Category Archives: AHT

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

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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Innocent Family Petition Hits a Nerve

Geers twins

Geers twins

When child protective services separated Melissa and Anthony Geers from their five sons last spring, Melissa says, the pain was staggering. The worst part was watching the effects on their children: the 9-year-old’s full-blown panic attack, the 8-year-old’s holding his mom “so tight I couldn’t breathe,” the sudden interruption of breast-feeding for the 4-month-old twins (Melissa pumped throughout their foster placement).

The state filed to terminate the Geers’ parental rights just weeks after x-rays revealed rib fractures in both twins—but withdrew the suit 10 weeks later, after the Geers submitted opinions from eight outside experts who attributed the fractures to fragile bones, citing two underlying causes: First, the boys had a metabolic disorder that impedes bone formation. Second, like most twins, the youngest Geers had arrived early, 7 weeks early in their case. Because the rate of bone mineralization ramps up during the final trimester of gestation, premature infants in general are prone to weak bones.

photo by Doug Smith, Washtenaw Watchdogs

Anthony & Melissa Geers. Photo by Doug Smith, Washtenaw Watchdogs

But those explanations entered the record only because the Geers did their own research and called in their own experts. The state tore her sons’ lives apart, Melissa says, based on the opinion of one child abuse doctor “who never met me, my husband, or our kids.”

“We have two sons, now 10 and 8, who were traumatized by this experience,” she points out. “They don’t do the things they used to do. They are afraid. The child abuse experts need to understand what they are doing to children.”

Since their story hit the news, Melissa says, they have been contacted by an astonishing number of families with their own stories of ill-considered abuse diagnoses—most of them with far less happy outcomes. “How are the child abuse doctors not aware of all these other things?” Melissa asks. “That’s the part that bothers me the most. Why are they not doing their due diligence?”

GeersQuoteThe Geers say they understand how valuable it was to have a supportive community during their ordeal, as documented by Click on Detroit and later by Melissa herself in an essay on Medical Kidnap. Melissa says she and her husband now feel compelled to do what they can to shed light on a broken system. Earlier this fall, the Geers joined demonstrators at the University of Wisconsin Board of Regents meeting, where supporters of Joshua and Brenda Burns protested the Burns family’s treatment by the university’s Mott Children’s Hospital. As reported on this blog in the spring, the Burnses’ daughter Naomi was diagnosed as a shaken baby at Mott in 2014. While Naomi seems to have recovered fully, Joshua is serving a one-year sentence in the county jail. As he approaches his December release date, Joshua had been granted weekly visits with his family, through a glass window and a telephone handset, after a year and a half of no contact at all with Naomi—but those visits were cancelled after the first one. (For an insider’s view of the regents meeting, including video statements by Melissa Geers and Brenda Burns, please see the Washtenaw Watchdogs coverage.)

Accused father Andrew Sprint

Accused father Andrew Sprint

The Burns family and the Geers family found each other, and they also found the Protecting Innocent Families (PIF) petition, which calls for an objective, scientific review of the evidence base underlying today’s guidelines for diagnosing child abuse. The petition form includes an optional field where signers can identify the name of a defendant or family they are supporting. Of about 2,700 people who have signed the petition so far, slightly more than 1,000 have filled in the support field. The signers have named 338 individuals and families. The most frequently named case, with 270 signatures, is the Burns family, the subject of the Torn Family web site, which includes a link to the petition. The Geers family is the second most-often named, with 96 signers, presumably from their Facebook site.

Other defendants named in significant numbers were a mix of past cases that helped inspire the petition—like the stories of Kristian Aspelin, Brian Peixoto, Tiffany Cole-Calise, Amanda Brumfield, and Leo Ackley—and unfolding cases like those of Rebecca and Anthony Wanosik and Cynthia and Brandon Ross, reunited with their children this summer; Cindy Rosenwinkel, convicted in 2015; and single father Andrew Sprint, who declared his innocence outside the Children’s Justice Conference this past spring in Seattle.

GeersQiuoteWhen PIF launched the petition in March of 2015, the immediate goal was to collect the names of 1,000 people who had seen a medical misdiagnosis of child abuse tear apart an innocent family. Three weeks after the petition went live, 1,000 people had signed and signatures were still coming in. The rate has slowed since then, but new names continue to arrive, and PIF has decided to launch another publicity campaign before implementing its labor-intensive plan for taking the petition to Congress. Signers who indicated they would be willing to contact Congress personally should expect to be hearing from PIF volunteers.

In addition to calling for a review of the scientific literature, the petition objects to the suppressive tactics used by the state and by professional organizations. Both families and professionals feel extraordinary pressure, the petition argues:

Even when charges are dismissed, caretakers acquitted, or verdicts overturned, families are emotionally and financially devastated, with many unwilling to speak out because they are still traumatized or they fear stigma or retaliation. Doctors and other experts who question or criticize these diagnoses also suffer retaliation, including threats against their jobs and licenses.

Dr. Waney Squier

Right now in England, for example, neuropathologist Dr. Waney Squier is facing hearings by the General Medical Council, where she is accused of testifying “outside her field of expertise,” giving biased opinions, and not paying “due regard to the views of other experts.” Last fall, The Telegraph reported that the original complaints against Dr. Squier came from the Metropolitan Police, who were tired of losing shaken baby cases because of her testimony on behalf of accused parents.

Dr. Squier has long been the target of direct and indirect harassment from her opponents. As reported in 2012 on this blog, a fictional character with a curriculum vitae remarkably like Dr. Squier’s confessed on the BBC program Silent Witness to having conducted her research using illegally harvested infant brain tissue. In fact, the real Dr. Squier had been readily cleared when the same accusations were levied against her—and some observers suspect those accusations were merely a ploy to keep her out of the courtroom during the resulting investigation.

Dr. John Plunkett

Dr. John Plunkett

In the U.S. in the early 2000s, forensic pathologist Dr. John Plunkett was forced to defend himself against charges that he lied under oath after he testified on behalf of an Oregon defendant in a child head injury case. In “The Battle of the Expert,” ABA Journal reporter Mark Hansen traced the byzantine course of the case against Dr. Plunkett, which ended with an acquittal in 2005.

 

Drs. Squier and Plunkett have also brought their criticisms of shaking theory into the medical journals. When Dr. Squier and her colleagues proposed an alternative to torn bridging veins as the source for thin-film subdural hematomas in 2009, their ideas were dismissed, but their model is now finding acceptance by doctors on both sides of the debate. Still, instead of considering the reasoned objections of their critics, some proponents of shaken baby theory demonize defense experts at conferences and in the press. After charges were dropped against Irish nanny Aisling Brady McCarthy earlier this fall, for example, Kevin Cullen at The Boston Globe quotes Dr. Eli Newberger calling shaken baby critics “defense whores”:

Newberger is dismissive of the revisionist views that defense attorneys are increasingly tapping.

“On the clinical testifying roster are a whole lot of people who will cut their consciences for money,” Newberger said. “They’re hired out as defense whores. I just find this vile.”

The Protecting Innocent Families petition is an effort to bring together the many people who are affected by misguided diagnoses of child abuse, including the accused families, their extended communities, and the medical and legal professionals who defend them.

If you agree that we need an objective, scientific review of the evidence base for today’s guidelines for diagnosing child abuse, please sign the petition, at http://tinyurl.com/InnocentFamilyPetition. If you have a web site or Facebook page, please post the  url. If you are a medical or legal professional, please consider sharing the url with your colleagues and clients (that’s http://tinyurl.com/InnocentFamilyPetition).

A number of individuals and families not mentioned above have also received quite a few votes of support, including Angela and Danny Frasure, Cor and James Thompson, Andrew Valdez, Megan Griffin, Marsha Mills, Rachel and Gourab Sahoo, Kacie and Raymond Hernandez, and a handful of people who would rather not be named publicly.

copyright 2015, Sue Luttner

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

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Retro Report Nails the Nanny Story

Louise Woodward, 1997

Louise Woodward, 1997

Retro Report producer Miriam Weintraub, in her recent documentary looking back at the story of “Boston nanny” Louise Woodward, has identified the key fact about news coverage of the case in the 1990s: In its fixation on working parents and teenage nannies, the press missed the real story, the actual medical debate about shaken baby theory.

“But today the shaken baby diagnosis is under increasing scrutiny,” the narrator informs us, cutting to a quote from Dr. Patrick Barnes:

“There is no doubt that errors have been made and injustices have resulted.”

Dr. Barnes, a pediatric neuroradiologist, testified for the prosecution at the Woodward trial but later began doubting what he’d learned from his mentors and peers about infant head injury, as he explains on camera:

“Particularly when I started going to the literature outside of the box I was in, in the child abuse literature box, and looking at the science of traumatic head injury written by true specialists and experts in those fields. Then I began to be concerned that for the prior 15-20 years I may be wrong.”

Prosecutor Martha Coakley, however, stands by the conviction and the diagnosis:

We knew that the injuries this child had suffered, given that he was fine that morning and by the time he was in the emergency room he was on death’s door, those had been inflicted injuries. They were severe, they were acute and they were not accidental.

And Dr. Robert Block, past president of the American Academy of Pediatrics (AAP), says there has been no change in thinking among child abuse experts:

There are a few people who have generated opposing points of view for whatever reason. But, if you talk to child abuse pediatricians who work with these clinical cases all the time you will find that opinion about the presence of shaken baby syndrome or abusive head trauma has not shifted one iota.

At the time of the Woodward trial, the official name of the diagnosis was still Shaken Baby Syndrome (SBS), as described in both the 1993 AAP position statement and the 2001 AAP technical report. By the time Dr. Block was interviewed by Retro Report in 2015, the AAP had issued its 2009 update, changing the name to Abusive Head Trauma (AHT) with this explanation:

“The term ‘shaken baby syndrome’ has become synonymous in public discourse with AHT in all its forms.17 The term is sometimes used inaccurately to describe infants with impact injury alone or with multiple mechanisms of head and brain injury and focuses on a specific mechanism of injury rather than the abusive event that was perpetrated against a helpless victim. Legal challenges to the term ‘shaken baby syndrome’ can distract from the more important questions of accountability of the perpetrator and/or the safety of the victim.”

I recommend following the link from this quote to the abstract for footnote 17, Lazoritz and Baldwin (1997), “The whiplash shaken infant syndrome: Has Caffey’s syndrome changed, or have we changed his syndrome?,” which documents how far the diagnosis had strayed in 1997 from Caffey’s first definitions. Following some of the further links on that page, to the abstracts for Bandak 2005 (“Shaken baby syndrome, a biomechanics analysis of injury mechanisms”), for example, and Talbert 2009  (“The nature of shaken baby syndrome injuries and the significance of the ‘lucid interval’), illustrates some of the unresolved questions about the condition.

The Retro Report narration identifies the traditional triad as the defining features of shaken baby syndrome at the time of the Woodward trial:

“For decades, when doctors saw a child with a particular set of symptoms known as the triad—bleeding behind the eyes, bleeding on the brain, and brain swelling—they would conclude there was only one possible cause: shaking.”

But Dr. Block says doctors do not rely on the triad:

“Nobody looks at a baby with those three things and says, ah ha, shaken baby syndrome… We go through a very intensive history taking, which involves looking at the last 24 to 48 hours of this baby’s life. And then we do what’s called a differential diagnosis after doing a bunch of laboratory tests. Our job is to make sure that we’ve looked at every other possibility.”

As this blog has reported before, however, in 1998 several dozen child abuse experts signed a letter about the Woodward case that took this position:

The shaken baby syndrome (with or without evidence of impact) is now a well-characterized clinical and pathological entity with diagnostic features in severe cases virtually unique to this type of injury—swelling of the brain (cerebral edema) secondary to severe brain injury, bleeding within the head (subdural  hemorrhage), and bleeding in the interior linings of the eyes (retinal hemorrhages). Let those who would challenge the specificity of these diagnostic features first do so in the peer-reviewed literature, before speculating on other causes in court.

Dr. Block’s parting quote explains his priority in the shaken baby debate:

I think it’s reasonable to worry and be as careful as we can to make sure that people who are convicted are appropriately convicted. But to talk about their conviction negates the fact that we really need to be talking about the children. It’s the children who are affected in each and every case. It’s the children who are devastated or killed.

Quentin Stone

Quentin Stone

The Retro Report documentary also features the case of Quentin Stone in Yolo County, California, who was found innocent by a jury in May of 2014 but is still fighting in family court for reunification with his wife and two surviving sons. “I don’t think there’s really a way to explain what it feels like to lose your entire family,” Stone tells the interviewer.

The Retro Report posting was published in conjunction with a New York Times article by Clyde Haberman that includes two additional short videos, a “mini-doc” featuring professor Adele Bernhard from the Pace Law School Post-Conviction Project talking about the René Bailey case, and an interview with pioneering pediatric neurosurgeon Dr. A. Norman Guthkelch, the first person to propose in print that shaking an infant could cause subdural hematoma.

Melissa Calusinski

Melissa Calusinski

In other shaken baby news, the lawyer for convicted day care worker Melissa Calusinski in Illinois has made a small step toward a possible appeal. According to the Chicago Tribune, a judge is considering attorney Kathleen Zellner’s motion for a hearing on what she says is new x-ray evidence in the case. Earlier this week, the judge gave the state 90 days to respond to Zellner’s request. Calusinski’s case moved to the national stage this past winter, when a 48 Hours report, “Blaming Melissa,” raised questions about the evidence and the interrogation that led to a confession she later recanted. Tribune reporter Lisa Black published this article in June about the current motion and the possible new evidence.

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Aisling Brady McCarthy Released, a Decision That Will Matter

Aisling Brady McCarthy, from The Boston Globe coverage

Aisling Brady McCarthy, from The Boston Globe coverage

Last week’s decision in Boston to drop charges against Irish babysitter Aisling Brady McCarthy, now free after two and a half years in jail awaiting trial in the death of 1-year-old Rehma Sabir, seems to have produced only a few ripples in the news, but I think the case will stand as a touch point in the ongoing debate about shaken baby.

The Middlesex County District Attorney dropped the charges against McCarthy after the medical examiner reviewed the evidence and amended the child’s autopsy report, changing the cause of death from “homicide” to “undetermined.” The move validated years of dogged filings by McCarthy’s defense attorneys, Melinda Thompson and David Meier, who had argued from the beginning that the shaking diagnosis was made without considering Rehma’s complex medical history, including a likely bleeding disorder.

A press release from the district attorney’s office quotes the medical examiner:

In particular the overall state of Rehma’s health and her past medical issues raise the possibility that she had some type of disorder that was not able to be completely diagnosed prior to her death.

Even the in-depth coverage of the story focused on the problems with this particular case, not the larger debate about the diagnosis, while most news reports stopped at McCarthy’s personal story and her joyful welcome in Ireland, and some treatments seemed intent on shoring up historical opinion. Boston’s public radio station WBUR, for example, broadcast an interview with Dr. Robert Sege, a member of the American Academy of Pediatrics committee on child abuse and neglect, who was asked about the implications of this story and a recent rash of successful appeals:

To me, it doesn’t raise the question at all. If you think about it, there are people who are falsely accused of murder, robberies, all kinds of things and the justice system is not perfect. So in a situation where we have hundreds and perhaps a thousand infants a year who experience shaken baby syndrome, the fact that 16 convictions over a multi-year period were overturned lets me know that the justice system worked, and that people get a fair shot at getting their story told.

WBUR also ran an interview with Dr. Shannon Carpenter, a bleeding disorder expert who seemed to think that McCarthy really is guilty. The reporter paraphrased Dr. Carpenter as saying:

[S]adly, no, there’s no kinder explanation here: Abusive head trauma — a better term than “shaken baby syndrome” because abuse can involve more than shaking — is far more common than serious bleeding disorders.

and offered this direct quote:

“While anything is possible, you have to look at what’s probable and what other patients have experienced. And patients with bleeding disorders are not immune to trauma, whether it’s inflicted or non-inflicted.”

So much for innocent until proven guilty.

middlesexCountyCourthouse

Middlesex County Courthouse

Still, both Boston television station WCVB and letter writer Phillip L. Radoff in The Boston Globe noted that McCarthy’s case is the second Middlesex County shaken baby prosecution to be dismissed in the past year—charges were dropped in September of 2014 against local father Geoffrey Wilson. Both diagnoses were made by child abuse pediatrician Dr. Alice Newton, who presented at the National Center on Shaken Baby Syndrome conference in Denver last fall, on the topic, “Towards Better Collaboration Between District Attorneys and Child Abuse Pediatricians.” Her abstract for that talk includes this reflection:

With an increasing focus in our society on whether Abusive Head Trauma exists, close collaboration between medical professionals and law enforcement has become increasingly important for a successful investigation and prosecution.

What I find refreshing about Dr. Newton’s abstract is the full transparency: She seems to believe that the debate really is about whether or not Abusive Head Trauma exists, and she recommends that child abuse pediatricians view themselves as part of the prosecution team.

Meanwhile, Katherine Judson and Keith Findley at the Wisconsin Innocence Project wrote a letter to the editor of The Boston Globe praising the Middlesex medical examiner’s office for its willingness to re-think the McCarthy case and offering this bold—and accurate—indictment of the community of child abuse experts:

Even after nearly 20 reversals of convictions and hundreds of dismissals and acquittals, some proponents of the shaken baby syndrome and abusive head trauma hypothesis refuse either to acknowledge that there may be flaws in the diagnostic process or to engage in an honest conversation about the science. Instead, they engage in personal attacks upon those who challenge their dogma or claim that there is no debate.

What I think Judson and Findley are asking for is not more talk about whether or not abusive head trauma exists. Shaking a baby, like hitting or slamming a baby, is unacceptable and likely to cause serious injuries. The question is whether the findings that now lead to a diagnosis of shaken baby syndrome really do prove abuse.

Because of the Boston angle, I suppose, with its echoes of Louise Woodward, and the continuing interest of the Irish press, the McCarthy case has given shaken baby syndrome another run in the national and international headlines, and it has given the world a look at how these diagnoses are handled. The case against McCarthy started unraveling more than a year and a half ago, when doctors realized that the stress fractures in the child’s spine seemed to date from a time when she was out of the country with her family and not in McCarthy’s care. Still, the prosecution stood by its case, and McCarthy remained in jail.

Through years of pro bono perseverance, McCarthy’s attorneys finally convinced the county to drop the charges against their client, who must now figure out how to put her life back together. And unlikely as it is to say about someone who’s spent two and a half years incarcerated for a crime that never occurred, McCarthy is one of the lucky ones. Despite their own best efforts and the efforts of their attorneys, Michelle Heale in New Jersey and Joshua Burns in Michigan were both convicted earlier this year—also in cases where the infants had complex medical histories—and Cindy Rosenwinkel was convicted in a short fall case.

I can’t put it any better than Judson and Findley, who wrote:

The flawed analysis of child abuse cases has led to the conviction of innocent people and the destruction of many more lives. It must be reevaluated. Children and families deserve real science and sound research; they deserve better than the repetition of unsubstantiated dogma.

Sept. 14 Update:  Kevin Cullen at The Boston Globe has published a first-rate analysis of the decision to drop charges, predicting that the case will have ongoing impact:  “Nanny’s case could have broad effects on child abuse prosecutions.”

Oct. 13 Update: Yvonne Abraham at The Boston Globe has reported that the medical examiner felt “bullied” by the prosecutor’s office in the Geoffrey Wilson case, in “Autopsy notes in baby’s death raise questions about DA’s role.”

If you are unfamiliar with the debate surrounding shaken baby syndrome, please see the home page of this blog.

copyright 2015, Sue Luttner

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Queens Head Injury Conference Opens the Door a Little Wider

queensCountyDAThis fall’s NYC Abusive Head Trauma/Shaken Baby Syndrome Conference, sponsored jointly by the Queens County District Attorney’s Office and the New York City Office of the Chief Medical Examiner, will feature some of the most outspoken proponents of shaken baby theory but also a few of the skeptics.

The conference, which is aimed at legal and medical professionals, costs only $25 and runs a day and a half, on September 17 and 18. The program will open with a history of traumatic brain injury by science writer Sam Kean, whose new book The Tale of the Dueling Neurosurgeons promises “true stories of trauma, madness, and recovery.”

Past Queens conferences have featured roundtable discussions that included critics as well as proponents of shaken baby theory, but this year’s schedule lists two full presentations from skeptics, one by attorneys Keith Findley of the Wisconsin Innocence Project and Adele Bernhard of the Post-Conviction Innocence Clinic, and one by pathologist Patrick Lantz, who has criticized the child abuse literature for adopting guidelines about retinal findings without objective scientific evidence.

Prof. Adele Bernhard

Prof. Adele Bernhard

Attorneys Findley and Bernhard will be giving the Innocence Network perspective on appeals in infant head trauma cases—Findley spearheaded the appeal that freed child care provider Audrey Edmunds in 2008, and Bernhard argued last year at the successful hearing on behalf of care provider René Bailey. The prosecution perspective will come in a separate presentation by Deputy Executive Assistant District Attorney John Castellano and Senior Assistant District Attorney William Branigan, of the Queens County District Attorney Appeals Bureau. Both teams will address the topic “Enhancing Post-Litigation Accuracy.”

retinalhemorrhagesSmallDr. Lantz, a pathology professor at Wake Forest Baptist Health in North Carolina, is one of two speakers at the Queens conference scheduled to talk about retinal hemorrhages. The other is ophthalmology professor Brian J. Forbes at the University of Pennsylvania School of Medicine.

In 2004, Dr. Lantz published a case study and critical literature review in the BMJ that cautioned against relying on retinal findings when diagnosing abuse. He has since encouraged pathologists to gather more data by capturing retinal images in all child deaths, whether or not abuse is suspected.

Dr. Forbes is a co-author of a 2009 study that concluded:

Retinal hemorrhages are highly associated with abusive head trauma, particularly in children under age 6 months. Increasing retinal hemorrhage severity is correlated with increasing likelihood of abuse.(1)

The Queens speaker list also features law-school dean and professor Joëlle Moreno from the Florida International University College of Law, whose talk is titled “The Impact of Media Perspectives on Abusive Head Trauma Litigation.”  She also addressed that topic at the 2014 Denver conference sponsored by the National Center on Shaken Baby Syndrome, where she said:

[T]he public’s understanding of the science and law of abusive head trauma is coming principally from media coverage… of criminal trials… The problem is the trial and the appellate courts are confusing valid medical evidence with outlier opinions promulgated by a handful of interested defense witnesses who don’t treat children.

For more of Prof. Moreno’s thoughts on the controversy, see her 2013 law review article “Dissent Into Confusion: The Supreme Court, Denialism, and the False ‘Scientific’ Controversy Over Shaken Baby Syndrome,” co-authored with attorney Brian Holmgren.

12thHeadingOther Queens presenters include Dr. John M. Leventhal, who is on the faculty at the Yale University School of Medicine and on the advisory board of the National Center on Shaken Baby Syndrome, and Dr. Christopher Greeley, professor of pediatrics at the University of Texas Health Sciences Center at Houston. In a 2012 commentary in the journal Pediatrics, Dr. Greeley praised the meta-analyses that had recently been published by Piteau(2) and Maguire(3), in which the researchers pooled the findings of many individual child-abuse studies in an attempt to achieve statistically meaningful numbers. Greeley wrote at the time:

Both of these reports, using different search protocols and analyzing different data from the same body of literature, independently confirm the diagnostic precision of retinal hemorrhages, subdural hemorrhages, and rib fractures for abusive head trauma (AHT). By independently using different strategies on the same body of literature and demonstrating similar results, we see clear support for these clinical findings, which are often used in diagnosing AHT.(4)

(For a response from three physicians who question his conclusions, please see http://pediatrics.aappublications.org/content/130/2/347.full/reply#pediatrics_el_54511.)

In 2012, in a keynote address at the Twelfth International Conference on Shaken Baby Syndrome/Abusive Head Trauma, Dr. Greeley dismissed critics of shaken baby theory as child-abuse denialists who are manufacturing controversy where there is none.

I’m not sure how much common ground the various speakers are going to find at this fall’s conference, but I’m glad to see that the two sides are starting to appear on the same programs. For the conference agenda and registration form, follow this link.

(1) Binenbaum G, Mirza-George N, Christian CW, Forbes BJ. “Odds of abuse associated with retinal hemorrhages in children suspected of child abuse,” J AAPOS 2009 13(3):268–272. Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2712730/

(2) Piteau SJ, Ward MGK, Barrowman NJ, and Plint AC. “Clinical and radiographic characteristics associated with abusive and nonabusive head trauma: a systematic review,” Pediatrics 2012 130(2):315–323.  Available at http://pediatrics.aappublications.org/content/early/2012/07/03/peds.2011-1545.full.pdf

(3) Maguire SA, Kemp AM, Lumb, RC. “Estimating the probability of abusive head trauma: a pooled analysis,” Pediatrics 2011 128(3):e550–e564. Available at http://pediatrics.aappublications.org/content/128/3/e550.full

(4) Greeley CS. “The Evolution of the Child Maltreatment Literature,” Pediatrics 2012 130(2):347–348, available at http://pediatrics.aappublications.org/content/130/2/347.full#xref-ref-8-1

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