September 13, 2023 · 1:25 pm

A County Faces the True Cost of Misdiagnosis

A ground-breaking report from a county controller in Pennsylvania last month articulated the fiscal costs of child abuse misdiagnosis, while a collection of local families propelled the financial story into the news by sharing their own heart-breaking experiences with local governing boards.

“My duty is to be a watchdog of public funds,” explains Lehigh County Controller Mark Pinsley, whose investigation, “The Cost of Misdiagnosis,” concluded that the county wastes money on unnecessary foster care, social and police services, litigation expenses, and more due to the over diagnosis of child abuse.

The report reveals that, in the long run, after families have been torn apart and resources have been expended, when cases reach independent appeals boards, judges have been overturning 90% of the county’s findings of “indicated” abuse.

The report also noted the self-reinforcing nature of the process when doctors at local hospitals report potential abuse to the county, which then asks for an investigation by the Child Advocacy Center (CAC) at Lehigh Valley Hospital, run by the same hospital system. The illustration here is from Pinsley’s report.

The families who followed Pinsley at the podium the evening he addressed the Lehigh County Board of Commissioners spoke of their own pain and the damage to their children—even parents who eventually saw the charges dropped and their children returned said they were left emotionally and financially drained. One mother said she divorced her husband to comply with the demands of social services. The official report does not name names, but the parents, one after another, asked that Dr. Debra Esernio-Jenssen, then the director of the CAC, be fired.

So far, the Lehigh County commissioners have only passed the official report on to the state and county Departments of Human Services, but the Lehigh Valley Health Network (LVHN) apparently heard the message: Last week the network announced the appointment of a new director of the CAC and the reassignment of Dr. Esernio-Jenssen to “other” locations.

Pinsley started his investigation earlier this year, when a TikTok video by defense attorney Beth Alison Maloney alerted him to a local cluster of Medical Child Abuse (MCA) diagnoses.

Also known as Munchausen Syndrome by Proxy (MSBP), MCA is a diagnosis directed at a parent who seeks unnecessary medical care for a child, fabricating or even causing mysterious symptoms. With 11% of Pennsylvania’s children, Pinsley’s report notes, Lehigh County and its neighbors Northampton and Carbon Counties account for 40% of the state’s MCA cases, a statistic that points to “potential systemic overdiagnosis of this rare disorder.”

The report cites a number of individual cases in which the child-abuse pediatricians ignored previous diagnoses of rare but legitimate medical conditions by other doctors in favor of MCA, only to backtrack later. The report recommends a number of changes in how the county handles abuse diagnoses, including independent investigation of each case by police and social services, which historically have deferred to the opinions of the local abuse specialists.

After he started his research, Pensley wrote, it became clear that he needed to look beyond MCA, “that the inquiry needed to include other areas, such as shaken baby syndrome, various forms of head trauma, and other rare diseases typically classified as child abuse.” Some of those cases also appear in the report.

Pinsley says he was “not the hero” in this effort; he was merely responding to a call for help from a group of local parents who had organized themselves as the Parents Medical Rights Group (PMRG), https://www.pmrglv.com/.

“They didn’t need me,” he insists, “I was like the feather in the Dumbo movie. They could fly; they just needed the confidence to try.”

I will write more about the PMRG in a future posting. In the mean time, you can support their efforts by writing to the regional newspaper The Morning Call, responding to their coverage of the story. You can read a couple of these articles before the pay wall kicks in:

  • In August, it covered the controller’s report and the first parent presentations to the Lehigh Valley commissioners
  • Last week, it reported the change in leadership at the CAC and a repeat presentation by the parents to the commissioners of neighboring Northampton County.
  • On Sunday it ran an op ed by Pinsley about his report

Their submission guidelines offer a link to a form, or you can send them an email (no more than 200 words) at letters@mcall.com.

copyright 2023, Sue Luttner

A few source references, for more information.

If you are not familiar with the debate surrounding Shaken Baby Syndrome, please see the home page of this site.

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June 29, 2023 · 12:58 pm

A Must-Read Book From a Potent Team

A bold new book from Cambridge University Press assembles, in one passionate collection, the fundamental arguments for reconsidering 50 years of shaken baby convictions, Shaken Baby Syndrome: Investigating the Abusive Head Trauma Controversy.

The authors, 32 experts with impeccable credentials from a range of medical, mathematical, scientific, and legal specialties, bring both years of experience and a fresh, international perspective to the debate.

One chapter, for example, opens with a personal anecdote from retired Norwegian neurosurgeon Knut Wester, who has a scientific interest in external hydrocephalus. Asked his opinion in a shaking case, he writes, he was surprised to receive images that looked like a familiar presentation of Benign External Hydrocephalus (BEH) complicated by bleeding. His report convinced the court to drop the charges. Then he was asked his opinion in a second case, and again the images looked like BEH with bleeding. Swedish neuroradiologist Johan Wikström, Wester’s co-author on this chapter, shares his own parallel experience, all as a preface to their examination of the medical and statistical facts suggesting that BEH can be and often is misdiagnosed as SBS/AHT.

In a companion chapter, the two collaborate with pediatric neurologist Joseph Scheller in the US on a groundbreaking survey of neuro-imaging in the child-abuse literature. Their findings appear in this book for the first time anywhere. The implications, as the authors write, are “frightening.”

The book also brings a level of rigorous mathematical analysis to the SBS/AHT research I’ve never seen before.

A chapter by mathematician Leila Schneps at the French National Center for Scientific Research (Centre national de la recherche scientifique), for example, explores the logical and numerical errors in a seminal 1991 article [1] from the Children’s Hospital in San Diego, in which researchers advised that parents who report “short indoor falls” to explain serious injuries are lying.

Schneps has already published a broader look at the short-fall literature [2], where she found one study [3] that not only reported a few deaths following short falls but noted that some of the children could have been saved with prompt medical attention. In this book, Schneps takes a deeper dive into the San Diego analysis, concluding, “These articles claiming that short falls cannot cause serious harm are not only dangerous, but they are wrong.”

Similarly, British mathematician Norman Fenton and Australian health-information technologist Scott McLachlan devote their chapter to a “causal Bayesian network model,” to examine the methodology of the “Cardiff study” [4], a meta-analysis that combined data from six individual studies to build a tool for confirming a shaking diagnosis based on medical findings.

In its conclusion, the Cardiff paper offered itself as a rebuttal to Deborah Tuerkheimer’s 2009 law review article positing that the scientific underpinnings of shaking theory had crumbled. Rather, the Cardiff authors wrote in 2011, their analysis “confirms the association of AHT with specific combinations of clinical features.” Fenton and McLachlan’s modeling, however, reports “strong biases and errors” built into that work.

Meanwhile, medical ethicist Niels Lynøe and forensic medicine specialist Anders Erikssøn contributed a chapter on their own examination of the SBS controversy, inspired by the “massive and surprisingly critical international reaction” to a literature review they worked on in 2014-2016 for the independent Health Technology Assessment authority in Sweden (SBU in English).

Lynøe and Erikssøn had served on a team of SBU research experts who looked only at the study designs in the SBS literature, focusing on the question: ”With what certainty can it be claimed that the triad, subdural hematoma, retinal hemorrhages and encephalopathy, is attributable to isolated traumatic shaking (i.e. when no external signs of trauma are present)?”

Citing the prevalence of circular reasoning in the studies, the team concluded that there was “insufficient evidence on which to assess the diagnostic accuracy of the triad,” triggering a flood of denunciations from the community of child abuse experts. After studying the content of the literature, and the criticisms of their work, Lynøe and Erikssøn now report that proponents of SBS theory disagree with skeptics not only about whether and how shaking leads to the triad but about “whether there is a controversy over SBS/AHT at all.” Having experienced the controversy first hand, they suggest that this denial may be “a symptom of a crisis within the prevailing AHT research field.”

Key to pulling together this international team was French neuroscience researcher and software engineer Cyrille Rossant, whose son was diagnosed as a shaken baby seven years ago—see his blog posting about his experience. (If you or a family member has been interrogated in one of these cases, please see my earlier posting about Rossant’s request for letters.)

The book also includes veteran voices in the arena—like Innocence Project founder Barry Scheck, who defended “Boston nanny” Louise Woodward in the case that brought shaken baby into the headlines in 1997. Scheck’s foreword offers a readable summary of the evidence and testimony that presumably informed the judge’s decision, after Woodward’s second-degree murder conviction, to reduce the charge to manslaughter and set the sentence to time served.

Law professor Keith Findley, a key player since he won a pivotal appeal in 2008 on behalf of child care provider Audrey Edmunds, is surely the most qualified attorney in the arena to have written the chapter on appealing SBS cases, and he brings an insider’s view to his analyses of the confession research as proof of SBS theory and the challenges of cognitive bias.

And of course neuropathologist Waney Squier (winner of the Innocence Project Champion of Justice Award in 2016 for her work in the arena), in collaboration with forensic pathologist Tommie Olofsson at Uppsala University Hospital, provides a readable overview of the neuropathology of SBS/AHT, addressing some of the misconceptions propagated in the child-abuse literature.

A chapter Squier co-authored with radiologist Julie Mack examines the imaging of the most common brain findings in SBS/AHT cases, with commentary on what isn’t yet understood and the limitations of what imaging can reveal.

The chapter on scientific evidence in the courtroom, by public defense attorney Kathleen Pakes, caught me by surprise, flatly rejecting courtroom testimony from a physician about mechanism of injury.

In conversation Pakes says, “If these were civil cases, if we were Monsanto or Dow Chemical and we had the money to question the science, this stuff would never be allowed.”

Pakes is more restrained in print, where she addresses the difference between a doctor’s ability to identify and treat a medical condition and that same doctor’s ability to divine what caused the condition—a distinction that’s been pivotal in employee-injury and product-liability litigation. Pakes also reviews the circular reasoning in the literature, the questions raised by biomechanics research, and the subjective nature of the diagnosis, concluding, “a consistent application of governing legal principles would exclude opinion evidence purporting to ‘diagnose’ SBS/AHT.”

And there’s lots more–the international statistics, for example, and the histories of SBS in the Swedish and Japanese courts; Marta Cohen on misdiagnosis of SIDS. This book deserves more coverage than I have room to give it in one posting. If you are an attorney working in this vital, complex, divisive arena, or anyone trying to figure out what’s going on, you need to read Shaken Baby Syndrome: Investigating the Abusive Head Trauma Controversy.

The ebook is now available for download. The hard copy seems to be shipping in the U.K., but I haven’t seen the copy I pre-ordered some weeks ago on the US site. Click the button below for a downloadable coupon for 20% off if you order directly from the Cambridge University Press.

20% off coupon

Cambridge University Press, UK edition order page

(1) Chadwick DL, Chin S, Salerno C, Landsverk J, Kitchen L. Deaths from falls in children: How far is fatal? Journal of Trauma. 1991;31(10):1353–5 (Abstract)

(2) Schneps L, Rossant C. Chutes de faible hauteur et syndrome du bébé secoué, erreurs numériques et logiques. In Hématomes sous-duraux et collections péri- cérébrales du petit nourrisson. B. Échenne, A. Couture, G. Sébire, eds. Sauramps, 2020, pp. 299–328 (English translation)

(3) Hall JR, Reyes HM, Horvat M, Meller J, Stein R. The mortality of childhood falls. Journal of Trauma. 1989;29(9):1273–5

(4) Maguire S, Kemp A, Lumb R, et al. Estimating the probability of abusive head trauma: A pooled analysis. Paediatrics. 2011;128(3):e550–e564 (Abstract)

copyright 2023 Sue Luttner

If you are unfamiliar with the controversy surrounding SBS/AHT, please see the home page of this blog.

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April 29, 2023 · 2:13 pm

A Personal & Potent Fight for Justice

When doctors at the Arkansas Children’s Hospital diagnosed 3-month-old Quincy as a victim of child abuse, the press ran with the story. Medical imaging had revealed 17 fractures to the boy’s tiny bones, and police were targeting his father, Zachary Culp, who worked in the school cafeteria. The community understood that an accused child abuser had been in regular contact with its children.

The day of his arrest, while Zachary waited for processing with other prisoners in the holding tank, a breaking-news bulletin interrupted normal programming on the wall-mounted television to announce the development. His face loomed on the screen.

The first assault came just a few hours later, and the guards were in no hurry to stop the violence. “They beat the crap out of me,” Zachary recalls. “I didn’t think I was going to live the next 72 hours.”

He credits his survival to his uncle, a police detective who’d offered him a set of jailhouse tips before his arrest. When assaulted, Zachary says, he was told to “assume the fetal position, like you’re getting ready for a hurricane.” Zachary lost 48 pounds during the 73 days he spent in jail, he reports, but he did survive.

A year later, he was back with his wife Sarah and their son Quincy, after a series of legal and medical developments including Sarah’s diagnosis with Ehlers-Danlos Syndrome (EDS), a genetic condition that would explain the fractures in her son.

“That was all Sarah,” Zachary says. “She has phenomenal research skills.”

Sarah had started by searching on traits they’d noticed about Quincy since birth: easy bruising, blue sclera, lots of spitting up, with slow weight gain—the last diagnosed in Quincy as “failure to thrive.” She found the story of Rebecca Wanosik, a wrongly accused parent who helped form Fractured Families, a support group for families accused of abuse based on a medical misdiagnosis. She learned about EDS and Dr. Michael Hollick in Boston.

Zachary was out on bail by then, but because of a “no-contact” order against him, Sarah took Quincy by herself to Boston for their first consultation.

“Dr. Holick saved our son’s life,” Zachary maintains. At that point, Quincy was so small he had “fallen off the growth charts,” he explains. “He was barely making it. We were desperate for help.”

EDS can’t be confirmed in an infant, but Dr. Holick diagnosed Sarah with EDS and found early signs in Quincy. He also gave Sarah the first useful advice she’d gotten about Quincy’s diet, and her baby started gaining weight. Now 5 years old, Quincy has been diagnosed definitively with Stickler’s Syndrome, another auto-immune condition.

Immediately after his family’s legal ordeal, Zachary Culp became an activist in the arena. A seriously effective activist.

In 2021, only three years after his arrest, Zachary had ushered “Quincy’s Law” through both his state senate and the house: Families accused of abuse in Arkansas based on a medical diagnosis now have the right to a second opinion—like the opinion that finally got Quincy’s health on track.

Zachary based Quincy’s Law (now Act Number 976) on legislation crafted and tweaked by family activists in Texas. He offers advice and a template to families interested in pushing for similar laws in their own states.

Zachary says his political strategy was to approach elected officials personally, “one relationship at a time.” He started with the legislators closest to him, in Pulaski County. He tried to find common ground, ways that he could support their own efforts, with letters or phone calls or outreach. “I like to see what they want to talk about first, before I push my own agenda,” he explains.

He worked his way out in wider geographical circles and up the hierarchy, routinely driving to the state capitol in Little Rock on his days off. He networked with other Arkansas families who had experienced a medical misdiagnosis of abuse.

Zachary recognizes Child Abuse Awareness Month most years—not this year, because a tornado had just ploughed through his part of Arkansas—by taking out an ad in the local newspaper, looking for other accused families.

He and Sarah offer advice and support to the newly accused, who find him through the ads or on Facebook. He’s keeping track of disputed diagnoses by Dr. Karen Farst, the child abuse pediatrician who diagnosed abuse in Quincy’s case.

Last year, he made his first shot at his own seat in the legislature. He lost, but that’s the norm for a first-time candidate. He’s not giving up.

These days, Zachary’s social media feed offers dispatches from EDS and innocence activists, in between celebrations of his family and his church community.

Whatever he does next, Zachary Culp has already proven that one person can make a difference.

Links:

copyright 2023 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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April 23, 2023 · 5:28 pm

Parent Interrogation Tactics, an Update

The good news is that the journal Forensic Science International: Synergy has published my letter to the editor in response to the article by Cyrille Rossant and Chris Brook describing the experiences of French parents during police interrogations, as summarized in my previous post.

The bad news is that submitting the letter took longer than writing it, because the process for submitting a few paragraphs was the same as for submitting an entire article. It’s hard to imagine that many affected families made the time to work through it all—although I’ve updated my original post with a few more details about the process.

If you have written a letter about your interrogation experiences, though, or if you still intend to write one, you can simply email it to the journal’s editor, Dr. Max Houck, at https://www.journals.elsevier.com/forensic-science-international-synergy/editorial-board/dr-max-houck#email-dr-max-houck. I don’t think an emailed letter will be considered for publication, but I’m sure the journal will note your interest.

If you’re having trouble finding your voice, maybe reading my letter will spark an idea. If you want some advice about the submission process, submit a comment to this posting.

The initial article by Rossant & Brook, published this winter, was an analysis of the “environment and conditions” of police interrogations in AHT cases, from a survey of 97 French families accused between 2004 and 2021. Again, see my previous post for details.

Thank you for your efforts, and best wishes with your cases.

Links:

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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January 31, 2023 · 1:21 pm

Your Chance to Speak Up

Neuroscientist Cyril Rossant and astrophysicist Chris Brook have published a telling analysis of the “environment and conditions” of police interrogations in AHT cases, from a survey of 97 French families accused between 2004 and 2021. Their paper, in the journal Forensic Science International: Synergy, concludes that confessions and partial confessions elicited from parents by police are not reliable.

The researchers say they are hoping that families who recognize their own experiences in the paper will write letters to the editor.

“We feel multiple follow-up letters will add a powerful element to the project—equally important to the article itself,” Chris Brook wrote to this blog. The letter can be any length, he said, “from a short note that they had similar experiences to a detailed account with examples. Even a single paragraph will amplify the message.”

One part of the survey asked these specific questions about the interrogations (translated from the French, with labels used in the data analysis):

The authors also encourage attorneys who have handled AHT cases to contact the journal with their own stories from their own countries.

You can read the article yourself at Why admitted cases of AHT make a low quality reference standard: A survey of people accused of AHT in France.

You can submit a formal letter to the editor at https://www.elsevier.com/journals/forensic-science-international/0379-0738/guide-for-authors.

You will have to create an account with Elsevier, the publisher, which is simpler if you also create an account with Open Researcher and Contributor ID (ORCID), a non-profit dedicated to connecting researchers and their infrastructure. Both accounts are free and require no institutional affiliation. The author-guidelines page provides the necessary links. When asked for personal “keywords,” I put in phrases like “SBS,” “Shaken Baby Syndrome,” “AHT,” and so on. When submitting your “manuscript,” you will choose “Letter to the Editor” from the pop-up menu as the document type.

Feb. 14 update: To submit my letter, I had to create and upload three files:

  • A title page containing a title for the letter and my contact information
  • The letter itself, with no author identity revealed
  • A statement of potential conflicts of interest—the site offers a tool that creates a file in the format they want

See my follow-up blog posting for more.

The journal is likely to publish only a sampling of the letters, Brooks cautioned, but a large number of letters will get the editors’ attention, and boost the number published.

If you do not want your letter published, you can simply send a personal email directly to the editor at https://www.journals.elsevier.com/forensic-science-international-synergy/editorial-board/dr-max-houck#email-dr-max-houck

“We feel multiple follow-up letters will add a powerful element to the project—equally important to the article itself.”

-Chris Brook

The paper argues that child abuse pediatricians should not rely on the confession research to validate their model of abusive head trauma, because the confessions tend to be exacted by investigators who accept the diagnosis they’ve been given by the doctors.

Based on what they were told by police, the paper notes, parents saw little hope of proving their innocence, leaving them with a number of reasons to offer a full or partial confession, including:

  • hope for a reduced sentence
  • expectation that children would be returned to the other parent
  • a desire to stop the accusations against a partner
  • a desire to end the expensive, painful, and presumably hopeless legal proceedings
  • hope for eventual reunification

Note: If your case is still in litigation, check with your attorney before making any public statements.

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July 30, 2022 · 12:34 pm

Affected Families Spark Change

Wrongly accused parents in Texas are on a roll. They’ve pushed through a state bill giving accused families the right to a second opinion on a child abuse diagnosis, and now a tweak that requires that opinion to come from a treating physician, not just another child abuse pediatrician. Another recent Texas law requires CPS to inform parents of their right to record interviews. How are they doing it?

Rana Tyson, a parent who pushed the second-opinion legislation, ascribes their success to a large and active community of accused families, plus whatever force—Rana says she credits God—provided them an audience at the statehouse.

“It started with this opportunity to tell our personal stories to legislators,” Rana explains, “To show them what this does to a family—not just our family, lots of families… It’s been a collective effort.”

Rana and her husband Chad lost custody of their three daughters in 2010, after child abuse pediatricians diagnosed their month-old twins as victims of abuse. Their own family doctor rejected that conclusion and helped the Tysons find the specialists who eventually diagnosed the girls with Ehlers-Danlos Syndrome (EDS), a connective-tissue disorder that can predispose to broken bones and bleeding. Their children came home, although it took additional hearings and another 18 months to have the “reason to believe” finding removed from the CPS records.

Through friends of friends and then media exposure, Rana started meeting other parents with similar stories. In 2013, Dallas news reporter Janet St. James broadcast a segment named Fractured Families featuring Bria and Andrew Huber, also exonerated by an EDS diagnosis. Soon after, both the Tysons and the Hubers told their story on Katie, a national talk show hosted by news veteran Katie Couric. Both reporters were deluged with messages from parents who said they were in the same position.

Then in 2016, Rana answered an unexpected knock on the door to meet Cindy Burkett, her state representative, who was out campaigning for re-election. Rep. Burkett said she wanted to know what was on her constituents’ minds, and so Rana told her.

Since then, Burkett and now other state legislators have held hearings and sponsored legislation, trying to stem the swell of child abuse overdiagnoses.

SB1578, passed last year and written by Sen. Lois Kelkhorst (R), filled a gap in a first piece of second-opinion legislation pushed by the same families, explains Andrew Brown, J.D., vice president of policy at the Texas Public Policy Foundation, who lobbied for both the second-opinion bill and the CPS-interview bill. Since the passage of SB1578, the second opinion now has to come from “a doctor who specializes in diagnosing and treating an underlying health condition,” Brown emphasizes, which prevents a second child abuse pediatrician from applying the same flawed guidelines and reaching the same flawed conclusion as the first. Most child abuse pediatricians diagnose but do not treat patients.

SB1578 includes the same list as the original bill of conditions commonly mistaken for abuse—rickets, EDS, osteogenesis imperfecta, and Vitamin D deficiency—but expands the scope to not only “similar” diseases but also “other medical conditions that mimic child maltreatment or increase the risk of misdiagnosis of child maltreatment.”

Other new provisions specify that

  • state actors cannot remove a child from the family based on the opinion of a physician who has not examined the child in person and
  • the Department of State Health Services must take into account the opinions of specialists consulted by the families at their own expense

While considering SB1578, lawmakers heard from the Hubers and the Tysons as well as a series of other parents, including:

  • Ann-Marie Timmerman, whose son’s findings stemmed from a combination of factors, including a brain bleed from birth trauma
  • Lorina and Jason Troy, whose son had benign external hydrocephalus (BEH), an especially large space between the brain and the inside of the skull that can predispose to bleeding
  • Holly Simonton, whose son had only an accidental bruise considered suspicious by the child abuse pediatricians

Aside from their legislative work, Bria Huber, Rana Tyson, and Rebecca Wanosik in Missouri run a non-profit parent-support organization, Fractured Families, that offers community and advice to newly accused families.

In the spring of 2022, the Family Justice Resource Center (FJRC), an Illinois nonprofit committed to evidence-based medicine in the courtroom, awarded Lorina Troy its annual Child Advocacy Award for her work publicizing the problem of abuse overdiagnosis, pushing legislators, and helping accused families.

Statistics are not available on how effective SB1578 in Texas will be, but a segment of the Canadian news program W5 featured a promising anecdote in February 2022. The segment featured the Timmermans’ story and included an interview with their attorney, Dennis Slate, who said he’d fielded 4-5 calls a month from parents saying were wrongly accused of abuse based on a medical opinion. Since the new law took effect in the fall, he said, “I have not had a new client come in and hire me on a broken bone or a fractured skull or a medical abuse or any of those other claims.”

A similar bill passed last year in Arkansas, “Quincy’s Law,” based on the Texas law. Activist father Zachary Culp, who proposed and championed Quincy’s Law, offers his template to families in other states interested in pushing for the right to a second opinion. Watch this space for the story of how Zachary built support for his bill in the state capitol one elected official at a time.

Press coverage of SB1578:

Text of the two bills:

-Sue Luttner

If you are not familiar with how often and how easily children are misdiagnosed as the victims of abuse, please see the page on this site addressing the larger medical issues.

If you are not familiar with the debate over Shaken Baby Syndrome (SBS), please see the home page of this blog.

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October 19, 2021 · 2:11 pm

Grace in Exoneration, After 18 Years

Even as she went to trial in 2003, Tonia Miller says, she expected to be found innocent. She knew she hadn’t abused her baby, she explains, and, “I trusted the justice system.” Her chuckle at her own youthful naïveté is more wry than bitter.

Unfortunately for Tonia, the medical experts at the time were adamant and unanimous. Even though 11-week-old Alicia showed no bruises, grip marks, or fractures, even though the baby had been sick her entire life, with chronic collections of subdural blood possibly dating from birth, and even though no one had ever seen Tonia mistreat either her baby or her toddler, doctors testified at trial that the pattern of bleeding and swelling inside Alicia’s head could mean only one thing: Shaken Baby Syndrome (SBS). The young mother was found guilty of second-degree murder.

But those experts were wrong.

Tonia’s conviction was vacated in 2020, after four new experts brought in by the Michigan Innocence Clinic re-examined the medical records and concluded, unanimously, that Alicia had died from pneumonia.

“There was nothing subtle here,” emphasizes clinical law professor David Moran, co-founder of the Michigan Innocence Clinic and the driving force behind the appeal. “The pneumonia was blindingly obvious. But the presence of the triad closed down critical thinking. No one ever questioned the initial diagnosis.” Moran calls the case “an especially stark example” of shaking theory in the courtroom.

Incredibly, the autopsy report had noted pneumonia in the child’s lungs, and she’d been recovering from a respiratory infection, a well-recognized precursor to pneumonia in newborns. In the weeks before Alicia’s collapse, Tonia had sought medical help for her daughter repeatedly, with reports of weak sucking, breathing problems, and even seizures, witnessed not only by Tonia but also by relatives and neighbors.

Moran’s appeal also argued that the triad of findings—retinal hemorrhage, subdural hematoma, and cerebral edema—underpinning Tonia’s conviction is no longer considered proof of shaking. The appeal judge concluded that SBS has become “controversial” and noted “a shift in the scientific consensus.”

Dr. Steven Gabaeff, a clinical forensic medical specialist and an emergency physician for 40 years, says he finds the shift-in-consensus element ironic, because there has never been any scientific proof that the triad results only from shaking, despite the testimony at Tonia’s trial. “It was false evidence. It was never true,” he points out, “And this case proves that yet again.”

The pneumonia had compromised Alicia’s lungs, reducing the amount of oxygen available to her brain. Breathing, controlled at the brain stem, is one of the first functions to be affected when the brain is in trouble. Weak breathing can compound the oxygen problem just by itself, and on the morning Alicia was rushed to the hospital, her airways were obstructed by the formula she had apparently choked on. As detailed in the new reports, a series of natural processes readily explains how pneumonia in the lungs can lead to bleeding and swelling in the brain.

Even after her conviction was vacated, Tonia remained in prison while the state appealed the decision. She was finally released on bond in April of 2021, with the spectre of a second trial hanging over her. This fall, the state dropped all charges, and now she is free to plan her life.

Tonia seems to hold few grudges. She says she doesn’t take it personally that the relative who eventually adopted her older daughter cut off all contact—although she still hopes to reconnect with her surviving child, now a young woman. And she understands why Alicia’s father quit writing when he married: “I have to put myself in his wife’s shoes,” she says. “I wouldn’t want my husband in touch with a woman convicted of murdering a baby.”

Tonia even offers a positive angle on her time in prison, which she says gave her the chance to reflect and to process. Her early life was difficult, she says, and “prison helped me deal with those issues from my past.”

Not that the path was easy.

The early interrogations left her numb and confused, she remembers. “The detectives isolated me from everybody… I tried to tell them what happened, but they kept interrupting, saying I was lying… After a while I started thinking, ‘If I tell you what you want to hear, will you just leave me alone?'”

Tonia had said from the first that she had shaken Alicia gently to revive her, after the girl seemed to gasp and quit breathing—but her accusers insisted she had shaken Alicia violently, just before the breathing problems.

As she explains in the essay that accompanies this post, Tonia was “petrified” on her way into prison. Since then, she has risen to the occasion and more. Now that she’s out, she has found a job she likes and is looking forward to finishing her BA—she earned most of the credits she needs while in prison.

Please see Tonia’s reflections on her experience of prison and exoneration, written immediately after her release.

This photo: After escorting her from prison in April of 2021, Tonia’s legal team took her for her first French toast in 18 years.

See also Tonia’s entry in The National Registry of Exonerations.

October, 2021: At the Michigan Innocence Clinic celebration of four wrongly convicted prisoners released this year.

© 2021 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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June 18, 2021 · 4:15 pm

Bone Fragility: A New Cause

Researchers have identified a new underlying cause of fragile bones in developing fetuses, this one apparently associated with maternal Ehlers-Danlos Syndrome (EDS), according to a news release propagated by the American Association for the Advancement of Science.

The paper behind the press release underscores the pitfalls of diagnosing abuse by default when a child with fractures in different stages of healing tests negative for known genetic conditions that predispose to fragile bones.

The original article ran in the journal Children: Fetal Fractures in an Infant with Maternal Ehlers-Danlos Syndrome, CCDC134 Pathogenic Mutation and a Negative Genetic Test for Osteogenesis Imperfecta, by Michael F. Holick, Arash Shirvani, and Nipith Charoenngam

The article is a case report from the Ehlers-Danlos Clinical Research Program at the Boston University Medical Campus, where researchers examined ultrasounds of the developing fetus at several points during gestation and identified what looked like fractures suffered in utero. X-rays after birth confirmed the findings. The boy tested negative for osteogenesis imperfecta (OI) and other known causes of fragile bones, including vitamin D deficiency. The authors note:

If this mother had brought in her son for medical care later in his infancy without prior diagnosis of in utero fractures, these X-ray findings would almost certainly have resulted in the diagnosis of nonaccidental trauma.

Citing other abuse diagnoses based on fractures in children of EDS parents, the authors point to an “urgent need for further investigations to identify additional causative genetic variants for skeletal fragility, including yet to be identified genes associated with a well-recognized bone fragility disorder associated with a genetic defect of the collagen–elastin matrix: EDS.”

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March 7, 2021 · 4:26 pm

Unconscious Bias and Manner of Death

Graph from studyA sobering study has raised serious questions about the reliability of a document that’s generally treated in the courtroom as objective truth:  the medical examiner’s report.

Researchers at University College London presented a group of forensic pathologists—all board-certified members of the National Association of Medical Examiners (NAME)—with a “not straightforward” case, a 3-year-old who arrives at the emergency room with a head injury and later dies. All pathologists received the same medical findings and investigation reports, but some were told the child was White and in the care of a grandmother, others that the child was Black and in the care of the mother’s boyfriend.

The graph above illustrates the study’s most dramatic finding: Pathologists in the study called the death an accident, not a homicide, twice as often in the case of a White child with a grandmother; in a complete reversal, they called the death a homicide five times as often as accident in the case of a Black child with the mother’s boyfriend. Journalist Radley Balko, in an editorial in The Washington Post, called the study “stark evidence of cognitive bias among medical examiners.”

The study also raises questions about the fundamental reliability of an ME’s conclusions:  78 of the 133 pathologists in the study told researchers they didn’t have enough information to determine whether the death was accident or homicide. Of those who gave an opinion, 23 called it an accident, 32 a homicide.

“This is already a problem,” Balko’s editorial noted. “Reliability is one of the key criteria the Supreme Court has said judges should consider in deciding whether to allow expert testimony. The same facts applied to different people should produce the same outcome. That clearly wasn’t the case in this study.”

I recommend reading both the editorial and the journal article itself:

-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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February 17, 2021 · 12:56 pm

Good News on Old Cases

Like so much else in the past year, the first two cases I’ve come across since refocusing on the shaken baby debate involve defendants of color. While any family can be the target of misguided abuse accusations, the chances go up for non-white parents and caregivers. The good news is that these cases are in the news because the courts have reconsidered.

https://innocenceproject.org/innocence-project-client-rosa-jimenez-expected-to-be-released-after-17-years-in-prison/
More details about the Texas case
Since 2013, an Oakland man has faced life in felony child assault case. It took five days of trial for a judge to throw out the case

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