Another Disturbing Case

Note: Some names have been changed in this treatment.

March, 2001

 Absolute Medical Certainty

Cindy Xin Li misses her baby the moment she wakes up each morning. Li used to sleep with the infant Michelle in their Sunnyvale apartment, she explains, during her husband’s long business trips to China.

“Every morning she wake up first and put her head against me,” Li recalls, in clear but streamlined English. “When I wake up and begin to stretch, she grab my hair and say, ‘Hi.’ Every morning, a big smile and a big ‘Hi.'” Li pauses, regains her voice. “She was a happy girl.”

With Buddhist prayer and the support of friends and family, Li and her husband Allen Tang are making it through a parent’s worst nightmare:  the sudden death of their only child.

Across the valley in Saratoga, another family is also mourning a terrible loss—and bracing for an uncertain future. James Kwan has been a single parent for nearly a year now, depending on his mother-in-law for child care while he works his job as an engineering manager at Advanced Micro Devices. 2-year-old Melissa still cries for her mother, but Patti Hu Kwan, 33, can’t be there. Kwan is in the Santa Clara County jail, accused of shaking her best friend’s baby to death.

“It must be a mistake,” says Christina Ying Chu, a friend of both families. “Patti is a kind and gentle person. She would not hurt Michelle. She would not hurt anyone.” At Kwan’s preliminary hearing in December, the courtroom was filled with somber and respectable Chinese Americans listening, puzzled, to the case against the woman they continue to describe as “warm-hearted,” “responsible,” and “caring.”

James Kwan says he believes his wife when she says she’s innocent. The infant’s parents aren’t so sure. “Patti was my best friend, and I still want to believe she didn’t do it,” says Li, “but the policeman tell me they have very strong proof she hurt my baby.”

It’s the same proof that convicted British au pair Louise Woodward in 1997, the same proof that’s still sparking debate in courtrooms and medical journals across the country: Patti Kwan was the only adult there when the baby developed the symptoms of Shaken Baby Syndrome.

New Diagnosis

Shaken Baby Syndrome (SBS) is a recent addition to the child-abuse literature. It was first postulated in the 1970s, when first a British neurosurgeon and then a U.S. radiologist speculated in print that “whiplash shaking” might account for unexplained bleeding in the heads of some infants. As recently as the late 80s, even the early 90s, Michelle Li’s death would have been attributed to choking, or unknown natural causes.

But over the past decade, as education about SBS has spread through the medical and legal communities, the number of reported shakings has exploded. By tracking cases at their own regional hospitals and extrapolating to the nation, Dr. Robert Reece at Tufts University and Dr. Robert Kirschner at the University of Chicago estimate that 600 to 1400 infants a year are shaken hard enough to suffer death or serious injury. Other experts set the figure as high as 3,000. Statisticians are scrambling to put a mechanism in place to track the actual incidence.

The injuries are believed to occur when a caretaker, usually in a moment of exhaustion and exasperation, snaps and shakes a crying baby, most likely throwing the child down afterwards, often onto a soft surface like a bed or sofa. With its large head, weak neck muscles, and immature nervous system, the infant suffers mild to fatal brain damage.

The victim might show no other signs of abuse—no fractures, no bruises, no welts or red marks. Confessions are rare, witnesses rarer. And the survivors, even those who eventually learn to talk, can never tell us what really happened.

Like Kwan, defendants in SBS cases are often respected adults with no criminal record or history of violence. The evidence is usually circumstantial, with expert medical testimony at the heart of the prosecution.

And as the Louise Woodward trial demonstrated, the medical community is not unanimous about SBS. Although most specialists endorse the thinking behind these trials, some critics argue that the basic theory is flawed, others that the condition is overdiagnosed and overprosecuted. Even forensic pathologist Dr. Mary Gilliland, a mainstream thinker regarding the mechanism, cautions her colleagues against leaping too quickly to the diagnosis and missing legitimate conditions that can look like SBS. “When you see these symptoms, you don’t have a shaken infant,” she insists, “You have a case that needs to be investigated.”

A Family Tragedy

One of the tragedies of SBS is the destruction of families and friendships in the aftermath of accusations, denials, and mandatory foster placement.

“They tore my family apart, and I’ve never been charged with a thing,” recounts Wendy Greene of San Jose, whose four children were all removed from her home in August, 1999, after her husband Phil Greene was accused of shaking the youngest. On the advice of her social worker, Wendy says, she immediately cut off all contact with her husband, who was her children’s stepfather. Still, it took her a year and a half to get one of the older children home, and the baby, now a thriving 2-year-old, remains in foster care.

The painful and public trial of Monterey-area musician Doreen Gold last year pitted friends and family members against each other in court and in print. Gold was charged with shaking her godson to death while babysitting. The defense tried to show that the boy’s single father was the more likely abuser. The judge eventually reversed Gold’s conviction on a second-degree murder charge and sentenced her to six years in prison for child endangerment. Gold’s supporters say she’s been railroaded; the victim’s family says she’s getting away with murder.

Back in Santa Clara

When her daughter Michelle died, Cindy Li lost both her baby and her best friend, the woman who would have helped her through any other tragedy. Kwan was one of the first people Li met when she moved to Sunnyvale from Beijing. She came to join her husband, Allen Teng, a Chinese national who worked with Patti Kwan at a Bay Area computer company. Kwan herself had moved from Beijing to San Jose as a new bride in 1992, and she was quick to offer a welcoming hand to the young wife of her coworker.  “Patti was very helpful to me,” Li recalls, “Easily we became very good friends.”

It seemed like destiny a year later when first Kwan and then Li became pregnant. For the Kwans, it was the next step in their life plan. But Tang and his business partners were starting up an Internet publishing company with an office in Beijing, and Li was still in school. “They didn’t plan to have a family just then,” confirms Tang’s twin brother Wensheng Tang, “but it happened, and it was a good gift from God.”

Kwan’s daughter was born in May of 1999. When Michelle was born in August, Li turned naturally to her friend for advice on everything from laundry soap to a Mandarin-speaking pediatrician.

When Li decided to return to school in the spring of 2000, she asked Kwan for help with child care. Two afternoons a week Kwan watched both girls while Li took an accounting class at DeAnza College. Kwan’s mother, who lived with her daughter and son-in-law, was usually there to help, but June 21 was the final exam, held on a different day of the week, and Kwan’s mother had a class of her own. Kwan was alone with both babies for a little more than two hours.

Li later told police that Michelle was crying when she left her in Kwan’s baby swing at 11 am. Kwan reported that Michelle continued to cry after Li left, but she didn’t think much of it, because the infant was never happy until her mother returned.

A few minutes after 1 pm, Patti Kwan told investigators, she was holding Michelle in her arms, offering her a bottle, when the girl suddenly gasped and stopped breathing. The baby’s eyes seemed to “come together,” Kwan said, and her body went limp. Kwan attempted mouth-to-mouth resuscitation and called 911.

Nothing about the scene made police or rescue workers think of child abuse. “It looked like a respiratory failure,” recalls Santa Clara County fireman and paramedic Gil Smith, who responded to the 911 call. “The infant looked like she could have been asleep, except she was cyanotic [blue]. She was not breathing, and we could find no palpable heartbeat.” With about 45 seconds of CPR and an oxygen bag, Smith’s team was able to restore Michelle’s pulse and keep her alive for the ride to Good Samaritan Hospital in Los Gatos. Smith told investigators that day that Michelle had coughed up a rubber band during her resuscitation—he’d assumed it had caught in her throat and stopped her breathing.

James Kwan dashed home as soon as his wife called him. He was already there at 1:35 when Sheriff’s Deputy Kenneth Nelson arrived. The ambulance had left, so when Michelle’s mother reached the scene a few minutes later, she had no idea there was anything wrong—until she saw her weeping friend and the uniformed officer. Nelson gave Li a ride to the hospital, and the Kwans followed in their own car.

At Good Samaritan, Dr. Margaret Smyklo told officer Nelson the child was in serious shape: “completely non-responsive,” “eyes fixed and dilated.” She called him an hour later to say a CT scan had revealed cranial bleeding. “I suspect child abuse,” Nelson’s report quotes the doctor. “This is a shaken baby.”

The two friends spent the night at Michelle’s bedside, along with Wensheng Tang, Li’s brother-in-law, who stayed with them until the child’s father could get back from China. Doctors and social workers reported that both women seemed to be showing appropriate concern for the patient.

In an emergency operation, doctors cut through Michelle’s skull to drain the blood and relieve the pressure on her brain, but a deadly cycle of tissue damage and brain swelling had already set in. Michelle died two days later when disconnected from life support.

Michelle’s father was reluctant to allow an autopsy. “He is very religious,” his brother explains, “Also his idea of the babysitter… was that she could not do this.” But Tang relented, and Santa Clara County Chief Medical Examiner Dr. Gregory Schmunk performed the autopsy immediately. Michelle’s brain swelling was so severe, Schmunk reported, that the seams of the child’s skull had pulled apart.

Michelle had no broken bones, no neck or spinal cord damage, and only two small, faint bruises, one on her cheek and one on her elbow. But the bleeding and swelling inside her skull and behind her eyes fit the pattern that defines Shaken Baby Syndrome.

Also present at the autopsy was Dr. Patrick Clyne, who runs the foster-care clinic and the child-protection program at the Santa Clara Valley Medical Center (VMC). Clyne, who routinely helps police and social workers with child-abuse cases, quickly dismissed choking as the source of the infant’s problems. “Michelle was the victim of an assaultive head injury,” he wrote to investigators the day of the autopsy, “and the assailant was the last adult with her immediately before the onset of her symptoms.”

Kwan was arrested at her home that evening. She’s been in jail since, charged with second-degree murder. Her bail is set at an impossible $5 million, because the court fears she might flee to China if released. “It’s a near certainty she is going to prison for the rest of her life,” prosecutor Randy Hey told the judge at her bail hearing.

What Is SBS?

The case against Patti Kwan is based on the presence of three medical findings—bleeding under the lining of the brain, bleeding at the backs of the eyes, and brain swelling—combined with two assumptions:

• The cluster can result only from a violent, traumatic event, not from a short fall or some unknown medical condition.
• A fatal shaking must be so violent that the victim can’t appear normal afterwards.

To account for injuries like Michelle’s, explained Medical Examiner Schmunk at Kwan’s preliminary hearing, “We look for a history like ‘The child fell out of a five-story window’ or ‘The child was in a head-on motor-vehicle accident.'” If the caretaker reports a minor fall, or says the child fell unconscious for no reason, the diagnosis is Abusive Head Trauma (AHT).

The term shaken baby is now commonly used to describe almost any infant who suffers AHT. Most of these cases would have been prosecuted as child abuse long before the advent of SBS—the victims have broken ribs, fractured skulls, facial bruises or other evidence of battering.  Clearly, throwing a child against a wall can cause bleeding and swelling inside the brain. The debate is over cases like Michelle Tang’s, where there are no other signs of violence. Is the bleeding and swelling always the result of abuse?

Most experts believe it is. “This is not a difficult or complicated diagnosis, most of the time,” says pediatrician Dr. Randell Alexander, a nationally recognized expert on SBS and a professor at the Morehouse School of Medicine in Atlanta, Georgia. “I expect my residents to make the diagnosis, and they make it, easily.”

A handful of prominent pathologists disagrees, including New York state medical examiner Dr. Michael Baden and Chicago neuropathologist Dr. Jan Leestma, who interned in the 1960s at the University of Colorado with some of the pioneers of child-abuse medicine. These experts argue that shaking a baby causes neck and spinal cord injuries, not the bleeding and swelling now called SBS. The cluster must represent impact, they say, never shaking alone. In the face of blistering peer pressure, these doctors continue to testify that the symptoms can result from a short, accidental fall—or even from one of several rare medical conditions.

That proved to be the case for single mother Inez Martinez of Morgan Hill, accused in 1997 of shaking her six-month-old daughter. Martinez had lost all rights to her child in family court and was fighting criminal charges when public defender Randy Danto learned that a neurosurgeon at VMC had discovered a malformation in the blood vessels of the girl’s brain. “We all assumed that the baby had been shaken, we just didn’t think the mother had done it,” recalls Danto. “I was as surprised as anyone.” The charges were dismissed in June of 1999, after two years of personal nightmare for Martinez and her family.

Leestma says he’s seen dozens of innocent people convicted of shaking infants. “It’s a disaster,” he laments. “We have people on death row. No witnesses, no physical evidence, just expert opinion—ill-informed expert opinion.”

Leestma speculates that the pressures of the courtroom have encouraged child-abuse specialists to take definitive positions on SBS, which then seem to be proven by experience. “People want to do right by the children,” he sighs, “and they miss the circular reasoning.” Leestma, Baden, and a number of specialists who share their views testified for the defense in the Woodward trial.

Timing the Injuries

Another faction of experts accepts shaking as a cause of the symptoms, but questions the doctrine of immediate symptoms.

“The serious symptoms can be immediate, and they often are, but the common knowledge that they must be is not uniformly correct,” says forensic pathologist Gilliland, whose interest in SBS began more than a decade ago. Now at the East Carolina University School of Medicine, Gilliland studied a collection of infant shaking and slamming cases autopsied by herself and 18 other forensic pathologists working in Texas during the 1980s. In a paper published in the Journal of Forensic Sciences in 1998, she reported that serious symptoms emerged more than a day after the injury in 22 of the 76 cases.

Gilliland’s findings are consistent with what’s known about adult head injuries: Doctors for centuries have recognized the “lucid interval,” the period after a blow to the head when the patient might appear perfectly normal, only to collapse hours later when bleeding or swelling inside the skull reaches a critical point.

But child-abuse experts contend that a baby’s immature nerve cells are damaged more easily, and the swelling progresses more rapidly. The leading textbooks agree: Infants simply cannot experience the lucid interval. Medical Examiner Schmunk testified at Patti Kwan’s preliminary hearing that doctors now know “with absolute certainty” that after a fatal shaking “there would be a serious and abrupt change in the baby’s consciousness.”

Timing is critical in the courtroom, because it definitively targets the person who was with the baby when the symptoms emerged. It rules out the possibility that the injury could have occurred hours earlier, or that a minor fall could aggravate a prior, potentially fatal brain injury—the Woodward defense.

The Woodward jury found the 19-year-old nanny guilty of second-degree murder. Citing the question of intent, the judge reduced the charge to manslaughter and released Woodward from prison. Afterward, seventy child-abuse doctors across the country signed an open letter in the journal Pediatrics that dismissed the defense theory as a “courtroom diagnosis” and decried media coverage that treated it as credible. Skeptics responded with their own volley of letters and articles, and the arguments haven’t stopped yet.

Trial Upcoming

Kwan’s defense attorney Sam Polverino says he’s still trying to pull together the “very complex” medical evidence against the babysitter. He declines to discuss the defense theory or name his medical experts. “I believe my client is innocent,” he says. “This is a woman who cooperated completely with the authorities, who spoke with investigators many times without seeking legal advice, because she had nothing to hide.” The case is scheduled to reach the trial calendar at the San Jose courthouse on May 7.

Kwan’s husband has attended every one of her court appearances, probably two dozen since she was arrested. Patti is usually led alone into the courtroom, wearing chains and prison-issue brown, and seated by herself apart from the throng of male prisoners. At the routine filings and pleadings, she waits, attentive but impassive, for her five minutes before the judge, occasionally biting her lower lip or tucking a lock of black hair behind one ear. A lifelong vegetarian still unreconciled to prison food, she grows thinner at each court appearance.

The Kwans are not allowed to speak or even to exchange smiles in court—at the preliminary hearing in December, one surprised friend was escorted out of the building because he flashed her a small wave as she was led past him in shackles.

Friends and relatives attend her hearings, though, to lend their silent support. “No way would Patti do this,” insists Eugene Ko, a native of Taiwan who rented a room in his San Jose home to the Kwans while they were saving up for their first Sunnyvale townhouse. Ko describes Patti as an upbeat, caring woman, always responsible, who enjoyed playing cards even though she lost more often than she won. Together, he recalls, the two of them tried to make sure a neighborhood dog left chained in its yard for days on end had enough food and water.

“I lived under the same roof with her for three years,” Ko  says, “I don’t believe it.”

Cindy Li has stayed away from the courthouse. She doesn’t want to attend the trial, she says, although she has agreed to testify, reluctantly.

Li has accepted that Kwan did indeed kill her daughter. Still, she describes Kwan as “a good-hearted person,” and says she would prefer her former friend not go to prison. “Her own daughter need her,” Li says. “I think God will punish her. I don’t want to punish her any  more.”

Faced with a mandatory sentence of 25 years to life if convicted, Patti Kwan pled nolo contendere to manslaughter in August 2001, on the eve of her murder trial. She received a sentence of six years which she served at a state prison in Chowchilla.

© 2011 Sue Luttner