Shaking Theorists Repel Criticism

While 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.

I’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

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

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

In 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.