Shaken: Tensions Build in Boston

bostonTeaPPhysicians and attorneys in Boston, Massachusetts, where the Louise Woodward trial brought shaken baby theory onto the national stage, are heading into another battle over infant shaking, as pediatricians clash with the medical examiner about the diagnosis and the state’s high court reconsiders past convictions.

Aisling Brady McCarthy, from the BBC coverage, http://www.bbc.com/news/world-europe-24569976

Aisling Brady McCarthy

Tensions started ramping up last summer, when the medical examiner’s office changed the cause of death in the case of 1-year-old Rehma Sabir, from “homicide” to “undetermined,” which convinced the district attorney to drop murder charges against the girl’s nanny, Irish national Aisling Brady McCarthy. Not quite a year earlier, with less publicity but for the same reason, the county had dropped charges against accused father Geoffrey Wilson. Then last December, the medical examiner’s office pulled back from a third homicide declaration in an infant death initially attributed to shaking, but the district attorney held firm and is still moving forward with charges against Pallavi Macharla, a child care provider who had been a physician in her native India.

Now the Massachusetts chapter of the American Academy of Pediatrics (AAP) has written a letter to Governor Charlie Baker calling for an investigation of the medical examiner’s office and warning that its staff might be listening to the opinions of defense experts, as quoted by Patricia Wen in The Boston Globe:

“Publicly available information questions whether individual examiners may have been influenced by participating attorneys and paid reports from defense medical experts,” according to the letter obtained by the Globe. “Sadly these extraordinary and alarming events call into question both the capacity and independence of our medical examiner’s office.”

tinyHandThis quote illustrates the kind of rhetorical thinking that can obscure logic when the topic is child abuse. Despite the implications of the phrase “paid reports from defense medical experts,” the state’s doctors are also paid for the time they spend preparing reports. The objection, then, must rest on who is paying, as if the opinions of the state’s doctors should necessarily prevail over the opinions of the defense experts. And I wonder whether the pediatricians have really thought through the question of “independence.” The medical examiner’s office is ordinarily on the same team as the detectives and the prosecutors, all agents of the state. In child abuse cases, the diagnosing pediatricians are also part of the prosecution team. In three instances in less than two years now, individual examiners have concluded that medical factors identified by defense doctors could have explained the infant deaths, putting the examiners at odds with physicians who are usually their allies. To me, that sounds like the essence of independent thinking.

The Massachusetts pediatricians seem to be asking the governor to step in and order the medical examiner’s office to follow the advice of the child abuse experts. Again from The Boston Globe coverage:

“The letter to the governor appears to represent growing frustration by the pediatricians’ organization, which had originally sought a behind-the-scenes solution to their concerns that fatalities from abusive head trauma — also known as ‘shaken baby syndrome’ — were potentially being wrongfully labeled as deaths caused by rare medical events….

“In early March, top members of the pediatricians’ group met privately with state public safety secretary Daniel Bennett and [Dr. Henry] Nields, the chief medical examiner, hoping they would agree to launch a comprehensive review of the handling of these child fatalities.

“Instead, Bennett later suggested to the pediatricians’ group that they ‘prepare a presentation’ for the pathologists at the medical examiner’s office. In response, in a letter dated April 29, the pediatricians’ group went directly to the governor demanding a review.”

In a follow-up debate on station WGBH in Boston, former Massachusetts attorney general Martha Coakley, who prosecuted British au pair Louise Woodward in 1997, insisted that the pediatricians were right in the first place, the medical examiner’s office “doesn’t have the training to make the right decision” in abuse cases, and individual medical examiners are “just not doing their jobs.” She dismissed critics of shaken baby theory as “15 to 20 people who have made a cottage industry out of attacking these diagnoses.”

Kieren wired up and ready to jump

The letter to the governor was signed by Dr. Michael McManus, president of the Massachusetts chapter of the AAP, and Dr. Stephen Boos, chairman of the chapter’s abuse and neglect panel and a proponent of shaken baby theory. In a break-out session at the 2012 conference of the National Center on Shaken Baby Syndrome, Dr. Boos criticized both the structure and the implementation of the 2011 Jumparoo study by biomechanic John Lloyd, PhD, which concluded that a child playing in a commercial jumping toy achieved the same magnitude of angular acceleration as adult volunteers shaking a biofidelic mannequin. “Shaking is no worse than a Jumparoo?” Boos jeered, “You’ve got to be kidding me.” In a review of Dr. Steven Gabaeff’s 2011 article challenging the pathophysiological connection between brain findings and a shaking diagnosis, Dr. Boos acknowledged Dr. Gabaeff’s scholarship but rejected his “teleological flights of fancy,” summarizing:

“I do not believe this paper develops a larger truth, though there are kernels of truth here and there. Instead, it displays the sorts of arguments we must refute when asserting the mainstream view of abusive head trauma.”

A month after the pediatricians’ complaint to the governor, the Massachusetts Supreme Judicial Court (SJC) recognized the reality of a debate about shaken baby theory, in its decision ordering a new trial for Oswelt Millien, a father who served five years in prison for the presumed 2009 shaking of his daughter. The court concluded that Millien’s attorney had provided ineffective assistance by failing to seek court funds to hire an expert witness for an indigent defendant, so that the opinions of the state’s experts went unchallenged at trial—that is, the same situation the pediatricians would like to see in the medical examiner’s office.

If the district attorney follows through with a trial of Pallavi Macharla, though, I expect both sides to bring experts to the courtroom. Macharla’s attorney JW Carney demonstrated in the debate with Martha Coakley that he’s already done his homework (probably when representing Geoffrey Wilson), but in case he hadn’t, he could look to the Millien opinion, which features in its footnotes a bibliography of key documents in the shaking debate. Millien’s previous appeal had been turned down by a judge who agreed he deserved a defense expert but concluded that a single expert would not have changed the outcome of the trial. In this decision, the judges conclude that the jury might have made a different decision if they had known the diagnosis is controversial:

By vacating the defendant’s convictions in this case and ordering a new trial, we do not claim to have resolved the ongoing medical controversy as to how often the triad of symptoms of abusive head trauma are caused by accidental short falls or other medical causes. We are simply recognizing that there is a vigorous debate on this subject, that arguments are being made on both sides with support in the scientific and medical literature, that this debate is evolving, and that, in the circumstances of this case, we do not have confidence in the justice of these convictions where defense counsel did not retain an expert to evaluate the medical evidence and, as a result, the jury heard only one side of this debate.

Because Oswelt Millien has already served his term, the state has little incentive to pursue a second trial, but the debate will be through the headlines again, both as the Macharla case unfolds and when the SJC reaches a decision on the pending appeal of Derick Epps, convicted in 2007 of assaulting his girl friend’s daughter.

July 2016 update: The SJC has ordered a new trial for Derick Epps, http://law.justia.com/cases/massachusetts/supreme-court/2016/sjc-11921.html

Meanwhile, the pediatricians are asking for an investigation of the medical examiner’s office. Myself, I am hoping for an investigation of the child abuse professionals who don’t understand the difference between “the mainstream view of abusive head trauma” and established scientific fact.

3 Comments

Filed under abusive head trauma, AHT

3 responses to “Shaken: Tensions Build in Boston

  1. Having visited Boston on several occasions, and having stayed in Salem, I have to wonder if these Pediatricians are descendants of the judges and juries at the Salem Witch Trials?

    There are remarkable similarities between both Moral Panics of Witches and Shaken Baby Syndrome, in both instances, the protection of Children were at the forefront of the issues.

    In the historical Panic, technology had not caught up with the Puritans and the only possible explanation for the hallucinogenic effect they were experiencing is that it must be the work of the Devil. Their faith in God was only equalled in their faith that the Devil existed. There could be no other possible explanation.

    In the case of SBS, regardless of how much Science is presented to the accusers, nothing will sway their faith. A baby can have 10 or 20 signs and symptoms, but as long as the “Triad” is present, it can only be the work of the Devil, quite often a grieving parent.

    We know now in hindsight, that the hallucinogenic effect experienced in Salem, was due to a blight on the crops, in the form of a fungus which gives similar effect as taking LSD. In the eyes of a person afflicted, a woman sweeping her front porch with a corn broom, would be a witch flying through the air.

    We also know now that shaking a baby vigorously doesn’t produce the forces in the brain believed necessary to disrupt the Bridging Veins of the Dura Mater, but short falls can produce 12 times the force as shaking. This is not my opinion, Science exists independently of the Observer, and Science doesn’t care what anyone thinks, it just exists.

    The one startling difference between the Moral Panics is that unlike in Salem, Pediatricians are actually killing babies that they purport to protect. There are many documented cases now where babies have fallen from couches or beds and been dismissed by doctors. Days later when the Intracranial Pressure builds up in the brain, and the bleeding also appears behind the Retina, the innocent caregiver is wrongly accused of murder by doctors. I have little doubt that SBS will eventually be resigned to the dustbin where other Moral Panics belong and I hope that people remember that the people of Salem were otherwise good, God fearing citizens whose belief in the Devil allowed them to murder their fellow citizens.

    I have no doubt about the sincerity of SBS proponents either, their faith and belief in a hypothesis that is not supported by Science, is equally strong. But because SBS proponents are killing babies by belief and faith, rather than being guided by Science, I don’t believe that they deserve the compassion that many would grant to the judges and juries of Salem. While we expect deeply religious people to act on their beliefs, we expect doctors to be men and women of Science, and obey the laws of Physics and not some ethereal being or ideology, that may or may not exist. I honestly believe that any doctor who dismisses a baby who has had a short fall, and that baby later comes to some harm, or the doctor then wrongly accuses a caregiver, then I believe they should be charged with murder, ignorance is not a lawful excuse.

    Shame on these pediatricians! Justice must be predicated on the belief that 10 guilty men go free before 1 innocent man (or woman) is convicted. The arrogance shown by the signatories of this letter, that they as pediatricians, who not Pediatric Forensic Pathologists and who have no training or qualifications in Biomechanics, that they and they alone, will be the accusers in SBS cases is staggering beyond belief. Everyone is entitled to a fair trial and a defense.Science is not a Religion based on Faith and Belief and Consensus carries as much weight as it did in the inquisition of Galileo. No pediatrician is qualified to make a determination of how an injury involving Motion occurred. Only a Biomechanist is qualified to scientifically calculate Mechanical Forces on the human body and is the only person who can testify if an injury occurred from shaking or dropping/falling/slamming.

    It is clear that the signatories have the same mindset as their predecessors in Salem, they don’t want innocent people having a defence and they wont be swayed by Science. You would think that Massachusetts has progressed in 400 years, but apparently not.

  2. Great job pulling this all together, Sue. It paints a clear picture of just how difficult things are here in MA. I don’t get it. MA is probably the most liberal state in the country which means that there is an overall belief in government action to achieve equal opportunity and equality for all. Sounds like the foundation for a fair trial system but that isn’t the case. The common denominator in these cases is Dr. Alice Newton, the current gun-for-hire child abuse expert for the Commonwealth. She learned from Dr. Eli Newberger how to shoot first and don’t ask questions later. Take what limited info the state gives you, tell them what they want to hear, put on a stellar courtroom performance-don’t forget to paint a graphic visual for the jury like the comparison to being dropped out of a two-story window onto concrete, and collect a big fat paycheck.

    You would think that the Louise Woodward case would have opened the door more than it did. It hasn’t done much for anyone here in MA until recently. The three cases from Middlesex County in the past two years-Wilson, McCarthy and now Macharla are helping to open that door for others to follow. It’s hard when you have the local pediatricians calling for the governor to tell the ME not to change the cause of death, regardless of evidence. The changed rulings from the ME’s office involving three separate state pathologists caused prosecutors to halt two of the three murder prosecutions. Are the doctors becoming as narrow minded as the prosecutors? Do they want to know what really happened to the child or are they only interested in who they can convict?

    Thank goodness for people like pediatric radiologist Dr. Patrick Barnes who testified for the prosecution in the Woodward trial. Years later he recognized that the differential diagnoses for radiological findings previously associated with non-accidental pediatric head trauma have greatly expanded and now include a variety of accidental and natural causes. The application of evidence-based medicine has further established that the research basis for SBS and similar diagnoses is very limited, and some of the basic tenets of these diagnoses have been disproven by research in biomechanics, neuropathology and radiology. He now speaks up for the other victims in these cases, the parents and caretakers who were wrongly convicted based on junk science.

    To all the doctors, lawyers and judges who are quick to convict, please remember your respective oaths. Before you split up a family or send an innocent person to jail, search for the truth at all costs, not the win.

  3. Pingback: Court Orders New Trial Due to Defense Failure to Consult Medical Expert | The Marshall Defense Firm

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