Steps Forward, Steps Backward, Part II

The second half of a posting started on March 7

Re-creation of the reported fall

In another small step forward, a father in Michigan has been found not guilty of murder or abuse in the death of his 11-week-old son, after spending 16 months in jail waiting for trial.

Mark Hontz had reported falling down the basement stairs with the boy in his arms, landing on the infant when they reached the floor. Doctors at the University of Michigan, however, rejected that explanation for the child’s injuries. At the preliminary hearing, forensic pathologist Dr. Jeffrey Jentzen pointed to anterior rib fractures and neck damage, which he said were “more consistent” with the compression and whiplash that occur during squeezing and shaking than with a fall down stairs.

Dr. Jentzen’s testimony reflected an opinion I’ve heard before about pediatric stairway falls:

“Well actually, going down stairs is not a single fall down, for example, ten feet. It is ten individual falls down a single foot, so there’s not the long distance fall that you would expect.”

In the journal Pediatrics in 1988, Drs. Mark Joffe and Stephen Ludwig at the University of Pennsylvania proposed that model in their paper “Stairway Injuries in Children,” illustrating their point with the figure to the right. That paper had concluded that “nonaccidental injury should be suspected” when children receive serious injuries in an alleged stairway fall.

The photos at the top of this page show the stairs to Mark Hontz’s basement, with the figure at the starting and landing spots he reported. A biomechanical engineer brought in by the defense pointed out that an adult falling forward down stairs does not fall one step at a time, as the feet are no longer under the center of mass. Instead, the body falls forward, propelled by the force of gravity, until the motion “is arrested by contact with the ground or steps.” The engineer calculated that the infant experienced a vertical fall of 9 feet, landing with an approximate speed of 16 miles per hour.

Investigators conducted a series of interviews with Mark Hontz, finally confronting him with the medical opinion that his son did not die from a fall down the stairs. “Hontz offered no other explanation,” the police report says, which is another way of saying that, even under intense pressure during repeated interrogations, the father never changed his story.

Illustrating the value of a thorough defense, attorney Sharon Clark Woodside also called in a forensic pathologist, a child abuse pediatrician, and a pediatric radiologist to rebut the prosecution theory.

Witnessed Shakings

Two witnessed shakings in separate hemispheres this winter seem to have produced no injuries, nor any questioning of shaking theory.

Dismayed diners at an Australian cafe called authorities about a man shouting and shaking his 5-month-old daughter, according to a news story by reporter Allison Harding. After paramedics checked the child and cleared the father to take her home, Harding wrote, other patrons attempted unsuccessfully to block his car. The father later pled guilty to unlawful assault and has sought treatment for “long-term mental health issues.” His wife reportedly stood by him in court, calling him a responsible and loving father.

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Cottonwood, Arizona

Concerned bystanders in Cottonwood, Arizona, called police and recorded video of a 19-year-old mother shaking and slapping her 10-month-old daughter at a street corner, according to coverage in the Verde Independent. Responding officers arrested the mother, a transient already known to local police and described as “combative.” Authorities later discovered that the child was missing from foster care in another state, kidnapped by her parents during a family visit. The Independent’s coverage quoted Cottonwood Police Sergeant Tod Moore, who said, “I have seen too often in shaken baby cases where permanent brain damage or death occurs. We appear to be very fortunate this time.” I note that Sgt. Moore has probably seen serious injury in cases where the doctors diagnosed shaking. In the one witnessed case he’s probably handled, doctors at the local hospital found no injuries.

More Fathers in the News

Convictions of and accusations against fathers continue to pass through the headlines.

One case in Pennsylvania has it all: no external signs of assault, the presumption of immediate symptoms, and a retreat from the term “shaken baby syndrome”—but with a computer animation shown at trial illustrating the presumed effects of a violent shaking. From an article before the verdict by reporter Laurie Mason Schroeder of The Morning Call:

Prosecution expert Dr. Debra D. Esernio-Jenssen, medical director of the Child Advocacy Center at Lehigh Valley Hospital, testified that Quinn suffered from symptoms of abusive head trauma, formerly called “shaken baby syndrome.”

Using a computerized animation, Esernio-Jenssen demonstrated how, she said, a baby’s brain would hemorrhage from being snapped back and forth in the hands of an angry adult.

On the subject of timing, Leigh Valley Live reporter Sarah Cassi wrote in an article reporting the conviction:

[Dr. Esernio-Jenssen] testified the baby would have shown immediate symptoms following the “severe, lethal episode of head trauma” she suffered, meaning the injuries occurred while [the father] was alone with the child.

Depressingly, the father’s defense attorney seems to have focused on blaming the child’s mother, arguing only that the injury had been inflicted before the girl was left in his client’s care.

A father in Tennessee has been sentenced to 15 years for aggravated child abuse, convicted after a 4-day trial, according to coverage in the Johnson City Press. The child’s mother still insists her husband is innocent—in a moving clip from the trial posted by WCYB, she said, regarding her son, “We wanted a real answer because we knew he wasn’t abused.”

The story of a young father accused in Wisconsin, meanwhile, received mixed coverage in a single treatment, with a headline about possible doubts but six opening paragraphs focused on the prosecution theory of shaken baby syndrome—the unfolding article then cites the Audrey Edmunds case and reveals that the defense attorney is fighting hard against the diagnosis.

Foster Mom Charged

And in Florida, investigators have reached the improbable conclusion that a 43-year-old mother and foster parent—active in the local child protection community—became enraged enough to batter a 17-month-old to death in the 7-minute gap between the time a social worker left her home and the time she dialed 911 for help with an unconscious toddler. Coverage in the Tampa Bay Times describes a boy with a complex medical history, including developmental delays and physical signs of early neglect. The child used a feeding tube, and he had been discharged from the hospital just a few hours before his collapse, after three days of treatment following a choking incident. Faith in the diagnosis of abusive head trauma, with a guarantee of immediate symptoms, apparently overrides the logical assessment of established medical facts.

Sam Stone

Sam Stone

This story reminds me of Quentin Stone in California, a father acquitted in 2014 by jurors in Yolo County who accepted that the child’s fatal collapse had resulted from an evolving head injury suffered in an accidental fall. Stone had taken his son to the hospital several months before his medical crisis, just to make sure he was OK, he said, after the boy had rolled off a bed. Doctors found no injuries and released him, but over the following weeks, the Stones had sought medical advice repeatedly for their son’s ongoing vomiting and apparent “breath holding.” Despite that well documented history, the prosecution charged Stone with murder after the boy’s fatal collapse, based on medical opinion that the brain findings proved abuse and the symptoms would have been immediate.

Also in Yolo County,  a public invitation this winter to the annual Rotary Club of Davis fund-raising dinner noted that a team of Rotarians had taken a trip three years ago to Kenya, East Africa, “to educate physicians, medical students and nurses on how to identify abusive head trauma in children.” The article did not say where the Rotarians got their own medical training, but it reported that the team “trained nearly 1,200 professionals throughout Kenya.” According to the shaken baby page on the web site for Rotary District 5160 (northern California), the Davis chapter also provides shaken baby simulator dolls to schools and hospitals.

Fractures in the News

Finally, a television station in Indiana ran a provocative segment on a family trying to regain custody of their two sons, removed because of fractures discovered in their first-born when he was four months old. “I understand them getting involved at that point,” says mother Ally Allen on camera, “The frustration came in that they never tried to find an answer.”

Knowing they had not abused their son, Ally says, she and the child’s father started looking for another doctor who could give them an accurate diagnosis. They found Dr. David Ayoub, a pediatric radiologist in Illinois who determined that the infant suffered from rickets, a lack of mineralization in the bones that predisposes to fractures. Once considered a disease of the past, rickets remains “a significant cause of nutritional disease for infants,” according to the American Academy of Pediatrics.

The family’s second child was removed from them at birth because of the pending charges. While they wait for their case to work its way through dependency court, Ally and her partner can see their sons only for a few hours at a time during scheduled visitations.

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

copyright 2017 Sue Luttner

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Shaken Baby Debate: Steps Forward, Steps Backward

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Jason & his son

Part I of II

Amid a winter of murky news coverage and disappointing developments, an encouraging story comes out of Colorado, where the state dropped charges in January against father Jason Schneider after a mistrial due to a hung jury in December. Schneider, an EMT and former volunteer firefighter, has enjoyed the support of his family and community since the accusations last winter.

“There’s been so much rebuilding, and lots of celebration,” Jason reported, although his family is still reeling from a year of lurid press coverage, hardly balanced out by a couple of brief articles after the fact. “My wife and I know we are blessed,” he said, “but we are disillusioned with the justice system and the media,” and they worry about other accused families with fewer resources.

Jason had called 911 after his son seemed to choke on a bottle and quit breathing and Jason’s own efforts failed to revive him.

The state’s motion to drop the case—which was based on the triad with no other findings—referenced three letters written to the prosecutor after the trial from jurors, two urging the state to drop the charges. The jury had deadlocked 10-2, with the majority advocating for acquittal. In light of the juror input, the motion declared:

“…undersigned counsel simply does not believe there is a realistic likelihood of a jury composed of 12 different members of the community reaching a unanimous decision finding the defendant guilty.”

The Schneider family

The Schneider family

The judge placed one of the letters in the case file, from a panelist who wrote that many jurors thought the trial was a “poor prosecutorial decision” and the case should be dismissed. He attributed the hung jury to two jurors who approached deliberations “with a presumption of guilt instead of a presumption of innocence.”

The letter-writer, who said he had no preconceptions going into the trial, criticized some of the prosecution’s tactics, including the marginalizing of defense witnesses. He observed that the defense experts had years of experience and knew the research in their specialties, in contrast to the local experts called by the state:

“The inexperienced doctors at Children’s Hospital… believe the triad is gospel as far as Shaken Baby Syndrome/NAI [non-accidental trauma] is concerned. That is what they were taught… The specialists that the defense brought in are far from the only ones that share an alternate view. It was disgusting to hear you refer to them as ‘fringe.'”

Defense attorney Kathryn Stimson had brought in a pediatric ophthalmologist who specializes in retinas, a pediatric neurologist, a neuropathologist, a radiologist, and a biomechanical engineer. She said her team was devastated that the jury didn’t acquit after such a strong defense. “These cases are incredibly difficult,” she reflected. “Even with amazing expert and character witnesses, they are still so very hard.”

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Eva Amurri Marino

Indeed, these cases are hard, even without devastating accusations of abuse, a point made by actress and blogger Eva Amurri Martino, daughter of Susan Sarandon and mother of two. Eva revealed in a January posting on her blog Happily Eva After that two months earlier, when her son Major was only a month old, the night nurse had fallen asleep while holding the baby, who had slipped off her lap and onto the hardwood floor.

At the hospital, doctors found a depressed skull fracture and “localized” brain bleeding. Eva and her husband hovered over their precious baby for “two harrowing days” of treatment and tests. “To say these were the most traumatic and anxious two days of my life is an understatement,” she wrote. But their son was then released with a glowing prognosis, and, indeed, he seems to be fine.

She didn’t write about the incident when it happened, Eva explained, because she wanted to wait until they knew Major was OK, and also:

“The second reason I chose not to share was fear of judgement… I know that this news might reach many, and of those many there will always be the people who say that this accident was my fault. That if it had been me in there holding him instead of a Night Nurse, that this never would have happened. That I deserve this for allowing my child to be in the care of somebody other than me. Well, let me tell you–the guilt I bore in the days and weeks after this accident was more intense and more damaging than anything I would wish upon my worst enemy. I had all those same thoughts and more. I wept in the hospital, telling anyone who would listen that it should have been me. That I was to blame. The truth is, even this woman who came so highly recommended, with a perfectly clean track record, could make a very human mistake. It “could happen to anyone”, and as they told me repeatedly in the hospital, it DOES happen to anyone. More often than you’d like to hear. Obviously, the (extremely upset and remorseful) nurse is no longer working for our family, though we forgive her. And even though I finally made peace with the fact that this freak accident could not have been avoided by me, it has continued to effect me to my core and in all aspects of my daily life.”

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Major with his family

What dazzles me about this case is that the doctors seem to have accepted that a fall from a caretaker’s lap can produce a depressed skull fracture and, I’m extrapolating, subdural hematoma. In 2006 in San Mateo County, I watched a nanny convicted of child abuse based on those symptoms, also with no underlying brain damage. I have to wonder what made the difference—nothing in the posting implies there was ever any question of abuse.

Disappointment at Retrial

A jury in Maryland, meanwhile, has found child care provider Gail Dobson guilty in a second trial, nearly three years after her first conviction was reversed on a finding of ineffective assistance of counsel. Her attorney in 2010 had failed to call any medical experts to dispute the state’s theory, a strategy a 2014 appeals court labelled “deficient” after hearing testimony from two critics of shaking theory. News coverage of the second trial implies that the judge excluded defense expert testimony based on pretrial hearings, so jurors seem to have heard again from only one side in the debate.

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

Leo and Baylee

The Dobson conviction echoes the outcome this past fall in Michigan, where Leo Ackley was also found guilty at a second trial, after his first conviction was vacated on appeal in 2013. Both the appeal court and the second jury heard from defense experts brought in by the Michigan Innocence Clinic. Leo’s family insists he is innocent and says they are pushing for another appeal. I reached out to Leo, who wrote a long reply, including these thoughts:

“It’s really the hardest time of my life… I don’t know where to begin after being convicted for a second time, and knowing how long and hard it was to make it back the first time. Just preparing for another long appeal process and praying for a miracle.”

I am still hoping for a better outcome in the upcoming retrial of care provider René Bailey, whose conviction in a toddler’s death was vacated in 2014.  Jury selection begins September 5.

I have another thousand words queued up about this winter’s developments, but I think this first half is plenty for one blog posting. More soon.    -Sue

For Part II of this posting:  https://onsbs.com/2017/03/10/steps-forward-steps-backward-part-ii/

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

copyright 2017 Sue Luttner

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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. Waney Squier Reinstated

SquierProfileNoCaption

Dr. Waney Squier

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

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

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

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

waneyPlanoProfile

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

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

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

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

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

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

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

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

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

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

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

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

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Heather Kirkwood

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

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

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

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

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

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

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

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

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

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

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

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

copyright 2016, Sue Luttner

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

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Swedish Review Declares Shaken Baby Theory Unproven

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

copyright 2016, Sue Luttner

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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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Shaken Baby Conference 2016: Defending a Crumbling Theory

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

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

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

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

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

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

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

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

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

oneshake.org

from the babble.com treatment

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

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

TheSyndromePoster

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

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

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

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

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

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

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

copyright 2016, Sue Luttner

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