Category Archives: Uncategorized

Dr. A. Norman Guthkelch Fought Injustice to the End

Kim Hart and Dr. Guthkelch, his 100th birthday

Kim Hart and Dr. Guthkelch, September 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.

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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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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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Enlightened Rulings, Outrageous Stories

IMG_4464A series of promising decisions has offered renewed hope for a few prisoners and parents while also highlighting some of the outrageous circumstances that can surround charges of inflicted pediatric head trauma.

In early January in Macomb County, Michigan, for example, the circuit court granted a new trial to Ronald Di Mambro, Jr., whose appeal had triggered the release of key autopsy photos not previously disclosed to the defense and therefore not available during his 2014 trial. The appeal that brought the photos to light was based on ineffective assistance of counsel. Di Mambro’s attorney had relied on a single defense expert, Dr. Bader Cassin, who agreed with the prosecution’s argument that a fall from a bar stool the previous day could not have contributed to the boy’s collapse while in Di Mambro’s care. Instead of believing his client and questioning the state’s theory about timing, the attorney opted for a defense of involuntary manslaughter. Di Mambro is now serving a sentence of life in prison without parole.

Dr. Ljubisa Dragovic

Dr. Ljubisa Dragovic

Ironicallly, the newly available photos answered a number of questions raised by forensic pathologist Ljubisa J. Dragovic, the medical examiner in adjacent Oakland County, who noted in his first affidavit that deficiencies in the autopsy limited his ability to date the findings. Close-ups of the tissues allowed Dr. Dragovic to refine his analysis. He now attributes some bleeding and bruising with more confidence to surgical intervention and concludes that a single event the previous day could account for the two other areas of bruising.

The published opinion granting a new trial recognized both the “Brady violation”—the state’s failure to disclose evidence—and the original claim of inadequate assistance of counsel. Local news coverage quoted prosecutor Eric Smith, who said he and his staff are “shocked, surprised, and disappointed” at the development, and appellate attorney Erin Van Campen, who called the ruling “very thoughtful and well reasoned.”

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A Family Court Reversal

A couple of weeks later in nearby Wayne County, Michigan, a state appeals court concluded that parents faced with termination of rights based on a diagnosis of child abuse deserve funds for a second opinion, at least in some circumstances.

A panel of three judges vacated the termination of parental rights in the case of JPY, who was five months old the day he fell limp and unresponsive in the care of his father. The written decision tells a story that began a day before his collapse, when the child’s mother took him to the family pediatrician because his left eye was not lined up with his right. The pediatrician sent the child to the hospital for MRI scans, which were performed both with and without enhancement and which revealed nothing alarming. Doctors sent the child home, with a warning to watch for breathing problems.

The mother said her son seemed warm and cranky the next day, eating only 4 ounces through the late afternoon. Then, while the mother was out on an errand, the boy’s father called 911 for help with a baby gone limp and unconscious. The  mother returned to find the father performing CPR and waiting for the ambulance. When the ambulance still hadn’t arrived several minutes later, the father drove them all to St. John’s Hospital, while the mother continued CPR in the car. From the decision:

On arrival at the hospital JPY was flaccid, unconscious, and had no pulse. He took only intermittent gasping breaths. After prolonged resuscitation JPY developed a heart rate. A physician noted that the infant’s estimated “downtime” was approximately 30 minutes, and that the child had been ill with upper respiratory infection symptoms during the preceding week. CT scan of JPY’s brain obtained that evening revealed no acute findings and did not suggest a traumatic injury.

well-loved bearA social worker investigating the possibility of abuse reported that family members were all showing appropriate levels of concern and she could find no evidence of maltreatment. When the child was transferred to Children’s  Hospital of Michigan, however, a team of doctors concluded that JPY was “a severely injured baby with subdural hemorrhages, bilateral retinal hemorrhages, skull fracture from abusive trauma.”

The parents requested funds to hire a medical expert, but the court denied the request. At the termination hearing, held only six months after the boy’s collapse, four doctors from the children’s hospital testified that the child had been abused—at least one of them conceded that he had not reviewed the St. John’s records—and one pediatric neurologist from St. John’s was prohibited from giving her opinion on the radiology. Both parents lost parental rights to both JPY and his older sister.

In the January decision that vacated the termination of parental rights, two out of three judges signed the opinion outlining their reasoning, which included this observation:

The medical records confirmed the existence of a profoundly important contradiction. On one hand, St. John physicians determined that JPY’s MRI and CT scans showed no evidence of trauma or any other abnormality. On the other hand, the Children’s medical experts determined that the same films demonstrated powerful evidence of abuse. Respondents’ counsel were incapable of resolving or understanding this critical evidentiary inconsistency without expert assistance.

The third judge concurred with the majority but filed a separate opinion to clarify that the right to an expert does not necessarily apply in all termination cases. This decision was “fact-specific,” the judge wrote, because, “As noted by the majority, the medical records indicated a ‘profoundly important contradiction.'”

A New Look at an Old Conviction

Suzanne Johnson with family

Suzanne Johnson with family

Finally, a superior court in San Diego, California, has agreed to consider vacating the 1999 conviction of child care provider and grandmother Suzanne Johnson, in response to a habeas corpus petition filed by the California Innocence Project.

Johnson has been protesting her innocence for nearly 19 years, since the day a baby in her care went limp and quit breathing after an accidental fall from a high chair. Johnson’s first trial ended with a hung jury, her second with a conviction and a sentence of 25 years to life.

Like the successful appeals in the cases of care providers René Bailey and Heidi Fero, Johnson’s petition pointed to a change in medical thinking about short falls, but her appeal team had also uncovered new medical evidence: A breathing tube had been placed incorrectly at the hospital, which probably contributed to the child’s death.

In early January, a superior court issued an “order to show cause,” that is, an invitation to the prosecution to argue against reopening the case. The order concludes that “Petitioner has made a prima facie showing that she is entitled to relief,” and orders the state to “file a return and to show cause why the Petition should not be granted.” The order gave the state 30 days to file a response, but an attorney has assured me that a lengthy extension is likely.

After Johnson’s sentencing in 1999, Anne Krueger at the San Diego Union-Tribune wrote:

[The judge] noted that he had received 40 letters from Johnson’s supporters who described her as a kind and loving woman. But he said he did not believe that [the girl]’s death was an accident.

Presumably the new appeal left the new judge with a different opinion.

The California Innocence Project features a summary of Johnson’s case on their website, and they issued this statement after the court issued its order to show cause.

Copyright Sue Luttner, 2016

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

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Successful Appeals Keep the Conversation Going

Two court decisions in different parts of the country have brought shaken baby syndrome theory into the news this week, one focusing on the science of infant head injury and the other on legal process.

Judge James J. Piampiano

Judge James J. Piampiano

In a move that USA Today called a possible state precedent, Judge James J. Piampiano in Monroe County, New York, vacated the murder conviction of child care provider Rene Bailey, citing what he called “a compelling and consequential shift in mainstream medical opinion” about the kind of injuries suffered by two-and-a-half-year-old Brittney Sheets at Bailey’s home day care in 2001.

At the time, Bailey reported that Brittney had fallen off a chair, but prosecution doctors testified that a fall from only 18 inches could not kill a child. The decision, available on line through the Democrat & Chronicle news coverage, quotes pediatrician Jack Finnell on the stand at Bailey’s trial in December of 2001:

I hark back to someone, one of the attendings when I was in medical school as well as reading it in different textbooks and different journals that it is rare and, in fact, never has been seen to have a child fall from less than 10 feet or approximately a second story window result in a serious brain injury.

Dr. Finnell and several other prosecution doctors testified that Brittney had been shaken to death. From Dr. Finnell’s testimony:

My opinion is based on the fact that there [were] no external signs of trauma; based on what I know of the Medical Examiner’s report that these injuries could not have been suffered any other way than a Shaken Child Syndrome.

Prof. Adele Bernhard

Prof. Adele Bernhard, director of the New York Law School Post-Conviction Innocence Clinic

The New York Law School Post-Conviction Innocence Clinic and the Wisconsin Innocence Project together appealed Bailey’s conviction, arguing that medical research since her trial has undermined the reliability of the medical testimony. The appeal also cited a report from another day care provider, a woman who later watched a little boy who had been in Bailey’s home at the time of the incident. She said the boy repeatedly re-enacted a scene consistent with Bailey’s report, in which he encouraged an imaginary friend named Brittney to jump, urging her to “do it” and then comforting her after the fall.

In April of 2014, Judge Piampiano heard three weeks of testimony on the limited question of whether the proposed arguments reached the standard of “new evidence,” as required to reopen the case. Like the judges in the Daniel Consaul case in New Mexico and the Jennifer Del Prete case in Illinois, Judge Piampiano clearly listened carefully to the medical testimony.

Dr. John Plunkett, at the 2012 EBMSI conference

Dr. John Plunkett, at the 2013 EBMSI conference

Not long before Bailey’s trial, forensic pathologist John Plunkett had published his 2001 pediatric short-fall paper, featuring 18 cases of fatal head injuries among children who fell 10 feet or less. Dr. Plunkett testified at this year’s hearings that Brittney did have evidence of impact and that her injuries were consistent with the fall Bailey reported.

Attorney and child-abuse pediatrician Sandeep Narang testified for the prosecution that biomechanical understanding of short falls has improved since 2001 and that short falls are now defined as 5 feet or less. He said doctors know that death from a short fall is possible, but rare, the opinion reports, and conceded that in 1997 child abuse experts were reporting that “the triad” (retinal hemorrhages, subdural hematoma, and cerebral edema) “were virtually unique to Shaken Baby Syndrome.” Experts have since stepped away from that position.

Dr. Daniel Lindberg, from the University of Colorado School of Medicine web site

Dr. Daniel Lindberg, from the University of Colorado School of Medicine web site

Dr. Daniel Lindberg, an ER physician testifying for the prosecution, “stated his belief that the phrase, ‘shaken child syndrome’ was an unfortunate shorthand which could encompass impact,” according to the opinion.

Pediatric neurosurgeon John Waldman, also testifying for the prosecution, agreed with defense experts that there was no evidence that Brittney had a torn bridging vein, the presumed source of subdural bleeding in shaking cases. The opinion noted, “Dr. Waldman explained, however, that a child who dies as a result of a short fall will suffer different injuries than those suffered by Brittney.”

Kieran Lloyd, who at 7 months eagerly provided data on repetitive bouncing motions by playing in a commercial jumping toy.

Kieran Lloyd, who provided data on repetitive bouncing motions by playing in a commercial jumping toy for a 2011 biomechanics study  -photo by John Lloyd, PhD CPE

High-profile forensic pathologist Michael Baden, once the Chief Medical Examiner of New York City, testified that Brittney’s brain showed the classic “coup/countrecoup” bruising that reveals the head was in motion before it came into contact with a hard surface. (The “coup” injury occurs on the side of the brain that is impacted, and the “contrecoup” occurs on the opposite side. A single coup injury is typical when a moving object strikes the head. A contrecoup injury implies rebound of the head after impact, which is typical in a fall.)

Doctors on both sides addressed retinal hemorrhages. Dr. John Galaznik, a pediatrician testifying for the defense, traced the evolution of the American Academy of Pediatrics position statements on both shaken baby syndrome and retinal hemorrhages, resulting in this summary in the written opinion:

The Court credits Dr. Galaznik’s testimony that said statement represented a significant change from the AAP’s 2001 position. That is, in 2001, retinal hemorrhages were presumed to indicate rotational head injury. By 2010, it was recognized that retinal hemorrhages could have multiple causes and be present in many situations. Therefore, retinal hemorrhages are non-specific.

Pediatric neuroradiologist Patrick Barnes offered his opinion that medical thinking about shaken baby syndrome has evolved, illustrating his point with examples from the literature, and explained the circular reasoning that plagues much child abuse research.

Also at the April hearings, biomechanical researcher Kenneth Monson, PhD, described contemporary research employing computer simulations and reviewed past laboratory studies. Judge Piampiano wrote:

None of the modeling attempts since 2001 were able to establish that the violent shaking of an infant or a toddler could cause the kind of subdural hematomas, retinal hemorrhages, brain injury, and death that were associated with this case. Rather, every biomedical investigation that has been performed continues to suggest that the accelerations associated with shaking are lower than what would be expected as necessary to cause those injuries. Significantly, nothing before 2001 would contradict that finding.

The judge summarized:

 As more fully set forth in the Findings of Fact, the Court credited the testimony of the Defense experts that case studies have demonstrated that children have died from short falls, that biomechanical research has explained the force produced in falls, and that advances in imaging have undercut the theory that shaking causes fatal injury through the tearing of bridging veins.

The opinion specified that the medical testimony alone constituted “new evidence” for purposes of vacating the conviction, and that the judge did not consider the report from the child care provider about the young witness’s subsequent play behavior. “The Court finds that such testimony was credible, and compelling,” Judge Piampiano wrote, “but this court is not considering that testimony upon reaching its decision.”

According to the news report in the Democrat & Chronicle, Monroe County District Attorney Sandra Doorley said she still believes science supports Bailey’s conviction and the state will either appeal the decision or retry Bailey,

The right to an expert

LeeVester Brown

LeeVester Brown

Meanwhile, the Mississippi Supreme Court reversed a lower court’s decision and ordered a new trial for LeeVester Brown, convicted in 2002 of shaking his son to death.

Brown said that 6-month-old Le’Anthony had choked on a bottle and then had trouble breathing. At the emergency room, doctors found “no bruises, abrasions, scars, or anything else abnormal,” but an autopsy by controversial medical examiner Dr. Steven Hayne concluded that the boy had been shaken to death.

Brown’s appeal hinged on the trial court’s refusal to grant him the funds to hire a defense expert, but it also addressed the court’s moves to limit the cross-examination of the state’s experts during trial. You can read the full published decision here.

Press treatments last week by two reporters who have been following the shaken baby story—Jerry Mitchell at The Clarion-Ledger and Radley Balko at The Washington Post—presented the Brown decision in the context of other disputed shaking cases, including Jeffrey Havard, now on death row in Mississippi.

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

copyright 2014, Sue Luttner

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Boston Cases Refocus the Spotlight

Justina Pelletier thrilled to be returning home

Justina Pelletier, now reunited with her family

Nearly twenty years after the trial of British au pair Louise Woodward brought shaken baby syndrome into the headlines, the case of Irish nanny Aisling Brady McCarthy has raised the subject again in Boston, where reporters are still fresh from a different controversial diagnosis by the same child protection team.

Last week McCarthy’s attorneys filed a motion arguing not only that the science around shaken baby syndrome is falling apart but also that the physician who diagnosed the abuse has been wrong before about infant shaking. Then journalists made the connection with the high-profile case of teenager Justina Pelletier, who returned home to her parents in June after a long, bitter, and public struggle with Boston Children’s Hospital.

Aisling Brady McCarthy, from the BBC coverage, http://www.bbc.com/news/world-europe-24569976

Aisling Brady McCarthy, accused of shaking an infant, from the Middlesex District Attorney’s Office

McCarthy, who is in the U.S. illegally, has been in jail since she was arrested in January of 2013, a week after reporting that 1-year-old Rehma Sabir had simply fallen unconscious in her care. The girl died in the hospital two days later.

Although doctors found no bruising, grip marks, or other external signs of assault, Rehma was diagnosed as the victim of a violent shaking based on brain swelling and bleeding inside her head and behind her eyes, the same symptoms found in Matthew Eappen, the infant who quit breathing while in the care of Louise Woodward in 1997.

Last week’s Boston Globe coverage offered this perspective on the abuse diagnosis, from a physician not involved in the case:

“Bleeding in the back of the eye rarely happens absent abuse,” said Robert Sege, medical director of the Child Protection Team at Boston Medical Center.

Sege said abusive head trauma is a leading cause of death of infants, and its existence is a “settled scientific fact,” according to the American Academy of Pediatrics.

During a grand jury hearing in 2013, prosecutors argued that McCarthy had inflicted both the brain injury and a number of “compression fractures” found in Rehma’s spine, but a bone specialist for the state later concluded that the fractures were 3 to 4 weeks old, meaning they happened while the girl was out of the country with her family, not in McCarthy’s care. When the bone evidence emerged, defense attorneys filed an unsuccessful motion to have the charges dropped, and the case has been crawling through the courts since.

McCarthy’s defense attorney Melinda Thompson, a former prosecutor, says her work on this case has convinced her that shaken baby syndrome is not a reliable diagnosis. “I was a prosecutor in that office for seven years,” she wrote in an email, “I never prosecuted child abuse cases and never thought about SBS cases. I should have. I am appalled that this can happen. I won’t stop until Aisling is free.” bostonChildrens

In the petition filed last week, Thompson and co-counsel David Meier argued that Rehma had a complex medical history, including a bleeding disorder, which Dr. Alice Newton at Boston Children’s Hospital did not consider before making the abuse diagnosis. The petition also cited the case of Geoffrey Wilson, accused in 2010 of shaking his 6-month-old son to death. The state medical examiner has recently derailed that prosecution by amending the cause of death from homicide to undetermined. The shaking diagnoses in both Wilson’s and McCarthy’s cases were made by Dr. Newton.

Justina with her mother and two of her three sisters

Justina with her mother and two of her three sisters

“Medical Child Abuse”

Justina Pelletier’s parents brought their daughter to Boston Children’s Hospital on the advice of Dr. Mark S. Korson, a metabolic disease specialist at Tufts Medical Center who had been treating Justina for mitochondrial disease, a rare and little understood condition that includes muscle weakness and digestion problems. Her health was failing, and Dr. Korson wanted her to see her long-time gastroenterologist, who had moved from Tufts to Boston. But the child protection team at Boston Children’s, led at the time by Dr. Newton, concluded that the girl’s symptoms were psychosomatic, triggered in part by her family’s insistence on receiving what they considered “unnecessary medical treatment.” The courts accepted the doctors’ diagnosis of “medical child abuse” and removed Justina from her family. The hospital then placed Justina in a locked psychiatric unit and allowed her only one supervised visit and one supervised phone call each week with her family.

“No one was on my side there,” Justina told Mike Huckabee at Fox News in a televised interview after her release. “No one believed me there. They all thought I was faking.”

ERThe relationship between the Pelletiers and the hospital remained hostile, and in March of 2014 a judge granted permanent custody to the state of Massachusetts, in an opinion that criticized both the Pelletiers for their refusal to cooperate with Justina’s new treatment plan and the state of Connecticut, where the family lives, for its failure to get involved.

Justina’s health did not improve, though, and in May of 2014 she was transferred to a residential treatment program in Connecticut, closer to her family. The staff at the new facility found the Pelletiers “cooperative and engaged,” and in June the same judge authorized Justina’s return home. The order returning custody to the Pelletiers did not explicitly reject the diagnosis of “somatoform disorder,” or illness caused by psychological issues, instead noting that “circumstances have changed” since Justina became a ward of the court.

Since her release, Justina, her family, and their advocate Rev. Patrick Mahoney have made a number of public appearances, including a Congressional address and a televised press conference, and the case has been offered as an object lesson by both alternative health care activists and the mitochondrial disease community.

When attorneys for Aisling McCarthy filed their motion in the shaking case, Boston Herald columnist Peter Gelzinis apparently hit a nerve with an opinion piece noting that the Pelletier outcome had tarnished the credibility of the diagnosing physicians: His column triggered a cascade of public comments about false allegations of child abuse in Massachusetts.

Unlike the infants Matthew Eappen and Rehma Sabir, Justina Pelletier was 15 years old when she arrived at Boston Children’s Hospital, old enough to tell doctors that her parents were not abusing her. She already had a diagnosis of mitochondrial disease from a reputable institution, and she continued to insist that her symptoms were real, while her health continued to unravel. “They didn’t care,” she told Mike Huckabee, “They were saying that I was improving, which I was not.”

Some medical conditions, like cancer or tuberculosis, can be confirmed by testing. The tests might have a known error rate, the likelihood of a false positive or a false negative, but guidelines and data are available. There is no test, though, to confirm or reject either shaken baby syndrome or medical child abuse. Doctors are relying on what they’ve been taught about the conditions, supported by their clinical experience, which of course incorporates the opinions of their peers and courtroom outcomes.

According to press reports, there is also no definitive test for mitochondrial disease, which mired the Pelletier case in uncertainty from the beginning. Before the case resolution, Brian Palmer at Slate speculated in an essay emphasizing the ambiguities:

Linda and Lou Pelletier may be the innocent victims of an all-powerful hospital that followed a misdiagnosis to its painful and damaging end. Or perhaps they are sick people who have tortured their daughter with unnecessary medical procedures. They could even be both—the parents of children with mitochondrial disease often suffer from the same disorder, which can cause emotional and psychiatric problems.

In the Pelletier case, time offered a test of the doctors’ hypothesis: After sixteen months of psychiatric care and separation from her family, Justina’s legs are so weak she uses a wheel chair to get around, and her parents say she has regressed academically.

But time has few opportunities to prove or disprove a diagnosis of inflicted head trauma. Infants who survive presumed shaking assaults routinely suffer from seizures and other neurological complications:  The common knowledge is that these problems are a result of the assault, and not a clue to an alternative explanation for the initial collapse. Similarly, infants diagnosed as shaken often arrive at the hospital with both old and fresh bleeding in their brains. Child abuse physicians conclude that these children have been shaken in the past and then again just before they became symptomatic—although I’ve never understood why this explanation doesn’t interfere with the presumption of immediate symptoms.

In rare cases, the medical records ultimately reveal an underlying condition—like sickle cell disease in the case of babysitter Melonie Ware or Menkes syndrome in the case of Tammy Fourman—but no one knows how many other disorders might cause the brain bleeding and swelling that’s routinely ascribed to shaking, and as the McCarthy motion points out, doctors seldom test even for the known causes.

So the courts are left to arbitrate between the doctors who believe they can know from the brain findings that a child was shaken and the caretakers who claim innocence. I can only hope that further research and improved technology offer better answers soon, because I believe that innocent people are being accused and benign families torn apart by sincere physicians working with a theory that pushes well beyond the limits of what’s really known.

The McCarthy motion asks for a hearing to scrutinize the science behind shaken syndrome under the “Daubert-Lanigan” standards that govern expert testimony. If that hearing happens, I hope the Boston press will stay with the story.

August 15 update: Geoffrey Wilson’s family, in the other local shaking case, has offered to open their medical records to McCarthy’s defense: team: http://bostonherald.com/news_opinion/local_coverage/2014/08/shaken_baby_defendant_offers_to_share_evidence_with_nanny

copyright 2014 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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Appeals All Over the Map, as Usual

While the appeals on behalf of care providers Jennifer Del Prete and René Bailey work their ways through the courts, a number of other painful cases have been passing milestones without news coverage.

Hopes Dimmed in the West

Robert and Gabriel Wilkes, 2008

Gabe and Dave Wilkes, 2008, courtesy the Wilkes family. “He was a proud father” -Tony Wilkes

In the “exasperating” category is an April 2 decision in Montana, where a district judge has rejected an Innocence Project petition to reopen the case of  single father Robert James “Dave” Wilkes, convicted in 2009. As described in past news coverage of the case, Wilkes had spent the day moving into a new apartment, and then stopped by the unit of a friend and neighbor who had been caring for 3-month-old Gabriel. He stayed and chatted while feeding the boy a bottle. Wilkes says that a few minutes after the two returned to their own apartment, Gabriel made a “gurgling” noise and quit breathing. At the hospital, though, doctors said the presence of the triad proved the child had been shaken.

The appeal argued that Wilkes had ineffective assistance of counsel, because his trial attorney had called  only one witness, Wilkes himself, who told the jury his version of what happened that evening. But the jury also heard from nine prosecution experts, who agreed that little Gabriel couldn’t have drunk a bottle after the presumed assault. Remarkably, the district court overlooked this imbalance, noting that the attorney had tried to find a defense expert, and in fact had contacted forensic pathologist Dr. Thomas Bennett, a “recognized expert in child abuse”—who had agreed with the state’s doctors.

EdgesOfTruthOne fundamental problem here is that if the defense attorney had done his research, he never would have contacted Dr. Bennett with a shaking case: Dr. Bennett’s over-diagnosis of shaking injuries triggered one of the first high-profile articles questioning shaken baby syndrome in the courtroom, the 1998 piece by Mark Hanson in the ABA Journal, “Why Are Iowa’s Babies Dying?” As also reported in the Los Angeles Times, Dr. Bennett ultimately resigned his post as state medical examiner after a series of unsupportable shaking diagnoses. The eventual exoneration of babysitter Mary Weaver was part of his unraveling.

Still, Judge Ed McLean of the Montana Fourth Judicial District agreed in his written opinion (Wilkes 2014-04-02) with a lower court that the trial strategy had been reasonable and that “any assertion that the mere presence of an expert for the defense would have made a difference… is mere speculation.” Judge McLean’s decision also dismissed new opinions offered in the petition from an array of medical experts for the defense, although attorney Brendan McQuillan from the Montana Innocence Project insists his team “found and presented new evidence never discovered before or after trial that the child had neonatal-hemochromitosis, a rare liver disorder which is most often fatal.”

Clearer Thinking in Maryland

Illustrating the unpredictable nature of these appeals, a Maryland circuit court reached the opposite decision just a few days later in a similar case, overturning the 2010 conviction of Gail Pinder Dobson, a child care provider with both a long history and a sterling reputation in her community before she was accused of shaking a 9-month-old baby to death. Dobson had in fact taken care of the infant’s mother when she was a baby decades earlier.

dobson

Gail Dobson, 2009

Like Wilkes in Montana, Dobson reported that a few minutes after she fed the boy a bottle, he made a “gurgling” sound and stopped breathing. She attempted first aid and dialed 911, but the boy died later that day. Soon after Dobson’s indictment in November of 2009, her attorney contacted a single expert witness, who supplied his report at the end of July for an August trial:  He agreed with the state’s physicians that the infant had suffered an inflicted injury just before the 911 call. Although Dobson’s trial featured a number of character witnesses, her attorney did not call any medical experts, with the explanation that “Petitioner denied any type of abuse and her credibility should have been sufficient.”

In Dobson’s case, though, the court concluded that the attorney “did not use reasonable diligence” by not getting the doctor’s opinion in time to find an alternative expert. The state argued that Dobson’s attorney was employing a legitimate trial tactic, but the judge wrote, “[The attorney’s] assertion that he did not need expert testimony is both illogical and untenable. Such testimony would have both corroborated Petitioner’s version of the facts and refuted the testimony of the State’s experts.” You can read the decision, by Kent County Circuit Court Judge Paul M. Bowman, at Dobson -Kent County, 2014-04-07.

A Long, Lonely Road in Tennessee

russellMaze

Russell and Alex Maze, 1999

I was especially sad to hear that the U.S. Sixth Circuit Court of Appeals has denied the habeas petition of convicted father Russell Maze, now serving a life sentence for the death of his son Alex, only five weeks old and still days short of his due date the afternoon in 1999 that Russell claims he found the boy gasping for breath in his crib. Alex had been born in respiratory distress, with the umbilical cord wrapped tightly around his neck, and he spent his first two weeks of life in the intensive care nursery. A few days before his collapse, his parents had taken him to the after-hours clinic, where they were told they were being over-anxious first-time parents.

Maze’s case history is complex. His prosecutor at two trials was Brian Holmgren, an advisory board member of the National Center on Shaken Baby Sydnrome and the co-author of a passionate essay last year in the Utah Law Review decrying the minority opinion in the Shirley Ree Smith case.

Dropped Before Trial

Finally, in Washington state, a welcome outcome that short-circuits the need for an appeal later: Charges have been dropped against a young father after a prosecution motion that said staffing shortages had precluded their dealing with the case in a timely manner. Charges were dropped without prejudice, so the state could refile, but defense attorney Chuck Henry said he doubts they will revisit, as both the evidence and the handling of the case were inadequate. “This case was truly more about prosecutorial case mismanagement than it was about SBS, which never existed in the first place,” he summarized.

copyright 2014 Sue Luttner

If you are not familiar with the debate surrounding Shaken Baby Syndrome, please see the home page of this web site.

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Flawed Convictions: Breaking Academic Ground

Flawed ConvictionsThe next phase of the shaken baby debate is coming right up:  Next month professor Deborah Tuerkheimer at the DePaul University College of Law is publishing a book through Oxford University Press, USA, that will reject decades of courtroom outcomes in these cases. Flawed Convictions: “Shaken Baby Syndrome” and the Inertia of Injustice promises not only to explain how a flawed theory has become entrenched in the courtroom but also to propose a way out of the morass we are in now.

Prof. Tuerkheimer, once a New York child abuse prosecutor, was already aware of the triad and its role in the courtroom in 2008 when she heard about the successful appeal of the Audrey Edmunds conviction. She studied both the legal arguments and the medical references, and concluded that the Edmunds court was correct: Medical consensus regarding shaken baby syndrome had dissipated since the 1997 trial. As Tuerkheimer explains in the book’s introduction, now available on line:

“The criminal justice implications were staggering. The mainstream medical rethinking recognized by the court could not undermine this one conviction without undermining the convictions of others whose cases also depended on the triad.”

Her first expectation, she writes, was that the Edmunds decision would trigger “a massive institutional effort to correct error.” What she encountered, however, was a system not only poorly equipped to vet medical testimony but also averse to changing course:

“Throughout the process—from prosecutorial decisions, to evidentiary rulings, to judicial review—we see a drive to push forward rather than revisit. A diagnosis of SBS sets in motion systemic confirmation, first in the clinical realm, and then the legal. The course of injustice is almost immovable.”

Prof. Deborah Tuerkheimer

Prof. Deborah Tuerkheimer

Still, Tuerkheimer insists that the course can be changed, and the last chapter of the book will offer her prescription for achieving that goal. I’m hoping she suggests a systematic review of past shaking convictions, as an alternative to the current practice of appealing them one by one.

My favorite line in the promotional blurbs is in the Amazon description, which explains that doctors are no longer sure that the triad can be caused only by abuse, or that the last adult with the child is necessarily guilty, but notes that the legal system has failed to adapt to the change:

As a result, innocent parents and caregivers remain incarcerated and, perhaps more perplexingly, triad-only prosecutions continue even to this day.

You can read a quick summary of Tuerkheimer’s conclusions in her 2010 New York Times op ed piece. She has published two law journal articles on the subject, one explaining her position and calling for change, and a second a few years later, expressing her impatience with the lack of progress.

Her observation on the current situation:

Today, an acceptance of triad-based prosecutions that once was complete has dissolved—alas, to be supplanted by a distibution of justice that is halting and unequal, with disadvantage breaking along familiar lines.

Surely its distinguished author and pedigreed publisher will give Flawed Convictions credibility. I look forward to reading Tuerkheimer’s prescription for change, and I hope her book reaches readers on both sides of the debate.

If you click on the image of the book on the Amazon page, you can read quite a bit of the book itself.

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

copyright 2014, Sue Luttner

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