Category Archives: SBS

Dr. Waney Squier Reinstated

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Dr. Waney Squier

A British High Court judge has reinstated Dr. Waney Squier’s right to practice medicine, in a decision that dismissed as “unsustainable” a number of findings by a tribunal appointed by the General Medical Council (GMC) in 2015 to investigate her testimony in a series of shaken baby cases. A well respected pediatric and perinatal neuropathologist, Dr. Squier has questioned shaken baby theory in the medical journals and has testified to her opinions in court. After the tribunal’s findings were issued last spring, the GMC removed her from the medical registry.

Justice Sir John Edward Mitting explicitly rebutted the tribunal’s conclusions that Dr. Squier had acted dishonestly, noting at one point that “her views were genuinely held.”

Despite his harsh criticism of the tribunal’s report, Justice Mitting upheld their finding that Dr. Squier had practiced outside her field of expertise. He has prohibited her from giving expert testimony in British courtrooms for three years.

The GMC’s actions against Dr. Squier were based on a complaint lodged in 2010 by the National Policing Improvement Agency (NPIA), a government body disbanded in 2013 only a few years after it was created “to support police by providing expertise in such areas as information technology, information sharing, and recruitment.” The agency seems to have acted on a broad interpretation of its charter, supporting the police by attempting to silence one of the few physicians in Great Britain willing to testify against the prosecution model of shaken baby theory.

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Justice Mittering, who heard a week of testimony on Dr. Squier’s appeal last month, had clearly studied the transcripts from a series of hearings held by the tribunal, because he identified a number of factual errors in their report—such as their finding that Dr. Squier had proposed choking in a case with no evidence to support that conclusion, even though a 7-year-old witness had told an investigator the baby “was trying to vomit and was choking” and the clinical notes included repeated references to “gastro-oesophageal reflux disorder,” a condition consistent with choking.

I was relieved to see that the judge had also read much of the medical literature, and so recognized some of the tribunal’s misunderstandings and mischaracterizations of her citations. The tribunal had found, for example, that Dr. Squier had “completely misinterpreted” the Duhaime 1987 paper and had misrepresented both it and the Cory 2003 follow-up study under oath. Comparing her testimony with the published papers, however, Justice Mitting noted the tribunal’s error:

This was a good example of her giving evidence outside her expertise, but, properly stated, both reports were not inconsistent with, and were to an extent supportive of, her hypothesis that a fall from a low height could cause fatal head injuries in small babies.

The institutional  insistence that Dr. Squier gave evidence outside her expertise continues to strike me as ironic. In a tortured qualification to his endorsement of that finding, Justice Mitting recognized that medical specialists evaluating the triad would necessarily be expressing opinions outside their own disciplines, but he still seemed to agree with the tribunal that Dr. Squier had crossed a line:

The qualification is that, when the triad fell to be considered, any specialist, with the possible exception of a forensic pathologist, who supported or doubted the triad as indicative of NAHI [non-accidental head injury], would be bound to be expressing an opinion outside his specialism. There can be no proper criticism of a neuropathologist, neuroradiologist or ophthalmologist/ophthalmic pathologist for explaining why he supports or doubts the majority view and in doing so, expresses a view about symptoms or pathological findings outside his own discipline. It is neither improper nor professional misconduct for an expert in one specialism to do so. The boundary line between a proper explanation of support or doubt and trespassing impermissibly outside the expertise of the witness is imprecise and difficult to identify in any particular case. It would have been better if the [tribunal] had acknowledged that difficulty; but, with that qualification, there is and can be no justified criticism of its conclusions about the limits of Dr. Squier’s expertise.

I don’t understand how either the tribunal or Justice Mitting can object to Dr. Squier’s expressing her opinions about short falls but still accept the opinions of physicians who diagnose shaking injury, a proposition that implies a level of biomechanical understanding not included in anyone’s medical education.

Stepping through the dozens of charges and sub-charges, Justice Mitting determined that Dr. Squier had correctly cited not only Duhaime and Cory but also Arbogast 2005, Rooks 2008Oehmichen 2008, and others, noting in one case that the tribunal had relied on the testimony of  neuropathologist Prof. Colin Smith, who himself had misrepresented the paper in question:

Professor Smith stated, in evidence accepted by the [tribunal], that the authors could discriminate between traumatic and ischaemic causes of axonal injury. In fact they only did so in 2 out of 18 cases. Unfortunately, this proposition was not put to Professor Smith in cross-examination. As a non-expert, I set out my understanding of the passage on which he relied with some diffidence, but it does, in the end, seem to me to be reasonably clear. It supports rather than undermines Dr. Squier’s opinion. The [tribunal] was wrong to find this sub-charge proved.

Still, Justice Mitting agreed with the tribunal that Dr. Squier had “cherry-picked” from her sources and had at various points misrepresented Arbogast and others, and he seems to have accepted some common misunderstandings about shaking injuries. The tribunal had found, for example, that Dr. Squier was untruthful and “evasive” in her testimony in front of them, citing four specific instances in which they found her statements unbelievable. In one of their examples, she gave inconsistent answers to the question of when she had suggested a child had experienced a “lucid interval”—in her written report or in her oral testimony at either the civil or the criminal trial. Evaluating that exchange, Justice Mitting wrote:

Her explanation for the difference was that she was confused. Her answers read like an attempt to justify an opinion about lucid intervals which she realised was difficult to support. The [tribunal]’s finding that her explanation of confusion was “incredible” was justified if, by it, they meant that she was struggling to justify an unsustainable opinion. To that extent, her answers were evasive.

Myself, I endorse Dr. Squier’s opinions about the lucid interval, which I think are well supported by the published literature—please see, for example, the letter to the American Journal of Forensic Medicine and Pathology from Dr. Robert W. Huntington III, on the home page of this blog.

After last week’s decision was released, including the restriction on Dr. Squier’s giving court testimony, intensivist and shaken baby critic Dr. Steven Gabaeff observed that even with the reinstatement, proponents of shaken baby theory have achieved their goal of “suppressing defense testimony.” If no one who doubts shaken baby theory is allowed to testify, then accused parents have no chance to argue their innocence at trial.

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Heather Kirkwood

Detective Inspector  Colin Welsh from New Scotland Yard articulated the suppression strategy in 2010 in Atlanta, Georgia, at the biannual conference sponsored by the National Center on Shaken Baby Syndrome, in a talk with the title “A National Co-ordinated Approach to Cases of Non-Accidental Head Trauma in the UK.” According to attorney Heather Kirkwood, who attended the session, Welsh reported that his team had been facing a “systemic failure” of shaken baby prosecutions and the primary cause was that “juries were being confused by defense witnesses.” He recommended intense scrutiny and criticism of experts for the defense, and he mentioned his partnership with NPIA, the agency that filed the the complaint against Dr. Squier. Kirkwood later made her notes public, along with a deposition that offered this summary of Welsh’s presentation:

“Shortly into the talk, I realized that the ‘national coordinated approach’ referenced in the title of the talk was essentially a description of the joint efforts of New Scotland Yard, prosecution counsel, and prosecution medical experts to prevent Dr. Squier and Dr. [Marta] Cohen from testifying.”

For more about professional harassment of Dr. Squier, please see my blog postings “Back Door Tactics Show Through” and “When Pie in the Sky Turns Out to Be Dawning Knowledge.”

On October 7 of this year, just before the appeal hearings opened, the BMJ published a letter of support for Dr. Squier from more than 250 physicians, attorneys, and others protesting that the GMC’s sanction was depriving patients of her skills and expertise—if you have not yet done so, you can go to the letter site and click the thumbs-up button to add your vote of support for Dr. Squier.

Last week’s decision reinstating Dr. Squier brought her story back into the headlines, including treatments by the BBC, the Daily Mail, and The Justice Gap, an on-line magazine about justice and the law aimed at the public.

The GMC’s decision last spring to remove Dr. Squier from the medical registry triggered immediate outrage from her defenders, followed by continuing coverage within the U.K. justice community, which recognized the chilling effect of the medical council’s actions on any physicians who dare to disagree with mainstream thinking.

Inside Justice, an investigative group that looks into alleged miscarriages of justice, published a series of insideJusticeHeaderdocuments and commentaries about Dr. Squier’s case, including a collection of careful and articulate rebuttals to the tribunal’s report written by Michael Birnbaum, QCDr. Michael Powers, QC; U.S. attorney Randy Papetti; and veterinarian Nicholas Binney, who is working on a graduate thesis on diagnostic practices. The rebuttals received coverage in the popular magazine Private Eye as well as in forums like The Justice Gap, where founder Jon Robins wrote in an essay titled “The Silencing of Dr. Waney Squier“:

In a forensic analysis of the judgment, Michael Birnbaum QC, who gave evidence on behalf of the doctor, pulls few punches accusing the tribunal’s reasoning of being ‘largely formulaic and frequently illogical’ as well as being littered with ‘howlers’. ‘In my 43 years of practice at the Bar I have rarely read a judgment of an English Court or Tribunal so deeply flawed and unfair as this,’ he begins.

‘Given this bizarre combination of the apparently one-sided and the obviously inept, I cannot make up my mind whether the tribunal was actually biased in the sense of being actively prejudiced against Dr Squier or whether it was just not up to its task,’ he writes. ‘Whatever view one takes on its impartiality, the tribunal’s presentation of the evidence is so inadequate and its conclusion so poorly reasoned that its determination lacks all credibility.’

I am gratified that Justice Witting also recognized some of the many objective errors in the tribunal’s report, and I am pleased that Dr. Squier is allowed to practice again. I wish that someone at the GMC would also read the report carefully and realize that the organization has imposed professional sanctions based on a series of misinterpretations and fundamentally flawed conclusions.

In fact, I wish someone at the GMC would also read the shaken baby literature carefully, because they would be forced the reach the same conclusions as Dr. Squier and the team of Swedish scientists and physicians who last month published their review of the shaken baby literature, that is, that shaken baby theory has never been proven. For my personal analysis of the medical literature, please see Shaken Baby Syndrome: Medico-Legal Miscommunication.

Like the tribunal’s report, the published literature in support of shaken baby theory does not hold up under careful scrutiny.

copyright 2016, Sue Luttner

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

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Swedish Review Declares Shaken Baby Theory Unproven

sbuheaderSwedish agency charged with assessing health technology and social services has published a review of the shaken baby literature declaring the scientific evidence for shaking theory “weak” and noting that a number of other medical conditions can cause the findings typically used to diagnose shaking injury.

The posted report from the SBU (Statens Feredning för Medicinsk Och Social Utvärdering) is in Swedish, so I am relying on a Google translation and private email exchanges with native Swedish speakers for this summary.

Feb. 2017 update: The report is now available in English

babySilhouetteThe SBU team looked only at cases of pure shaking, without evidence of impact, in children younger than 12 months, and they set standards regarding sample size, study design, and more.  Their literature search strategies yielded 3,773 abstracts, and they screened 1,065 of the articles in full text. Only 30 of the papers met their reliability guidelines. The authors ranked two of those papers as medium quality, designating 28 of them low quality and none of them high quality.

The report identifies the recurring problems with the published research, especially the circular reasoning introduced when shaken infants are identified by the criteria being studied. The two papers that passed the quality review are both from France, Vinchon 2010 and Adamsbaum 2010:

  • Vinchon M, de Foort­Dhellemmes S, Desurmont M, Delestret I. “Confessed abuse versus witnessed accidents in infants: comparison of clinical, radiological, and ophthalmological data in corroborated cases.” Childs Nerv Syst 2010;26:637­45
  • Adamsbaum C, Grabar S, Mejean N, Rey­Salmon C. “Abusive head trauma: judicial admissions highlight violent and repetitive shaking.” Pediatrics 2010;126:546­55

Both papers used confessions to identify abused children—the report noted that neither paper provided details of the circumstances in which the confessions were obtained.

The SBU report follows a Swedish Supreme Court decision last year that overturned the conviction of a father with the observation (from the English translation of the decision):

It can be concluded that, in general terms, the scientific evidence for the diagnosis of violent shaking has turned out to be uncertain.

This week’s report, which confirms the court’s conclusion, has made a splash in the Swedish press, with headlines like “Shaky support [skakig bevisning] för shaken-baby-syndrome.” Google translates the introductory paragraph of that piece as:

The diagnosis of “shaken baby syndrome” has previously been questioned both medically and legally. Now comes the SBU and Smers investigative report argues that the evidence of [shaking violence] not measure up.

Mats Hellberg, a board member of the Swedish group RFFR (Riksförbundet För Famijers Råttigheter, or National Association for the Rights of Families), reports that the Swedish child protection teams are objecting that the SBU’s conclusions will make it harder for them to protect children in the future. “Positions are extremely polarized and group thinking is strong,” he wrote.

In addition to criticizing the existing literature, the report suggests the kinds of research that would help resolve the ongoing debate about shaking theory. I hope the SBU analysis, which I’m told is now being translated into English, will trigger more reflection, more rigorous research, and more clear thinking about shaken baby theory.

Oct. 29 update:  With thanks to readers who alerted me:  The American Academy of Pediatrics (AAP), the Society for Pediatric Radiology, and a number of other professional organizations approached the SBU earlier this month, asking for input on the final report before it was published. These letters were published in the Swedish periodical Expressen, which presented them as an attempt to interfere with the independent Swedish review. There is a translation tool at the top of their on-line treatment, which includes close-ups on the letters in the photo collection. An excerpt from the AAP letter:

“Medical and biomechanical research, clinical and pathologic experience, and radiologic evidence have confirmed the understanding of the range of mechanism that contribute to brain injury from these forms of abuse.

“Because a report from the SBU could have global medical, public health, and legal ramifications, we respectfully request that you allow international peer review by AAP experts on child abuse, pediatric radiology, neurological surgery, and that you consider their feedback in the final report. In addition, we request that you promptly provide us with the draft report so that we can evaluate your  methods, sources, conclusions, and review processes and prepare a timely response if appropriate.”

I think it’s fair to assume the AAP is now working on a rebuttal.

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

copyright 2016, Sue Luttner

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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.”

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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.

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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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Filed under abusive head trauma, AHT, National Center on Shaken Baby Syndrome, SBS, shaken baby, shaken baby syndrome

GMC Sanction Triggers Public Debate

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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