that one of the most effective ways to begin protecting these millions of children was to cease relying solely upon voluntary persuasion and educational programs, and to encourage law suits against physicians who, in apparent violation of existing law and their fiduciary legal duties, do not report suspected situations of child abuse regarding ETS to child welfare authorities.  As you may know, a similar tactic of suing physicians who fail to follow tobacco control guidelines has been suggested in the literature and seems to be moving towards implementation, see, e.g., Torrijos and Glantz, The US Public Health Service "treating tobacco use and dependence clinical practice guidelines" as a legal standard of care, Tobacco Control 2006;15:447-451; doi:10.1136/tc.2006.016543. [ LINK ]

You in response suggested that, as an alternative, you and your medical colleagues would work towards adopting a new AAP policy which would encourage and possibly require pediatricians to begin reporting such suspected cases of child abuse in appropriate situations -- if I would propose a draft of such a policy.  I did so in an email dated 5/24/07, and supplemented by another email dated 5/31/07 [SEE BELOW], but to date I have received no response indicating significant progress since that time.  Indeed, I have not had the courtesy of any further response.

Moreover, there have been many developments since that time which lead me to doubt that this approach will be effective or that we should continue waiting for it to be implemented before moving forward with legal action:

     1. The AAP Julius B. Richmond Center of Excellence for Children posted on its Internet web site, apparently many months after our discussions and after my specific proposals and your tentative agreement, an entire page related to this very problem.  However, it fails to even mention -- much less to suggest -- that physicians even in the most serious and life-threatening situations of exposure of children to secondhand tobacco smoke might wish to report the problem to appropriate authorities. 
See: http://www.aap.org/richmondcenter/.  The omission of any mention by this prestigious FAMRI-funded organization of this approach -- much less actually urging physicians to make such reports in appropriate circumstances -- at least suggests that my proposal is not being taken seriously, and that you, Dr. Richmond, and the Center are not actively pursuing a new AAP policy to implement it.

     2.  Indeed, the publication of this page seems to constitute an outright rejection of the proposal I initially made in my email of 5/31/07 in which I wrote:

"May I most respectfully suggest and request that it would be most useful and persuasive, and an important first step in helping to encourage and empower pediatricians to be more effective in protecting their patients from ETS, for the Julius B. Richmond Center for Excellence for Children and Secondhand Smoke, as well as the AAP Tobacco Consortium, to formally adopt a policy along the lines I have suggested and/or endorse action in this direction by the full AAP. Both bodies have considerable influence in their own right, and have a well-publicized purpose of protecting children from tobacco smoke.  Therefore the adoption by each of some written policy -- without waiting for formal action by the entire AAP -- would carry great weight and could be effective immediately upon adoption.  Indeed, in light of the many developments I outlined in my draft, some may well wonder why neither organization seems to have a policy on this issue."

     3. During the past several months, it seems that the AAP has issued new policies regarding topics like fruit juice, infant hearing loss, and other issues which, while no doubt important, do not appear to rise to the level of importance and harm caused by exposing children to secondhand tobacco smoke.  Thus it might appear that the AAP, in promulgating policies, is not giving -- and may in the future fail to give -- appropriate priority (based upon the number of children killed, the huge costs of medical treatment, etc.) to the issue of needless exposure of children to secondhand tobacco smoke.

     4. Although I am obviously not privy to confidential communications, my search using Google and Lexis, as well as informal communications with other colleagues concerned with this issue, does not indicate that the AAP is giving serious consideration to the approach I have suggested and/or that it is likely to promulgate any such new policy within the foreseeable future.  Since any continued and unnecessary delay in taking effective action on this problem will cause countless deaths and serious health problems for many vulnerable and defenseless children, the argument in favor of using direct legal action now against physicians becomes more compelling unless some effective action by the AAP seems imminent.  After all, legal action against the medical profession has, as you know, often proven very effective in producing very swift changes to protect the public.

     5. In the seven months which have passed since I first submitted my carefully researched and drafted proposal, I have not had the courtesy of any followup or response other than an initial acknowledgment.  More specifically, I am not aware of any subsequent drafts which I might have been asked to review, nor any comments or objections to which I might have been able to respond, nor any indication that any progress has been made by any subcommittee or other body regarding this matter and/or of any dates of meetings at which it will be given consideration.

For all of these reasons, I would like to very respectfully request that you provide me with the following:

     A. Some concrete and specific indications of what progress, if any, has been made towards the adoption of the policy you said you would support.
     B. A copy of any documents -- e.g., emails, drafts, comments, etc. -- which the proposal has generated and which are not privileged.
     C. Some indication of the time frame for final adoption and promulgation, including which individuals and/or bodies will be considering it, and when they will do so.
     D. Any documents reflecting any position of the AAP Julius B. Richmond Center of Excellence for Children regarding this issue.

In closing let me note that I have devoted most of my legal practice to health matters, and have worked with many physicians over that time period.  As a result, I am well aware that physicians tend to be opposed to legal action, especially since legal actions in the form of malpractice law suits can have such devastating effects.

However, it has now been many years since it became clear beyond any doubt that exposing children to tobacco smoke in the home causes many very serious health problems.  Indeed, as you may know,  a study in the Archives of Pediatrics and Adolescent Medicine showed that parental smoking each year kills at least 6,200 children (mostly from complications from respiratory infections); causes 5.4 million serious ailments such as ear infection and asthma; costs $4.6 billion annually in medical expenses alone; ultimately costs the American economy $8.2 billion annually; and kills more young children each year than all unintentional injuries combined.  Yet, despite all the efforts of the AAP, the AMA, and other organizations to date, smoking in homes with children apparently remains the overwhelming norm and puts tens of millions of children at risk.

Therefore, unless the medical profession is willing to take effective and meaningful steps now, it may be both necessary and appropriate to begin using the tremendous power of legal action to attack this problem.  Indeed, I think it is fair to say that ASH's use of legal action to protect children by helping to obtain tens of thousands of court orders in dozens of states prohibiting parents from smoking around children involved in custody disputes, pressuring almost a dozen states to ban smoking in the home when foster children are present, and other jurisdictions to ban smoking in cars when children are present, has done more to protect children from exposure to tobacco smoke in the home and car than all of AAP's policies and educational efforts.

As you may recall, it took only one legal action to change the medical profession virtually overnight with regard to protecting third-parties from threats communicated to psychiatrists by patients [see Tarasoff v. Regents, 551 P.2d 334 (1976)], and a few law suits were a major factors in causing physicians to begin better marking the sites of amputations and other operations, avoiding mistakes in the prescription and administration of drugs in hospital settings, etc. 

Similarly, once lawyers (both pro bono and those who taken cases on a contingency fee) are alerted and encouraged to bring medical malpractice law suits in cases where physicians violate their legal duties to report suspected cases of child abuse involving tobacco smoke, and subsequent (preventable) exposure to ETS in the home was a substantial factor in a child's death or serious respiratory or other health problems, I have little doubt that physicians will begin making such reports, and that the incidence of such exposure will be dramatically decreased.

Let me close by offering a parallel.  When I first introduced the idea of using legal action as a weapon against the public health problem of obesity [http://banzhaf.net/obesitylinks.html], many physicians and health professionals were very reluctant to encourage it.  However, when it became increasing clear that their own educational and persuasive efforts were not very effective, but legal action was [http://banzhaf.net/suefat.html], they very quickly changed their tune.

Therefore, while I am willing to make one last effort to avoid malpractice litigation by working with concerned physicians such as yourself and with groups like the AAP,  I would like some assurance that this approach has a reasonable chance of success in the near future.  Thus I hope you will be so kind as to respond to my reasonable requests for information at their earliest reasonable convenience.  Once again, I respectfully request that you provide me with the following:

A. Some concrete and specific indications of what progress, if any, has been made towards the adoption of the policy you said you would support.
B. A copy of any documents -- e.g., emails, drafts, comments, etc. -- which the proposal has generated and which are not privileged.
C. Some indication of the time frame for final adoption and promulgation, including which individuals and/or bodies will be considering it, and when they will do so.
D. Any documents reflecting any position of the AAP Julius B. Richmond Center of Excellence for Children regarding this issue.
 American Academy of Pediatrics
Tobacco Consortium Members

Jonathan P. Winickoff, MD, MPH
Chair, AAP Tobacco Consortium
Assistant Professor, Pediatrics
Harvard Medical School
MGH Center for Child & Adolescent Health Policy
50 Staniford Street, Suite 901
Boston, MA 02114
Phone: (617) 724-1062
Fax: (617) 726-1886
Email: jwinickoff@partners.org

Jasjit S. Ahluwalia, MD, MPH, MS
Executive Director, Office of Clinical Research
University of Minnesota Academic Health Center
717 Delaware St., S.E. Room 228
Minneapolis, MN 55414
Phone: (612)-626-6033
Fax: (612) 625-2660
Email: jahluwal@umn.edu

Sophie J. Balk, MD
Attending Pediatrician
Children's Hospital at Montefiore
Professor of Clinical Pediatrics
Albert Einstein College of Medicine
1621 Eastchester Road
Bronx, NY 10461
Phone: (718) 405-8090
Fax: (718) 405-8091
Email: sbalk@montefiore.org

Dana Best, MD, MPH
Director, The Smoke Free Project
Children's National Medical Center
111 Michigan Avenue, NW
Washington, DC 20010-2970
Phone: (202) 476-4016
Fax: (202) 476-3386
Email: dbbest@cnmc.org

Joseph DiFranza, MD
Professor, Family & Community Medicine
University of Massachusetts Medical School
55 Lake Avenue North
Worcester, MA 01655
Phone (508) 856-5658
Fax: (508) 856-1212
Email: difranzj@ummhc.org

Jonathan D. Klein, MD, MPH
Director, AAP Julius B. Richmond Center of Excellence
Professor of Pediatrics, Community and Preventive
Medicine and Family Medicine
University of Rochester
601 Elmwood Ave., Box 690
Rochester, NY 14642
Phone: (585) 275-7760
Fax: (585) 276-0150
Email: jklein@aap.org

Harry A. Lando, PhD
Professor, Division of Epidemiology
University of Minnesota
1300 South Second Street
Suite 300
Minneapolis, MN 55454-1015
Phone: (612) 624-1877
Fax: (612) 624-0315
Email: lando001@umn.edu

Robert McMillen, PhD
Associate Research Professor
Mississippi State University
Social Science Research Center
One Research Park, Suite 103
Starkville, MS 39759
Phone: (662) 325-7127
Fax: (662) 325-9062
Email: robertm@ssrc.msstate.edu

Robin Mermelstein, PhD
University of Illinois at Chicago
Institute for Health Research and Policy
1747 W. Roosevelt Road
Room 558, M/C 275
Chicago, IL 60608
Phone: (312) 996-1469
Fax: (312) 413-0474
Email: robinm@uic.edu

Eric T. Moolchan, M.D.
Director, Medical and Pharmacological Information
Medical Affairs
Alkermes Inc.
88 Sidney Street
Cambridge, MA 02139
Phone: Office (617) 583-6472; Cell (617) 335-6485
Fax: (617) 252-0915
eric.moolchan@alkermes.com

Myra Muramoto, MD, MPH
Associate Professor
University of Arizona Health Sciences Center
Department of Family & Community Medicine
1450 N. Cherry Avenue
PO Box 245052
Tucson, AZ 85724-5052
Phone: (520) 626-1090
Fax: (520) 626-1080
Email: myram@u.arizona.edu

Deborah J. Ossip-Klein, Ph.D.
Chief, Division of Social and Behavioral Medicine
Director, Smoking Research Program
Department of Community and Preventive Medicine
University of Rochester Medical Center
For Fed Ex, please send to:
University of Rochester
120 Corporate Woods, Suite 350
Rochester, NY 14623
Phone: (585) 758-7810
Fax: (585) 424-1469
Email: deborah_ossipklein@urmc.rochester.edu

Lori Pbert, PhD
Associate Professor of Medicine
Preventive and Behavioral Medicine
University of Massachusetts Medical School
55 Lake Avenue North
Worcester, MA 01655
Phone: (508) 856-3515
Fax: (508) 856-3840
Email: lori.pbert@umassmed.edu

Alexander V. Prokhorov, MD, PhD
Professor
University of Texas M.D. Anderson Cancer Center
Department of Behavioral Science
1155 Pressler St., CPB3.3237
Houston, TX 77030
Phone: (713) 792-0919
Fax: (713) 745-4286
Email: aprokhor@mdanderson.org

James Sargent, MD
Professor, Pediatrics
Dartmouth Medical School
Director, Cancer Prevention Research Program
Norris Cotton Cancer Center
One Medical Center Drive
Lebanon, NH 03756
Phone: (603) 653-6036
Fax: (603) 653-9090
Email: jim.sargent@dartmouth.edu

Susanne Tanski, MD
Assistant Professor, Pediatrics
Cancer Risk Behaviors Group
DHMC – Dartmouth Medical School
One Medical Center Drive
Lebanon, NH 03756
Phone: (603) 653-9030
Fax: (603) 653-9090
Email: susanne.e.tanski@hitchcock.org

Richard (Mort) Wasserman, MD
University of Vermont
Arnold 5455 UHC Campus
1 South Prospect St.
Burlington, VT 05401
Phone: (802) 847-4611
Fax: (802) 847-8170
Email: richard.wasserman@uvm.edu

Michael Weitzman, MD
Department of Pediatrics
New York University
550 First Avenue - NBV 8 South 4-11
New York, NY 10016
Phone: (212) 263-2920
Fax: (212) 263-8172
Email: michael.weitzman@nyumc.org

Robert J. Wellman, PhD
Professor
Behavioral Sciences Department
Fitchburg State College
160 Pearl St
Fitchburg MA 01420-2697
Phone: (978) 665-3708
Fax: (978) 665-3631
Email: rwellman@fsc.edu




American Academy of Pediatrics Committee on Environmental Health

Helen J. Binns, MD, MPH, is Professor of Pediatrics and Preventive Medicine, Feinberg School of Medicine, Northwestern University. She directs the Nutritional Evaluation and Lead Evaluation Clinics at Children’s Memorial Hospital, Chicago. Email:  hbinns@northwestern.edu

Dr. Joel Forman, MD, is an Associate Professor of Pediatrics and Community and Preventive Medicine at Mt. Sinai Hospital. He also serves as Pediatric Residency Program Director and Vice-Chair for Education. Email: joel.forman@mssm.edu

Catherine J. Karr, MD PhD, MS, University of Washington, Dept. Pediatrics/Env. & Occ. Health Sciences, ckarr@u.washington.edu

Kevin C. Osterhoudt, MD, MSCE, is an assistant professor of Pediatrics at the University of Pennsylvania, and is affiliated with the Children’s Hospital of Philadelphia, osterhoudtk@email.chop.edu

Jerome A. Paulson, MD, is an Associate Research Professor in the Department of Environmental & Occupational Health and in the Department of Prevention and Community Health at The George Washington University School of Public Health and Health Services. jpaulson@cnmc.org

James R. Roberts, MD, MPH is associated with the University of Rochester Medical Center and the Department of Pediatrics of Rochester General Hospital, robertsj@musc.edu

Megan T. Sandel, MD, Department of Pediatrics, Emory University, Assistant Professor, Division of General Pediatrics, Boston Medical Center, megan.sandel@bmc.org
 
James M Seltzer, MD, Clinical Professor, UCSD School of Medicine, Medical Director of Indoor Hygienic Technologies Corp. and Indoor Environmental Monitoring, Inc, 

Robert O Wright, MD, MPH, Associate Professor of Pediatrics; Assistant Professor of Environmental Epidemiology, Harvard Medical School, and associated with Children's Hospital Boston,  robert.wright@channing.harvard.edu


American Academy of Pediatrics Board of Directors


David T. Tayloe, Jr, MD, President, Goldsboro Pediatrics, NC, dtayloe@aap.org

Judith S. Palfrey, MD, President-Elect, Children's Hospital Boston, Division of General Pediatrics, and Harvard Medical School. Palfrey@fas.harvard.edu

Renée R. Jenkins, MD, Immediate Pat President, Professor and the immediate past chair, Department of Pediatrics and Child Health at Howard University and adjunct professor of Pediatrics at George Washington University, Pediatric Associates, rjenkins@howard.edu,

Errol R. Alden, MD, Executive Director, ealden@aap.org

Edward N. Bailey,  Chair, Department of Pediatrics, North Shore Children's Hospital, Salem, MA, ebailey@aap.org

Henry Schaeffer, MD, Vice Chairman, Pediatric Education, Maimonides Medical Center, Brooklyn, New York, hschaeffer@maimonidesmed.org

Sandra Gibson Hassink, MD, Visiting Professor,  Kapi'olani Medical Center for Women & Children, shassink@nemours.org

Francis E. Rushton, Jr, MD, Beaufort Pediatrics, PA, Beauford, SC, frushton@aap.org

Marilyn J. Bull, MD, Department of Pediatrics, Indiana University School of Medicine, Indianapolis, Indiana, mbull@iupui.edu

Michael V. Severson, MD, Brainerd Medical Center, Brainerd, Minnesota, University of Minnesota Medical School, sever019@umn.edu

Mary Brown, MD, Bend, Oregon, marybrown@bend.com

Myles B. Abbott, MD, Clinical Professor, University of California,. San Francisco School of Medicine, East Bay Pediatrics, Berkeley, California, mabbott@aap.org

John Curran, MD, Senior Executive Associate Dean, USF College of Medicine, jcurran@hsc.usf.edu


footer

Action on Smoking and Health (ASH)
701 4th St. NW / Washington, DC 20001 / (202) 659-4310
A national nonprofit, scientific and educational organization founded in 1967.
All donations are fully tax deductible.