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With Their Own Nightmare Behind Them, Trying to Make a Difference

Edelyn & Peter Yhip

Edelyn Yhip, RN & Peter Yhip, MD

Last summer, Edelyn and Peter Yhip were preparing for the worst:  If they were both convicted, they asked each other, who would take their children, 13-year-old Mikaela and 9-year-old Jonathan? What would happen to their home, and everything in it, if they were both in prison?

But on August 23, after 6-1/2 years of accusations, the Yhips stood in court and heard the judge drop charges against them, because the state had conceded it had insufficient evidence of murder in the 2012 death of Jonathan’s twin brother Benjamin.

“We felt so blessed when the charges were dismissed,” Edelyn said when we got together in September, at a fencing tournament where Mikaela was competing. “Now we can grieve and mourn for Benjamin, and start to heal our family.”

In a video posted by the Northern California Innocence Project (NCIP), which helped with their defense, Edelyn reflected on the reality that set in after the “jubilation” the day the charges were dropped. Although it was “great to leave this behind us,” she said, “my son is gone, and our family is not the same. Our children are still in pain—they were alone and scared when they needed us the most.”

In a television interview in the fall, Mikaela remembered how police officers came to her school one afternoon and took her and Jonathan away from the family friend who’d come to pick them up—leaving them instead in the care of foster parents they’d never met before. “They told me that Benjamin died,” Mikaela recalled. “I was so confused and scared… I really missed my parents, especially at night.” She was 7 years old.

The Yhips were eventually able to transfer the foster placement to a family the children knew, but even then they were allowed only an hour and half a week of visitation, always supervised by social services—”It was like somebody was spying on us all the time,” is how Mikaela put it. Jonathan was not allowed to attend his brother’s funeral.

Edelyn said she now has two goals: restoring her children and changing how infant death investigations are handled. “I can’t just pick up and go back to normal,” she declared, “not after what my children went through, what Peter and I went through. This nightmare should not happen to another family.”

Peter Yhip told me the ordeal destroyed his own faith in the legal system—”You never imagine something like this could happen to a perfectly innocent family,” he said—but he has learned the power of community. When he and Edelyn realized they were accused of murdering their son, he remembered, “We were numb with disbelief. But so many people rallied around us, it gave us hope. I have more faith in humanity now.”

Yhip FamilyEdelyn is a nurse and Peter is a doctor. They paid off their student loans before starting a family, Edelyn explained in the NCIP video. When they found themselves infertile, Edelyn said, they adopted the infant Mikaela from China in 2005, and then their sons in 2010, when the boys were 18 months old. “Returning from Taiwan with the boys,” she beamed, “We felt like our family was complete.”

They quickly realized, though, that Benjamin had serious medical problems, with recurring infections and a diagnosis of failure to thrive that led to an implanted feeding tube. In the spring of 2012, Edelyn found him not breathing in his bedroom and called 911.

Local press coverage quoted the NCIP about what happened next:

“At the hospital, bone scans showed unchanged abnormalities suggesting a genetic condition, and the neurosurgeon opined Ben had suffered a stroke that caused his collapse,” according to the NCIP. “Ben was put on life support and eventually declared brain dead. Arrangements were made for organ donation.”

Despite Benjamin’s long and complex medical history—including a series of hospitalizations in Taiwan, before he was adopted—the state’s pathologist declared the death a homicide, citing the presence of subdural and retinal hemorrhages, which are two elements of the  “triad,” a pattern of bleeding and swelling inside the infant skull that is commonly attributed to “abusive head trauma,” previously known as “shaken baby syndrome.”

While their children remained in foster care, baffled and terrified, Edelyn Yhip was arrested at the family home, and Dr. Yhip was arrested at his clinic, handcuffed and led out the front door past patients in the waiting room.

The Yhips’ friends and family rallied behind them, setting up a web site and raising money to mount a defense. More than one family put their homes on the line, adding their properties to the bond, so Edelyn and Peter could be out of prison while waiting for trial. The family was reunited about a year after the accusations, when the dependency court found “substantial evidence” that Benjamin had died of medical complications, not criminal assault. Still, the county continued to press its criminal case for five more years, while the NCIP submitted a growing body of medical reports supporting the family’s innocence, as well as court decisions from other disputed shaking cases and the 2018 book, The Forensic Unreliability of the Shaken Baby Syndrome.

“We had a host of heroes in this case,” wrote NCIP attorney Paige Kaneb, who stuck with the case through all those years, in an email announcing the decision to drop the charges. “Great day, long overdue. The best part was after court when the Yhips told their 13-year-old daughter that this is finally over.”

The nightmare is over, but the Yhips are not leaving their experience behind. Both Edelyn and Peter say they hope their case might help move the debate about shaking theory forward, and help other families avoid a nightmare like theirs. “The triad has got to go,” Edelyn insists. “It’s not just the financial toll, it’s the emotional toll it takes on your whole family.”

This week, the Yhips are heading to Atlanta for the annual Innocence Network conference, April 12–13, where they are hoping to connect with other accused and exonerated families. You can contact them at fresh20fishing@gmail.com.

copyright 2019, Sue Luttner

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

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Ohio Decisions Seed Hope

Two decisions this fall in Ohio offer hope for the wrongfully accused, while underscoring both the ironies and the complexities of misguided accusations of child physical abuse. One of them even opens the door to possible legal accountability for the casual over-diagnosis of abuse.

First, the Supreme Court of Ohio has reversed the 2016 assault conviction of child care provider Chantal Thoss.

In December of 2014, Ms. Thoss called 911 for help with a baby who she said had fallen from a couch and was “not acting right.” Doctors at the hospital found no bruises, fractures, or other signs of assault, but did find retinal hemorrhages and both new and old bleeding inside the boy’s skull, evidence of both a recent and a preexisting brain injury.

Early in the investigation, Dr. Randall Schlievert at Mercy Health offered his opinion that the baby had been shaken by his last caretaker before the call for help. Detective Brian Weaver never questioned the presumed timing, and the case proceeded against Ms. Thoss.

According to the court’s summary, Dr. Schlievert explained on the stand “that once the brain is injured, symptoms manifest immediately,” with this concession:

“Schlievert remarked that it is debated in the field whether an older injury can make a child more fragile or more likely to suffer a serious injury from a mild fall later. He noted that many doctors believe that they may have seen such a case, but there is not a single published article that proves that that happens.”

After reading the trial testimony and listening to the 911 call and taped interviews with the babysitter, the three-judge panel declared that a guilty verdict was “against the manifest weight of the evidence.” Noting that they had listened to the same recordings the jury had, the judges offered a different interpretation:

“From those recordings, it is evident to us, acting in this instance as the thirteenth juror, that appellant wholeheartedly believed that she caused injury to E.A. not by shaking him, but by placing him on the couch while retrieving his diaper and by her instinctual response of picking him up off the floor after he had fallen. We could hear the raw emotion in appellant’s voice [emphasis added] as she reported the child’s condition to the 911 operator, the self-condemnation over the decision to briefly leave him unattended on the couch, the genuine surprise upon being informed by Weaver that E.A. had signs of previous injury, and her struggle to understand how this incident produced the injuries suffered by E.A.”

Ms. Thoss has been released from prison. The state has not yet announced whether it will refile charges against her.

A civil case

Meanwhile, Senior District Judge James G. Carr in western Ohio has allowed a civil case against Dr. Schlievert to move forward. Although far from any resolution, the decision is a rare crack in what is usually a solid wall of immunity for physicians who diagnose child abuse.

mopBucketIn September of 2014, day care worker Beth Gokor called her supervisor to report that a 3-year-old boy she was watching couldn’t walk or stand on his own after slipping and falling on a wet linoleum floor.

At the hospital, the boy told a physician’s assistant that he “slipped and fell,” and a co-worker later confirmed Gokor’s report that the floor was wet from a recent mopping. According to police notes, the child’s mother said he had told her he slipped while running.

childRunningCartoonWhen Dr. Randall Schlievert reviewed the records, however, he concluded that the spiral fracture to the boy’s leg must have been an inflicted injury, not an accident—and he recommended challenging the day care’s license because “[c]hildren do not appear to be currently safe there.” Schlievert offered his opinion that the day care was making “improbable statements” and asserted, as if refuting the caretaker’s report, “[JJ] would not have been able to stand.”

Ms. Gokor was fired immediately, and she was later charged with endangering children.

Her defense team hired pediatric radiologist Gregory Shoukimas, who, according to the court summary, not only concluded that the injury was accidental but also noted that Dr. Schlievert’s report was “riddled with errors.”

When prosecutors received the alternative medical report, the state dropped charges against Ms. Gokor, who then filed a civil suit against Dr. Schlievert. The decision this fall rejected a motion by Dr. Schlievert to block that suit, which will presumably now move forward.

A similar suit

Criminal defense attorney Lorin Zaner

Criminal defense attorney Lorin Zaner

Intriguingly, the same judge who gave the green light to the Gokor suit this year blocked a similar suit in 2017, also against Dr. Schlievert and also pressed by criminal defense attorney Lorin Zaner, a veteran of wrongful abuse cases.

The plaintiff in the earlier decision was Molly Blythe, the mother of twin daughters born prematurely, as many twins are. The second-born twin, referenced as “KB,” endured first manual repositioning and ultimately vacuum extraction, emerging with “significant bruising” on  her scalp. At early visits with the pediatrician, the mother expressed ongoing concerns over KB’s frequent vomiting and difficult sleep patterns.

At the age of two months, with her head growing unusually fast, KB was found to have bilateral subdural hematomas and large extra-axial fluid collections. Doctors performed surgery to relieve the brain pressure. The first eye examination, conducted after the surgery, revealed retinal hemorrhages,.

“In the absence of any other explanation, the doctors diagnosed KB with Shaken Baby Syndrome,” the judge’s opinion recounts, and the county hired Dr. Schlievert to perform a formal child abuse assessment. “After reviewing KB’s medical file,” the judge wrote, “Dr. Schlievert concurred in the initial child abuse diagnosis.”

zaner@NormansParty

Mr. Zaner speaking at Dr. Norman Guthkelch’s 100th birthday party, 2015

Mr. Zaner hired a full complement of experts—a neuroradiologist, a diagnostic radiologist, a pediatric opthalmologist with a specialty in retinas, a pediatrician with extensive child abuse experience, and a biomechanics professor. After receiving their reports, which enumerated other possible causes for the findings, the state dropped criminal charges. Rather than engage in further court proceedings, the mother consented to a family court order giving custody of the girls to their maternal grandmother. Then she filed suit against Dr. Schlievert and the county.

In his opinion blocking that suit, Judge Carr emphasized that Dr. Schlievert’s conclusions matched those of the treating physicians:

“The fact that Dr. Schlievert reached nearly identical conclusions supports a determination that his conduct did not ‘shock the conscience’ but rather was a sound medical conclusion based on his review of KB’s medical file.”

In its insistence that Dr. Schlievert was innocent of intentional misdirection, the opinion seems to sanction his apparent decision to finalize his abuse assessment in the case of a 2-month-old preemie without examining the birth records or establishing a clear timeline for the reported findings:

“The complaint does not allege that at the time he provided his February consultative report to CSB [Children’s Services Board], Dr. Schlievert knew about the traumatic birth or that the surgeries had preceded the first, and thus baseline, retinal examination.”

I can understand why the unanimity of opinion among child abuse experts gives the impression that shaking theory is well established—that conclusion, alas, is one of the reasons this fight is so difficult. The problem is that shaking theory was adopted before it was proven scientifically, and the research since that point has been premised on the assumption that convictions and plea bargains prove abuse.

My best hope is that Judge Carr might notice a pattern in the child abuse suits that come through his court. A few popular but unproven tenets of child abuse medicine—that the triad proves shaking, for example, and the symptoms are always immediate, or that spiral fractures mean abuse—continue to derail accurate diagnosis and mar the good work that child abuse physicians otherwise do.

copyright 2018, Sue Luttner

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

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Filed under AHT, Falsely accused, SBS, shaken baby, Uncategorized

Good News, Bad News: the Tragedies Continue

Attorneys Khari Tillery & Paige Kenab, exonerated father Zavion Johnson  -photo courtesy Northern California Innocence Project

After maintaining his innocence for 17 years, a California father was freed this winter when Sacramento Superior Court Judge James Arguelles overturned his murder conviction, citing evolving medical thinking about infant head trauma.

Zavion Johnson said in 2001 that he had accidentally dropped his 4-month-old daughter Nadia in the bathtub, but he was convicted by medical testimony that the girl had been shaken to death. Then, in the years since his trial, two of the prosecution experts changed their positions. Prompted by Khari Tillery, a private attorney working pro bono, and Paige Kenab of the Northern California Innocence Project, both doctors provided affidavits saying they now believe a household fall could explain the child’s injuries.

The prosecution’s own filing in the case recognized that the original medical testimony, now recanted, had been key to Johnson’s conviction. In an excellent treatment of the exoneration, Sacramento Bee reporter Darrell Smith quoted a juror who said the panel had relied entirely on the medical evidence:

“All of the doctors said these injuries to Nadia could only have been caused by severe shaking of the baby… One doctor after another, they presented this united front that the medical evidence speaks… We agreed that it didn’t seem to fit him [Johnson]. He really loved his baby and took care of her. We felt he did do it, but that it was badly out of character.”

Zavion Johnson & Paige Kenab

Zavion Johnson was accused at the age of 18, released at 34. Because the jury believed the doctors over Johnson—and over 13 character witnesses, including the child’s mother—he has spent almost half his life, all of his adult life, behind bars. In an email after his release, celebrating the many people who had donated their time and expertise to the appeal, Kenab wrote, “Zavion took his first hot shower since he was 18 years old last night, laid down in a real bed with a real pillow, and from the moment he walked out, told us over and over again how different the air smelled. Thank you.”

The case was closed in January of 2018, when the state dismissed all charges, according to J0hnson’s entry in the National Registry of Exonerations.

Tiffani Calise reported a bathub fall

I’m eager to see this new thinking at work on behalf of other innocent parents and caretakers convicted by flawed testimony about short falls—like the six people I wrote about in my 2014 post Short Falls, Long Sentences, who all remain in prison.

I see progress, but it’s slow and halting. Child care provider René Bailey in New York was released from prison in 2014, when Judge James J. Piampiano vacated her murder conviction, citing what he called “a compelling and consequential shift in mainstream medical opinion” about pediatric short falls. Unlike Johnson’s prosecutor, however, Bailey’s refiled the charges.

Prof. Adele Bernhard

On the eve of a scheduled retrial last summer, Bailey agreed to a plea deal that avoided the risk of a second conviction and more jail time. Under what’s known as an “Alford plea,” Bailey stated in open court that she was pleading guilty to assault because she believed the state would be able to prove its case against her at trial. “She was not forced to say she did something she didn’t do,” pointed out her attorney, Prof. Adele Bernhard, director of the New York Law School Post-Conviction Innocence Clinic. “This is a compromise and not a very happy one,” Bernhard conceded, “but one that allows René to move on with her life and start to move forward.”

The court accepted Bailey’s plea and set a sentence of 12 and a half years, less than the 13 years she had already served, so she remains free but on probation.

In New Jersey, meanwhile, a panel of appeal judges has upheld the conviction of Michelle Heale, a mother and babysitter who said the toddler in her care had choked on a packet of applesauce. Her conviction was based on the triad, with no signs of impact.

In Kentucky, a young man has been sentenced to eight years in prison after accepting a plea deal—the newspaper report says he was accused of shaking but doesn’t specify the charges. He had reported an accidental fall.

Sarah Martin in happier times

And I’ve recently come across a 2016 murder conviction in Oregon, where mother and babysitter Sarah Martin is serving a life sentence for the death of a 7-month-old who quit breathing in her care. She said she thought the boy had choked on a whole grain snack.

On the bright side, a judge in North Carolina dropped murder charges against a Marine veteran who had been in jail for more than five months, after a local pathologist contacted the district attorney to say the man’s daughter had died of a rare heart condition. The video (click on the arrow in the opening image on the WFMY page) continues beyond the end of the text version, after this provocative statement from defense attorney Taylor Brown:

“It is extremely frightening to know that this could happen to anybody. And in fact if you spend 10 minutes on the Internet, you will find out that it is happening all over the country,” he said.

Reporter Erica Harper says she took that advice and found a number of disputed cases on line—the graphics show browser listings for a few of the classic critiques of shaking theory, like the NPR interview with Dr. Norman Guthkelch; the 2016 Washington Post exposé; and the Time magazine treatment of the Annie Li case in New York.

But none of these treatments seems to have had a noticable impact, any more than Lee Scheier’s 2005 treatment in the Chicago Tribune, Emily Bazelon’s 2011 treatment in the New York Times, or the 2011 collaboration among ProPublica, PBS “Frontline,” and NPR—all of which I’d hoped would help wake up the world to the ongoing injustice.

Because short falls are a theme of this posting, I end it with a video demonstration prepared by emeritus physics professor Richard Reimann, who used  an SBS demonstration doll to illustrate one difference between shaking without impact and a short fall. See also his analyses of various fall scenarios, with excellent illustrations.

copyright 2018, Sue Luttner

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

 

 

 

 

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Shaking Accusations Gone Wrong

The interrogation

A series of legal developments in the past few weeks highlights the devastating effects of misguided abuse diagnoses on innocent families.

In Sacramento, California, father Jesus Flores was found innocent in June of shaking his son Mason, but despite the verdict, Mason is being adopted by another family. Flores lost parental rights during the years he spent in jail awaiting trial.

The child’s mother, Sara Guzman, also lost custody, ironically because she refused to believe that Flores had injured their son. Reporter Lois Henry quoted Guzman in the Bakersfield Californian:

“They told me the only thing messing me up from getting Mason back was that I stood by Jessie (Jesus),” Guzman said. “They said I needed to go against him. But that wasn’t right. I knew he wasn’t the kind of man who would ever hurt his baby.”

After watching video of the police interview, reporter Henry disputed statements from both the diagnosing doctor and the detective that Flores had confessed to shaking his son. Henry wrote:

Flores uses a doll to show detectives how he rocked Mason earlier in the day to try and comfort him.

In the video, Flores cradles the doll, supporting its head and rocks him back and forth.

He tearfully asks if that could have been what hurt his son?

“Could that have caused it?” he asks over and over. “If it did, then I’m the worst father…”

One of the detectives would later testify that Flores demonstrated shaking the doll, causing its head to violently snap back and forth.

Not even close. (See video at bakersfield.com)

The reporter is right: Not even close. Check the video. The detective hands the doll to Flores at 12:03:38 am on March 22, 2015, and 15 seconds later Flores demonstrates the motion he will repeat through the rest of the interview—which I would call more up-and-down than back-and-forth, but certainly not violent.

The jurors who found Flores innocent heard about Mason’s complex medical history, and the new brain bleeds that appeared while the boy was in the hospital and then again in foster care. On the interrogation tape, however, long before anyone had looked at past medical records, the detectives never waver from confidence in the father’s guilt. Ignoring Flores’s obvious pain and confusion, they reject his story again and again, prodding him to quit lying and “accept responsibility.” Even when he breaks down and accepts their accusations, Flores says only that he “might have” rocked the boy harder than he realized, he doesn’t remember.

Another disturbing video was released last week in Detroit, showing a father’s pain at learning that his daughter had died—information he heard in open court when he was charged with her rape and murder. (On the page with the print coverage, scroll down to the second large graphic for the video.) James Lee Saltmarshall, 22, has now been released, after an autopsy disproved the medical findings that had triggered the charges against him. The video treatment includes a from-the-heart statement from Saltmarshall’s attorney:

“You have somebody charged with the most salacious thing you can charge him with, the worst thing, raping and killing his infant daughter. And now it’s a big ‘Oops’?…

“How do you fix it? I don’t know.”

In South Carolina, meanwhile, Wayne County dropped charges against an accused father who’d been in jail for two years—and indicted the babysitter instead. As summarized by reporter Angie Jackson in The Post and Courier:

Eugene Anthony Wright, 49, was initially charged with homicide by child abuse. At the time of his daughter’s death, he was accused of slamming her to the floor in his Dorchester Gardens apartment in North Charleston.

The Attorney General’s Office said after further investigation, it was determined that Wright could not have committed the crime and the charge has been dismissed.

The indictment of the babysitter, Jackson wrote, “does not detail the evidence against her.” I speculate that the key point is whether the effects of a serious pediatric head injury are or are not immediately obvious, a question still under debate in the journals and in the courtroom, along with the potential for serious injury in short household falls. Earlier coverage of the case seemed to put the father at the scene, but it’s hard to know the story from what’s available.

In a long-lingering case in California, foster mother Jovannee Reynolds has been sentenced to four years of probation, after a plea bargain in which she “took responsibility” for the death seven years ago of a days-old baby named Mikayla who quit breathing in her care.

Reporter Pablo Lopez wrote in the Fresno Bee:

On Friday, [defense attorney Curtis] Sok told the judge that the case took seven years because it turned into a battle of medical experts – one who said Mikayla died of shaken-baby syndrome and two who suggested she suffered her fatal injury in her mother’s womb.

Reynolds had told police she had “patted the baby on the back” when the little girl seemed to be having trouble breathing. Reynolds was originally charged with murder, but the plea agreement reduced that to manslaughter. According to the Bee coverage, prosecutor Christopher Gularte gave this explanation:

Because of the conflicting medical opinions, Gularte told [the judge] that the prosecution could not prove the murder charge. Instead, Gularte said both sides settled on the manslaughter charge because of Reynolds’ admission to police about patting the baby on her back. In essence, her use of force in patting the child was more than a reasonable person would do.

While I am pleased that Ms. Reynolds will face no jail time, I am sobered that the county insisted on pressing charges against her, and that the act of patting a baby on the back when it’s struggling to breathe has been declared manslaughter. Ms. Reynolds and her husband had started caring for Mikayla about a week before the child’s collapse, when she was only five or six days old, after her mother, a known drug user, had tested positive for methamphetamine. I’m guessing there were no actual signs of trauma, just the brain findings, or the news reports would mention them.

Updates

The Medill Justice Project has published a poignant look at the effects of his mother’s incarceration on the son of child care provider Jennifer Del Prete, released in 2014, after a successful appeal of her 2005 conviction.

A Florida court has agreed to hear an appeal by the Innocence Project of Florida on behalf of child care provider Stephanie Spurgeon, in prison on a manslaughter conviction in a shaking case. She the Tampa Bay Times coverage.

copyright 2017, Sue Luttner

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

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Shaken Baby Theory: Poking the Hornet’s Nest

The July issue of Acta Paediatrica offers a collection of free, live links to a volley of rebuttals published over the past four months to an article in March submitted by medical ethicist Dr. Niels Lynøe and most of the other experts who informed the 2016 Swedish report critical of shaking theory, commissioned by a government agency whose name is abbreviated SBU.

In an email exchange last week, Dr. Lynøe wrote that his team knew the topic was controversial, but they were “rather surprised” at the vehemence of the criticisms. “I also think that there was something positive with the critical comments,” he added, “because we got the opportunity to explain and explore some aspects more.”

Dr. Niels Lynøe

The March paper reported on the same research as the SBU study, an exhaustive evaluation of the shaken baby literature that ultimately declared the scientific evidence behind shaking theory “weak.” The analysis noted fundamental problems with the bulk of the published research—in a typical study design, the report noted, researchers had applied the criteria they were attempting to prove when identifying and sorting their subjects, so the results necessarily supported their theory.

Weeks after the Lynøe et al. paper appeared, Acta Paediatrica published an editorial  by epidemiology professor Jonas F. Ludvigsson criticizing  the SBU’s methods and warning of an “imminent risk” that the paper will discourage the reporting of child abuse and leave abused children undiagnosed. Dr. Ludvigsson conceded quality problems with past SBS research, but rejected the SBU’s conclusions and endorsed reliance on the triad:

“[The study’s] publication in Acta Paediatrica does not spell the end of the discussion. Instead, it is a clear signal that more research is needed. But for now, paediatricians should continue to alert social services when they observe a child with the triad, once other explanations for subdural haematomas, retinal haemorrhages and brain ischaemia and oedema have been ruled out.”

The next critique of Lynøe et al., in mid April, added irony to the collection by denying the triad itself. An editorial by violence and abuse specialist Dr. Steven Lucas and others charged that the SBU’s methods had become “untethered from the agency’s published methodology” and argued that the study was fundamentally flawed, because it had examined the question of whether the presence of the triad proves infant shaking. Lucas et al. wrote:

“The construct of the ‘triad’ represents a rhetorical fallacy known as a straw man, which gives the impression of refuting an opponent’s argument – the ‘triad’ is pathognomonic for AHT – when, in fact, that argument was never advanced by that opponent. We maintain that the term ‘triad’ carries no value for clinicians experienced in evaluating suspected AHT.”

In refutation of the straw man argument, I point out that both Joshua Burns and Michelle Heale were convicted based only on the opinion of child abuse experts that the triad proves abusive head trauma—these cases are not unique, only easy to reference here. I myself have researched dozens of convictions based on the triad, sometimes on only one or two elements of the triad.

Lynøe et al. addressed the straw man argument in a response to a different criticism (the response to Narang et al.), by quoting these physician guidelines, which clearly endorse the triad:

“If there is no history of traffic accident or fall from a considerable height, the combination of subdural hematoma and encephalopathy with edema or hemorrhage strongly suggest that the infant has been abused. If there are also retinal hemorrhages then from the medical point of view the diagnosis of abuse is quite clear.”

Also in April, Acta Paediatrica published an editorial by pediatric ophthalmologist Dr. Alex Levin, who declared, “There is a plethora of scientific evidence that retinal hemorrhages are a cardinal feature of abusive head trauma.” Among other objections to the study, he criticized the SBU’s failure to consider the various possible sizes and locations of retinal hemorrhages. “To ignore these descriptors,” he wrote, “is like saying that a rose is no different than any other ‘flower.'”

Dr. Levin also objected that the SBU team had ignored the “wealth of clinical experience” available from the community of child abuse experts.  He argued that certain retinal findings, even in the absence of any other evidence, should shift the assumption to one of abuse:

“A diagnosis of abuse should not be made solely based on retinal haemorrhages, but certain retinal findings make that likelihood dramatically high, so high that one must actively seek (or rule out) supportive evidence that the child has been abused and is in need of protection.”

Another commentary in the April issue, by eye and vision specialist Dr. Kerstin Hellgren and others, called the SBU report “misleading.” In an apparent endorsement of both the triad and the literature that supports it, the authors wrote:

“The SBU report concludes that there is only limited evidence that shaking of an infant can cause the triad signs, in contrast with the numerous reports describing such lesions in victims of verified shaking. It is unfortunate that the SBU panel neither included a paediatrician nor a paediatric ophthalmologist with experience of child abuse to facilitate a correct interpretation of the cited papers.”

In a response to both Levin and Hellgren et al., the Lynøe authors reiterated their commitment to objectivity:

“If physicians involved in child protection teams embraced the research question as if it was a generally accepted scientific fact when classifying cases and controls, this would have resulted in circular reasoning when estimating the diagnostic accuracy of the triad. For that reason, and in order to avoid conflicts of interest and circular reasoning, the expert panel did not include any experts associated with child protection teams. The panel comprised two paediatricians and one expert each from the fields of forensic medicine, radiology, epidemiology and medical ethics. All the included had long experience of assessing scientific work and were scrutinised for potential conflicts of interest and cleared by the Agency. The expert panel followed the guidance in handbooks for assessing health technology and any other panel reproducing the study would have probably arrived at the same conclusions.”

In May, Dr. Sandeep Narang and Dr. Christopher Greeley, both renowned child abuse specialists, published a column in the Acta Paeditrica series “A Different View” that lambasted the methodology, objectivity, and transparency of the SBU study. Like Lucas et al., Narang and Greeley declared the triad a “strawman,” with the statement:

“Physicians experienced in the clinical evaluation of paediatric traumatic brain injury and AHT do not diagnose SBS by a ‘triad’.”

Narang and Greeley also found it “troubling” that the SBU panel “was offered and refused external peer review by no fewer than seven international professional medical societies” before the publication of their report, and charged that the panel was biased in two ways:

  • One of the SBU panelists had testified before the highest court in Sweden, prior to the study, that “the diagnostic model of the ‘triad’ for diagnosing SBS ‘has been criticised’, and that ‘there is currently no clarity about the extent to which the components of the triad are specific to violent shaking’.”
  • A former chair of the SBU had also testified in the same case, and “has openly expressed scepticism of the diagnosis of AHT because of his personal experiences with a family member being criminally charged in a suspected shaken baby case.”

Another “Different View” column published in May, by Dr. Robert A.C. Bilo and others, focused specifically on the papers used to support the study’s conclusion that the triad had many “alternative explanations.” Bilo et al. rejected the cases and papers cited in support of these explanations, with three main arguments:

  • many of the cases would never have been diagnosed as abuse, because the children clearly suffered other medical conditions
  • some of the cases did not fully conform to the triad
  • some of the cases were in fact abuse misrepresented as organic causes

Like other critics, including Lucas et al., the Bilo authors accused the SBU of applying a double standard, because the reviewers accepted individual case reports as evidence for other causes, while they rejected studies with fewer than 10 cases from their main literature review.

Lynøe et al. clarified in their response that the papers cited as evidence for other causes had simply emerged during their literature review, and had been rejected from the main study for the same reasons as many others. They explained:

“From an epidemiological point of view, and due to random fluctuations, studies with less than 10 study cases are of very limited value. But when looking for differential diagnoses, one single case is sufficient to question the general assumption that when the triad is present the infant must have been violently shaken.”

The original study had addressed the question:

With what certainty can it be claimed that the triad, subdural hematoma, retinal hemorrhages and encephalopathy, is attributable to isolated traumatic shaking (i.e. when no external signs of trauma are present)?

The Acta Paediatrica treatment articulated the answer in two, subtly different conclusions. First:

“[T]here is insufficient scientific evidence on which to assess the diagnostic accuracy of the triad in identifying traumatic shaking (very low-quality evidence).”

That is, the literature supporting the opinion that the presence of the triad proves a child was shaken is “insufficient,” because none of the papers supporting that opinion ranked above “very low-quality.” Second:

“[T]here is limited scientific evidence that the triad and therefore its components can be associated with traumatic shaking (low-quality evidence).”

That is, the researchers found some low-quality papers supporting the opinion that traumatic shaking causes the triad—two French papers based on confessions—but no medium- or high-quality papers. Before reaching their conclusions, the authors had read and evaluated 1,000 academic papers, only 30 of which met their inclusion criteria. They ranked 28 of those 30 papers as having a “high risk of bias,” 2 of them as having a “moderate risk,” and none of them as having a “low risk” of bias (a flow chart illustrating the literature search).

In an over-reaching answer to their many critics, the Lynøe team called for a more scientific approach to research in the arena:

“We acknowledge the concerns expressed by all of the authors who responded with regard to child welfare and the possibility that the diagnoses may be delayed in individual cases of child abuse. However, we are very troubled by the disregard displayed by those authors to the significant methodological problems inherent in published research on shaken baby syndrome. With the exception of Ludvigsson, none of these authors expressed concern about the problems of circular reasoning, lack of comparison groups or the other methodological problems we identified in the systematic review. Where has all the critical thinking in research gone?…

“The purpose of a systematic review is to examine the quality of published research. With that in mind, please accept the substantial difficulties and limitations of previous research carried out by the ‘shaken baby syndrome’ and ‘abusive head trauma’ and help to add true knowledge by performing better research that overcomes the methodological problems.”

copyright 2017, Sue Luttner

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

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Shaking debate back in the courts and in the news

uphill-gunnThe landscape in the shaken baby debate is shifting again, with a series of developments that have locked in gains, slowed losses, and even claimed new ground in the struggle against unproven science in the courtroom.

In New York state last week, an appeals court affirmed the 2014 reversal of the murder conviction of care provider René Bailey, who said she was out of the room when a little girl jumped or fell from a chair. Prosecution experts had testified, however, that only shaking could explain the brain findings, and that children don’t die from short falls. In his decision reversing the conviction, Judge James Piampiano accepted the argument by Bailey’s appeal attorneys that changes in medical thinking since her 2001 trial constituted new evidence.

Last week’s ruling rejected an appeal by the state, noting that “advancements in science and/or medicine may constitute newly discovered evidence” and explicitly mentioning the evolving SBS research. Coverage in the Democrat and Chronicle led with the optimistic proclamation:

“For the first time, a New York appellate court has ruled that evidence once used to convict people in shaken-baby cases may no longer be scientifically valid.”

That same evidence failed earlier this month to convince a South Dakota jury, which found Aaron Bruns innocent of murdering his 3-month-old son Levi in what appears to be a pure shaking case. Coverage in The Daily Republic offers this summary of the father’s report:

During the trial, Bruns said he thought Levi was choking, so he quickly picked him up and tipped him upside down to clear his airway. Five minutes later, according to Bruns, Levi turned pale, and his eyes rolled to the back of his head, leading Bruns to run him to a nearby hospital.

fox9Other individual victories seem to have triggered a resurgence of press coverage highlighting the controversy. In Minnesota, for example, reporter Tom Lyden at Fox 9 pulled together a provocative treatment with the title “Critics, parents, question diagnosis of shaken baby syndrome,” featuring a local father acquitted at trial; a family whose own experts convinced the county to drop charges; and a mother now fighting the loss of her son. The treatment closes with a statement from the American Academy of Pediatrics (AAP), which persists in shifting the question from whether the brain findings prove abuse (No, they do not) to whether shaking is even dangerous (Yes, of course it is):

“There is no legitimate medical debate among the majority of practicing physicians as to the existence or validity of AHT/SBS…  Claims that shaking is not dangerous to infants or children are not factual and are not supported by AAP policy, despite being proffered by a few expert witnesses in the courtroom.”

presidentialsealThe assertions of the AAP notwithstanding, the real uncertainties about shaken baby theory were acknowledged this fall, briefly but officially, in a presidential report on forensic sciences in the courtroom, undertaken in the wake of the 2009 study that found “serious deficiencies” and called for “major reforms” of the nation’s forensic science system. The follow-up report, published this fall by the President’s Council of Advisors on Science and Technology (PCAST), notes that DNA evidence has disproved past forensic techniques like bite-mark matching and visual hair analysis, and it recommends strategies for bringing courtroom testimony in line with scientific knowledge. Footnote 15 cites an “urgent” need to examine shaken baby theory, which has not been addressed in past studies:

“PCAST notes that there are issues related to the scientific validity of other types of forensic evidence that are beyond the scope of this report but require urgent attention—including notably arson science and abusive head trauma commonly referred to as ‘Shaken Baby Syndrome.'”

For my posting on arson science, please see “Bad Science Goes Up in Smoke.”

SquierProfileNoCaptionAll these developments come in the same season as the decision to reinstate Dr. Waney Squier’s right to practice medicine, and the release of a literature review by a panel of Swedish scientists who concluded that shaken baby theory has not been proven, both of which have generated international news coverage. New Scientist, for example, published a news report about the Swedish study, with a sidebar on Dr. Squier’s case and a promo that nailed the character of the debate, calling it “toxic and polarised.”

The ripples are still spreading in the wake of Dr. Squier’s reinstatement. Even non-subscribers can give a thumbs-up to the letters to the BMJ in support of her, submitted by Michael Birnbaum, QC, and, further down the page, Dr. Jennian Geddes. I’m told our clicks will help the editors understand the scope of the problem. (If you haven’t done so yet, you can also go give a thumbs-up to the earlier letters from a group of more than 250 professionals and from pediatric radiologist David Ayoub.)

The Sunday Times last week published a more detailed treatment of Dr. Squier’s story than appeared in the early news reports—you have to register with the Times to see the article, but the process is free and reasonably painless.

Leo Ackley's Facebook profile shot not long before the accusations

Leo Ackley

The past few weeks have also brought a number of disappointments—in Michigan, a second trial resulted in another guilty verdict against Leo Ackley, whose first conviction had been vacated on appeal, and an appeals court affirmed the conviction of Joshua Burns, who has served his jail time and reunited with his family, although he remains on probation. Both appeals had been pressed by the Michigan Innocence Clinic, which has been focusing on shaking cases.

Leo Ackley’s family insists they will keep fighting for him, and last month the Michigan Innocence Clinic won a grant to help defend clients who may have been wrongfully convicted in shaking cases. Despite two disappointments this season, the clinic will surely keep up the pressure against a flawed theory that’s been winning in court way too long.

I hope the press, the public, and professionals in the arena stay tuned as the debate unfolds.

copyright 2016, Sue Luttner

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

 

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Dr. A. Norman Guthkelch Fought Injustice to the End

Kim Hart and Dr. Guthkelch, his 100th birthday

Kim Hart and Dr. Guthkelch  -photo by Sue Luttner, Sept. 2015

Dr. A. Norman Guthkelch, the pioneering pediatric neurosurgeon who first proposed in print that shaking an infant could cause bleeding in the lining of the brain, died quietly last week in Toledo, Ohio, a month short of his 101st birthday.

“Until the very end, Norman continued fighting for innocent children and families,” said Kim Hart, his caretaker and colleague and the director of the National Child Abuse Defense and Resource Center (NCADRC), who shared her home with Dr. Guthkelch for the last two years of his life. Last year, just before he turned 100, the two of them helped a local mother regain custody of her twins following a hasty diagnosis of abuse that had ignored the children’s medical histories.

normanClose

Dr. Guthkelch in 2012

Dr. Guthkelch devoted his final years to working against what he considered a misinterpretation of his work, the model of shaken baby syndrome that has been winning in court for several decades. “I am frankly quite disturbed that what I intended as a friendly suggestion for avoiding injury to children has become an excuse for imprisoning innocent parents,” he told me in an interview in 2012.

Dr. Guthkelch published his groundbreaking paper in the British Medical Journal in 1971, proposing that the shaking of infants, considered at that time a reasonable way to calm or discipline a child in northern England where he was practicing, could be triggering subdural bleeding and endangering brain development. The paper did not propose that subdural bleeding proved abuse, but advised physicians faced with unexplained infant subdurals to “inquire, however guardedly or tactfully, whether the baby’s head could have been shaken.”

Drayton Witt and his wife.

Drayton Witt and his wife, courtesy Arizona Justice Project

When he wrote that paper, Dr. Guthkelch launched an education campaign to stop the practice of infant-shaking  in Britain, recruiting the help of case workers who made home visits to new parents. He then pursued other professional interests and didn’t revisit the shaken baby discussion until 2011, when law professor Carrie Sperling with the Arizona Justice Project asked him to review the medical records in the case of Drayton Witt, a father convicted of murder in 2002 for the presumed shaking death of his son.

“I wasn’t too keen on this at first, as I’d retired at least a decade earlier,” Guthkelch sighed in a 2012 conversation, but he examined the records and was “horrified” to discover that 4-month-old Steven Witt had suffered a lifetime of medical problems that could easily explain his death. Dr. Guthkelch’s affidavit helped convince an Arizona state court to vacate the conviction and free Drayton Witt after a decade in prison.

Carrie Sperling

Prof. Carrie Sperling

Sperling, now an associate dean at the University of Wisconsin Law School, describes Dr. Guthkelch as “an amazing, gracious man,” who impressed her with “his curiosity, his unassuming nature, and his intellectual integrity.” She characterizes his decision to examine the evidence in the Witt case as “an act of true courage for the man whose work was at the root of the diagnosis.” Ultimately, Sperling says, “What I found most extraordinary about him was his unwavering and unselfish commitment to justice.”

After the Witt case, Dr. Guthkelch made a careful study of the medical records in a series of other shaking convictions in which the defendant still maintained innocence, and in every single case, he told me in a video interview in 2012, he found an obvious, non-abusive medical explanation for the findings. “And I asked myself,” he said, “‘What has happened here?’”

In 1945

Dr. Guthkelch in 1945

After exploring the medical literature, he concluded that “dogmatic thinking” had set in among child abuse physicians, who had come to believe that a certain constellation of brain findings, including retinal and subdural bleeding, proved abuse. He began articulating his protestations against the common knowledge, in letters to key players and in an essay to accompany an influential 2012 law journal article by a team of attorneys and physicians concerned that shaken baby theory is convicting innocent parents and caretakers.

Dr. Guthkelch advocated abandoning the terms “shaken baby syndrome” and “abusive head trauma,” which incorporate an assumption about mechanism, in favor of the objective term “retino-dural bleeding of infancy.” He tried to encourage communication between the two sides of the debate, he said, “But the arena is much too contentious, and the history too bitter. It’s quite tragic.”

Oxford, 1945. Dr. Guthkelch is second from the left in the back row, under the open window.

Oxford, 1945. Dr. Guthkelch is second from the left in the back row, under the open window.

Dr. Guthkelch began his career at a time of tremendous need. During World War II, right after his residency training, he served as an army neurosurgeon—during the Battle of the Bulge, he once told me, he staffed the operating room for 36 hours straight, breaking for food but not for sleep.

After the war, he returned to his studies under pioneering neurosurgeon Sir Geoffrey Jefferson, who had honed his own skills treating head injury during World War I. Away from the battlefield, Guthkelch found himself specializing in the very young. He became Britain’s first physician with the title of pediatric neurosurgeon when he received that appointment at the Royal Manchester Children’s Hospital.

Dr. Guthkelch emigrated to the U.S. in the mid-1970s, working at the Children’s Hospital of Pittsburgh until 1982. He intended to retire at that time, he said, but when he and his wife moved to Tucson, Arizona, the local hospital recruited him for another eight years of practice.

After the death of his wife in 2011 and his experience with the Witt case, Guthkelch focused his energy on the shaken baby debate. “I want to do what I can to straighten this out before I die,” he said in 2012, “even though I don’t suppose I’ll live to see the end of it.”

Moving to Toledo in 2014 gave him the chance to work on the front lines in the fight against the misdiagnosis of abusive head injury. “The 25 months we had with him was an amazing education, an incredible experience, and a true privilege” says NCADRC director Kim Hart. “We are committed to moving forward, championing his desire to correct the misperceptions of his work that have caused so much tragedy for so many innocent families.”

Contributions in memory of Dr. Guthkelch can be made to the National Child Abuse Defense and Resource Center.

For a profile of Dr. Guthkelch from 2012, please see Dr. A. Norman Guthkelch, Still on the Medical Frontier.

For a video interview with Dr. Guthkelch, prepared for a 2013 conference of accused families, please see Conversations With Dr. A. Norman Guthkelch.

For the National Public Radio treatment of his concerns, published in 2011, see Rethinking Shaken Baby Syndrome.

Dr. Guthkelch meets with students from the Medill School of Journalism. Photo by Alison Flowers, courtesy of the Medill Justice Project

Dr. Guthkelch meets with students from the Medill School of Journalism.
Photo by Alison Flowers, courtesy of the Medill Justice Project

For a podcast interview prepared by students at the Medill Justice Project, see Setting the Record Straight.

For a review of his concerns regarding shaking theory in the journal Argument & Critique, see Integrity in Science.

For his own informal memoir, also published in Argument & Critique, see Arthur Norman Guthkelch: An Autobiographical Note.

copyright 2016, 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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