Category Archives: AHT

Does the Brain Injury Prove Abuse, or Not?

Demonstration at the sentencing in the spring

Demonstration at the sentencing

The two shaking convictions in the news this season, ironically, are both based on brain findings alone, with no bruising, bone injuries, or other signs of assault—at least five years after the experts started saying that they never diagnose shaken baby based on the triad alone. In the widely reported case of Joshua Burns in Michigan, in fact, the diagnosis was based on only two of the three markers, retinal hemorrhages and subdural  hematoma.

BurnsProtestJune

Demonstration at CS Mott Children’s Hospital

A commercial airline pilot active in his local church and community, Joshua Burns was convicted of child abuse in December of 2014. Supporters immediately launched a web site and media campaign protesting his innocence, and now the Michigan Innocence Clinic is appealing his conviction.  Naomi Burns, now 18 months old, seems to have recovered fully. Her mother Brenda Burns has regained custody, but Joshua has been denied any contact with his daughter since April of 2014.

Michelle Heale sentencing reorted on Asbury Park Press

Michelle Heale sentencing, Asbury Park Press

In New Jersey, meanwhile, child care provider Michelle Heale has been sentenced to 15 years in prison, with the requirement that she serve at least 85% of her sentence. She was convicted of aggravated manslaughter and child endangerment in April.

Michelle said 14-month-old Mason Hess choked while eating a tube of applesauce, but doctors concluded from the brain findings that he had been shaken to death. The only visible evidence of trauma was a bruise on his forehead, suffered several days earlier in a fall in his home. He had been sick with coughing and copious mucous, and had just started taking medication the day before.

The coverage of the sentencing last week brings home how an abuse diagnosis amplifies the pain for everyone. The child’s mother asked the judge to impose the maximum sentence for “the monster who stole our son’s life,” and her husband addressed Michelle directly:

We truly believe that you should die for what you did to Mason, just not yet. But when you do, your true sentence will begin. We know that the devil himself has saved a special place in hell for you because only the most evil being would hurt an innocent child, an innocent child who cannot protect himself.

Judge Francis J. Vernoia imposed only half the maximum sentence of 30 years, but he chastised Heale for refusing to “take responsibility” for Mason’s death. Kathleen Hopkins at the Asbury Park Press wrote:

Vernoia noted, however, that Heale is at risk of committing another offense because she has refused to take responsibility for her actions. The judge said that despite overwhelming evidence of her guilt, Heale told a doctor during a mental examination that her conscience is clear.

The judge saw overwhelming evidence of her guilt, but I don’t.

The prosecuting attorney told the court that the child suffered “severe brain, spine and retinal damage,” but the injury to the spine was microscopic blood identified at autopsy, a finding consistent with the time the boy spent on a respirator. In fact, the prosecution was based on subdural hematoma, retinal hemorrhage, and brain swelling.

The historical context:  In 1998, after Judge Hiller Zobel released convicted British au pair Louise Woodward with a sentence of time served, several dozen child abuse experts signed a letter to the journal Pediatrics protesting media coverage sympathetic to the defense. The letter made this statement about the diagnosis of infant shaking:

The shaken baby syndrome (with or without evidence of impact) is now a well-characterized clinical and pathological entity with diagnostic features in severe cases virtually unique to this type of injury—swelling of the brain (cerebral edema) secondary to severe brain injury, bleeding within the head (subdural  hemorrhage), and bleeding in the interior linings of the eyes (retinal hemorrhages). Let those who would challenge the specificity of these diagnostic features first do so in the peer-reviewed literature, before speculating on other causes in court.

Whether or not you accept that guideline—which I don’t—the prosecution of Michelle Heale is consistent with it.

In about 2010, however, after the Audrey Edmunds reversal, I started hearing a different message at child abuse conferences.

At the Eleventh International Conference on SBS/AHT, for example, Dr. Robert Block, then the incoming president of the American Academy of Pediatrics, rejected “the so-called triad,” with the comment:

Only people who are not active physicians working with children, naïve journalists, and professors with a biased agenda would propose that only three signs and symptoms support a diagnosis.

And in 2011, Dr. Carole Jenny presented at the New York Abusive Head Trauma/Shaken Baby Syndrome Training Conference, using a PowerPoint that featured this statement:

No trained pediatrician thinks that subdural hemorrhage, retinal hemorrhage and encephalopathy equals abuse. The “triad” is a myth!

But the conviction of Michelle Heale seems to be based on the presence of the triad, combined with faith that the effects of a serious shaking assault are always immediate. My best guess is that the diagnosis rested largely on the extensive bleeding in the child’s retinas, bleeding that the child abuse experts insist is caused only by abuse. During the trial, pediatric ophthalmologist Dr. Alex Levin was quoted in USA Today as saying, “This is a victim of abusive head trauma. I can’t think of another explanation.”

Josh Burns with his daughter Naomi

Josh Burns with his daughter Naomi

Retinal hemorrhages were also behind the diagnosis in the Joshua Burns case, where the eye exam did not take place until 11 days after the presumed shaking. The Torn Family web site, about the Burns case, offers both prosecution and defense expert opinions, making it possible to unravel some of Naomi’s complex medical history.

Her delivery was prolonged and difficult. Four times, the doctors attached the vacuum-extractor to Naomi’s head and pulled, and four times, the cap popped off. Finally, she was delivered by C-section.

She had difficulty latching onto the breast, and she was gaining weight slowly, so Brenda was pumping breast milk and feeding her daughter with a bottle, which was easier for Naomi to suck on. The girl’s  head circumference was growing at a faster rate than the rest of her body.

Bruising on newborn Naomi from the vacuum-extraction cap

Bruising and abrasions at birth from the vacuum-extraction cap

Then one Saturday afternoon when Naomi was about 11 weeks old, Joshua was at home alone with her, holding her on his lap. Brenda had gone to the hair salon, where the computer asked for a PIN number to go with the credit card. She called her husband, who gave her the number and then, he says, while putting the phone down, almost dropped Naomi, catching her by the head and face before she hit the coffee table.

The scratch on Naomi's left temple, after her near fall

The red mark on the left side of Naomi’s forehead, after her near fall

When Brenda got home, Joshua told her what had happened and showed her the red mark on Naomi’s face. Brenda says she thought it looked like a fingernail scratch, something she’d seen many times in her years as a nurse. (She had quit her job at a local hospital just a few months earlier, in preparation for Naomi’s birth.)

Their daughter seemed fine that night, Joshua and Brenda say, but over the next several days they took her again and again to the doctor and hospital for vomiting, pallor, and uneven breathing, only to be reassured and sent home. On the third day, when she had a seizure during an examination, she was admitted to the hospital. The first reading of the intake MRI identified only “benign enlargement of the subarachnoid spaces” (BESS), which means there was a little more room than usual between the brain and the skull, a not-uncommon condition of infancy that usually resolves on its own. It does, however, predispose to subdural hematoma.

Naomi and Brenda Burns

Naomi and Brenda Burns

Doctors attributed the infant’s seizures to an unidentified gastro-intestinal virus, and after a week in the hospital she was sent home, with anti-seizure medication. Her parents brought her back within hours, though, worried about more vomiting, fussiness, and pallor. At that point, while following up on a possible metabolic disorder, doctors performed a dilated eye exam and were surprised to find what the child abuse report identified as “bilateral multilayer retinal hemorrhages extending to the periphery,” the pattern considered by most child abuse experts to result exclusively from shaking.

“The retinal hemorrhages were an incidental finding,” Brenda says, “but they changed everything.”

Radiologists re-examined the initial MRI and reached a new conclusion:  They still determined that Naomi had BESS, but they also saw old subdural bleeding, possibly dating back to her traumatic birth, and a small amount of fresh subdural blood. Naomi was diagnosed as a shaken baby, and prosecutors targeted Joshua as the abuser.

The defense brought in pediatric ophthalmologist Dr. Khaled A. Tawansy, a retina specialist, who wrote in his report:

The retinal hemorrhages that were seen by the ophthalmologist at University of Michigan and documented by Ret-Cam imaging were predominantly superficial (sub internal limiting membrane or nerve fiber layer or intra-retinal)… [These types of hemorrhages] occur regularly with abrupt elevations of intra-cranial pressure (as in acute subdural hematoma) when the pressure in the cerebrospinal fluid surrounding the optic nerve exceeds the pressure of venous return in the retina as it drains into the optic nerve.

The child abuse doctor in the Burns case asked for advice from the same pediatric ophthalmologist who testified against Michelle Heale, Dr. Alex Levin in Philadelphia. In an email exchange posted on the Torn Family web site, the child abuse doctor summarizes Naomi’s medical history, acknowledging but discounting the traumatic birth. She reports the eye findings in detail and notes that the child has “persistent thrombophilia,” a clotting disorder.

Dr. Levin’s response:

Impressive documentation. Very well done.

Not sure what the question is. I can’t think of another diagnosis other than abuse assuming no obvious coagulopathy or other event.

Apparently Dr. Levin missed the mention of thrombophilia in the original note, because later in the thread, when the pediatrician asks him about it, he writes:

Do you mean thrombocytosis?
Either way we have no idea what this might do re retinal bleeding and could be considered to throw the retinal findings into question. We just don’t know

I don’t know what was said about all of this in court, but it seems to me that retinal hemorrhages are starting to play a very large part in these diagnoses. In this case, the retinal hemorrhages themselves are suspect, and the only other evidence of abuse is subdural hematoma in a child with BESS.

Now the state is trying to terminate Joshua’s parental rights. Those hearings wrapped up in June, and the family is waiting for the judge’s decision.

I don’t understand why the child abuse doctors are so sure Naomi was abused, and I’m even less clear on why the state has decided that her father and not her mother must be guilty. The accident Joshua reported—presumed to be a lie invented to cover up abuse—happened 11 days before doctors ever considered the possibility of head trauma.

I am sorry that another family has been caught up in this tragedy, but I am heartened by the enthusiastic support that Joshua and Brenda Burns are receiving from their community. And I have high hopes that the ongoing coverage will bring more light to the debate about the reliability of a shaken baby diagnosis.

September 2015 update: The court has adopted a treatment plan that allows for reunification of the Burns familly, which is good news if you ignore the irony that the only thing between  the Burns family and reunification is the court.

copyright 2015, Sue Luttner

If you are not familiar with the debate surrounding shaken baby syndrome, please see the home page of this blog.

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Filed under abusive head trauma, AHT, parents accused, SBS, shaken baby syndrome

Shaking Theorists Repel Criticism

PBSNewsHourSBSWhile ripples persist in the wake of last month’s news stories questioning shaken baby syndrome in the courtroom, innocent parents and babysitters are still going to prison and most press coverage still treats shaking theory as established fact. Now the news magazine of the American Academy of Pediatrics, AAP News, has published a  commentary that dismisses the controversy as a “false debate” and criticizes The Washington Post coverage in March as “unbalanced, sowing doubt on scientific issues that actually are well-established.”

The commentary’s authors, Drs. Howard Dubowitz and Errol R. Alden, argue that both the Post article and the PBS NewsHour segment that ran the same week make too much fuss over the views of only a few doctors:

What are the facts? Similar to the so-called debate over climate change, it involves a tiny cadre of physicians. These few physicians testify regularly for the defense in criminal trials — even when the medical evidence indicating abuse is overwhelming. They deny what science in this field has well-established. They are well beyond the bounds where professionals may disagree reasonably. Instead, they concoct different and changing theories, ones not based on medical evidence and scientific principles. All they need to do in the courtroom is to obfuscate the science and sow doubt.

globalWarmingI’m not sure which side is supposed to be which in the climate change reference. In the fall of 2014, at the conference of the National Center on Shaken Baby Syndrome, law professor Joëlle Anne Moreno closed her talk with a clip from comedian John Oliver that I think was intended to equate the critics of shaken baby theory with the 4% of scientists who still deny that human activities affect climate change. But I remember the era, a few decades ago, when a handful of researchers was raising the alarm about climate change while mainstream scientists and public opinion dismissed them as fringe thinkers, and I just reviewed my notes from a pointed talk by forensic pathologist William R. Oliver at a 2013 pediatric head-injury conference organized by the publishing arm of the National Association of Medical Examiners, in which Dr. Oliver criticized the tactics and intellectual rigor of both sides in the climate debate, while drawing parallels with the struggle over shaken baby.

The AAP commentary joins the statement from the National Center on Shaken Baby Syndrome criticizing The Washington Post and PBS NewsHour coverage, as well as a posting to the National Association of Counsel for Children (NACC) listserve from law professor Frank Vandervort, who called the Post coverage “slanted and misleading” and criticized the American Bar Association for publishing a piece on its web site about shaken baby by Innocence Network attorney Katherine Judson. Attorneys Diane Redleaf and Melissa Staas at the Family Defense Center in Chicago have now published, on the NACC blog, their rebuttal to that posting.

A “Classic” Case

Debates aside, shaken baby theory is still winning in court. In mid-April, after a trial covered in the national press, a New Jersey jury found child care provider Michelle Heale innocent of murder but guilty of first-degree manslaughter in the presumed shaking death of a 14-month-old boy she was watching. Heale told emergency responders that the boy had seemed to choke on some applesauce. The Asbury Park Press web page offers complementary text and video treatments, including this moving anecdote from reporter Kathleen Hopkins:

Before Heale was led out of the courtroom in handcuffs, she turned to her husband, Michael, and asked him to take care of their children, a set of 5-year-old twins.

“Don’t let them forget me,” she said to him, sobbing.

According to coverage during the trial, pediatric ophthalmologist Alex Levin told the jury that the retinal hemorrhages found in the toddler’s eyes were a “classic” example of shaking injury—he said, in fact, that the image he was showing in court was scheduled to appear on the cover of a professional ophthalmology journal.

Dr. John Plunkett

Dr. John Plunkett

Another day’s coverage, however, quoted pathologist John Plunkett, who testified that “shaking had nothing to do” with the boy’s collapse. He rejected the specificity of retinal hemorrhages and said that choking was a possible trigger for the child’s brain swelling and ultimate death.

Like so many other children diagnosed as shaken, the boy had been sick in the days before his crisis, in his case with coughing and congestion, to the point of “vomiting mucous.” He was diagnosed with an ear infection and started on amoxicillin the day before his collapse. His only visible injury was an old bruise on the right side of his forehead, suffered in a fall the week before in his own home.

Other Disturbing Cases

rosenwinkel2

Cindy Rosenwinkel with her son

In Illinois, wife and mother Cindy Rosenwinkel was sentenced in April to six years in prison for the presumed shaking and slamming of an infant she was watching in 2011. According to press coverage, the judge imposed the minimum possible sentence. Ms. Rosenwinkel reported that she had slipped on the steps and fallen onto the conrete floor of the garage while carrying the infant in his car seat. The boy survived and is now described as “an active four-year-old.” Her supporters have created this web site protesting her innocence.

In a slightly encouraging update from Boston, the trial of Irish nanny Aisling Brady McCarthy has been postponed again, this time for a review of the case by the county medical examiner. Last week’s report was that a judge had denied a defense motion to drop the charges, so a delay for a review of the evidence is progress.

May 5 update: After two-and-a-half years in jail, Aisling Brady McCarthy has been released on $15,000 bail.  http://www.bostonglobe.com/metro/2015/05/05/bail-hearing-murder-case-for-nanny/g6z1mGNt6XeJuCpHw91IgL/story.html

burnsPhilIn the media, meanwhile, Dr. Phil ran a segment this week, “Was It Abuse, or Was It an Accident?,” sympathetic to Joshua and Brenda Burns in Michigan, where supporters have rallied behind the family even after Joshua’s child abuse conviction this winter. The page about the program on Dr. Phil’s web site offers a video clip in which Dr. Phil himself runs through the commonalities between the signs of shaken baby syndrome and the side effects of vacuum extraction—during the delivery of the Burns’s daughter, doctors had applied the vacuum device four times without success before eventually performing a C-section.

Joshua reported that when the girl was 11 weeks old, he had nearly dropped her while setting down his cell phone—he said he caught her by the face and head in one hand. She seemed fine that afternoon, but over the next several days, the couple took their daughter to the emergency room twice and to the walk-in clinic once because she was vomiting and appeared ill—on one visit they described her as “pale, cold, and clammy,” for example. Each time she was examined and released. Finally, when the girl developed breathing problems and the parents called 911, doctors looked more closely and found retinal hemorrhages and subdural hematomas, but no encephalopathy.

Dr. Phil’s show featured Dr. Robert Block, former president of the American Academy of Pediatrics, who had not reviewed the Burns case but said that critics of shaken baby “are absolutely wrong.” The program included no doctors who doubt the theory, but Dr. Phil was clear in his support of both Brenda and Joshua Burns. While Joshua serves his sentence, supporters maintain a web site at http://tornfamily.com/. The little girl seems to have recovered fully.

Fox news reported a different story this month, about doctors in Atlanta, Georgia, who accepted a father’s report that his 10-month-old son had fallen backwards while pulling himself up on a chair the day before his collapse. Surgeons removed a blot clot from his brain, and the boy has apparently recovered with no long-term effects and no child abuse accusations against the family. It’s hard to know from the news report what made the difference.

Meanwhile, the publicity for Child Abuse Prevention Month, April, has inspired news stories referencing children diagnosed as shaken in the past, such as this piece about a fund-raising race in South Dakota, this touching moment with a mother whose infant son was presumed shaken to death by his babysitter, and this feature about a loving family who adopted a child believed to be shaken by his maternal grandfather. With no details, it’s hard to know how accurate these stories are. I do believe that shaking a baby is dangerous and unacceptable, but I’ve seen so many dubious convictions that I find myself skeptical, of either the diagnosis or the correct identification of the perpetrator.

I feel like I’m back where I started in 1997, when a child care provider I knew was convicted of child abuse because a baby collapsed in her care, even though the child had been dropped off that morning with “a touch of the flu” and brain imaging showed old bleeding as well as new. In the Burns case, the prosecutors seemed to be arguing that Joshua abused his daughter the day he was alone with her and reported the near fall, but the breathing problems didn’t emerge until three days later. In a letter reproduced on the home page of my blog, a pathologist reported the case of a toddler hospitalized with vomiting for some 18 hours before the symptoms of an ultimately fatal head injury emerged. So why are the experts still saying that the symptoms are always immediate? In his appearance on Dr. Phil’s show, Dr. Block made the point, “In almost every one of these cases, the baby changes from being well to being in trouble when alone with a caregiver,” the same guideline that informed my 1997 case and that seems to be behind the accusations against another child care provider now on trial in Michigan. According to the press report of that case, the babysitter says the infant seemed to have a seizure, and she denies hurting the child in any way. Based on the brain injury, though, she is accused of “inflicting abusive head trauma, possibly by shaking the child.”

When is someone from the justice system going to stop and notice that the symptoms can evolve slowly over time? Or that there are other causes than abuse for subdural hematoma, retinal hemorrhages, and encephalopathy?

copyright 2015, Sue Luttner

If you are not familiar with the debate surrounding shaken baby syndrome, please see the home page of this blog site.

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Filed under abusive head trauma, AHT, American Academy of Pediatrics, parents accused, SBS, shaken baby syndrome

Shaking: “A False and Flawed Premise”

Kristian Aspelin and his son Johan

Kristian and Johan Aspelin

February opened with a pair of important and complementary postings, a bold academic statement signed by 34 physicians, attorneys, and child-protection professionals with “deep concerns” about shaken baby theory in the courtroom, and a beautifully written examination of the Johan Aspelin case that illustrates why the experts are so concerned.

Published in the British journal Argument & Critique, the Open Letter on Shaken Baby in the Courts: A False and Flawed Premise argues that a diagnosis of shaking “risks blurring the line between diagnosis and verdict,” and that “SBS has never been proved as anything more than an hypothesis.” Citing the dearth of scientific research underlying the theory, the authors write:

Noticeably, the requirement for scientifically based evidence is far more rigorous in medical negligence cases than in the family or criminal courts where believing something to be true appears to have achieved sufficient evidential value to sway the determinations of the court.

The letter also notes that the justice system has tended to suppress arguments about shaken baby syndrome:

One of the consequences has been the vilification of experts prepared to advance competing theories and the suppression of sensible debate.

Dr. Waney Squier

Dr. Waney Squier

One example of such vilification is unfolding now in England, where pediatric neuropathologist Dr. Waney Squier is facing a challenge to her license triggered by complaints to the General Medical Council (GMC), reportedly from the Metropolitan Police, that her courtroom testimony exceeds her area of expertise and ignores the opinions of her peers. Dr. Squier has been testifying on behalf of accused parents for about the past decade, since her own research, clinical experience, and reading of the literature convinced her that the prevailing model of shaken baby syndrome is flawed.

My favorite report about Dr. Squier’s GMC hearings, which opened in the fall and continue intermittently, is a legal-training company’s blog posting that features praise from readers for her intellectual honesty in the face of peer pressure. A general practitioner offered this striking parallel with an historical report to the GMC:

Surely the Met investigating a Dr who happens not to agree with the consensus — and holds an expert view — is a little like the tobacco companies (circa 1960s) reporting Sir Richard Doll to GMC for his novel theory that tobacco caused lung cancer.

WhatRealllyHappenedJohan copyIn the U.S., meanwhile, an in-depth treatment of the Johan Aspelin case published last week on Medium by reporter Elizabeth Weil also reveals striking new facts, like the botching of Johan’s initial intubation at San Francisco General, which caused the complete collapse of one lung and serious damage to the other. And that Johan received several times the recommended dosages of two different sedatives, which, Weil writes, “left him essentially paralyzed and unable to communicate distress as air was pumped into his compromised lungs.” The article notes:

Nowhere in the police investigation transcripts does it suggest that doctors considered Johan had a brain injury and retinal hemorrhaging due to low blood-oxygen levels and high carbon dioxide pressure, problems that may result from faulty intubation.

Johan’s mother Jennie Aspelin learned about the error and resulting crisis only because she’d contacted the organ-donation agency to find out why there had been no recipient reported for Johan’s lungs, as there had been for his other organs. Even then she received only the oblique message that it was “a matter of function,” enough to send her on a focused search for the full medical records.

Johan

Johan Aspelin

In November of 2010, Johan’s father Kristian Aspelin told emergency responders that he had fallen in the kitchen while holding 3-month-old Johan, but child-abuse expert Dr. Chris Stewart rejected that explanation and told police that the boy had been violently shaken to death.

In December of 2012, the county dropped murder charges against Kristian, after defense attorney Stuart Hanlon turned over a collection of exonerating reports from outside experts as well as a carefully assembled medical time line that included the hospital’s mistakes. By that time, the family had lived apart for two years, when they’d  lost their baby and needed each other more than ever. They’d sold their house and taken on a staggering debt to cover legal bills, and they’re not slated for any compensation from the state.

Dr. Mark Feingold

Dr. Mark Feingold

But the people who train child abuse physicians continue to teach that children seldom if ever suffer serious injury in short falls, and that only abuse causes severe retinal hemorrhages. In a January, 2015 lecture titled “Is There a ‘Shaken Baby Syndrome’?,” for example, which earns the medical viewer one continuing education credit, child abuse pediatrician Dr. Mark Feingold reported that hypoxia does not cause “macroscopic subdurals” and that children do not suffer serious injury in short falls:

A lot of our opponents say, “Well, the child died. That’s too bad. But it was a short fall, just like Mom said. He fell from Mom’s arms.” The evidence shows that children who fall more than 20 feet can die, but children who fall less than 3 feet almost never die, and when they do, it’s a different kind of accident. It’s a playground accident. It’s an older child. They die of a large subdural that causes lots of pressure. And the RH if present are not the kind we see in abuse cases (emphasis added). But nonetheless, different versions of “I was carrying the baby and I tripped and fell” are often offered.

Slipping and falling with the baby is the explanation Kristian Aspelin offered, like countless parents and caretakers before him and countless more to come, while pediatricians are being trained to reject that story, and to dismiss the hypoxia that frequently accompanies head injury as a source of compounding symptoms.

The retinal hemorrhages in Johan’s eyes were widespread and multi-layered, the kind that child abuse pediatricians insist do not result from short falls or lack of oxygen to the brain. So were the hemorrhages in the eyes of the toddler in the care of René Bailey, who said the little girl had fallen off a chair—Bailey’s murder conviction was vacated in December. Doctors also pointed to extensive retinal hemorrhages when diagnosing shaking injuries in the cases of exonerated babysitters Jennifer Del Prete and Audrey Edmunds and exonerated father Drayton Witt, and in an exasperating case local to me in which paramedics pulled a rubber band from the child’s throat during resuscitation and the only physical evidence of abuse was the triad. It seems to me that the world now offers quite a few examples of extensive retinal hemorrhages from plausible, non-abusive accidents and medical conditions.

RHKelloggWhen I started researching shaken baby theory more than 15 years ago, I routinely read in trial transcripts that doctors considered the presence of retinal hemorrhages a sure sign of child abuse, but since then the situation has grown more complicated. When researchers started looking systematically, they rediscovered that retinal hemorrhages have a long list of non-traumatic causes, including diabetes, anemia, bleeding disorders, increased intracranial pressure, increased intrathoracic pressure, and certain types of infections. A startling one quarter of neonates born spontaneously arrive with retinal hemorrhages, more in deliveries that involve instruments. In light of this new understanding, child abuse experts now recognize other causes of retinal hemorrhages but insist that most of them result in only a few small hemorrhages near the optic nerve, not in widespread, multi-layer hemorrhages, which they continue to interpret as evidence of whiplash shaking.

I don’t know how we will move forward, but I welcome the growing chorus of voices in the journals, in the press, and in the courtroom, who demonstrate through their work and their testimony that the Open Letter on Shaken Baby is representing the situation correctly in its message to the courts:

In short, we would inform members of the judiciary and legal profession in those countries which utilise the SBS construct, that it does not have the undivided support of the relevant professional community, an essential consideration in the assessment of expert testimony.

The letter was edited by Argument & Critique’s managing editor Dr. Lynne Wrennall, whose doctorate is for work in child welfare, from a draft prepared by solicitor Bill Bache and veteran child social worker Charles Pragnell. The signers include 16 physicians, a handful of scientists, and a variety of social work professionals, from both academia and the field.

For the observations of Phil Locke at the Wrongful Convictions Blog, see his posting about the Open Letter.

The film company Mighty Myt is making a film about Johan Aspelin’s case, In a Moment: The Johan Aspelin Story.

copyright 2015, Sue Luttner

If you are not familiar with the debate about shaken baby syndrome, please see the home page of this blog site.

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Filed under abusive head trauma, AHT, Falsely accused, parents accused, SBS, shaken baby syndrome

Sweden Searches for the Truth

babySilhouetteA recent decision from Sweden’s  Supreme Court is changing the landscape for Swedish citizens fighting misguided accusations of infant shaking.

An English translation of the decision has been posted by Riksförbundet För Familjers Rättigheter (RFFR, translated as the National Association for Families’ Rights), a union of families and their supporters created in 2013 so its members could approach the government as a coalition rather than as individuals. The ruling, from October of 2014, sets aside the June 2012 conviction of  a father for presumably shaking one of his twin sons in 2009, with the explanation:

It can be concluded that, in general terms, the scientific evidence for the diagnosis of violent shaking has turned out to be uncertain.

As in so many of these cases, the infant collapsed at home and was found at the hospital to have both fresh and aging subdural bleeding, as well as retinal hemorrhages and brain swelling. The doctors concluded that the boy was the victim of abusive head trauma, and the prosecution seems to have offered a range of possibilities for how the injuries were actually inflicted. From the court’s summary of the prosecution’s position:

On 14 May 2009 in his home in Kungsbacka, MM did assault his son OM by shaking him vigorously or directing blows at his head, banging his head against something or using other violence against his head… In the alternate, MM did by shaking O vigorously or directing blows at his head, banging his head against something or using other violence against his head cause O’s injuries through carelessness.

In  reviewing the father’s appeal, the Supreme Court listened to testimony from two physicians, Prof. Anders Eriksson, a forensics expert and an advisor to the National Board of Health and Welfare, and Prof. Peter Aspelin, a radiologist and a former chair of the Scientific Advisory Council of the Swedish Council on Health Technology Assessment (SBU). Both physicians told the court that the SBU, concerned about the reliability of a shaking diagnosis, has now launched a systetwoDucksmatic study of the literature regarding infant shaking, an effort that is expected to take at least two years.

In October of 2013, Dr. Eriksson had told the Legal Advisory Council that “the probability that O’s symptoms had arisen in some other way than through the intentional actions of an adult person is very small.” When he later testified in front of the Supreme Court, however, Dr. Eriksson had changed his position. In the words of the translated decision:

[Dr. Eriksson] based the conclusion in the opinion to the Legal Advisory Council on the fact that O presented three symptoms (a triad) that, if they occur at the same time, have been held, according to the traditional view, to strongly indicate that there has been violent shaking if it is not the case that the child has been subjected to some other form of “high-energy violence” such as a traffic accident or a fall from a high height. The symptoms included in the triad are  haemorrhaging under the dura mater, haemorrhaging in the fundus of the eyes and swelling of the brain. However, this diagnosed model has been criticized. The point of the criticism is that the symptoms given can have other causes . . .  So it is not possible to say today that the occurrence of the triad means that violent shaking has been proved. Instead, it must be concluded that we do not know; we are in a quagmire.

And Dr. Aspelin told the court:

The controversy is not about whether it is harmful to shake a child violently. The issue under discussion is with what scientific certainty it can be established how various injuries found in a child have arisen. The claim that the occurrence of the triad is strong evidence that violent shaking has occurred goes back to the late 1960s; however, the medical evidence for it was relatively thin. But the claim became generally accepted and grew into medical truth over several decades, even though the situation in terms of evidence did not change. It is known that a very large share of fundus haemorrhages are not linked to violence and arise in another way. Nor has it been shown that nerve fibers are torn, and that the brain therefore begins to swell, in connection with violent shaking. It can also be asked whether violent shaking can occur without neck injuries arising… To sum up, it can be said that the scientific support for the diagnosis of violent shaking is uncertain.

The twins had been born by scheduled Caesarean section, apparently without complications. When less than a month old, however, both boys were hospitalized for two weeks with respiratory infections. At that time, medical workers noted that O had a a couple of bruises on one cheek and bruising on the front of his lower legs.

Six weeks later, the parents brought O to the child healthcare center with a report that he had been “vomiting torrents” for two straight days.  Apparently he was treated and releasescalesd, but that afternoon the boy began screaming during a diaper change, and then suddenly fell silent. The child’s mother heard both the screaming and the sudden silence, but did not see what happened. The father reported that when the child fell quiet, he became unconscious and “loose-limbed” and started to “roll the whites of his eyes.” The father said he was “gripped with panic” and that he shook the boy gently in an attempt to resuscitate. The Supreme Court reviewed a video recording of the father’s statement and noted, “The shakes appear fairly cautious and by no means match the description of shaking violence.” Looking at the bigger picture, the court concluded:

It has not emerged that the facts in this particular case are such that it can be established… that O’s injuries were caused by violent shaking or other violence on the part of MM. On the contrary, certain facts, including the facts that O had previously had RS virus and that there were signs of older haemorrhaging under the dura mater, indicate that there is another explanation for the symptoms that O had.

The RFFR web site, which posted both the original decision and the English translation, also offers links to Swedish news coverage of the topic as well as an English-language commentary by pediatric neuropathologist Dr. Waney Squier in Britain and television news coverage out of Dallas, Texas, of a family accused of assault when their daughter’s genetic disorder was misdiagnosed as abuse.

A doctor in Sweden reports that since the Supreme Court’s decision, two convicted fathers have been freed on appeal after years in prison and a third has won in court and is now home with his family.

If you are not familiar with the debate surrounding shaken baby syndrome, please see the home page of this site.

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Decisions Address Timing, Coercion

subduralImage

Not from this case, merely an example of subdural bleeding

Two different judges in two separate cases have looked carefully at the facts in front of them and found the kind of fundamental problems that plague shaken baby prosecutions.

In October, District Court Judge John Telleen in Scott County, Iowa, addressed an issue I’ve been wanting someone in authority to notice for years now, the implications of a pre-existing subdural hematoma.  Judge Telleen’s oral decision declaring an accused father not guilty included this observation:

All of the State’s evidence or the vast majority of it related to the 12 hours before admission on November 5. Frankly, I believe it’s clear that nothing happened on or about November 4 or November 5 that could possibly have caused a subacute subdural hematoma that had been in existence from anywhere from three days to ten days prior to that.

Like Judge Matthew Kennelly following the Del Prete hearings, Judge Telleen was left doubting both shaking theory and its application to the case at hand:

[I]t is my understanding from the testimony that I found credible that there are no scientific studies that support or document that shaking causes brain hematoma or brain bleeds…

[F]rankly I have some serious doubt whether a crime was even committed here much less that the defendant did it.

The judge noted that the infant, only three weeks old when clear neurological symptoms emerged, had been sick since birth, and he chided the child abuse pediatrician for making the “default diagnosis” of abuse without doing a full work-up to eliminate metabolic or bleeding disorders, or even a vitamin D deficiency, as the child had healing fractures that could possibly, but not definitively, be dated back to birth

The state’s ophthalmologist had apparently testified that he couldn’t be certain the child was abused, and conceded that a sharp rise in intracranial pressure (ICP) could account for the retinal hemorrhages. Judge Telleen said:

Dr. L was a credible witness. He was a straight shooter. He said he couldn’t place it beyond 51 percent, his opinion that he thought it was caused by non-accidental trauma. However, he freely acknowledged as an honest witness that increased intracranial pressure can cause retinal hemorrhage, he couldn’t rule that out.

There seems to have been no press coverage of the innocent verdict, so there was never any public correction to the initial news stories, which quoted an affidavit that the father had “engaged in three or more acts of child endangerment, including at least one act that resulted in serious injury.”

December update: The local paper has now covered the decision, at http://www.press-citizen.com/story/news/2014/12/24/uihc-shaken-baby/20858227/

Defense attorney Kent Simmons said his client turned down a plea agreement that would have avoided jail time, because he did not want to admit to doing something he didn’t do.  “I told my client he was a very brave man,” Simmons said. “And Judge Telleen is an honest, bright, and fair jurist.”

judgeAngelLopezAnd I’ve just learned about a decision this past spring in Oregon, where Appeals Court Judge Angel Lopez affirmed a trial court’s decision barring a confession from the courtroom, concluding that the father’s statement was made involuntarily. After hours of taped interrogation that focused on his daughter’s injuries, the detectives had turned off the recorder for 25 minutes and then turned it back on to capture the disputed confession. The published decision includes this touching quote from the trial judge:

Here was a man who had a baby in the hospital for shaken baby syndrome or some traumatic issue. Several times during the discussion with him he was asked to tell the truth because that would predicate what the treatment would be for the baby. Implicit in that is if he didn’t, the baby was going to end up worse off.
I see that as compelling. I see the going back and forth by saying—minimizing to the defendant what’s going to happen to him if he [comes] clean and he confesses. I believe that the statements, given these facts and circumstances, were involuntarily made, and that’s based on the totality of circumstances. There’s no one thing that jumps out at me but there are a lot of things that together tell me that his will was overborne by two detectives in that hospital room over two days.

With supporting quotes from the interrogation transcripts, Judge Lopez added his own analysis:

Having made clear that G had serious medical issues that could be ameliorated by a confession—an assertion that, as a matter of medical fact, is without any support in the record—the officers also appealed to defendant’s paternal responsibilities, his religion, stated that defendant was the only one who could help G, and stated, in effect, that the way to provide that help was to tell the officers that he had accidentally shaken her.

I am always glad when someone in a position of authority stops to consider what it must be like for an accused parent, frantic with worry for their child, to be harangued by detectives intent on extracting a confession.

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Filed under abusive head trauma, AHT, Falsely accused, parents accused, SBS, shaken baby syndrome

Finding a Voice, and a Community

Beth and John Fankhauser in the lobby of the Glenwood Arts Theater, after the premiere of The Syndrome.

Beth and John Fankhauser in the lobby of the Glenwood Arts Theater, after the premiere showing of The Syndrome.

The premiere earlier this month of The Syndrome, a documentary that questions shaken baby theory, was even more thrilling than I’d expected: The film is riveting, and its first public showing, at the Kansas International Film Festival, drew a crowd so excited to meet each other that the lobby buzzed for an hour afterwards.

Beth Fankhauser was smiling, with tears in her eyes. “We thought we were the only ones,” she marveled. She and her husband John, who are now rearing their grandchildren while their daughter serves her prison time, met half a dozen other accused families that afternoon, reinforcing their decision to start speaking up after six years of waiting quietly and praying for justice.

“We allowed ourselves to be shamed… We thought we had to protect our family from the notoriety,” Beth explained, “But the system has betrayed us, and it’s time for the truth. I feel empowered to know that others are also walking this path.”

Denver, Colorado

Denver, Colorado

A weekend like that was the antidote I needed to get past my disappointment at the 14th International Conference on Shaken Baby Syndrome, in September in Denver, where the emphasis seemed to be on discrediting all critics.

In a breakout session on the first morning, for example, pediatrician Robert Block named me personally as one of the child abuse denialists who have “fooled the media,” and some judges, into thinking there is a controversy in this arena. “I would ask the parents who are here whether they think SBS is a myth,” he admonished, pointing out that writing a blog requires no qualifications and no certification, just like writing a book or making a movie—like Flawed Convictions and The Syndrome. Block objected that all our works disregard the real victims—the injured babies—and focus instead on the perpetrators.

Prosecutor Shelley Akamatsu from Boise, Idaho, reported that prosecutors are pressing abusive head trauma cases harder than ever in the courtroom. She remembered the first shaken baby conference, in Salt Lake City, Utah, in 1996, when “convictions in AHT cases were not common,” she said, because only a few prosecutors, those who had taught themselves, knew how to handle the medical content. Eighteen years later, national training programs have prepared prosecutors “to meet untrue defenses, prove the severity of the forces inflicted, and effectively educate jurors,” she said, so that now “convictions in AHT cases are the norm rather than the exception.”

scalesAkamatsu called for an organized response now to defending these cases on appeal. “True justice means expertly defending the convictions we’ve worked so hard to get,” she said. “There’s a place for Innocence Projects,” she acknowledged, but “not in this arena, because these cases are so factually driven.”

Law professor Joëlle Anne Moreno argued that the courts, the press, and the public are all misinformed about infant head trauma. She dismissed on legal grounds the adequacy of the “new evidence” that was behind the reopening of the Jennifer Del Prete and Quentin Louis cases, the reversal of the Audrey Edmunds conviction, and the minority opinion in the U.S. Supreme Court decision in the Shirley Ree Smith case. “We need to clear up these legal questions,” she said. “Don’t confuse causation with culpability. That’s what Professor Tuerkheimer is doing when she says this is a medical diagnosis of murder.”

Dr. Sandeep Narang, who is both a physician and an attorney, dismissed the idea of any real controversy about abusive head trauma as a fallacy manufactured by the defense and parroted by the media. He devoted the first hour of his talk to the medical literature, concluding that serious brain injury or death from a short fall is “very rare,” bleeding disorders are easy to identify, and both subdural hematoma and retinal hemorrhages are highly correlated with child abuse. The second hour he spent rebutting the “straw man” argument that shaken baby syndrome is “medically diagnosed murder.” He said he was puzzled by the claim that the child abuse literature exhibits circular reasoning:

There’s a lot of accident literature where we just looked at accidents. We didn’t look at abusive cohorts. We just looked at accidents. How is that circular?

Because Dr. Narang had the floor, no one answered his rhetorical question, but this is my blog, so please let me explain: These studies typically start with a series of patients seen at the authors’ hospitals over a period of time. Not infrequently, researchers studying accidenbabySilhouettetal injury simply remove from the study any cases of presumed child abuse, with the stated goal of limiting the study to verifiable accidents. The filtering out of abuse cases is typically done by the local child abuse team, or sometimes by the authors. The problematic result is that, if a child comes in with a serious injury and a history of a household fall during the study period, the case is diagnosed as abuse and therefore never appears in the data. This self-fulfilling sorting algorithm also taints the studies that attempt to describe for physicians how to recognize child abuse—for an on-line example, please see http://archpedi.jamanetwork.com/article.aspx?articleid=348423.

Which brings me back to something that bothered me when I first read the trial transcripts of the 1996 case that brought this medico-legal tragedy to my attention:  As long as the child abuse teams continue to treat every one of these cases as obvious abuse with immediate symptoms, there is almost no way to gather evidence to the contrary. Decades of convictions have been based entirely on sincere but unproven medical opinion, and at this point, the opinion is based on decades of convictions.

Kathy and Kevin Hyatt at the Glenwood Arts Theater.

Kathy and Kevin Hyatt at the Glenwood Arts Theater, where The Syndrome premiered.

Last weekend I met not only Beth Fankhauser, who says her daughter Megan was watching a 15-month-old who fell off a bed, but also Kathy Hyatt, found innocent at trial in 2009 after a baby she was watching rolled off the couch, and the family of Amanda Brumfield, now in prison, who told emergency responders her goddaughter had fallen trying to climb out of a portable crib. I don’t understand what makes the doctors so sure that all these women, wives and mothers with good reputations in their communities, simply lost it and attacked babies they had been watching for months, babies they knew and loved.

November 2015 Update: You can now host a screening of The Syndrome, http://www.resetfilms.com/hostascreening/

If you are not familiar with the debate surrounding infant head injury, please see the home page of this blog site.

© 2014, Sue Luttner

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Filed under abusive head trauma, AHT, National Center on Shaken Baby Syndrome, parents accused, SBS, shaken baby syndrome

“The Syndrome” Trailer Makes Waves

TheSyndrome

Based on the trailer and publicity posted on the film’s web site, a group of child abuse professionals has written to the Kansas International Film Festival (KIFF) requesting that organizers cancel Sunday’s premiere screening of The Syndrome, a documentary about the debate surrounding shaken baby theory.

KIFF organizers received two letters earlier this week, one from the National Center on Shaken Baby Syndrome (NCSBS) that calls the film’s promotional materials “appalling, inaccurate, and potentially dangerous” and worries that viewers might get the impression that shaking a baby is not harmful, so that “numerous infants could be put in significant danger.”

A second letter signed by 29 child-abuse physicians protests:

“The prerelease materials… clearly state that the film provides a national platform for the tiny  handful of well-known child abuse defense witnesses to publicize their fringe message—that shaking an infant cannot cause death or traumatic brain injury.” [italics in original]

The physician letter calls The Syndrome “a gross and deliberate mischaracterization of vital public health and child safety issues,” and the authors seem to be threatening a lawsuit:

“This is a public health matter and as organizers of this film festival we hope you share this concern. Under these circumstances, we also hope that you will reconsider featuring this film as part of your upcoming festival. In the event that you decide to continue with premiering this film, we may opt to pursue additional legal action.”

MerylSusanCropped

Filmmakers Meryl and Susan Goldsmith, who are cousins

The letter-writers had threatened litigation earlier, complaining that a news clip in the trailer presented the words of a child abuse pediatrician out of context. Director Meryl Goldsmith says her intention was not to deceive but to include quotes from both sides in the preview. Investigative reporter Susan Goldsmith explains why they edited the trailer: “Instead of hassling with them over a few seconds, we just cut it even though it was exactly how the news clip appeared. We made no changes to the film.”

You can see the letter to KIFF organizers from NCSBS executive director Ryan Steinbeigle by clicking here, NCSBS letter, and the letter from the medical professionals by clicking here, physician letter.

Co-producer Meryl Goldsmith

Director, editor, and producer  Meryl Goldsmith will speak at the premiere showing of The Syndrome, on Sunday, October 12, in Overland Park, Kansas

The move to block The Syndrome isn’t surprising, after all the grief the film received from speakers at last month’s NCSBS conference. Political science professor Ross Cheit from Brown University, for example, in his talk “‘Exonerating’ the Guilty: Child Abuse and the Corruption of the False Conviction Movement,” characterized The Syndrome as “a love letter” to three defense experts. He said it was “a defense lawyer’s dream . . .  you get to put on your testimony and there’s no cross-examination.” He objected to the term used in the trailer, “shaken baby syndrome industrial complex,” which he said shows “incredible arrogance and remarkable ignorance” on the part of the filmmakers because, “Child abuse is not where the money is. Child abuse defense is where the money is.”

Professor Cheit compared The Syndrome to Capturing the Friedmans, a 2003 documentary that raised questions about a 1980s child sex-abuse case in New York. Prof. Cheit portrayed that film as a whitewash on behalf of father-and-son felons Arnold and Jesse Friedman. Noting that Capturing the Friedmans was a finalist for an academy award the year it came out, Prof. Cheit said he worries about the “gullible acceptance many people have for a movie that’s labeled ‘documentary.'”

Presumably the KIFF organizers and judges made their choices carefully, both when they included The Syndrome in their program and when they nominated it for a jury award. I haven’t seen the film yet, but I hope it addresses some of the troubling questions that have raged around shaken baby syndrome for decades now—and I doubt the take-home message is really that shaking a baby is safe.

As for protecting the children:  I am concerned about the infants who are denied the medical care they need when a hasty diagnosis of abuse stops the search for the medical conditions that underlie many cases of brain bleeding and swelling with no outward signs of trauma, as well as the siblings who are torn unnecessarily from loving homes. I am especially concerned about the cavalier opinion that household falls do not cause serious injury or death. I wish that parents were warned not only about shaking infants but also about dropping them. While most falls do not cause major injury, lives could be saved and injuries prevented if we started installing mats under changing tables and padding in play areas. Meanwhile, doctors simply do not know enough about infant neurobiology to support the definitive statements about infant shaking that have been winning in court for 30 years.

November 2015 Update: You can now host a screening of The Syndrome, http://www.resetfilms.com/hostascreening/

For my blog posting after the premiere showing of The Syndrome in October of 2014, go to Finding a Voice, and a Community.

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Filed under abusive head trauma, AHT, National Center on Shaken Baby Syndrome, SBS, shaken baby syndrome