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

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Dr. Waney Squier

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

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

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

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

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.

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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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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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Shaken: Tensions Build in Boston

bostonTeaPPhysicians and attorneys in Boston, Massachusetts, where the Louise Woodward trial brought shaken baby theory onto the national stage, are heading into another battle over infant shaking, as pediatricians clash with the medical examiner about the diagnosis and the state’s high court reconsiders past convictions.

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

Aisling Brady McCarthy

Tensions started ramping up last summer, when the medical examiner’s office changed the cause of death in the case of 1-year-old Rehma Sabir, from “homicide” to “undetermined,” which convinced the district attorney to drop murder charges against the girl’s nanny, Irish national Aisling Brady McCarthy. Not quite a year earlier, with less publicity but for the same reason, the county had dropped charges against accused father Geoffrey Wilson. Then last December, the medical examiner’s office pulled back from a third homicide declaration in an infant death initially attributed to shaking, but the district attorney held firm and is still moving forward with charges against Pallavi Macharla, a child care provider who had been a physician in her native India.

Now the Massachusetts chapter of the American Academy of Pediatrics (AAP) has written a letter to Governor Charlie Baker calling for an investigation of the medical examiner’s office and warning that its staff might be listening to the opinions of defense experts, as quoted by Patricia Wen in The Boston Globe:

“Publicly available information questions whether individual examiners may have been influenced by participating attorneys and paid reports from defense medical experts,” according to the letter obtained by the Globe. “Sadly these extraordinary and alarming events call into question both the capacity and independence of our medical examiner’s office.”

tinyHandThis quote illustrates the kind of rhetorical thinking that can obscure logic when the topic is child abuse. Despite the implications of the phrase “paid reports from defense medical experts,” the state’s doctors are also paid for the time they spend preparing reports. The objection, then, must rest on who is paying, as if the opinions of the state’s doctors should necessarily prevail over the opinions of the defense experts. And I wonder whether the pediatricians have really thought through the question of “independence.” The medical examiner’s office is ordinarily on the same team as the detectives and the prosecutors, all agents of the state. In child abuse cases, the diagnosing pediatricians are also part of the prosecution team. In three instances in less than two years now, individual examiners have concluded that medical factors identified by defense doctors could have explained the infant deaths, putting the examiners at odds with physicians who are usually their allies. To me, that sounds like the essence of independent thinking.

The Massachusetts pediatricians seem to be asking the governor to step in and order the medical examiner’s office to follow the advice of the child abuse experts. Again from The Boston Globe coverage:

“The letter to the governor appears to represent growing frustration by the pediatricians’ organization, which had originally sought a behind-the-scenes solution to their concerns that fatalities from abusive head trauma — also known as ‘shaken baby syndrome’ — were potentially being wrongfully labeled as deaths caused by rare medical events….

“In early March, top members of the pediatricians’ group met privately with state public safety secretary Daniel Bennett and [Dr. Henry] Nields, the chief medical examiner, hoping they would agree to launch a comprehensive review of the handling of these child fatalities.

“Instead, Bennett later suggested to the pediatricians’ group that they ‘prepare a presentation’ for the pathologists at the medical examiner’s office. In response, in a letter dated April 29, the pediatricians’ group went directly to the governor demanding a review.”

In a follow-up debate on station WGBH in Boston, former Massachusetts attorney general Martha Coakley, who prosecuted British au pair Louise Woodward in 1997, insisted that the pediatricians were right in the first place, the medical examiner’s office “doesn’t have the training to make the right decision” in abuse cases, and individual medical examiners are “just not doing their jobs.” She dismissed critics of shaken baby theory as “15 to 20 people who have made a cottage industry out of attacking these diagnoses.”

Kieren wired up and ready to jump

The letter to the governor was signed by Dr. Michael McManus, president of the Massachusetts chapter of the AAP, and Dr. Stephen Boos, chairman of the chapter’s abuse and neglect panel and a proponent of shaken baby theory. In a break-out session at the 2012 conference of the National Center on Shaken Baby Syndrome, Dr. Boos criticized both the structure and the implementation of the 2011 Jumparoo study by biomechanic John Lloyd, PhD, which concluded that a child playing in a commercial jumping toy achieved the same magnitude of angular acceleration as adult volunteers shaking a biofidelic mannequin. “Shaking is no worse than a Jumparoo?” Boos jeered, “You’ve got to be kidding me.” In a review of Dr. Steven Gabaeff’s 2011 article challenging the pathophysiological connection between brain findings and a shaking diagnosis, Dr. Boos acknowledged Dr. Gabaeff’s scholarship but rejected his “teleological flights of fancy,” summarizing:

“I do not believe this paper develops a larger truth, though there are kernels of truth here and there. Instead, it displays the sorts of arguments we must refute when asserting the mainstream view of abusive head trauma.”

A month after the pediatricians’ complaint to the governor, the Massachusetts Supreme Judicial Court (SJC) recognized the reality of a debate about shaken baby theory, in its decision ordering a new trial for Oswelt Millien, a father who served five years in prison for the presumed 2009 shaking of his daughter. The court concluded that Millien’s attorney had provided ineffective assistance by failing to seek court funds to hire an expert witness for an indigent defendant, so that the opinions of the state’s experts went unchallenged at trial—that is, the same situation the pediatricians would like to see in the medical examiner’s office.

If the district attorney follows through with a trial of Pallavi Macharla, though, I expect both sides to bring experts to the courtroom. Macharla’s attorney JW Carney demonstrated in the debate with Martha Coakley that he’s already done his homework (probably when representing Geoffrey Wilson), but in case he hadn’t, he could look to the Millien opinion, which features in its footnotes a bibliography of key documents in the shaking debate. Millien’s previous appeal had been turned down by a judge who agreed he deserved a defense expert but concluded that a single expert would not have changed the outcome of the trial. In this decision, the judges conclude that the jury might have made a different decision if they had known the diagnosis is controversial:

By vacating the defendant’s convictions in this case and ordering a new trial, we do not claim to have resolved the ongoing medical controversy as to how often the triad of symptoms of abusive head trauma are caused by accidental short falls or other medical causes. We are simply recognizing that there is a vigorous debate on this subject, that arguments are being made on both sides with support in the scientific and medical literature, that this debate is evolving, and that, in the circumstances of this case, we do not have confidence in the justice of these convictions where defense counsel did not retain an expert to evaluate the medical evidence and, as a result, the jury heard only one side of this debate.

Because Oswelt Millien has already served his term, the state has little incentive to pursue a second trial, but the debate will be through the headlines again, both as the Macharla case unfolds and when the SJC reaches a decision on the pending appeal of Derick Epps, convicted in 2007 of assaulting his girl friend’s daughter.

July 2016 update: The SJC has ordered a new trial for Derick Epps, http://law.justia.com/cases/massachusetts/supreme-court/2016/sjc-11921.html

Meanwhile, the pediatricians are asking for an investigation of the medical examiner’s office. Myself, I am hoping for an investigation of the child abuse professionals who don’t understand the difference between “the mainstream view of abusive head trauma” and established scientific fact.

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“The Syndrome” Makes a Splash

TheSyndromePosterAfter winning 9 awards from 13 nominations at independent film festivals since its premiere in the fall of 2014, “The Syndrome” by Meryl and Susan Goldsmith is now available on demand in North America, the first documentary distributed by trending Freestyle Digital Media.

“This has been an incredible experience,” says Susan Goldsmith, an award-winning investigative reporter who spent years as a print journalist before collaborating on “The Syndrome” with her filmmaker cousin. “How we tell the story is helping people figure out what’s going on. To see this kind of response is deeply gratifying.”

Sgt. Aaron Asheed, investigative reporter Susan Goldsmith, neurosurgeon Ron Uscinski

Sgt. Aaron Rasheed, investigative reporter Susan Goldsmith, neurosurgeon Ron Uscinski

Along with neurosurgeon Ron Uscinski, one of the physicians featured in the film, Goldsmith answered questions at a Maryland library in March following a screening organized by Marine Sgt. Aaron Rasheed, just weeks after Rasheed was cleared of shaking his youngest child. “A lot of people were shocked by the film,” Rasheed reports, “They didn’t know this was going on.”

Weeks before the screening, Rasheed says, he knew the event was a good idea, when he was contacted by another accused family, who had seen his publicity and wanted to know more. “And I could help them,” he beams. “My wife and I had done a lot of research, and we got to pass that along to a family that needed it.” His efforts had included reaching out to the Goldsmiths after he saw the trailer to “The Syndrome” and reading the book Flawed Convictions, by Deborah Tuerkheimer.

aaron.doorRasheed says the accusations started at the hospital, the day he and his wife rushed their baby to the ER with sudden, terrifying seizures. “It was shotgun blast,” he recalls. “CPS put a protective order against us. They were threatening to take all three of our children… We got busy.” They quickly discovered the controversy surrounding shaken baby and realized they had to become their own advocates, while the prosecution started narrowing its focus to Aaron, a combat veteran.

In early March, though, the court accepted a new opinion attributing the boy’s subdural bleeding to a medical condition, and the case was dropped.

Rasheed started organizing the library showing even before he knew he would be cleared. “In Tuerkheimer’s book, it didn’t seem like anyone had a good outcome,” he points out, so he figured he’d better do what he could while he was still free. “And it helped to keep my mind occupied,” he adds, “when I was worried that I would lose my family and maybe go to jail.” Now he’s planning future showings in nearby states.

Free-range parent Lenore Skenazy featured Sgt. Rasheed in the lead to an opinion piece she wrote in the Queens Times Ledger, following a showing of “The Syndrome” in Manhattan in April.

Most of the film’s reviewers have praised both its bold topic and its skillful execution. Flickfilosopher MaryAnn Johanson, for example, nailed it in her subhead:

A smartly dispassionate and skeptical look at “shaken baby syndrome,” and an accidental portrait about how science fails us when it solidifies into dogma

Daphne Howland at The Village Voice said the story is “smartly reported” and wrote:

[The filmmakers] expose the issue with depth and breadth; this well-researched investigation is loaded with credible facts and has a workaday, broadcast-newsmagazine feel.

And Maitland McDonagh wrote in Film Journal International:

[The filmmakers’] thesis is controversial, though not—as they demonstrate at some length—because the hard medical evidence is conspicuously ambiguous. Rather, it conflicts with an emotional narrative rooted in hard-wired human empathy for the weak and helpless.

But the complexity proved too much for critic Frank Scheck at The Hollywood Reporter, who opened his review, “When did it become necessary to have staran advanced medical degree in order to go to the movies?” and likened the film to “those unsettling television commercials for medications featuring an endless list of potentially harmful side effects.”

And the Los Angeles Times treatment objected to both the message and the form. The headline read, “‘The Syndrome’ takes a one-sided view of the controversy about shaken baby syndrome,” and the text charged, “The editing is shoddy and inelegant… providing both too much information and not enough.” My favorite line from the review, copied and pasted:

Though the pro-SDS doctors turned down requests for interview, it at times feels like advertising for the doctors who did participate.

I count two typos, the word “it” as the subject, and a general clunkiness, in one short sentence.

Pediatric Accountability in Central Illinois, PACI

From the PACI website

Back in the community, a screening in late April in Peoria, cosponsored by Pediatric Accountability in Central Illinois (PACI) and the Illinois Justice Project, drew its audience from both sides of the shaken baby debate. I’m told that a number of local child abuse experts and staff members from the district attorney’s office came for the film and stayed for the Q&A with a panel of two attorneys, Zack Bravos and Louis Milot; pediatric radiologist David Ayoub; and wrongly accused parent Michelle Weidner.

“The questions were good,” Bravos reported. “It was a chance to present some good information.”

In the hall outside the screening room, organizers said, polite young women, possibly college students, handed out a fact sheet listing a number of organizations that support the diagnosis of Abusive Head Trauma (AHT) and commenting:

“The validity of AHT in all of its various forms has been established and there is no debate among the majority of practicing physicians.”

Meryl and Susan Goldsmith

Meryl and Susan Goldsmith

At a pair of screenings in Bloomington Hills, Michigan, on the other hand, the crowd seemed to be entirely in support of the filmmakers, according to a friend of mine who attended. Organized by the Torn Family Trust, which came together last year around the case of Joshua and Brenda Burns, the showings featured in-person appearances by Susan and Meryl Goldsmith, the Burnses, and Julie Baumer, exonerated in 2010 after serving five years for the death of her nephew. On Friday morning before the weekend showings, Fox 2 in Detroit broadcast this interview with the Goldsmiths.

The Pediatric Justice Association in North Carolina also garnered press coverage for its April showing of “The Syndrome,” at a performing arts center in downtown Wilmington.

So “The Syndrome” has joined the debate, big time. Film critics and their readers are being exposed to a new angle on child abuse, and community showings are not only bringing affected families together but also bringing the topic into the press.

“The Syndrome” is not, of course, the final word on the subject, nor is it trying to be. “I’m not sure this was a movie about the science as much as it was about the battle,” reflected Dr. Doug Smith, a retired professor of pathology who writes occasionally about shaken baby syndrome on the Washtenaw Watchdogs blog, “but that was a choice the filmmakers made, and I respect that.”

Although I had hoped for a closer look at the science, I found the film riveting, and I’ve been gratified that so many mainstream reviewers shared that reaction. I’m not surprised, though, that some critics rejected the message or the treatment—the topic is unsettling, and “The Syndrome” is not for anyone looking for escapist entertainment.

One friend of mine, who has spent years working for justice in this arena, offered a perspective I can endorse:

I’m behind the film. “The Syndrome” is not perfect, but it’s much better than I would ever have thought we would have.  I wish it would get broader exposure.

For more press reports on “The Syndrome,” you can see:

The sympathetic Los Angeles Weekly review at http://www.laweekly.com/film/the-syndrome-exposes-the-shaken-baby-syndrome-myth-6789457

The Pacific Standard treatment, which explores the topic further, at https://psmag.com/a-new-film-challenges-shaken-baby-syndrome-and-courts-controversy-a768d2415398#.w4rydprh8

An interview on IndieWire with Meryl Goldsmith at http://blogs.indiewire.com/womenandhollywood/meryl-goldsmith-on-fighting-a-medical-standard-in-the-syndrome-20160414

A skeptical look at the film by columnist Carrie Poppy for the Skeptical Inquirer at http://www.csicop.org/specialarticles/show/does_a_new_documentary_prove_shaken_baby_syndrome_doesnrsquot_exist

The CultureFly review at http://culturefly.co.uk/the-syndrome-review/

A short, positive review on CINEMACY at http://cinemacy.com/newport-beach-film-festival-the-syndrome/

An interview with Meryl Goldsmith on Westword at http://www.westword.com/arts/the-syndrome-explores-the-shaken-baby-myth-at-sie-filmcenter-monday-6756370

And more. Slowly, slowly, the word gets out.

copyright 2016, Sue Luttner

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

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