Tag Archives: abusive head trauma

“Why Can’t Uncle Come Home?” – A Book for Families

Author Christiane Joy Allison and illustrator Liz Shine have hit the mark with their engaging and healing children’s book about a relative’s wrongful imprisonment, an offering the author calls “a bittersweet labor of love for both the illustrator and me.”

Why Can’t Uncle Come Home?  addresses the anger, fear, and confusion a child feels when a beloved relative is sent to prison, and it explains how an innocent person might be convicted of a crime. The book succeeds in its own right, but it also fills a need, telling the young relatives of innocent inmates they are not alone.

“I read this book with my 6-year-old grandson. It is a great tool for opening conversation,” posted Vickie Fetterman to a support group for accused families. “He has been so affected by his father’s wrongful conviction.”

Christiane Joy Allison, “CJ” to her friends, knows her subject: Her book chronicles the reactions of her own niece and nephew when her husband, Clayton Allison, was accused and ultimately convicted of murder in the death of his and CJ’s daughter Jocelynn. At the time, while also trying to defend her husband and grieve for her daughter, CJ looked for books to help her young relatives understand what was happening, and found nothing. “I saw a need and I realized I had to fill it,” CJ said in a telephone interview last month. “I didn’t intend to write a children’s book. It just sort of landed on me.”

From the Rasmuson Foundation web site

On-line comments have been effusive. “This beautifully illustrated and accessibly written book fills a hole in the world of literature,” wrote Laura Ojedo in an Amazon review, “A must-read for children, and honestly for people of any age.”

CJ said she was gratified when she read her book recently to school children in her community of Wasilla, Alaska, and found her audience of 5-to-7-year-olds fully engaged. “I felt so blessed when one of the parents pulled me aside afterward and thanked me for tackling the subject, because they just had a friend experience wrongful conviction and felt lost how to explain it.”

When her husband was accused in 2009, CJ and an army of other supporters stepped forward in his defense, and they have stuck with the campaign even after his conviction in 2015.

In the course of the investigation, CJ showed herself both stronger and more ethical than a pair of Alaska state troopers, who thrust grisly autopsy photos in her face, ridiculed her faith in her husband, and misled her during a long and heartless interrogation.

The Allison family’s experience features a number of elements that show up frequently in these cases:

  • a plausible alternative explanation (Clayton reported that the toddler fell down the stairs)
  • a quick diagnosis by physicians unaware of the child’s complex medical history
  • distraught parents subjected to cruel and deceptive interrogation tactics and
  • a tangle of legal rulings that limited what CJ could say at trial

You can follow the family’s struggle through the Free Clayton Allison Facebook page.

The Rasmuson Foundation, which supports artists and non-profits in Alaska, has awarded CJ a grant to publish a follow-up book, Timmy and Kate Go to Visit.

Why Can’t Uncle Come Home? earned honorable mentions for its illustrations and cover design and for its handling of family issues in the 2018 Purple Dragonfly Book Awards from Story Monsters Ink, a magazine about children’s literature for teachers, librarians, and parents.

CJ, a writer by both nature and training, has an MBA in Management & Strategy and a BA in Journalism & Public Communications.

As CJ predicted, Why Can’t Uncle Come Home? is the only children’s book I could find that addresses wrongful conviction. Several books deal with parents in prison, including these titles that have received generally good customer reviews: The Night Dad Went to Jail; Far Apart, Close in Heart; and My Daddy’s in Jail. Customer reviews also give a thumbs-up to Maybe Days, a book written for children entering foster care. The State of New Hampshire publishes this list featuring more titles for children with parents in prison.

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The Forensic Unreliability of the Shaken Baby Syndrome: The Book

Arizona trial attorney Randy Papetti has brought nearly 20 years of experience and research to his valuable new analysis of shaken baby theory in the courtroom, The Forensic Unreliability of the Shaken Baby Syndrome, now shipping from Academic Forensic Pathology International.

Papetti is not a criminal attorney but a recognized leader in his primary field, commercial litigation. In 2013, he was selected by Best Lawyers and his local peers as the Lawyer of the Year for “Bet-the-Company Litigation.” In 2011, he was inducted into the invitation-only American College of Trial Lawyers. His shaken baby work has all been pro bono.

Randy Papetti

Papetti was only doing a favor for a friend, he told me in a telephone interview, when he agreed to help with his first alleged shaking case, an appeal of a murder conviction. The convicted father had reported a fall from a high chair, but the child abuse experts had insisted that shaking must have been involved. Papetti started researching the medical and legal arguments, he said, and found himself face to face with the difference between medical opinion and proven scientific fact.

Drayton Witt and his wife, courtesy Arizona Justice Project

Papetti won that appeal, and other attorneys started approaching him with their own shaking cases. He was a key player in the 2012 freeing of Drayton Witt, whose son died after a short lifetime of serious health problems, including a seizure disorder. It was the Witt case that brought pioneering pediatric neurosurgeon Dr. Norman Guthkelch back into the arena, four decades after he lay the groundwork for the diagnosis by proposing that shaking an infant could cause subdural bleeding. Like Papetti, Dr. Guthkelch rejected the medical thinking that had convicted Drayton Witt. Guthkelch then spent the final years of his life fighting what he considered a “tragic misinterpretation” of his work.

“Witt was a powerful case,” Papetti said. “It showed how easily a mistaken diagnosis based on the ‘triad‘ can convict.” By then law professor Deborah Tuerkheimer had published her first journal argument against shaking theory, and her New York Times op ed. Papetti thought the tide was turning. “The information was out there, people could see that shaking theory was unreliable.”

Instead of reconsidering their model, however, proponents of shaking theory “took a course I never imagined they would be able to take, claiming there never was a triad,” Papetti marveled in our interview. In his book, he noted that changing the name of the diagnosis from “shaken baby syndrome” to “abusive head trauma” did not address the fundamental problem that the entire theory was speculation. “It merely changed the diagnosis’ name for legal purposes.”

Papetti said he was “stunned” to see how child abuse professionals have lashed out personally at defense experts and attorneys: ridicule at conferences, perjury charges, letters to employers. “That’s not the way the game is played,” he said. Attorneys in civil practice fight hard in the courtroom, he claimed, but can still respect their opponents professionally and maintain personal friendships.

In his book, Papetti traces the evolution of shaking theory in both the medical literature and the courts. He illustrates how the two have co-evolved, distorting each other, and he examines the cooperative relationship among child abuse experts, the police, and social services. He writes:

These institutional realities, not science or clinical validation, best explain how SBS has persisted and why the medical profession is unlikely to correct it any time soon.

“Things tend to get worse before they get better,” he told me, “And I’m afraid that’s where we are now, still getting worse.” At this point, proponents of shaking theory staff the medical schools and the childrens’ hospitals, dominate the professional organizations, and conduct the bulk of the research. Critics tend to be independent thinkers who have researched the literature and reached their own conclusions.  “The imbalance of power has distorted everything completely,” Papetti said. “At the end of the day, are you really asking a judge to not allow the testimony of these luminaries because a few brave souls disagree?”

So he keeps chipping away at a calcified theory with the facts, hoping to explain it all clearly enough that judges will see how decades of unproven medical testimony have led to a criminal justice crisis of staggering proportions.

For postings about other books on shaken baby, please see “Flawed Convictions: Breaking Academic Ground,” “Forward, Into the Bookstores,” “An Important Story, Well Told,” and “‘Journey With Justice’: A Rough Road.

Copyright 2018, Sue Luttner

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

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Shaken Baby Theory: Poking the Hornet’s Nest

The July issue of Acta Paediatrica offers a collection of free, live links to a volley of rebuttals published over the past four months to an article in March submitted by medical ethicist Dr. Niels Lynøe and most of the other experts who informed the 2016 Swedish report critical of shaking theory, commissioned by a government agency whose name is abbreviated SBU.

In an email exchange last week, Dr. Lynøe wrote that his team knew the topic was controversial, but they were “rather surprised” at the vehemence of the criticisms. “I also think that there was something positive with the critical comments,” he added, “because we got the opportunity to explain and explore some aspects more.”

Dr. Niels Lynøe

The March paper reported on the same research as the SBU study, an exhaustive evaluation of the shaken baby literature that ultimately declared the scientific evidence behind shaking theory “weak.” The analysis noted fundamental problems with the bulk of the published research—in a typical study design, the report noted, researchers had applied the criteria they were attempting to prove when identifying and sorting their subjects, so the results necessarily supported their theory.

Weeks after the Lynøe et al. paper appeared, Acta Paediatrica published an editorial  by epidemiology professor Jonas F. Ludvigsson criticizing  the SBU’s methods and warning of an “imminent risk” that the paper will discourage the reporting of child abuse and leave abused children undiagnosed. Dr. Ludvigsson conceded quality problems with past SBS research, but rejected the SBU’s conclusions and endorsed reliance on the triad:

“[The study’s] publication in Acta Paediatrica does not spell the end of the discussion. Instead, it is a clear signal that more research is needed. But for now, paediatricians should continue to alert social services when they observe a child with the triad, once other explanations for subdural haematomas, retinal haemorrhages and brain ischaemia and oedema have been ruled out.”

The next critique of Lynøe et al., in mid April, added irony to the collection by denying the triad itself. An editorial by violence and abuse specialist Dr. Steven Lucas and others charged that the SBU’s methods had become “untethered from the agency’s published methodology” and argued that the study was fundamentally flawed, because it had examined the question of whether the presence of the triad proves infant shaking. Lucas et al. wrote:

“The construct of the ‘triad’ represents a rhetorical fallacy known as a straw man, which gives the impression of refuting an opponent’s argument – the ‘triad’ is pathognomonic for AHT – when, in fact, that argument was never advanced by that opponent. We maintain that the term ‘triad’ carries no value for clinicians experienced in evaluating suspected AHT.”

In refutation of the straw man argument, I point out that both Joshua Burns and Michelle Heale were convicted based only on the opinion of child abuse experts that the triad proves abusive head trauma—these cases are not unique, only easy to reference here. I myself have researched dozens of convictions based on the triad, sometimes on only one or two elements of the triad.

Lynøe et al. addressed the straw man argument in a response to a different criticism (the response to Narang et al.), by quoting these physician guidelines, which clearly endorse the triad:

“If there is no history of traffic accident or fall from a considerable height, the combination of subdural hematoma and encephalopathy with edema or hemorrhage strongly suggest that the infant has been abused. If there are also retinal hemorrhages then from the medical point of view the diagnosis of abuse is quite clear.”

Also in April, Acta Paediatrica published an editorial by pediatric ophthalmologist Dr. Alex Levin, who declared, “There is a plethora of scientific evidence that retinal hemorrhages are a cardinal feature of abusive head trauma.” Among other objections to the study, he criticized the SBU’s failure to consider the various possible sizes and locations of retinal hemorrhages. “To ignore these descriptors,” he wrote, “is like saying that a rose is no different than any other ‘flower.'”

Dr. Levin also objected that the SBU team had ignored the “wealth of clinical experience” available from the community of child abuse experts.  He argued that certain retinal findings, even in the absence of any other evidence, should shift the assumption to one of abuse:

“A diagnosis of abuse should not be made solely based on retinal haemorrhages, but certain retinal findings make that likelihood dramatically high, so high that one must actively seek (or rule out) supportive evidence that the child has been abused and is in need of protection.”

Another commentary in the April issue, by eye and vision specialist Dr. Kerstin Hellgren and others, called the SBU report “misleading.” In an apparent endorsement of both the triad and the literature that supports it, the authors wrote:

“The SBU report concludes that there is only limited evidence that shaking of an infant can cause the triad signs, in contrast with the numerous reports describing such lesions in victims of verified shaking. It is unfortunate that the SBU panel neither included a paediatrician nor a paediatric ophthalmologist with experience of child abuse to facilitate a correct interpretation of the cited papers.”

In a response to both Levin and Hellgren et al., the Lynøe authors reiterated their commitment to objectivity:

“If physicians involved in child protection teams embraced the research question as if it was a generally accepted scientific fact when classifying cases and controls, this would have resulted in circular reasoning when estimating the diagnostic accuracy of the triad. For that reason, and in order to avoid conflicts of interest and circular reasoning, the expert panel did not include any experts associated with child protection teams. The panel comprised two paediatricians and one expert each from the fields of forensic medicine, radiology, epidemiology and medical ethics. All the included had long experience of assessing scientific work and were scrutinised for potential conflicts of interest and cleared by the Agency. The expert panel followed the guidance in handbooks for assessing health technology and any other panel reproducing the study would have probably arrived at the same conclusions.”

In May, Dr. Sandeep Narang and Dr. Christopher Greeley, both renowned child abuse specialists, published a column in the Acta Paeditrica series “A Different View” that lambasted the methodology, objectivity, and transparency of the SBU study. Like Lucas et al., Narang and Greeley declared the triad a “strawman,” with the statement:

“Physicians experienced in the clinical evaluation of paediatric traumatic brain injury and AHT do not diagnose SBS by a ‘triad’.”

Narang and Greeley also found it “troubling” that the SBU panel “was offered and refused external peer review by no fewer than seven international professional medical societies” before the publication of their report, and charged that the panel was biased in two ways:

  • One of the SBU panelists had testified before the highest court in Sweden, prior to the study, that “the diagnostic model of the ‘triad’ for diagnosing SBS ‘has been criticised’, and that ‘there is currently no clarity about the extent to which the components of the triad are specific to violent shaking’.”
  • A former chair of the SBU had also testified in the same case, and “has openly expressed scepticism of the diagnosis of AHT because of his personal experiences with a family member being criminally charged in a suspected shaken baby case.”

Another “Different View” column published in May, by Dr. Robert A.C. Bilo and others, focused specifically on the papers used to support the study’s conclusion that the triad had many “alternative explanations.” Bilo et al. rejected the cases and papers cited in support of these explanations, with three main arguments:

  • many of the cases would never have been diagnosed as abuse, because the children clearly suffered other medical conditions
  • some of the cases did not fully conform to the triad
  • some of the cases were in fact abuse misrepresented as organic causes

Like other critics, including Lucas et al., the Bilo authors accused the SBU of applying a double standard, because the reviewers accepted individual case reports as evidence for other causes, while they rejected studies with fewer than 10 cases from their main literature review.

Lynøe et al. clarified in their response that the papers cited as evidence for other causes had simply emerged during their literature review, and had been rejected from the main study for the same reasons as many others. They explained:

“From an epidemiological point of view, and due to random fluctuations, studies with less than 10 study cases are of very limited value. But when looking for differential diagnoses, one single case is sufficient to question the general assumption that when the triad is present the infant must have been violently shaken.”

The original study had addressed the question:

With what certainty can it be claimed that the triad, subdural hematoma, retinal hemorrhages and encephalopathy, is attributable to isolated traumatic shaking (i.e. when no external signs of trauma are present)?

The Acta Paediatrica treatment articulated the answer in two, subtly different conclusions. First:

“[T]here is insufficient scientific evidence on which to assess the diagnostic accuracy of the triad in identifying traumatic shaking (very low-quality evidence).”

That is, the literature supporting the opinion that the presence of the triad proves a child was shaken is “insufficient,” because none of the papers supporting that opinion ranked above “very low-quality.” Second:

“[T]here is limited scientific evidence that the triad and therefore its components can be associated with traumatic shaking (low-quality evidence).”

That is, the researchers found some low-quality papers supporting the opinion that traumatic shaking causes the triad—two French papers based on confessions—but no medium- or high-quality papers. Before reaching their conclusions, the authors had read and evaluated 1,000 academic papers, only 30 of which met their inclusion criteria. They ranked 28 of those 30 papers as having a “high risk of bias,” 2 of them as having a “moderate risk,” and none of them as having a “low risk” of bias (a flow chart illustrating the literature search).

In an over-reaching answer to their many critics, the Lynøe team called for a more scientific approach to research in the arena:

“We acknowledge the concerns expressed by all of the authors who responded with regard to child welfare and the possibility that the diagnoses may be delayed in individual cases of child abuse. However, we are very troubled by the disregard displayed by those authors to the significant methodological problems inherent in published research on shaken baby syndrome. With the exception of Ludvigsson, none of these authors expressed concern about the problems of circular reasoning, lack of comparison groups or the other methodological problems we identified in the systematic review. Where has all the critical thinking in research gone?…

“The purpose of a systematic review is to examine the quality of published research. With that in mind, please accept the substantial difficulties and limitations of previous research carried out by the ‘shaken baby syndrome’ and ‘abusive head trauma’ and help to add true knowledge by performing better research that overcomes the methodological problems.”

copyright 2017, Sue Luttner

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

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Shaken Baby Debate: Steps Forward, Steps Backward

jasonschneider

Jason & his son

Part I of II

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

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

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

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

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

The Schneider family

The Schneider family

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

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

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

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

evaserenden

Eva Amurri Marino

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

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

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

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

happilyevafamily

Major with his family

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

Disappointment at Retrial

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

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

Leo and Baylee

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

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

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

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

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

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

copyright 2017 Sue Luttner

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Dr. A. Norman Guthkelch Fought Injustice to the End

Kim Hart and Dr. Guthkelch, his 100th birthday

Kim Hart and Dr. Guthkelch  -photo by Sue Luttner, Sept. 2015

Dr. A. Norman Guthkelch, the pioneering pediatric neurosurgeon who first proposed in print that shaking an infant could cause bleeding in the lining of the brain, died quietly last week in Toledo, Ohio, a month short of his 101st birthday.

“Until the very end, Norman continued fighting for innocent children and families,” said Kim Hart, his caretaker and colleague and the director of the National Child Abuse Defense and Resource Center (NCADRC), who shared her home with Dr. Guthkelch for the last two years of his life. Last year, just before he turned 100, the two of them helped a local mother regain custody of her twins following a hasty diagnosis of abuse that had ignored the children’s medical histories.

normanClose

Dr. Guthkelch in 2012

Dr. Guthkelch devoted his final years to working against what he considered a misinterpretation of his work, the model of shaken baby syndrome that has been winning in court for several decades. “I am frankly quite disturbed that what I intended as a friendly suggestion for avoiding injury to children has become an excuse for imprisoning innocent parents,” he told me in an interview in 2012.

Dr. Guthkelch published his groundbreaking paper in the British Medical Journal in 1971, proposing that the shaking of infants, considered at that time a reasonable way to calm or discipline a child in northern England where he was practicing, could be triggering subdural bleeding and endangering brain development. The paper did not propose that subdural bleeding proved abuse, but advised physicians faced with unexplained infant subdurals to “inquire, however guardedly or tactfully, whether the baby’s head could have been shaken.”

Drayton Witt and his wife.

Drayton Witt and his wife, courtesy Arizona Justice Project

When he wrote that paper, Dr. Guthkelch launched an education campaign to stop the practice of infant-shaking  in Britain, recruiting the help of case workers who made home visits to new parents. He then pursued other professional interests and didn’t revisit the shaken baby discussion until 2011, when law professor Carrie Sperling with the Arizona Justice Project asked him to review the medical records in the case of Drayton Witt, a father convicted of murder in 2002 for the presumed shaking death of his son.

“I wasn’t too keen on this at first, as I’d retired at least a decade earlier,” Guthkelch sighed in a 2012 conversation, but he examined the records and was “horrified” to discover that 4-month-old Steven Witt had suffered a lifetime of medical problems that could easily explain his death. Dr. Guthkelch’s affidavit helped convince an Arizona state court to vacate the conviction and free Drayton Witt after a decade in prison.

Carrie Sperling

Prof. Carrie Sperling

Sperling, now an associate dean at the University of Wisconsin Law School, describes Dr. Guthkelch as “an amazing, gracious man,” who impressed her with “his curiosity, his unassuming nature, and his intellectual integrity.” She characterizes his decision to examine the evidence in the Witt case as “an act of true courage for the man whose work was at the root of the diagnosis.” Ultimately, Sperling says, “What I found most extraordinary about him was his unwavering and unselfish commitment to justice.”

After the Witt case, Dr. Guthkelch made a careful study of the medical records in a series of other shaking convictions in which the defendant still maintained innocence, and in every single case, he told me in a video interview in 2012, he found an obvious, non-abusive medical explanation for the findings. “And I asked myself,” he said, “‘What has happened here?’”

In 1945

Dr. Guthkelch in 1945

After exploring the medical literature, he concluded that “dogmatic thinking” had set in among child abuse physicians, who had come to believe that a certain constellation of brain findings, including retinal and subdural bleeding, proved abuse. He began articulating his protestations against the common knowledge, in letters to key players and in an essay to accompany an influential 2012 law journal article by a team of attorneys and physicians concerned that shaken baby theory is convicting innocent parents and caretakers.

Dr. Guthkelch advocated abandoning the terms “shaken baby syndrome” and “abusive head trauma,” which incorporate an assumption about mechanism, in favor of the objective term “retino-dural bleeding of infancy.” He tried to encourage communication between the two sides of the debate, he said, “But the arena is much too contentious, and the history too bitter. It’s quite tragic.”

Oxford, 1945. Dr. Guthkelch is second from the left in the back row, under the open window.

Oxford, 1945. Dr. Guthkelch is second from the left in the back row, under the open window.

Dr. Guthkelch began his career at a time of tremendous need. During World War II, right after his residency training, he served as an army neurosurgeon—during the Battle of the Bulge, he once told me, he staffed the operating room for 36 hours straight, breaking for food but not for sleep.

After the war, he returned to his studies under pioneering neurosurgeon Sir Geoffrey Jefferson, who had honed his own skills treating head injury during World War I. Away from the battlefield, Guthkelch found himself specializing in the very young. He became Britain’s first physician with the title of pediatric neurosurgeon when he received that appointment at the Royal Manchester Children’s Hospital.

Dr. Guthkelch emigrated to the U.S. in the mid-1970s, working at the Children’s Hospital of Pittsburgh until 1982. He intended to retire at that time, he said, but when he and his wife moved to Tucson, Arizona, the local hospital recruited him for another eight years of practice.

After the death of his wife in 2011 and his experience with the Witt case, Guthkelch focused his energy on the shaken baby debate. “I want to do what I can to straighten this out before I die,” he said in 2012, “even though I don’t suppose I’ll live to see the end of it.”

Moving to Toledo in 2014 gave him the chance to work on the front lines in the fight against the misdiagnosis of abusive head injury. “The 25 months we had with him was an amazing education, an incredible experience, and a true privilege” says NCADRC director Kim Hart. “We are committed to moving forward, championing his desire to correct the misperceptions of his work that have caused so much tragedy for so many innocent families.”

Contributions in memory of Dr. Guthkelch can be made to the National Child Abuse Defense and Resource Center.

For a profile of Dr. Guthkelch from 2012, please see Dr. A. Norman Guthkelch, Still on the Medical Frontier.

For a video interview with Dr. Guthkelch, prepared for a 2013 conference of accused families, please see Conversations With Dr. A. Norman Guthkelch.

For the National Public Radio treatment of his concerns, published in 2011, see Rethinking Shaken Baby Syndrome.

Dr. Guthkelch meets with students from the Medill School of Journalism. Photo by Alison Flowers, courtesy of the Medill Justice Project

Dr. Guthkelch meets with students from the Medill School of Journalism.
Photo by Alison Flowers, courtesy of the Medill Justice Project

For a podcast interview prepared by students at the Medill Justice Project, see Setting the Record Straight.

For a review of his concerns regarding shaking theory in the journal Argument & Critique, see Integrity in Science.

For his own informal memoir, also published in Argument & Critique, see Arthur Norman Guthkelch: An Autobiographical Note.

copyright 2016, Sue Luttner

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

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Shaken Baby Conference 2016: Defending a Crumbling Theory

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

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

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

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

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

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

“In this panel presentation, three child abuse pediatricians will talk about SBS/AHT cases that have resonated with them and the importance of talking about these cases with other professionals 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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Guilty of Intellectual Honesty

Pediatric Neuropathologist Dr. Waney Squier At the Evidence-Based Medicine Symposium in Denver in 2009In a 96-page decision packed with irony, the Medical Practitioners Tribunal Service (MPTS) in Britain has declared pediatric neuropathologist Waney Squier guilty of practicing outside her area of expertise, ignoring the opinions of her peers, and tarnishing the reputation of the medical profession with her testimony and written opinions in a series of shaken baby cases between 2007 and 2010.

“The tribunal is in no doubt you have been a person of good character and have not acted dishonestly in the past,” the statement offers, but it characterizes her opinions about shaken baby syndrome as “dogmatic, inflexible and unreceptive to any other view” and declares her work in the arena “misleading,” “irresponsible,” and even “dishonest.”

MackSquierHead2009For about the past 15 years, Dr. Squier, a consulting neuropathologist at the Oxford Radcliffe Hospitals, has been challenging the community of child abuse experts to reconsider the unproven model of shaken baby syndrome that’s been winning in court for decades. She has not only testified to her theories but also conducted research and published in the medical journals.

The charges against her were levied by the General Medical Council (GMC) at the instigation of prosecutors concerned that her testimony was impeding convictions in shaking cases, according to Dr. Michael Powers, QC, as quoted in the coverage by Robert Booth at The Guardian. The GMC will determine her penalty later in the month, possibly loss of her status as a practicing physician.

Dr. John Plunkett

Dr. John Plunkett

Dr. John Plunkett, a pathologist who has fought off charges of perjury for his testimony regarding shaken baby theory, pointed out that Dr. Squier is receiving a Champion of Justice award next month at the annual Innocence Network conference in San Antonio, Texas. “How is it that the Innocence Network can give this award to Dr. Squier if the GMC has correctly characterized her behavior as dishonest and worthy of sanction?” he asked.

Dr. Bergina Brickhouse, a psychiatrist whose husband was cleared of shaking accusations based partly on a report from Dr. Squier, wrote in an email, “If not for the strength, fortitude, and technical expertise that Dr. Squier has shown, my family would most assuredly have been ripped apart by well-meaning but ignorant medical staff.”

Developmental Medicine & Child Neurology, 2008

Developmental Medicine & Child Neurology, 2008

I would have expected adjudication of the charges to be conducted by a panel of physicians, but the MPTS set up a team of one retired psychiatrist and two lay persons—a retired Royal Air Force wing commander and a retired police officer—to evaluate the evidence against Dr. Squier. The members seem not to have read the medical literature but based their conclusions primarily on oral testimony given over several months of hearings that started in the fall. The panel’s report describes all of the prosecution’s expert witnesses as “credible” but articulates various objections to the experts called by the defense.

Forensic pathology professor Bo Erik Ingemar Thiblin of Uppsala University, for example, had explained how circular reasoning in the early shaken baby papers allowed the theory to become established without scientific proof, the same argument that convinced the Swedish Supreme Court to revisit the legal status of shaken baby theory last year. Dr. Thiblin is an expert in epidemiology, the study of patterns, causes, and effects in health conditions, a complex field that emphasizes assessment and analysis of the known facts. In a triumph for circularity, the tribunal rejected his testimony with this explanation:

“It was clear that Professor Thiblin did not believe in the concept of shaken baby syndrome, and his view of the literature was coloured by that. He was critical of the methodology of all the research literature in relation to the subject because of its perceived circularity bias. The tribunal considered that his expert opinion on non-accidental head injury lacked credibility; therefore the tribunal attached limited weight to his evidence.”

In an insightful editorial in The Guardian today, human rights attorney Clive Stafford Smith compared the tribunal to the trial of Galileo by the church for his theory that the earth orbits around the sun and not the other way around:

“I am convinced that Squier is correct, but one does not have to agree with me to see the ugly side to the GMC prosecution: the moment that we are denied the right to question a scientific theory that is held by the majority, we are not far away from Galileo’s predicament in 1615, as he appeared before the papal inquisition… It was not until 1982 that Pope John Paul II issued a formal admission that the church had got it wrong.”

Dr. Waney Squier

One of the inexplicable elements of the decision was the tribunal’s finding that Dr. Squier had erred by testifying to biomechanical issues without any expertise in biomechanics—although the prosecution experts who testified in the hearings were, like Dr. Squier, physicians with no apparent specialized training in biomechanics (Dr. Richard Bonshek, ophthalmic pathologist; Prof. Rupert A. Risdon, pediatric forensic pathologist; Dr. Neil Stoodley, neuroradiologist; and Prof. Colin Smith, neuropathologist).

Similarly, the declaration scolds her for citing the 1987 paper by Duhaime et al. to support her observation that shaking without impact has not been shown to create forces sufficient to cause the brain injury. The tribunal said she had “completely misinterpreted what Duhaime had actually said,” even though the paper’s introduction says:

“It was concluded that severe head injuries commonly diagnosed as shaking injuries require impact to occur and that shaking alone in an otherwise normal baby is unlikely to cause the shaken baby syndrome.”

In a moving one-minute interview on the BBC, Dr. Squier said she is “devastated” by the finding, which she said has “enormous implications” not just for doctors but for any experts willing to testify in court. “You can give an honestly held, well-supported opinion and find yourself out of job,” she observed.

The charges against Dr. Squier are consistent with a strategy advocated by Detective Inspector Colin Welsh of New Scotland Yard in 2010 at the 11th International Conference on Shaken Baby Syndrome for improving the conviction rate in these cases by neutralizing experts willing to testify for the defense (see “Back Door Tactics Show Through“).

Proponents of shaking theory also ridicule their critics at conferences and scorn them in print, and in 2014 they attempted to block the premiere showing of the documentary The Syndrome, which they dismissed as “a national platform for the tiny handful of well-known child abuse defense witnesses to publicize their fringe message.”

An editorial this winter in the journal Pediatric Radiology, “Child Abuse: We Have Problems” by Dr. Peter J. Strouse, declares that “child abuse denialists” now pose “a growing threat to the health care of children and the well-being of children and families,” and calls on institutional rejection of doctors who defy the common knowledge about child abuse:

The court system seems ill-equipped to properly censure the denialists in spite of their deceitful and unethical behavior. Ideally, the legal system would practice peer-review by unbiased observers, but this does not occur. Institutions that harbor denialists, whether they be private practices or esteemed academic institutions, should carefully consider their employment.

Even in this environment, Dr. Squier has been willing to say in print and in court what her own research and experience were telling her about shaken baby theory.  I am in awe of both of her intellectual honesty and her courage, and I am horrified at Friday’s decision. The only silver lining I can think of is that maybe, this time, they have gone too far. The ironically named “determination of facts” released on Friday will not hold up to the scrutiny that Dr. Squier’s own work has already survived (see, for example, “When Pie in the Sky Turns Out to Be Dawning Knowledge”).

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

Copyright 2016, Sue Luttner

 

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

Appeals Court Recognizes Change in Medical Thinking

- from The Columbian

– from The Columbian coverage

A Washington state appeals court has granted a new trial to Heidi Fero, a mother and babysitter who was out of prison but still under court supervision on a child assault conviction when her appeal was heard. The decision, written for the 3-judge panel by Judge Linda CJ Lee, recognizes a change in medical thinking about both the timing of infant head injuries and the reliability of an abuse diagnosis in these cases. Specifically, the decision endorses this defense argument:

[N]ew material facts exist in the form of the now generally accepted medical paradigm that recognizes children can remain lucid for up to three days after suffering similar head injuries and those injuries are now known to be caused by much less extreme circumstances.

On a January evening in 2002, Fero was caring for pair of siblings, a 15-month-old girl and a 4-1/2-year-old boy, as well as her own two young children. At about 7:45 pm, she called the children’s father to report that the boy had been seen “pushing [his sister’s] head into the wall.” She says she comforted the little girl and, when she seemed to fall asleep, put her on a futon.

At 9:54 p.m., Fero called 911, after she noticed that the girl’s eyes were half-open and she could not be awakened. When the ambulance arrived at 9:59, the child was completely unconscious.

From the Free Heidi support page

A family photo from the Free Heidi support page

At the hospital, doctors found subdural hematoma, cerebral edema, and retinal hemorrhages. According to the case summary, six prosecution doctors testified at trial that the findings could result only from a major trauma like a car accident, a long fall, or abuse by an adult, and that the child would have become unconscious almost immediately after the assault. Several of the experts seem to have specified that the girl had been violently shaken.

Fero was initially sentenced to 15 years, 5 years above the statutory limit because of the “special circumstances” of the infant victim’s extreme vulnerability and Fero’s failure in her “duty to protect” a child in her care. A 2005 decision reduced her sentence to 10 years, with the objection that the judge had not submitted the special circumstances to the jury for adjudication before applying them.

The 2014 petition that reversed Fero’s conviction included affidavits from two physicians, pediatric neuroradiologist Patrick Barnes, who testified for the prosecution in the highly publicized 1997 trial of “Boston nanny” Louise Woodward, and forensic pathologist Janice Ophoven, who has testified that shaken baby syndrome is “controversial” and “an ongoing debate in the medical field.”

The Fero decision offers this quote from Dr. Barnes, “Over the past decade, many doctors—including myself—have changed their testimony and beliefs to bring them into accord with the scientific evidence and standards of evidence-based medicine.” And on the subject of timing:

Given the new medical research on lucid intervals, the testimony of the State’s experts to the effect that [the girl] would have immediately gone unconscious is unsupported by the medical literature. It is impossible to tell from the radiology or otherwise in the medical record when [the girl] was injured, and there is a significant chance that she was injured before she arrived at Ms. Fero’ s home.

In her statement, Dr. Ophoven cited the 2001 position papers by the American Academy of Pediatrics (AAP) and the National Association of Medical Examiners (NAME) to support her contention that the testimony at Fero’s trial in 2003 reflected the thinking of the medical community at the time. The AAP position paper has been superseded, however, by a 2009 statement that recommended clinicians avoid the term “shaken baby syndrome,” in favor of the more general “abusive head trauma,” and contained no specifics about diagnosing the condition or timing the injuries. The NAME paper expired without renewal and has not yet been replaced.

The decision quotes Ophoven’s summary:

[I]t is my opinion that much of the medical testimony presented during Ms. Fero’ s 2003 trial is no longer scientifically valid in light of recent advances in the medical community’ s understanding of the natural, accidental and non-accidental causes of cerebral edema, subdural hematoma and retinal hemorrhages.

Ophoven also concluded that the child had probably suffered her head injury about 12 hours before the first CT scan, that is, before she had been dropped off at Fero’s house.

In his statement opposing Fero’s petition, prosecuting attorney Anthony Golik did not address the question of whether medical opinion has indeed changed, focusing instead on the timing of the petition and the argument that new opinions by new experts should not constitute “newly discovered evidence” for the purposes of re-opening a case:

Every murder, serious assault, rape, etc, would be subject to vacation and retrial whenever a defendant found an expert to write an affidavit indicating there were new scientific theories which would explain the evidence in such a way as to possibly exonerate the defendant. This simply cannot be the standard this Court applies in Fero’s situation. A new medical opinion or a new medical theory is not a “material fact.”

Although the filing came more than a decade after her conviction, the judges concluded that Fero had exercised “reasonable diligence” regarding timeliness, considering that she was in prison when the medical debate was building and needed time after her release to find an attorney who could research the debate. The decision cited four other cases in the past few years where the convictions of child care providers were vacated—Audrey Edmunds in 2008, Kathy Henderson in 2012, Jennifer Del Prete in 2014, and Rene Bailey in 2014—based on the argument that a change in medical thinking over the past few years constituted “newly discovered evidence.”

This approach has been effective in righting past wrongs, but ironically, it will be less persuasive against recent convictions (like those of Cammie KellyMichelle Heale, and Joshua Burns, for example), since the debate has now been raging for a decade or more.

With the decision, the court released Fero from court supervision while she awaits the state’s response.

Like so many women in her position, Fero has received the support of her family and community through the years, and the decision in her favor noted:

Fero also submits several exhibits attesting to her positive influence on others while in prison. These are irrelevant to her petition to this court because they are not material to the conviction.

Press coverage quoted her attorney, J. Christopher Baird of Perkins Coie LLP in Seattle, who said, “Our client is a truly wonderful person, and it feels great to get the result we feel she deserves.”

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

copyright 2016, Sue Luttner

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