February 9, 2015 · 12:38 pm

Shaking: “A False and Flawed Premise”

Kristian Aspelin and his son Johan

Kristian and Johan Aspelin

February opened with a pair of important and complementary postings, a bold academic statement signed by 34 physicians, attorneys, and child-protection professionals with “deep concerns” about shaken baby theory in the courtroom, and a beautifully written examination of the Johan Aspelin case that illustrates why the experts are so concerned.

Published in the British journal Argument & Critique, the Open Letter on Shaken Baby in the Courts: A False and Flawed Premise argues that a diagnosis of shaking “risks blurring the line between diagnosis and verdict,” and that “SBS has never been proved as anything more than an hypothesis.” Citing the dearth of scientific research underlying the theory, the authors write:

Noticeably, the requirement for scientifically based evidence is far more rigorous in medical negligence cases than in the family or criminal courts where believing something to be true appears to have achieved sufficient evidential value to sway the determinations of the court.

The letter also notes that the justice system has tended to suppress arguments about shaken baby syndrome:

One of the consequences has been the vilification of experts prepared to advance competing theories and the suppression of sensible debate.

Dr. Waney Squier

Dr. Waney Squier

One example of such vilification is unfolding now in England, where pediatric neuropathologist Dr. Waney Squier is facing a challenge to her license triggered by complaints to the General Medical Council (GMC), reportedly from the Metropolitan Police, that her courtroom testimony exceeds her area of expertise and ignores the opinions of her peers. Dr. Squier has been testifying on behalf of accused parents for about the past decade, since her own research, clinical experience, and reading of the literature convinced her that the prevailing model of shaken baby syndrome is flawed.

My favorite report about Dr. Squier’s GMC hearings, which opened in the fall and continue intermittently, is a legal-training company’s blog posting that features praise from readers for her intellectual honesty in the face of peer pressure. A general practitioner offered this striking parallel with an historical report to the GMC:

Surely the Met investigating a Dr who happens not to agree with the consensus — and holds an expert view — is a little like the tobacco companies (circa 1960s) reporting Sir Richard Doll to GMC for his novel theory that tobacco caused lung cancer.

WhatRealllyHappenedJohan copyIn the U.S., meanwhile, an in-depth treatment of the Johan Aspelin case published last week on Medium by reporter Elizabeth Weil also reveals striking new facts, like the botching of Johan’s initial intubation at San Francisco General, which caused the complete collapse of one lung and serious damage to the other. And that Johan received several times the recommended dosages of two different sedatives, which, Weil writes, “left him essentially paralyzed and unable to communicate distress as air was pumped into his compromised lungs.” The article notes:

Nowhere in the police investigation transcripts does it suggest that doctors considered Johan had a brain injury and retinal hemorrhaging due to low blood-oxygen levels and high carbon dioxide pressure, problems that may result from faulty intubation.

Johan’s mother Jennie Aspelin learned about the error and resulting crisis only because she’d contacted the organ-donation agency to find out why there had been no recipient reported for Johan’s lungs, as there had been for his other organs. Even then she received only the oblique message that it was “a matter of function,” enough to send her on a focused search for the full medical records.

Johan

Johan Aspelin

In November of 2010, Johan’s father Kristian Aspelin told emergency responders that he had fallen in the kitchen while holding 3-month-old Johan, but child-abuse expert Dr. Chris Stewart rejected that explanation and told police that the boy had been violently shaken to death.

In December of 2012, the county dropped murder charges against Kristian, after defense attorney Stuart Hanlon turned over a collection of exonerating reports from outside experts as well as a carefully assembled medical time line that included the hospital’s mistakes. By that time, the family had lived apart for two years, when they’d  lost their baby and needed each other more than ever. They’d sold their house and taken on a staggering debt to cover legal bills, and they’re not slated for any compensation from the state.

Dr. Mark Feingold

Dr. Mark Feingold

But the people who train child abuse physicians continue to teach that children seldom if ever suffer serious injury in short falls, and that only abuse causes severe retinal hemorrhages. In a January, 2015 lecture titled “Is There a ‘Shaken Baby Syndrome’?,” for example, which earns the medical viewer one continuing education credit, child abuse pediatrician Dr. Mark Feingold reported that hypoxia does not cause “macroscopic subdurals” and that children do not suffer serious injury in short falls:

A lot of our opponents say, “Well, the child died. That’s too bad. But it was a short fall, just like Mom said. He fell from Mom’s arms.” The evidence shows that children who fall more than 20 feet can die, but children who fall less than 3 feet almost never die, and when they do, it’s a different kind of accident. It’s a playground accident. It’s an older child. They die of a large subdural that causes lots of pressure. And the RH if present are not the kind we see in abuse cases (emphasis added). But nonetheless, different versions of “I was carrying the baby and I tripped and fell” are often offered.

Slipping and falling with the baby is the explanation Kristian Aspelin offered, like countless parents and caretakers before him and countless more to come, while pediatricians are being trained to reject that story, and to dismiss the hypoxia that frequently accompanies head injury as a source of compounding symptoms.

The retinal hemorrhages in Johan’s eyes were widespread and multi-layered, the kind that child abuse pediatricians insist do not result from short falls or lack of oxygen to the brain. So were the hemorrhages in the eyes of the toddler in the care of René Bailey, who said the little girl had fallen off a chair—Bailey’s murder conviction was vacated in December. Doctors also pointed to extensive retinal hemorrhages when diagnosing shaking injuries in the cases of exonerated babysitters Jennifer Del Prete and Audrey Edmunds and exonerated father Drayton Witt, and in an exasperating case local to me in which paramedics pulled a rubber band from the child’s throat during resuscitation and the only physical evidence of abuse was the triad. It seems to me that the world now offers quite a few examples of extensive retinal hemorrhages from plausible, non-abusive accidents and medical conditions.

RHKelloggWhen I started researching shaken baby theory more than 15 years ago, I routinely read in trial transcripts that doctors considered the presence of retinal hemorrhages a sure sign of child abuse, but since then the situation has grown more complicated. When researchers started looking systematically, they rediscovered that retinal hemorrhages have a long list of non-traumatic causes, including diabetes, anemia, bleeding disorders, increased intracranial pressure, increased intrathoracic pressure, and certain types of infections. A startling one quarter of neonates born spontaneously arrive with retinal hemorrhages, more in deliveries that involve instruments. In light of this new understanding, child abuse experts now recognize other causes of retinal hemorrhages but insist that most of them result in only a few small hemorrhages near the optic nerve, not in widespread, multi-layer hemorrhages, which they continue to interpret as evidence of whiplash shaking.

I don’t know how we will move forward, but I welcome the growing chorus of voices in the journals, in the press, and in the courtroom, who demonstrate through their work and their testimony that the Open Letter on Shaken Baby is representing the situation correctly in its message to the courts:

In short, we would inform members of the judiciary and legal profession in those countries which utilise the SBS construct, that it does not have the undivided support of the relevant professional community, an essential consideration in the assessment of expert testimony.

The letter was edited by Argument & Critique’s managing editor Dr. Lynne Wrennall, whose doctorate is for work in child welfare, from a draft prepared by solicitor Bill Bache and veteran child social worker Charles Pragnell. The signers include 16 physicians, a handful of scientists, and a variety of social work professionals, from both academia and the field.

For the observations of Phil Locke at the Wrongful Convictions Blog, see his posting about the Open Letter.

The film company Mighty Myt is making a film about Johan Aspelin’s case, In a Moment: The Johan Aspelin Story.

copyright 2015, Sue Luttner

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

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January 19, 2015 · 12:29 pm

Sweden Searches for the Truth

babySilhouetteA recent decision from Sweden’s  Supreme Court is changing the landscape for Swedish citizens fighting misguided accusations of infant shaking.

An English translation of the decision has been posted by Riksförbundet För Familjers Rättigheter (RFFR, translated as the National Association for Families’ Rights), a union of families and their supporters created in 2013 so its members could approach the government as a coalition rather than as individuals. The ruling, from October of 2014, sets aside the June 2012 conviction of  a father for presumably shaking one of his twin sons in 2009, with the explanation:

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

As in so many of these cases, the infant collapsed at home and was found at the hospital to have both fresh and aging subdural bleeding, as well as retinal hemorrhages and brain swelling. The doctors concluded that the boy was the victim of abusive head trauma, and the prosecution seems to have offered a range of possibilities for how the injuries were actually inflicted. From the court’s summary of the prosecution’s position:

On 14 May 2009 in his home in Kungsbacka, MM did assault his son OM by shaking him vigorously or directing blows at his head, banging his head against something or using other violence against his head… In the alternate, MM did by shaking O vigorously or directing blows at his head, banging his head against something or using other violence against his head cause O’s injuries through carelessness.

In  reviewing the father’s appeal, the Supreme Court listened to testimony from two physicians, Prof. Anders Eriksson, a forensics expert and an advisor to the National Board of Health and Welfare, and Prof. Peter Aspelin, a radiologist and a former chair of the Scientific Advisory Council of the Swedish Council on Health Technology Assessment (SBU). Both physicians told the court that the SBU, concerned about the reliability of a shaking diagnosis, has now launched a systetwoDucksmatic study of the literature regarding infant shaking, an effort that is expected to take at least two years.

In October of 2013, Dr. Eriksson had told the Legal Advisory Council that “the probability that O’s symptoms had arisen in some other way than through the intentional actions of an adult person is very small.” When he later testified in front of the Supreme Court, however, Dr. Eriksson had changed his position. In the words of the translated decision:

[Dr. Eriksson] based the conclusion in the opinion to the Legal Advisory Council on the fact that O presented three symptoms (a triad) that, if they occur at the same time, have been held, according to the traditional view, to strongly indicate that there has been violent shaking if it is not the case that the child has been subjected to some other form of “high-energy violence” such as a traffic accident or a fall from a high height. The symptoms included in the triad are  haemorrhaging under the dura mater, haemorrhaging in the fundus of the eyes and swelling of the brain. However, this diagnosed model has been criticized. The point of the criticism is that the symptoms given can have other causes . . .  So it is not possible to say today that the occurrence of the triad means that violent shaking has been proved. Instead, it must be concluded that we do not know; we are in a quagmire.

And Dr. Aspelin told the court:

The controversy is not about whether it is harmful to shake a child violently. The issue under discussion is with what scientific certainty it can be established how various injuries found in a child have arisen. The claim that the occurrence of the triad is strong evidence that violent shaking has occurred goes back to the late 1960s; however, the medical evidence for it was relatively thin. But the claim became generally accepted and grew into medical truth over several decades, even though the situation in terms of evidence did not change. It is known that a very large share of fundus haemorrhages are not linked to violence and arise in another way. Nor has it been shown that nerve fibers are torn, and that the brain therefore begins to swell, in connection with violent shaking. It can also be asked whether violent shaking can occur without neck injuries arising… To sum up, it can be said that the scientific support for the diagnosis of violent shaking is uncertain.

The twins had been born by scheduled Caesarean section, apparently without complications. When less than a month old, however, both boys were hospitalized for two weeks with respiratory infections. At that time, medical workers noted that O had a a couple of bruises on one cheek and bruising on the front of his lower legs.

Six weeks later, the parents brought O to the child healthcare center with a report that he had been “vomiting torrents” for two straight days.  Apparently he was treated and releasescalesd, but that afternoon the boy began screaming during a diaper change, and then suddenly fell silent. The child’s mother heard both the screaming and the sudden silence, but did not see what happened. The father reported that when the child fell quiet, he became unconscious and “loose-limbed” and started to “roll the whites of his eyes.” The father said he was “gripped with panic” and that he shook the boy gently in an attempt to resuscitate. The Supreme Court reviewed a video recording of the father’s statement and noted, “The shakes appear fairly cautious and by no means match the description of shaking violence.” Looking at the bigger picture, the court concluded:

It has not emerged that the facts in this particular case are such that it can be established… that O’s injuries were caused by violent shaking or other violence on the part of MM. On the contrary, certain facts, including the facts that O had previously had RS virus and that there were signs of older haemorrhaging under the dura mater, indicate that there is another explanation for the symptoms that O had.

The RFFR web site, which posted both the original decision and the English translation, also offers links to Swedish news coverage of the topic as well as an English-language commentary by pediatric neuropathologist Dr. Waney Squier in Britain and television news coverage out of Dallas, Texas, of a family accused of assault when their daughter’s genetic disorder was misdiagnosed as abuse.

A doctor in Sweden reports that since the Supreme Court’s decision, two convicted fathers have been freed on appeal after years in prison and a third has won in court and is now home with his family.

Fall 2016 update: The SBU has published its review of the shaken baby literature, as reported in this blog posting.

Summer 2017 update: The journal Acta Paediatrica has devoted an issue to the debate that following the SBU’s report, as reported in this blog posting.

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

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December 19, 2014 · 12:03 pm

Successful Appeals Keep the Conversation Going

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

Judge James J. Piampiano

Judge James J. Piampiano

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

At the time, Bailey reported that Brittney had fallen off a chair, but prosecution doctors testified that a fall from only 18 inches could not kill a child. Judge Piampiano’s decision quoted pediatrician Jack Finnell on the stand at Bailey’s trial in December of 2001:

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

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

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

Prof. Adele Bernhard

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

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

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

Dr. John Plunkett, at the 2012 EBMSI conference

Dr. John Plunkett, at the 2013 EBMSI conference

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The judge summarized:

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

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

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

Nov. 2016 update: An appeals court has upheld Judge Piampiano’s decision, as reported at https://onsbs.com/2016/11/20/shaking-debate-back-in-the-courts-and-in-the-news/

The right to an expert

LeeVester Brown

LeeVester Brown

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

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

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

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

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

copyright 2014, Sue Luttner

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November 20, 2014 · 2:07 pm

Decisions Address Timing, Coercion

subduralImage

Not from this case, merely an example of subdural bleeding

Two different judges in two separate cases have looked carefully at the facts in front of them and found the kind of fundamental problems that plague shaken baby prosecutions.

In October, District Court Judge John Telleen in Scott County, Iowa, addressed an issue I’ve been wanting someone in authority to notice for years now, the implications of a pre-existing subdural hematoma.  Judge Telleen’s oral decision declaring an accused father not guilty included this observation:

All of the State’s evidence or the vast majority of it related to the 12 hours before admission on November 5. Frankly, I believe it’s clear that nothing happened on or about November 4 or November 5 that could possibly have caused a subacute subdural hematoma that had been in existence from anywhere from three days to ten days prior to that.

Like Judge Matthew Kennelly following the Del Prete hearings, Judge Telleen was left doubting both shaking theory and its application to the case at hand:

[I]t is my understanding from the testimony that I found credible that there are no scientific studies that support or document that shaking causes brain hematoma or brain bleeds…

[F]rankly I have some serious doubt whether a crime was even committed here much less that the defendant did it.

The judge noted that the infant, only three weeks old when clear neurological symptoms emerged, had been sick since birth, and he chided the child abuse pediatrician for making the “default diagnosis” of abuse without doing a full work-up to eliminate metabolic or bleeding disorders, or even a vitamin D deficiency, as the child had healing fractures that could possibly, but not definitively, be dated back to birth

The state’s ophthalmologist had apparently testified that he couldn’t be certain the child was abused, and conceded that a sharp rise in intracranial pressure (ICP) could account for the retinal hemorrhages. Judge Telleen said:

Dr. L was a credible witness. He was a straight shooter. He said he couldn’t place it beyond 51 percent, his opinion that he thought it was caused by non-accidental trauma. However, he freely acknowledged as an honest witness that increased intracranial pressure can cause retinal hemorrhage, he couldn’t rule that out.

There seems to have been no press coverage of the innocent verdict, so there was never any public correction to the initial news stories, which quoted an affidavit that the father had “engaged in three or more acts of child endangerment, including at least one act that resulted in serious injury.”

December update: The local paper has now covered the decision, at http://www.press-citizen.com/story/news/2014/12/24/uihc-shaken-baby/20858227/

Defense attorney Kent Simmons said his client turned down a plea agreement that would have avoided jail time, because he did not want to admit to doing something he didn’t do.  “I told my client he was a very brave man,” Simmons said. “And Judge Telleen is an honest, bright, and fair jurist.”

judgeAngelLopezAnd I’ve just learned about a decision this past spring in Oregon, where Appeals Court Judge Angel Lopez affirmed a trial court’s decision barring a confession from the courtroom, concluding that the father’s statement was made involuntarily. After hours of taped interrogation that focused on his daughter’s injuries, the detectives had turned off the recorder for 25 minutes and then turned it back on to capture the disputed confession. The published decision includes this touching quote from the trial judge:

Here was a man who had a baby in the hospital for shaken baby syndrome or some traumatic issue. Several times during the discussion with him he was asked to tell the truth because that would predicate what the treatment would be for the baby. Implicit in that is if he didn’t, the baby was going to end up worse off.
I see that as compelling. I see the going back and forth by saying—minimizing to the defendant what’s going to happen to him if he [comes] clean and he confesses. I believe that the statements, given these facts and circumstances, were involuntarily made, and that’s based on the totality of circumstances. There’s no one thing that jumps out at me but there are a lot of things that together tell me that his will was overborne by two detectives in that hospital room over two days.

With supporting quotes from the interrogation transcripts, Judge Lopez added his own analysis:

Having made clear that G had serious medical issues that could be ameliorated by a confession—an assertion that, as a matter of medical fact, is without any support in the record—the officers also appealed to defendant’s paternal responsibilities, his religion, stated that defendant was the only one who could help G, and stated, in effect, that the way to provide that help was to tell the officers that he had accidentally shaken her.

I am always glad when someone in a position of authority stops to consider what it must be like for an accused parent, frantic with worry for their child, to be harangued by detectives intent on extracting a confession.

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October 25, 2014 · 8:20 am

Finding a Voice, and a Community

Beth and John Fankhauser in the lobby of the Glenwood Arts Theater, after the premiere of The Syndrome.

Beth and John Fankhauser in the lobby of the Glenwood Arts Theater, after the premiere showing of The Syndrome.

The premiere earlier this month of The Syndrome, a documentary that questions shaken baby theory, was even more thrilling than I’d expected: The film is riveting, and its first public showing, at the Kansas International Film Festival, drew a crowd so excited to meet each other that the lobby buzzed for an hour afterwards.

Beth Fankhauser was smiling, with tears in her eyes. “We thought we were the only ones,” she marveled. She and her husband John, who are now rearing their grandchildren while their daughter serves her prison time, met half a dozen other accused families that afternoon, reinforcing their decision to start speaking up after six years of waiting quietly and praying for justice.

“We allowed ourselves to be shamed… We thought we had to protect our family from the notoriety,” Beth explained, “But the system has betrayed us, and it’s time for the truth. I feel empowered to know that others are also walking this path.”

Denver, Colorado

Denver, Colorado

A weekend like that was the antidote I needed to get past my disappointment at the 14th International Conference on Shaken Baby Syndrome, in September in Denver, where the emphasis seemed to be on discrediting all critics.

In a breakout session on the first morning, for example, pediatrician Robert Block named me personally as one of the child abuse denialists who have “fooled the media,” and some judges, into thinking there is a controversy in this arena. “I would ask the parents who are here whether they think SBS is a myth,” he admonished, pointing out that writing a blog requires no qualifications and no certification, just like writing a book or making a movie—like Flawed Convictions and The Syndrome. Block objected that all our works disregard the real victims—the injured babies—and focus instead on the perpetrators.

Prosecutor Shelley Akamatsu from Boise, Idaho, reported that prosecutors are pressing abusive head trauma cases harder than ever in the courtroom. She remembered the first shaken baby conference, in Salt Lake City, Utah, in 1996, when “convictions in AHT cases were not common,” she said, because only a few prosecutors, those who had taught themselves, knew how to handle the medical content. Eighteen years later, national training programs have prepared prosecutors “to meet untrue defenses, prove the severity of the forces inflicted, and effectively educate jurors,” she said, so that now “convictions in AHT cases are the norm rather than the exception.”

scalesAkamatsu called for an organized response now to defending these cases on appeal. “True justice means expertly defending the convictions we’ve worked so hard to get,” she said. “There’s a place for Innocence Projects,” she acknowledged, but “not in this arena, because these cases are so factually driven.”

Law professor Joëlle Anne Moreno argued that the courts, the press, and the public are all misinformed about infant head trauma. She dismissed on legal grounds the adequacy of the “new evidence” that was behind the reopening of the Jennifer Del Prete and Quentin Louis cases, the reversal of the Audrey Edmunds conviction, and the minority opinion in the U.S. Supreme Court decision in the Shirley Ree Smith case. “We need to clear up these legal questions,” she said. “Don’t confuse causation with culpability. That’s what Professor Tuerkheimer is doing when she says this is a medical diagnosis of murder.”

Dr. Sandeep Narang, who is both a physician and an attorney, dismissed the idea of any real controversy about abusive head trauma as a fallacy manufactured by the defense and parroted by the media. He devoted the first hour of his talk to the medical literature, concluding that serious brain injury or death from a short fall is “very rare,” bleeding disorders are easy to identify, and both subdural hematoma and retinal hemorrhages are highly correlated with child abuse. The second hour he spent rebutting the “straw man” argument that shaken baby syndrome is “medically diagnosed murder.” He said he was puzzled by the claim that the child abuse literature exhibits circular reasoning:

There’s a lot of accident literature where we just looked at accidents. We didn’t look at abusive cohorts. We just looked at accidents. How is that circular?

Because Dr. Narang had the floor, no one answered his rhetorical question, but this is my blog, so please let me explain: These studies typically start with a series of patients seen at the authors’ hospitals over a period of time. Not infrequently, researchers studying accidenbabySilhouettetal injury simply remove from the study any cases of presumed child abuse, with the stated goal of limiting the study to verifiable accidents. The filtering out of abuse cases is typically done by the local child abuse team, or sometimes by the authors. The problematic result is that, if a child comes in with a serious injury and a history of a household fall during the study period, the case is diagnosed as abuse and therefore never appears in the data. This self-fulfilling sorting algorithm also taints the studies that attempt to describe for physicians how to recognize child abuse—for an on-line example, please see http://archpedi.jamanetwork.com/article.aspx?articleid=348423.

Which brings me back to something that bothered me when I first read the trial transcripts of the 1996 case that brought this medico-legal tragedy to my attention:  As long as the child abuse teams continue to treat every one of these cases as obvious abuse with immediate symptoms, there is almost no way to gather evidence to the contrary. Decades of convictions have been based entirely on sincere but unproven medical opinion, and at this point, the opinion is based on decades of convictions.

Kathy and Kevin Hyatt at the Glenwood Arts Theater.

Kathy and Kevin Hyatt at the Glenwood Arts Theater, where The Syndrome premiered.

Last weekend I met not only Beth Fankhauser, who says her daughter Megan was watching a 15-month-old who fell off a bed, but also Kathy Hyatt, found innocent at trial in 2009 after a baby she was watching rolled off the couch, and the family of Amanda Brumfield, now in prison, who told emergency responders her goddaughter had fallen trying to climb out of a portable crib. I don’t understand what makes the doctors so sure that all these women, wives and mothers with good reputations in their communities, simply lost it and attacked babies they had been watching for months, babies they knew and loved.

November 2015 Update: You can now host a screening of The Syndrome, http://www.resetfilms.com/hostascreening/

If you are not familiar with the debate surrounding infant head injury, please see the home page of this blog site.

© 2014, Sue Luttner

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October 10, 2014 · 6:17 pm

“The Syndrome” Trailer Makes Waves

TheSyndrome

Based on the trailer and publicity posted on the film’s web site, a group of child abuse professionals has written to the Kansas International Film Festival (KIFF) requesting that organizers cancel Sunday’s premiere screening of The Syndrome, a documentary about the debate surrounding shaken baby theory.

KIFF organizers received two letters earlier this week, one from the National Center on Shaken Baby Syndrome (NCSBS) that calls the film’s promotional materials “appalling, inaccurate, and potentially dangerous” and worries that viewers might get the impression that shaking a baby is not harmful, so that “numerous infants could be put in significant danger.”

A second letter signed by 29 child-abuse physicians protests:

“The prerelease materials… clearly state that the film provides a national platform for the tiny  handful of well-known child abuse defense witnesses to publicize their fringe message—that shaking an infant cannot cause death or traumatic brain injury.” [italics in original]

The physician letter calls The Syndrome “a gross and deliberate mischaracterization of vital public health and child safety issues,” and the authors seem to be threatening a lawsuit:

“This is a public health matter and as organizers of this film festival we hope you share this concern. Under these circumstances, we also hope that you will reconsider featuring this film as part of your upcoming festival. In the event that you decide to continue with premiering this film, we may opt to pursue additional legal action.”

MerylSusanCropped

Filmmakers Meryl and Susan Goldsmith, who are cousins

The letter-writers had threatened litigation earlier, complaining that a news clip in the trailer presented the words of a child abuse pediatrician out of context. Director Meryl Goldsmith says her intention was not to deceive but to include quotes from both sides in the preview. Investigative reporter Susan Goldsmith explains why they edited the trailer: “Instead of hassling with them over a few seconds, we just cut it even though it was exactly how the news clip appeared. We made no changes to the film.”

You can see the letter to KIFF organizers from NCSBS executive director Ryan Steinbeigle by clicking here, NCSBS letter, and the letter from the medical professionals by clicking here, physician letter.

Co-producer Meryl Goldsmith

Director, editor, and producer  Meryl Goldsmith will speak at the premiere showing of The Syndrome, on Sunday, October 12, in Overland Park, Kansas

The move to block The Syndrome isn’t surprising, after all the grief the film received from speakers at last month’s NCSBS conference. Political science professor Ross Cheit from Brown University, for example, in his talk “‘Exonerating’ the Guilty: Child Abuse and the Corruption of the False Conviction Movement,” characterized The Syndrome as “a love letter” to three defense experts. He said it was “a defense lawyer’s dream . . .  you get to put on your testimony and there’s no cross-examination.” He objected to the term used in the trailer, “shaken baby syndrome industrial complex,” which he said shows “incredible arrogance and remarkable ignorance” on the part of the filmmakers because, “Child abuse is not where the money is. Child abuse defense is where the money is.”

Professor Cheit compared The Syndrome to Capturing the Friedmans, a 2003 documentary that raised questions about a 1980s child sex-abuse case in New York. Prof. Cheit portrayed that film as a whitewash on behalf of father-and-son felons Arnold and Jesse Friedman. Noting that Capturing the Friedmans was a finalist for an academy award the year it came out, Prof. Cheit said he worries about the “gullible acceptance many people have for a movie that’s labeled ‘documentary.'”

Presumably the KIFF organizers and judges made their choices carefully, both when they included The Syndrome in their program and when they nominated it for a jury award. I haven’t seen the film yet, but I hope it addresses some of the troubling questions that have raged around shaken baby syndrome for decades now—and I doubt the take-home message is really that shaking a baby is safe.

As for protecting the children:  I am concerned about the infants who are denied the medical care they need when a hasty diagnosis of abuse stops the search for the medical conditions that underlie many cases of brain bleeding and swelling with no outward signs of trauma, as well as the siblings who are torn unnecessarily from loving homes. I am especially concerned about the cavalier opinion that household falls do not cause serious injury or death. I wish that parents were warned not only about shaking infants but also about dropping them. While most falls do not cause major injury, lives could be saved and injuries prevented if we started installing mats under changing tables and padding in play areas. Meanwhile, doctors simply do not know enough about infant neurobiology to support the definitive statements about infant shaking that have been winning in court for 30 years.

Spring 2016 Update:The Syndrome, in now available on demand in North America through Freestyle Digital Media, http://freestyledigitalmedia.tv/the-syndrome/

For my blog posting after the premiere showing of The Syndrome in October of 2014, go to Finding a Voice, and a Community.

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September 10, 2014 · 11:15 am

“The Syndrome” Promises Fireworks

Susan Goldsmith

Susan Goldsmith

“Shaken baby syndrome is the most mind-blowing story I have encountered in 26 years as a journalist,” says Susan Goldsmith, whose film The Syndrome has been nominated for a Jury Award at its premiere next month at the Kansas International Film Festival. “The deeper and deeper you go, the worse it gets.”

Even over the phone, Goldsmith crackles with the same energy that makes the trailer so compelling and no doubt earned the film its nomination. “When I found out how the promoters of the theory are trying to silence their critics,” she flares, “I knew I had to make this movie.”

She promises an “explosive” exposé, consistent with her web site’s report that the film “unflinchingly identifies those who have built careers and profited from this theory along with revealing their shocking pasts.”

Dr. John Plunkett

Dr. John Plunkett

The Syndrome profiles three of the most outspoken critics of shaking theory, forensic pathologist John Plunkett, pediatric neuroradiologist Pat Barnes, and neurosurgeon Ron Uscinski.

The film also features a few of the personal stories Goldsmith heard during years of research. “Those families, who have been ripped apart in so many ways, they keep me inspired,” Goldsmith insists. “If I was traumatized like that, I’d never want to talk about it, but you call them up, and all they want is to help get the word out.”

Dr. Charles Hyman, a critic of shaken baby theory, and Susan Goldsmith

Dr. Charles Hyman, a critic of shaken baby theory, and Susan Goldsmith

Goldsmith expects criticism from what she calls “the shaken baby industrial complex.”

“I’m used to being attacked,” she shrugs. “My job as an investigative reporter is to piss people off.”

Goldsmith has handled controversial stories before, including an article sympathetic to a convicted child molester—which later won a first-place award for crime and justice reporting—and a profile defending Nigerian anthropologist John Ogbu at UC Berkeley, tarred as a “Clarence Thomas” for his study of black high school students at an affluent Cleveland suburb. She’s often had trouble pitching her ideas, she concedes, “but I have never encountered the insane resistance I’ve seen to this story.”

Co-producer Meryl Goldsmith, Susan's cousin

Meryl Goldsmith

Goldsmith says that people seem to go “fuzzy in the head” when the words child abuse are used, “and that’s a very dangerous place for us to be in.” The same human instinct that fostered the shaken baby nightmare also made it nearly impossible to explain her conclusions, she sighs. “Over and over, people would just say, ‘They must be shaking them.'” Recognizing the resistance to their topic within the film industry, she and her cousin Meryl Goldsmith found their own funding and made their own movie.

I’m excited: The Syndrome could be a watershed in the history of shaken baby syndrome. I confess I had the same thought about Lee Scheier’s 2005 Chicago Tribune treatment, Emily Bazelon’s 2011 New York Times Magazine piece, the 2011 NPR/ProPublica/Frontline series, and Deborah Tuerkheimer’s 2014 book, but every bit of exposure helps bring the truth to light, and this film promises to be a high-wattage experience.

I knew Goldsmith subscribed to this blog, but she says in fact she’s a “religious reader” and she has “learned a tremendous amount” from it. I am gratified and encouraged.

The Syndrome premieres on Sunday, October 12, 12:15 pm at the Glenwood Arts Theater in Overland Park, Kansas. It will also be shown at the Twin Cities Film Fest, on October 24 & 25, buy tickets here.

For a sampling of Goldsmith’s work and awards, click on her tab on the film’s web site.

November 2015 Update: You can now host a screening of The Syndrome, http://www.resetfilms.com/hostascreening/

Copyright 2014, Sue Luttner

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

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August 29, 2014 · 9:01 am

Light Breaks in New Mexico

danielConsaulAlthough the case doesn’t involve shaken baby syndrome, a  decision last week by the New Mexico Supreme Court addresses a fundamental issue in shaking cases, the reliability of expert medical opinion in child abuse prosecutions.

The decision freed Daniel Consaul, convicted in 2008 of “intentional and negligent child abuse resulting in great bodily harm to an infant,” for what the local child abuse team had concluded was the intentional suffocation of his 10-week old nephew Jack. The court vacated Consaul’s conviction “with prejudice”—meaning he cannot be re-tried—citing insufficient evidence. The opinion notes in the introduction:

Child abuse prosecutions are unusual in that sometimes medical-opinion testimony provides the only evidence that a wrongful act occurred or that the accused committed a wrongful act…

Our review here focuses on whether this expert testimony alone—testimony in this case based solely on a deduction from an absence of other causes that a certain event likely occurred—is sufficient to support a criminal conviction

Consaul lived with his sister and her baby, and had been caring regularly for the boy since his birth. He told detectives he had checked on his nephew at 1:30 in the morning after hearing the child cry out and found that Jack had vomited and seemed stiff. He called his sister at work, and with a neighbor they took the baby to the hospital in Las Cruces, where the boy arrived shivering and lethargic but breathing and “appropriately responsive.” Unsure of the underlying problem, doctors administered fluids and performed lab tests. A few hours later, Jack was airlifted to the University of New Mexico Hospital, where he began seizing. CT scans then revealed brain swelling apparently triggered by insufficient oxygen.

swaddle

From the Mayo Clinic swaddling instructions

In his first police interview, Consaul said he had swaddled Jack and placed him in his crib that night at about 11:30 pm. He did not specify the position, and the police did not ask. In a more pointed interview the following day, he said he had swaddled the boy more tightly than usual and laid him face-down in his crib. He conceded he was frustrated with Jack’s crying. The subsequent indictment charged that Consaul had endangered his nephew ‘s life and health “by swaddling Jack …tightly and leaving him unattended for an extended period of time.” At trial, the prosecution also argued that Consaul had intentionally suffocated the boy.

Refreshingly, the judges made a careful examination of the Child Abuse Response Team (CART) report that informed that conclusion, writing:

While proof beyond a reasonable doubt is not required for admissibility of an opinion, it is essential to support a jury’s finding of guilt. As a reviewing court, we must decide whether a reasonable jury could “reason” from the available evidence to the point of finding guilt beyond a reasonable doubt.

In this case, there was no substantial evidence pointing to Daniel’s guilt other than whatever could be said of the medical testimony, and when that evidence is analyzed, it falls short of establishing proof beyond a reasonable doubt.

Critical care specialist Dr. Mary Johnson had testified, for example, that one of her reasons for concluding that Jack had been intentionally suffocated was that his uncle had made a “calculated” change in his story. She said that Consaul had first reported putting Jack down on his back, but then claimed he’d placed the child on his stomach, after learning that doctors suspected suffocation. Dr. Johnson was apparently relying on the CART report, which did not include an interview with Consaul but quoted Jack’s mother Heidi as saying that the boy was usually put down on his back and that Consaul had told her he found Jack on his back after his cry in the night. Like the initial police report,the CART report contained no statement from Consaul about how he placed the boy in his crib that night. The court notes:

The assertion of a “change of story” was based on what Heidi recalled Daniel telling her, which she then repeated to Dr. Coleman, which was then transmitted via the CART report as tertiary hearsay to Dr. Johnson. It is difficult to know how to interpret this so-called contradiction or assess its reliability. Even if Heidi accurately recounted what Daniel had told her, it was that “Daniel found Jack on his back [and] had vomited,” not that he had put Jack to bed in that position. (Emphasis added.)

Although not a perfect analogy, this slurring of details echoes a sequence I’ve seen routinely in hospital records: An initial assessment raises the suspicion of inflicted head injury. During interrogation, a caregiver admits to some kind of shaking, usually mild, often in the course of attempted resuscitation. The detectives report back, and subsequent doctors’ notes include a phrase something like, “consistent with admitted shaking by caregiver.”

In another parallel with shaking diagnoses, Dr. Johnson testified that she had reached her conclusions partly because Jack’s body showed no signs of trauma:

After prompting by the district court, the State asked Dr. Johnson what physical manifestation from her examination led her to believe that Jack had been smothered. Dr. Johnson responded that Jack’s seizures were an indicator, as was the lack of any other physical manifestations. “There is often nothing that can be seen, nothing on the face, no bruises, no bleeding. No petechiae. Greater than 50 percent of the time, there is absolutely nothing on the skin or on the baby that would indicate a problem.”(3)

This observation inspired the best line in the decision, footnote 3:

  1. We leave for another day an examination of how the lack of any physical evidence of child abuse can somehow become probative of the crime of child abuse.

In addition to criticizing the evidence, the opinion condemns the trial court’s decision to issue one set of jury instructions for the separate charges of negligent child abuse and intentional child abuse:

Defendant was entitled to separate jury instructions for negligent and intentional child abuse resulting in great bodily harm given that the State’s theories of how that harm occurred were different and inconsistent; for negligent child abuse, the state told the jury that defendant put the baby to bed carelessly, tightly swaddled and placed face down on a pillow, and argued that this act of negligence caused baby’s injuries, and for intentional child abuse the state hypothesized that defendant did not just put baby to bed carelessly, but that defendant actually used a pillow or his hand to suffocate baby so he could not breathe, and jury was never asked to specify which criminal act defendant committed.

The judges quote from the prosecution’s final argument that a juror might think Consaul “did it on purpose” or might think “he’s just an idiot” who put the baby down negligently, “but everybody knows, and we know he knew better than to do that.” The court’s response:

The prosecutor invited the jury to convict Daniel of child abuse whether or not the jury agreed on what criminal act Daniel actually committed. Jurors should not be left free, let alone encouraged by the prosecutor, each to go his or her own way when it comes to determining what criminal conduct —if more than one act is alleged—caused the child’s harm. The jury needs to agree unanimously on what conduct caused harm to the child.

While addressing the many issues raised by the case, the opinion criticizes the state legislature for its ambiguous definition of “negligence” in its child abuse guidelines. Noting that the law recognizes a distinction between civil versus criminal negligence, the opinion observes:

We note, however, that in Section 30–6–1(A)(3) the Legislature appeared to capture two standards of mens rea in one sentence when it defined “negligently” as meaning “that a person knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child.” § 30–6–1(A)(3) (emphasis added). The Legislature joined these two distinct states of mind with the conjunctive “and.” Taken literally, the text of the statute refers to both ordinary negligence and criminal recklessness all in a single legislative breath. The Legislature cannot rationally have intended such self- contradiction.

The opinion also contains an educational discussion of the difference between the medical concept of the differential diagnosis—“the determination of which of two or more diseases with similar symptoms is the one from which the patient is suffering, by a systematic comparison and contrasting of the clinical findings”—and the legal concept of the differential etiology—”a process that identifies a list of external agents… that potentially caused the disease.” Quoting another case opinion, the justices note:

“[P]hysicians receive more formal training in differential diagnosis than in differential etiology…. [P]racticing physicians have more experience working with the differential diagnosis technique, since in many cases the cause of an illness is irrelevant to the patient’s treatment.”

The child abuse team’s conclusions about intentional suffocation would seem to fall into the area of “etiology,” since there are countless ways for oxygen flow to be interrupted.

This case is cleaner than a shaking prosecution, because there were no subdural hematomas and no retinal hemorrhages, and therefore no presumption of violent assault, but I believe the same underlying issues apply. I hope to see more judges taking such a careful look at how the child protection teams reach their conclusions and recognizing the difference between sincere medical opinion and proof beyond a reasonable doubt.

copyright 2014, Sue Luttner

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

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August 20, 2014 · 8:44 am

Conversations With Dr. A. Norman Guthkelch

Dr. Norman Guthkelch, October 2012

Dr. Norman Guthkelch, October 2012

Retired pediatric neurosurgeon Dr. A. Norman Guthkelch was the first person to propose in print, in the British Medical Journal in 1971, that shaking an infant could cause subdural hematoma. He is now trying to straighten out what he considers a “horrifying misinterpretation” of his work.

Dr. Guthkelch was invited to address accused families at the 2013 conference sponsored by the Evidence Based Medicine and Social Investigation Group (EBMSI), a coalition of parents who have survived false accusations and now offer help to the newly accused. His health prevented him from traveling, so we conducted a series of conversations, which I edited into a 22-minute video to show at the conference.

For a profile of Dr. Guthkelch, please see this blog posting from the winter of 2013.

August 2016 update: Dr. Guthkelch died quietly at home on July 28, 2016. I posted this obituary.

To view the videotape we made for the 2013 EBMSI conference, please click the image below:

copyright 2014, 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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August 14, 2014 · 11:14 am

Boston Cases Refocus the Spotlight

Justina Pelletier thrilled to be returning home

Justina Pelletier, now reunited with her family

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

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

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

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

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

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

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

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

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

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

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

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

Justina with her mother and two of her three sisters

Justina with her mother and two of her three sisters

“Medical Child Abuse”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

copyright 2014 Sue Luttner

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

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