Category Archives: AHT

Shaken Baby Conference 2016: Defending a Crumbling Theory

FifteenthNCSBSProgramAs registration opened this spring for the Fifteenth International Conference on Shaken Baby Syndrome/Abusive Head Trauma, coming up in September in Montreal, the National Center on Shaken Baby Syndrome (NCSBS) also revamped its web site with a dynamic new design that features bold graphics, clickable factoids, and easy access to resources for both families and professionals. The published conference program shares the new look and embraces the organization’s commitment to fighting criticism of shaken baby theory through public relations.

In a keynote address on opening day, for example, the program promises advice from an executive at the global PR firm Weber Shandwick on “How to Craft a Message,” with this elaboration:

“The media’s reporting of abusive head trauma/shaken baby syndrome (AHT/SBS) over the last several years has focused on wrongful convictions and alleged ‘new science’ that challenges the existence of AHT/SBS. Despite the efforts of many individuals and organizations to re-frame the discussion and educate the media about the realities, the press increasingly covers the subject this way. Ranny Cooper, former Chief of Staff for Senator Ted Kennedy and an expert in strategic communications, will discuss why the media reports the way that they do and what we can all do to ensure that the messages we want get to the public.”

A later keynote will deliver the NCSBS’s preferred message regarding the 2008 exoneration of child care provider Audrey Edmunds, released after 11 years in prison based on an appeal by the Wisconsin Innocence Project arguing that medical thinking about shaken baby has evolved since her 1996 trial. Assistant District Attorney Tom Fallon, from the county that convicted Edmunds, will revisit the case from this perspective:

“Some media, some legal commentators, her lawyers and Ms. Edmunds herself claim exoneration… Is that what really happened? You decide whether this is fact or whether you are being misled.”

Storytelling is a recurring theme in the conference program—another keynote, titled “Power of the Narrative,” features this description:

“In this panel presentation, three child abuse pediatricians will talk about SBS/AHT cases that have resonated with them and the importance of talking about these cases with other professions and with the media to inform everyone about the realities and devastating consequences.”

I welcome the new note of reconciliation offered in this blurb for a plenary session by two mothers with a unique, unthinkable bond:

“Tami Revering lost her patience and reacted by shaking her best friend’s, Angela Pengelly, baby. Now, Tami and Angela work together to share their personal experience of the impact this has had on each of them and how their experience has led them to educate others about how this can happen to anyone, and that forgiveness, while not easy, can help with the healing process.”

oneshake.org

from the babble.com treatment

A treatment of the women’s story on babble.com listed a skull fracture among the baby’s injuries, which raises the question in my mind but not in the article of whether the incident the caretaker reported, shaking the boy and then throwing him on the bed, fully explains the findings. The Guiding Star Project, a holistic mothering web site, ran the care provider’s first-person account of her tale. I’m extrapolating that the NCSBS has hired a PR firm to help place these stories on the web.

The conference program also lists dozens of breakout sessions, including one that promises a case report from Australia of a fatal shaking with an independent witness. I look forward to learning more.

TheSyndromePoster

I am guessing that in the session “The Medium Is the Message: Journalists and Documentary Filmmakers Distort the Child Abuse Story,” law professor Joëlle Moreno will dismiss Debbie Cenziper’s 2015 exposé of shaken baby in The Washington Post as well as the documentary “The Syndrome,” which she scorned based on the trailer at the fourteenth shaken baby conference in 2014 in Denver, a few weeks before the film premiered. In her 2014 keynote, Prof. Moreno also discounted the work of law professor Deborah Tuerkheimer, who Moreno said is “confusing causation with culpability,” and pointed out that the documentary “Scenes of a Crime,” which ultimately led to a new trial and an innocent verdict for convicted father Adrian Thomas, is not about the shaken baby controversy but about the “lengthy interrogation” in that one case. “Part of our job,” Moreno said in 2014, “is to explain to the media that AHT is not newsworthy because it’s controversial. It’s newsworthy because it’s real and it’s deadly.” (For a link to Prof. Moreno’s condemnation of the minority opinion in the Shirley Ree Smith decision, please see “Dissent Into Confusion: The Supreme Court, Denialism, and Shaken Baby.”)

overcomingDefenseCloserThis fall, Maryland assistant state’s attorney Dermot Garrett is scheduled to run a session titled “Overcoming Defense Expert Testimony in Abusive Head Trauma Cases,” also the title of a document by him that’s available on the National District Attorneys Association web site. Garrett’s talk with the same title at the 2014 Denver conference focused on rebutting the jury’s innocent verdict in the 2006 trial of Miles Ferguson, an accused father who enjoyed massive support from his family and church community. Garrett argued that Ferguson’s likability had obscured the medical facts, and he criticized the “handful of defense experts” who testify in these cases for what he said are “financial incentives.”

I’ve attended nine conferences organized by the NCSBS over the past 18 years, and I have never heard a speaker revisit a lost or overturned case with the thought that the child abuse doctors might have been wrong. Instead, I’ve heard reviews of the prosecution’s case, presented with indignation at the loss. This mind-set offers no mechanism for the diagnosing doctors to even acknowledge let alone learn from past mistakes.

wheatAt the upcoming conference, Dr. Christopher Greeley is scheduled to offer his review of the published shaking research in a session titled “Demystifying the Medical Literature: Separating the Wheat From the Chaff.” I’m guessing he will include his criticism of the 2003 paper by Dr. Mark Donohoe, who reviewed the shaken baby literature through the lens of evidence-based medicine and concluded that shaken baby theory has no scientific foundation. In a keynote at the 2012 NCSBS conference, Dr. Greeley condemned the search criteria Dr. Donohoe used to identify the papers he examined, but did not offer a list of the additional papers that would have provided more scientific evidence. For a good example of Dr. Greeley’s approach to the literature, I suggest reading his analysis of Dr. Steven Gabaeff’s 2011 paper questioning the connection between the brain findings and a shaking diagnosis.

I found in the program two breakout sessions that promise to present the defense perspective. In “Cognitive Bias in SBS/AHT Diagnosis,” innocence project attorneys Barry Scheck, Keith Findley, and Katherine Judson will share the dais with Dr. Mark Graber, whose specialties include diagnostic error, and Prof. Stephen Feinberg, PhD, a statistician at Carnegie Mellon University. And the second segment of the two-part session “What Do We Do When the 911 Call Comes In?” could be lively, as it features both child-abuse prosecutor Leigh Bishop, who argued the case against Hang Bin Li in Queens, and independent attorney Heather Kirkwood, who has worked on a number of successful appeals, including those on behalf of Julie Baumer, Ernie Lopez, and Ostwelt Millien.

I also see a handful of sessions on prevention, and one on an effort to create a reliable instrument for diagnosing abusive head trauma based on evidence-based criteria. I do wish these researchers well, as I think we all share the goal of preventing abusive head trauma and improving our ability to identify it accurately.

If you are not familiar with the debate surrounding shaken baby theory, please see the home page of this blog. Sue Luttner does not believe that shaking a baby is safe, only that the brain findings do not prove abuse.

copyright 2016, Sue Luttner

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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.

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“The Syndrome” Makes a Splash

TheSyndromePosterAfter winning 9 awards from 13 nominations at independent film festivals since its premiere in the fall of 2014, “The Syndrome” by Meryl and Susan Goldsmith is now available on demand in North America, the first documentary distributed by trending Freestyle Digital Media.

“This has been an incredible experience,” says Susan Goldsmith, an award-winning investigative reporter who spent years as a print journalist before collaborating on “The Syndrome” with her filmmaker cousin. “How we tell the story is helping people figure out what’s going on. To see this kind of response is deeply gratifying.”

Sgt. Aaron Asheed, investigative reporter Susan Goldsmith, neurosurgeon Ron Uscinski

Sgt. Aaron Rasheed, investigative reporter Susan Goldsmith, neurosurgeon Ron Uscinski

Along with neurosurgeon Ron Uscinski, one of the physicians featured in the film, Goldsmith answered questions at a Maryland library in March following a screening organized by Marine Sgt. Aaron Rasheed, just weeks after Rasheed was cleared of shaking his youngest child. “A lot of people were shocked by the film,” Rasheed reports, “They didn’t know this was going on.”

Weeks before the screening, Rasheed says, he knew the event was a good idea, when he was contacted by another accused family, who had seen his publicity and wanted to know more. “And I could help them,” he beams. “My wife and I had done a lot of research, and we got to pass that along to a family that needed it.” His efforts had included reaching out to the Goldsmiths after he saw the trailer to “The Syndrome” and reading the book Flawed Convictions, by Deborah Tuerkheimer.

aaron.doorRasheed says the accusations started at the hospital, the day he and his wife rushed their baby to the ER with sudden, terrifying seizures. “It was shotgun blast,” he recalls. “CPS put a protective order against us. They were threatening to take all three of our children… We got busy.” They quickly discovered the controversy surrounding shaken baby and realized they had to become their own advocates, while the prosecution started narrowing its focus to Aaron, a combat veteran.

In early March, though, the court accepted a new opinion attributing the boy’s subdural bleeding to a medical condition, and the case was dropped.

Rasheed started organizing the library showing even before he knew he would be cleared. “In Tuerkheimer’s book, it didn’t seem like anyone had a good outcome,” he points out, so he figured he’d better do what he could while he was still free. “And it helped to keep my mind occupied,” he adds, “when I was worried that I would lose my family and maybe go to jail.” Now he’s planning future showings in nearby states.

Free-range parent Lenore Skenazy featured Sgt. Rasheed in the lead to an opinion piece she wrote in the Queens Times Ledger, following a showing of “The Syndrome” in Manhattan in April.

Most of the film’s reviewers have praised both its bold topic and its skillful execution. Flickfilosopher MaryAnn Johanson, for example, nailed it in her subhead:

A smartly dispassionate and skeptical look at “shaken baby syndrome,” and an accidental portrait about how science fails us when it solidifies into dogma

Daphne Howland at The Village Voice said the story is “smartly reported” and wrote:

[The filmmakers] expose the issue with depth and breadth; this well-researched investigation is loaded with credible facts and has a workaday, broadcast-newsmagazine feel.

And Maitland McDonagh wrote in Film Journal International:

[The filmmakers’] thesis is controversial, though not—as they demonstrate at some length—because the hard medical evidence is conspicuously ambiguous. Rather, it conflicts with an emotional narrative rooted in hard-wired human empathy for the weak and helpless.

But the complexity proved too much for critic Frank Scheck at The Hollywood Reporter, who opened his review, “When did it become necessary to have staran advanced medical degree in order to go to the movies?” and likened the film to “those unsettling television commercials for medications featuring an endless list of potentially harmful side effects.”

And the Los Angeles Times treatment objected to both the message and the form. The headline read, “‘The Syndrome’ takes a one-sided view of the controversy about shaken baby syndrome,” and the text charged, “The editing is shoddy and inelegant… providing both too much information and not enough.” My favorite line from the review, copied and pasted:

Though the pro-SDS doctors turned down requests for interview, it at times feels like advertising for the doctors who did participate.

I count two typos, the word “it” as the subject, and a general clunkiness, in one short sentence.

Pediatric Accountability in Central Illinois, PACI

From the PACI website

Back in the community, a screening in late April in Peoria, cosponsored by Pediatric Accountability in Central Illinois (PACI) and the Illinois Justice Project, drew its audience from both sides of the shaken baby debate. I’m told that a number of local child abuse experts and staff members from the district attorney’s office came for the film and stayed for the Q&A with a panel of two attorneys, Zack Bravos and Louis Milot; pediatric radiologist David Ayoub; and wrongly accused parent Michelle Weidner.

“The questions were good,” Bravos reported. “It was a chance to present some good information.”

In the hall outside the screening room, organizers said, polite young women, possibly college students, handed out a fact sheet listing a number of organizations that support the diagnosis of Abusive Head Trauma (AHT) and commenting:

“The validity of AHT in all of its various forms has been established and there is no debate among the majority of practicing physicians.”

Meryl and Susan Goldsmith

Meryl and Susan Goldsmith

At a pair of screenings in Bloomington Hills, Michigan, on the other hand, the crowd seemed to be entirely in support of the filmmakers, according to a friend of mine who attended. Organized by the Torn Family Trust, which came together last year around the case of Joshua and Brenda Burns, the showings featured in-person appearances by Susan and Meryl Goldsmith, the Burnses, and Julie Baumer, exonerated in 2010 after serving five years for the death of her nephew. On Friday morning before the weekend showings, Fox 2 in Detroit broadcast this interview with the Goldsmiths.

The Pediatric Justice Association in North Carolina also garnered press coverage for its April showing of “The Syndrome,” at a performing arts center in downtown Wilmington.

So “The Syndrome” has joined the debate, big time. Film critics and their readers are being exposed to a new angle on child abuse, and community showings are not only bringing affected families together but also bringing the topic into the press.

“The Syndrome” is not, of course, the final word on the subject, nor is it trying to be. “I’m not sure this was a movie about the science as much as it was about the battle,” reflected Dr. Doug Smith, a retired professor of pathology who writes occasionally about shaken baby syndrome on the Washtenaw Watchdogs blog, “but that was a choice the filmmakers made, and I respect that.”

Although I had hoped for a closer look at the science, I found the film riveting, and I’ve been gratified that so many mainstream reviewers shared that reaction. I’m not surprised, though, that some critics rejected the message or the treatment—the topic is unsettling, and “The Syndrome” is not for anyone looking for escapist entertainment.

One friend of mine, who has spent years working for justice in this arena, offered a perspective I can endorse:

I’m behind the film. “The Syndrome” is not perfect, but it’s much better than I would ever have thought we would have.  I wish it would get broader exposure.

For more press reports on “The Syndrome,” you can see:

The sympathetic Los Angeles Weekly review at http://www.laweekly.com/film/the-syndrome-exposes-the-shaken-baby-syndrome-myth-6789457

The Pacific Standard treatment, which explores the topic further, at https://psmag.com/a-new-film-challenges-shaken-baby-syndrome-and-courts-controversy-a768d2415398#.w4rydprh8

An interview on IndieWire with Meryl Goldsmith at http://blogs.indiewire.com/womenandhollywood/meryl-goldsmith-on-fighting-a-medical-standard-in-the-syndrome-20160414

A skeptical look at the film by columnist Carrie Poppy for the Skeptical Inquirer at http://www.csicop.org/specialarticles/show/does_a_new_documentary_prove_shaken_baby_syndrome_doesnrsquot_exist

The CultureFly review at http://culturefly.co.uk/the-syndrome-review/

A short, positive review on CINEMACY at http://cinemacy.com/newport-beach-film-festival-the-syndrome/

An interview with Meryl Goldsmith on Westword at http://www.westword.com/arts/the-syndrome-explores-the-shaken-baby-myth-at-sie-filmcenter-monday-6756370

And more. Slowly, slowly, the word gets out.

copyright 2016, 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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GMC Sanction Triggers Public Debate

SquierProfileNoCaption

Dr. Waney Squier

Last week’s decision by the General Medical Council (GMC) to remove pediatric neuropathologist Waney Squier from the medical register has triggered ongoing media coverage in the UK, including a number of voices speaking in her defense.

The GMC’s sanction followed a declaration earlier in the month by a tribunal that Dr. Squier was guilty of unprofessional conduct. Now she will no longer be allowed to practice or to testify as an expert witness.

Days after the tribunal announced its findings, human rights attorney Clive Stafford Smith published an opinion piece in The Guardian that likened the move to the papal inquisition of Galileo in 1615, a thought echoed a week later in the same forum, in a  letter to the editor signed by 25 medical and legal professionals in response to the GMC’s decision to strike her from the register.

Then The Guardian published a defense of the GMC process by Chief Executive Niall Dickson, who said critics had missed the point:

[T]he GMC is not and has no intention of being the arbiter of scientific opinion – the allegations we brought against Dr Squier did not rest on the validity of her scientific theory but upon her competence and conduct in presenting her evidence to the courts.

That same page contains more letters on both sides, including one by Susan Goldsmith, writer and co-producer of the film about shaking theory, The Syndrome. In another letter today, Clive Stafford Smith says that the charges were, in fact, about her opinion, not her behavior, and argues:

If we are right, then the people who mislead the court (albeit perhaps unintentionally) are those who purvey an unproven theory as fact.

Protecting Innocent Families (PIF), a non-profit that speaks on  behalf of wrongfully accused families, submitted a letter to the GMC in support of Dr. Squier, including an angle that I had not taken the time to address in my post about the decision earlier in the month:

The declaration also scolds Dr. Squier unfairly for her citations of the medical research. In one example, she cited the early biomechanical research of Dr. Anne-Christine Duhaime and colleagues (“The shaken baby syndrome: A clinical, pathological, and biomechanical study,” Journal of Neurosurgery 1987 66:409–415) to support her observation that shaking without impact has not been shown to generate sufficient forces to cause brain injury. The panel wrote that Dr. Squier had “completely misinterpreted what Duhaime had actually said,” a conclusion that baffles us. The Duhaime paper was a landmark in the field, because it was the first attempt to test shaking theory scientifically, and the results surprised even the authors, who wrote:

“It was concluded that severe head injuries commonly diagnosed as shaking injuries require impact to occur and that shaking alone in an otherwise normal baby is unlikely to cause the shaken baby syndrome.”

WindowLogoPIF also released their letter to the press, which led to some confusion, as one resulting story opened with the miscue that the PIF petition is in support of Dr. Squier: “Campaign group defends ‘dishonest’ doctor struck off medical register for ‘shaken baby’ evidence.” Christina England at Health Impact News also quoted generously, and more accurately, from the PIF materials in her treatment, “Shaken baby syndrome expert and world renowned pathologist banned from practicing medicine.” PIF has published the full text of its letter on its web site.

Both the BBC treatment of the decision against Dr. Squier and the coverage in New Scientist presented both sides of the debate, although some articles reported the GMC’s position without mentioning her supporters.

March 29 update: Columnist James Le Fanu at The Telegraph has posted an insightful item criticizing the GMC.

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

copyright 2016 Sue Luttner

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Guilty of Intellectual Honesty

Pediatric Neuropathologist Dr. Waney Squier At the Evidence-Based Medicine Symposium in Denver in 2009In a 96-page decision packed with irony, the Medical Practitioners Tribunal Service (MPTS) in Britain has declared pediatric neuropathologist Waney Squier guilty of practicing outside her area of expertise, ignoring the opinions of her peers, and tarnishing the reputation of the medical profession with her testimony and written opinions in a series of shaken baby cases between 2007 and 2010.

“The tribunal is in no doubt you have been a person of good character and have not acted dishonestly in the past,” the statement offers, but it characterizes her opinions about shaken baby syndrome as “dogmatic, inflexible and unreceptive to any other view” and declares her work in the arena “misleading,” “irresponsible,” and even “dishonest.”

MackSquierHead2009For about the past 15 years, Dr. Squier, a consulting neuropathologist at the Oxford Radcliffe Hospitals, has been challenging the community of child abuse experts to reconsider the unproven model of shaken baby syndrome that’s been winning in court for decades. She has not only testified to her theories but also conducted research and published in the medical journals.

The charges against her were levied by the General Medical Council (GMC) at the instigation of prosecutors concerned that her testimony was impeding convictions in shaking cases, according to Dr. Michael Powers, QC, as quoted in the coverage by Robert Booth at The Guardian. The GMC will determine her penalty later in the month, possibly loss of her status as a practicing physician.

Dr. John Plunkett

Dr. John Plunkett

Dr. John Plunkett, a pathologist who has fought off charges of perjury for his testimony regarding shaken baby theory, pointed out that Dr. Squier is receiving a Champion of Justice award next month at the annual Innocence Network conference in San Antonio, Texas. “How is it that the Innocence Network can give this award to Dr. Squier if the GMC has correctly characterized her behavior as dishonest and worthy of sanction?” he asked.

Dr. Bergina Brickhouse, a psychiatrist whose husband was cleared of shaking accusations based partly on a report from Dr. Squier, wrote in an email, “If not for the strength, fortitude, and technical expertise that Dr. Squier has shown, my family would most assuredly have been ripped apart by well-meaning but ignorant medical staff.”

Developmental Medicine & Child Neurology, 2008

Developmental Medicine & Child Neurology, 2008

I would have expected adjudication of the charges to be conducted by a panel of physicians, but the MPTS set up a team of one retired psychiatrist and two lay persons—a retired Royal Air Force wing commander and a retired police officer—to evaluate the evidence against Dr. Squier. The members seem not to have read the medical literature but based their conclusions primarily on oral testimony given over several months of hearings that started in the fall. The panel’s report describes all of the prosecution’s expert witnesses as “credible” but articulates various objections to the experts called by the defense.

Forensic pathology professor Bo Erik Ingemar Thiblin of Uppsala University, for example, had explained how circular reasoning in the early shaken baby papers allowed the theory to become established without scientific proof, the same argument that convinced the Swedish Supreme Court to revisit the legal status of shaken baby theory last year. Dr. Thiblin is an expert in epidemiology, the study of patterns, causes, and effects in health conditions, a complex field that emphasizes assessment and analysis of the known facts. In a triumph for circularity, the tribunal rejected his testimony with this explanation:

“It was clear that Professor Thiblin did not believe in the concept of shaken baby syndrome, and his view of the literature was coloured by that. He was critical of the methodology of all the research literature in relation to the subject because of its perceived circularity bias. The tribunal considered that his expert opinion on non-accidental head injury lacked credibility; therefore the tribunal attached limited weight to his evidence.”

In an insightful editorial in The Guardian today, human rights attorney Clive Stafford Smith compared the tribunal to the trial of Galileo by the church for his theory that the earth orbits around the sun and not the other way around:

“I am convinced that Squier is correct, but one does not have to agree with me to see the ugly side to the GMC prosecution: the moment that we are denied the right to question a scientific theory that is held by the majority, we are not far away from Galileo’s predicament in 1615, as he appeared before the papal inquisition… It was not until 1982 that Pope John Paul II issued a formal admission that the church had got it wrong.”

Dr. Waney Squier

One of the inexplicable elements of the decision was the tribunal’s finding that Dr. Squier had erred by testifying to biomechanical issues without any expertise in biomechanics—although the prosecution experts who testified in the hearings were, like Dr. Squier, physicians with no apparent specialized training in biomechanics (Dr. Richard Bonshek, ophthalmic pathologist; Prof. Rupert A. Risdon, pediatric forensic pathologist; Dr. Neil Stoodley, neuroradiologist; and Prof. Colin Smith, neuropathologist).

Similarly, the declaration scolds her for citing the 1987 paper by Duhaime et al. to support her observation that shaking without impact has not been shown to create forces sufficient to cause the brain injury. The tribunal said she had “completely misinterpreted what Duhaime had actually said,” even though the paper’s introduction says:

“It was concluded that severe head injuries commonly diagnosed as shaking injuries require impact to occur and that shaking alone in an otherwise normal baby is unlikely to cause the shaken baby syndrome.”

In a moving one-minute interview on the BBC, Dr. Squier said she is “devastated” by the finding, which she said has “enormous implications” not just for doctors but for any experts willing to testify in court. “You can give an honestly held, well-supported opinion and find yourself out of job,” she observed.

The charges against Dr. Squier are consistent with a strategy advocated by Detective Inspector Colin Welsh of New Scotland Yard in 2010 at the 11th International Conference on Shaken Baby Syndrome for improving the conviction rate in these cases by neutralizing experts willing to testify for the defense (see “Back Door Tactics Show Through“).

Proponents of shaking theory also ridicule their critics at conferences and scorn them in print, and in 2014 they attempted to block the premiere showing of the documentary The Syndrome, which they dismissed as “a national platform for the tiny handful of well-known child abuse defense witnesses to publicize their fringe message.”

An editorial this winter in the journal Pediatric Radiology, “Child Abuse: We Have Problems” by Dr. Peter J. Strouse, declares that “child abuse denialists” now pose “a growing threat to the health care of children and the well-being of children and families,” and calls on institutional rejection of doctors who defy the common knowledge about child abuse:

The court system seems ill-equipped to properly censure the denialists in spite of their deceitful and unethical behavior. Ideally, the legal system would practice peer-review by unbiased observers, but this does not occur. Institutions that harbor denialists, whether they be private practices or esteemed academic institutions, should carefully consider their employment.

Even in this environment, Dr. Squier has been willing to say in print and in court what her own research and experience were telling her about shaken baby theory.  I am in awe of both of her intellectual honesty and her courage, and I am horrified at Friday’s decision. The only silver lining I can think of is that maybe, this time, they have gone too far. The ironically named “determination of facts” released on Friday will not hold up to the scrutiny that Dr. Squier’s own work has already survived (see, for example, “When Pie in the Sky Turns Out to Be Dawning Knowledge”).

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

Copyright 2016, Sue Luttner

 

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Appeals Court Recognizes Change in Medical Thinking

- from The Columbian

– from The Columbian coverage

A Washington state appeals court has granted a new trial to Heidi Fero, a mother and babysitter who was out of prison but still under court supervision on a child assault conviction when her appeal was heard. The decision, written for the 3-judge panel by Judge Linda CJ Lee, recognizes a change in medical thinking about both the timing of infant head injuries and the reliability of an abuse diagnosis in these cases. Specifically, the decision endorses this defense argument:

[N]ew material facts exist in the form of the now generally accepted medical paradigm that recognizes children can remain lucid for up to three days after suffering similar head injuries and those injuries are now known to be caused by much less extreme circumstances.

On a January evening in 2002, Fero was caring for pair of siblings, a 15-month-old girl and a 4-1/2-year-old boy, as well as her own two young children. At about 7:45 pm, she called the children’s father to report that the boy had been seen “pushing [his sister’s] head into the wall.” She says she comforted the little girl and, when she seemed to fall asleep, put her on a futon.

At 9:54 p.m., Fero called 911, after she noticed that the girl’s eyes were half-open and she could not be awakened. When the ambulance arrived at 9:59, the child was completely unconscious.

From the Free Heidi support page

A family photo from the Free Heidi support page

At the hospital, doctors found subdural hematoma, cerebral edema, and retinal hemorrhages. According to the case summary, six prosecution doctors testified at trial that the findings could result only from a major trauma like a car accident, a long fall, or abuse by an adult, and that the child would have become unconscious almost immediately after the assault. Several of the experts seem to have specified that the girl had been violently shaken.

Fero was initially sentenced to 15 years, 5 years above the statutory limit because of the “special circumstances” of the infant victim’s extreme vulnerability and Fero’s failure in her “duty to protect” a child in her care. A 2005 decision reduced her sentence to 10 years, with the objection that the judge had not submitted the special circumstances to the jury for adjudication before applying them.

The 2014 petition that reversed Fero’s conviction included affidavits from two physicians, pediatric neuroradiologist Patrick Barnes, who testified for the prosecution in the highly publicized 1997 trial of “Boston nanny” Louise Woodward, and forensic pathologist Janice Ophoven, who has testified that shaken baby syndrome is “controversial” and “an ongoing debate in the medical field.”

The Fero decision offers this quote from Dr. Barnes, “Over the past decade, many doctors—including myself—have changed their testimony and beliefs to bring them into accord with the scientific evidence and standards of evidence-based medicine.” And on the subject of timing:

Given the new medical research on lucid intervals, the testimony of the State’s experts to the effect that [the girl] would have immediately gone unconscious is unsupported by the medical literature. It is impossible to tell from the radiology or otherwise in the medical record when [the girl] was injured, and there is a significant chance that she was injured before she arrived at Ms. Fero’ s home.

In her statement, Dr. Ophoven cited the 2001 position papers by the American Academy of Pediatrics (AAP) and the National Association of Medical Examiners (NAME) to support her contention that the testimony at Fero’s trial in 2003 reflected the thinking of the medical community at the time. The AAP position paper has been superseded, however, by a 2009 statement that recommended clinicians avoid the term “shaken baby syndrome,” in favor of the more general “abusive head trauma,” and contained no specifics about diagnosing the condition or timing the injuries. The NAME paper expired without renewal and has not yet been replaced.

The decision quotes Ophoven’s summary:

[I]t is my opinion that much of the medical testimony presented during Ms. Fero’ s 2003 trial is no longer scientifically valid in light of recent advances in the medical community’ s understanding of the natural, accidental and non-accidental causes of cerebral edema, subdural hematoma and retinal hemorrhages.

Ophoven also concluded that the child had probably suffered her head injury about 12 hours before the first CT scan, that is, before she had been dropped off at Fero’s house.

In his statement opposing Fero’s petition, prosecuting attorney Anthony Golik did not address the question of whether medical opinion has indeed changed, focusing instead on the timing of the petition and the argument that new opinions by new experts should not constitute “newly discovered evidence” for the purposes of re-opening a case:

Every murder, serious assault, rape, etc, would be subject to vacation and retrial whenever a defendant found an expert to write an affidavit indicating there were new scientific theories which would explain the evidence in such a way as to possibly exonerate the defendant. This simply cannot be the standard this Court applies in Fero’s situation. A new medical opinion or a new medical theory is not a “material fact.”

Although the filing came more than a decade after her conviction, the judges concluded that Fero had exercised “reasonable diligence” regarding timeliness, considering that she was in prison when the medical debate was building and needed time after her release to find an attorney who could research the debate. The decision cited four other cases in the past few years where the convictions of child care providers were vacated—Audrey Edmunds in 2008, Kathy Henderson in 2012, Jennifer Del Prete in 2014, and Rene Bailey in 2014—based on the argument that a change in medical thinking over the past few years constituted “newly discovered evidence.”

This approach has been effective in righting past wrongs, but ironically, it will be less persuasive against recent convictions (like those of Cammie KellyMichelle Heale, and Joshua Burns, for example), since the debate has now been raging for a decade or more.

With the decision, the court released Fero from court supervision while she awaits the state’s response.

Like so many women in her position, Fero has received the support of her family and community through the years, and the decision in her favor noted:

Fero also submits several exhibits attesting to her positive influence on others while in prison. These are irrelevant to her petition to this court because they are not material to the conviction.

Press coverage quoted her attorney, J. Christopher Baird of Perkins Coie LLP in Seattle, who said, “Our client is a truly wonderful person, and it feels great to get the result we feel she deserves.”

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

copyright 2016, Sue Luttner

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A Tough Decision for the Jury, a Tragedy for the Defendant

CammiePlus

– photo by Patrick Yeagle, Illinois Times

After hours of deliberation, an Illinois jury convicted child care provider Cammie Kelly of manslaughter earlier this month but found her innocent of murder, in what reporter Patrick Yeagle of the Illinois Times called “an endorsement of shaken baby syndrome and a blow to the movement set on disproving the theory.”

Although disappointed at another conviction, I was pleased to see news coverage that recognizes a debate over shaken baby theory, and I was intrigued by an interview Yeagle gave last week with Rachel Otwell of NPR Illinois. Yeagle, who also wrote about the 2011 appeal on behalf of Pam Jacobazzi and the 2012 acquittal of Springfield father Richard Britts, summarized his observations for NPR:

“In every case I’ve ever covered, there have been three constants. One is that the child had previous medical issues. Two is that the child developed the triad of symptoms—the brain bleeding, brain swelling and bleeding of the retinas. And then three is that the last person to have been alone with the child is charged.”

Wondering if Yeagle had started questioning shaken baby theory, I contacted him. While not taking a position in the debate, he explained that he sees “no consensus” about shaken baby in the medical community, where most doctors seem to accept the common knowledge but others seem to be raising “some serious, unanswered questions” about the diagnosis. “Unfortunately,” he said, “the debate is being conducted in the courtroom, where people’s liberty and lives are at stake.”

This recent case offers a typical assortment of ambiguous elements that to my mind should have raised some doubt. Kelly, now 68 years old, had been running a licensed day care from her home since the mid-1990s without incident. As Yeagle’s early trial coverage explains, she sought help on a January evening in 2011, when an 11-month-old boy fell unconscious in her care just as she was getting him ready to be picked up. Coverage of the second day describes a video shown to the jury, part of Kelly’s interrogation two days after the incident, after Dr. Channing Petrak had diagnosed Kaiden Gullidge as a victim of abuse. Kelly had no lawyer present and had not been warned of her rights. From Yeagle’s narration of the video:

Before long, the detectives’ questions become confrontational…

The detectives work every angle repeatedly for an hour and 20 minutes, but Kelly continues adamantly denying that she or anyone else harmed the child.

“I didn’t willingly do it, I didn’t intentionally do it, and in my heart, I can’t see doing it,” she says.

One of the detectives tells Kelly, “He’s going to die,” in reference to Kaiden. Kelly lays her head on the table and sobs uncontrollably. Even after the detectives leave the room, she continues crying as she says, “I can’t hurt a child. I can’t do it. I can’t do it. I can’t do it. I’d rather die than hurt a child.”

Sensing that Kelly isn’t going to admit to anything beyond shaking Kaiden to revive him, the officers return and one officer announces that they’re “at an impasse.” As Kelly gets up to leave for a doctor’s appointment, she begins to sob again, and the video ends.

According to the third day’s coverage, the little boy had been born six weeks early, and his head circumference had been increasing for some months before his collapse under Kelly’s care. At birth, his head circumference was below the median, but it was measured at the 80th percentile when he was 9 months old, and the morning before the incident, a nutritionist had measured it at the 98th percentile. Prosecution doctors, however, said his past medical history was unrelated to his collapse, which they attributed to abuse.

On the fourth day of trial, Yeagle’s coverage reports, the jury saw autopsy photos. Although the boy had arrived at the emergency room with no visible bruises or other external signs of assault, he had developed some bruising of unknown origin by the time of his death. From Yeagle’s coverage:

[Prosecutor Jeff] Cox showed the court a series of graphic photos from Kaiden Gullidge’s autopsy, depicting his scalp sliced apart and peeled back to expose interior bruising, his skull cut open to reveal blood pooling around his brain, and his eyes cut in half to show bleeding of the retinas. [Oregon medical examiner Dr. Daniel] Davis explained the significance of each photo to the jury and said they show evidence of blunt force trauma. He said his review of the autopsy photos, Kaiden’s other medical records, the police records and the video of police questioning Cammie Kelly led him to believe Kelly harmed the child by shaking him violently.

Later that same day, the pathologist who performed the autopsy, Dr. Scott Denton, testified that shaking could not have caused the findings, and that the child must have suffered an impact to the head. Again, the jury was subjected to autopsy photos that I think can’t have been as useful as they were inflammatory:

Under questioning by Sangamon County State’s Attorney John Milhiser, Denton walked the jury through his autopsy process and specific aspects of Kaiden’s autopsy. Milhiser showed the jury several graphic photos depicting Kaiden’s body during the autopsy, including more photos of the child’s scalp peeled back, his exposed brain both in and out of his skull, the “dura” layer covering his brain, his dissected eyes, a large clot removed from his brain cavity, and the child’s corpse with sutures from the organ harvesting process. Denton narrated the photos, pointing out evidence that he said pointed to blunt force trauma to the head as the cause of death.

On the fifth day of trial, Yeagle’s coverage reports, a series of defense experts disputed the shaking diagnosis, testifying not only that the child had died from a blood clot, not from abuse, but that his brain showed evidence of previous clots, beginning long before he was in Kelly’s care. They attributed the bruising found at autopsy to medical interventions at the hospital.

After hearing testimony from 23 people over 6 days, including 9 doctors for the prosecution and 3 for the defense, the jury rejected the murder charge but found Kelly guilty of involuntary manslaughter. The jury apparently struggled with their verdict, first sending out a note asking for a definition of “reasonable doubt,” which the judge was prohibited by Illinois law from providing, and a few hours later declaring that they could not reach a verdict. The judge instructed them to continue deliberating.

In his summary article after the verdict, Yeagle described Dr. Petrak as a “polarizing figure”:

Dr. Channing Petrak, medical director of the Pediatric Resource Center in Peoria, examined Kaiden on Jan. 19. She didn’t notice bruises on Kaiden until the autopsy after his death on Jan. 20, but her testimony at Kelly’s trial originally implied that she based her suspicion of abuse on bruises from her Jan. 19 examination. John Rogers, Kelly’s defense attorney, grilled Petrak about the inconsistency, using it to imply that she sees every case as abuse regardless of the evidence.

Petrak is a polarizing figure in the controversy over shaken baby syndrome. Her organization, which is part of the University of Illinois College of Medicine, examines children in cases where abuse is suspected. She’s seen by prosecutors as an impartial evaluator, but defense attorneys see Petrak as part of an industry that profits from indiscriminately labeling cases as abuse.

The article also relates that Kelly retained her composure when the verdict was announced, offering comfort to relatives who began to cry.

The judge revoked Kelly’s bail after the verdict, and so she was led away into custody by sheriff’s deputies. “She was not put in  handcuffs, however,” Yeagle wrote, “likely because she walks hunched over with a cane due to arthritis.”

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

copyright 2015, Sue Luttner

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