A few key quotes from the two papers, in chronological order.
He opens with a statement that AHT is a well-recognized clinical diagnosis and casts this paper as a refutation of recent criticisms, specifically citing Professor Tuerkheimer’s work and the dissenting opinion in the Shirley Ree Smith decision.
While laying the legal Daubert groundwork, he defines the physician’s role as “art:”
The medical provider’s judicious interplay of the human variable with the scientific data of the human body is what has been termed by many as the art of clinical medicine.
It is important to understand that the designation of an “art” is not a relegation to imprecision or lack of reliability. On the contrary, clinical medical decision-making is grounded in the roots of the scientific method.
Subdural hematomas are primarily of traumatic origin:
In 1914, the prominent British neurosurgeon, Wilfred Trotter (fig. 3), published a report declaring trauma as the true cause of SDHs. Trotter was a distinguished and accomplished physician who held many significant positions, not the least of which was his position as private physician to King George V. Frustrated by the term “pachymeningitis hemorrhagica interna,” Trotter asserted that the term presumed an infectious or inflammatory etiology and thus was a misleading hypothesis.131 Trotter stated, “[h]aemorrhagic pachymeningitis is almost if not quite invariably a true traumatic haemorrhage coming from veins torn in their course between the brain and a dural sinus.” Trotter’s work paved the way for other physicians, especially neurosurgeons, to re-examine the pathophysiology of SDHs. As a consequence, multiple case reports by well-reputed physicians began to question other previously well-recognized causes—syphilis,134 hydrocephalus,135 nutritional (scurvy),136 and other infectious137—as the primary etiology for SDHs.138
He reviews statistical methods and applies odds ratios to predicting child abuse from symptoms. He offers this analysis of the Donohoe paper:
Evidence-Based Medicine and Shaken Baby Syndrome Part 1: Literature Review, 1966-1998 is a prime example of poor medical literature, which somehow makes its way into a medical publication. Ironically, the article itself suffers from fatal methodological flaws and data gaps, but professes to assess the methodology of SBS studies and finds “data gaps” in them.
On diagnosing child abuse, including multi-disciplinary teams:
Whereas this clinical methodology was once believed to be a linear, Bayesian analysis, it is now understood that the diagnostic process is a dynamic, non-linear, unstructured method of problem-solving. Consequently, and especially in AHT cases, the clinician engages in a multi-disciplinary process of attaining information. The clinician cooperates with multiple agencies (social services and law enforcement) and multiple medical disciplines (radiology, ophthalmology, neurosurgery, etc.) to obtain additional history and clinical information.
To refute the statement that there has been “a shift in mainstream medical opinion” regarding SBS, he provides a list of 15 organizations described with this introduction:
Rather than respond in like, with unsupported generalizations, this author will simply cite, with supporting, verifiable references, the various international and domestic medical organizations that have publicly acknowledged the validity of AHT as a medical diagnosis:
The Daubert analysis at the heart of the paper, which defends the quality of AHT research, covers the tussel in Britain over the “Unified hypothesis,” and concludes
Thus, these most recent challenges to the admissibility of AHT testimony lack legal and medical foundation.
Given the abundance of medical literature in support of AHT— the significant statistical strength of much of that literature, the recognition by many U.S. and U.K. courts of the validity of that literature and of the diagnosis of AHT—one must seek explanation for the variability in some court decisions. Why have some courts concluded that there is a “significant and legitimate debate in the medical community” on AHT, while others have not?
Impugnes the motives and objectivity of defense experts, and argues that the technically overwhelmed judge needs the reasoned advice of the multi-disciplinary child protection team:
Second, the pecuniary interest in providing expert testimony cannot be underestimated. It has posed and continues to pose a significant risk to the presentation of unbiased medical information. Third, in addition to pecuniary interest, as discussed above, personal prejudices can also affect scientific analysis. This can in the adherence to disproven theories and the presentation of skewed information. Finally, the increasing complexity of scientific and medical information has placed onerous burdens on the single, gate-keeping trial judge. Given the lack of dispositive medical guidance from a unified, unbiased, multi-disciplinary, medical body, courts have been left to fend for themselves, relying upon whatever seemingly reliable medical information is presented. Naturally, variability in some decisions has ensued.
pp 595 ff.
What has been presented for the reader is:
i) a brief examination of the extensive clinical medical literature on the topic of AHT;
ii) evidence-based clinical medical studies on SDHs and RHs that demonstrate highly significant statistical associations of those injuries with AHT;
iii)verifiable references to fifteen national and international medical societies who have publicly endorsed the validity of AHT;
iv)medical and legal rationales refuting alternative hypotheses (such as Geddes’ Unified Hypothesis and Squier and Mack’s Dural Immature Vascular Plexus Theory) for the injuries common to AHT; and
v) national and international case law examining, and ultimately confirming, the validity of the medical evidence in support of AHT.
These reasons, and years of clinical experience, are the foundation for the opinions given by the vast majority of medical professionals called to evaluate suspected AHT. The diagnosis of AHT, long recognized as a valid diagnosis, occurs within the same professional culture of science and practice (methodology) that leads to the diagnosis and treatment of millions of pediatric patients in the U.S. every year. Many of these diagnoses are matters of life and death, and sometimes these diagnoses lead to the courtroom. For the legal profession to treat this aspect of pediatric medicine as separate from the rest of medicine is unjustifiable. It is understandable that lawyers will look for opportunities to create doubt in the minds of jurors. However, the only way to appropriately improve the chances for justice in the courts with respect to AHT is to assure that an unbiased, financially-unmotivated, medical expert testifies to the current state of medical evidence.
He opens with “a call for civility in scientific discourse.”
PROBLEM #1. IS THE NAME ‘SHAKEN BABY SYNDROME’
JUSTIFIED BY THE FACTS?
There is a serious epistemological difficulty here: one that seems
not to have been clearly recognized. Of the several hundred
syndromes in the medical literature, almost all are named either after
their discoverer (e.g., Adie’s Syndrome) or for a prominent clinical
feature (e.g., Stiff Man Syndrome). In contrast, the appellation
shaken baby syndrome (SBS) asserts a unique etiology (shaking). It
also implies intent since it is difficult to ‘accidentally’ shake a baby.
A newer term, abusive head trauma (AHT), implies both mechanism
(trauma) and intent (abusive).
He proposes instead a name that describes the symptoms, such as “infant retino-dural hemorrhage.”
pp 202 ff.
PROBLEM #2. CAN SHAKING CAUSE RETINO-DURAL
HEMORRHAGE IN INFANCY WITH MINIMAL EXTERNAL INJURY?
AND, IF SO, CAN ONE REASONABLY INFER SHAKING (OR OTHER
FORMS OF ABUSE) FROM THESE FINDINGS?
He notes the generally consistent biomechanical research calling into question the likelihood of producing subdural hemorrhage through shaking, but points out the research does not take into account the complex differences between the mature and the infant brain, and he concludes that “minor trauma may cause disproportionate harm to infants.”
It does not follow, however, that one can infer shaking (or any
other form of abuse) from a finding of retino-dural hemorrhage in
In reviewing cases where the alleged assailant has continued to proclaim his/her innocence, I have been struck by the high proportion of those in which there was a significant history of previous illness or of abnormalities of structure and function of the nervous system, suggesting that the problem was natural or congenital, rather than abusive. Yet these matters were hardly, if at all, considered in the medical reports.
PROBLEM #3. CAN WE SAFELY ASSUME THAT THERE IS A CONSTANT RELATIONSHIP BETWEEN THE FORCE OF SHAKING AND/OR IMPACT AND THE RESULTING DAMAGE TO BODY TISSUES, PARTICULARLY THOSE OF THE NERVOUS SYSTEM AND ITS COVERINGS?
While confirming that no level of violence against children is acceptable, he notes the complexity of the infant brain and proposes that you can’t expect a direct relationship between raw level of force and and “the existence or extent of retino-dural hemorrhage . . . let alone the state of mind of the perpetrator.”
Any medical expert who answers in the negative questions such as “Given the injuries that you have described in this case, doctor, have you any doubt that they were inflicted with intent to kill, or at least in total disregard of that possibility?” is exceeding his or her authority.
Noting that current imaging technology has revealed small subdural hematomas in far more neonates than was previously imagined, he proposes that some of these birth subdurals either represent underlying pathology or become chronic, causing problems later.
In such cases, the focus should not be on finding a “culprit” – or blaming the last person with the baby – but rather on the early identification of babies with pre-existing conditions and the development of treatment options.
PROBLEM 4. WHY IS IT IMPORTANT TO GET IT RIGHT, AND HOW
SHOULD WE PROCEED?
He notes that misdiagnosis is especially problematic when it sends innocent parents to prison. He reports investigating a number of cases in which there was, indeed, another reason for the child’s symptoms.
“Getting it right” requires that we distinguish between hypotheses and knowledge. SBS and AHT are hypotheses that have been advanced to explain findings that are not yet fully understood. There is nothing wrong in advancing such hypotheses; this is how medicine and science progress. It is wrong, however, to fail to advise parents and courts when these are simply hypotheses, not proven medical or scientific facts, or to attack those who point out problems with these hypotheses or who advance alternatives.
. . .
Today, we need to develop a better understanding of the pathology of the infant brain and its coverings, and we need to look much more rigorously at the evidence. Only then will we be able to confidently correlate the medical findings with clinical symptoms and causes.