Liability For Removal Errors

Circuit Mulls Liability of City Caseworkers for Removal Errors

Mark Hamblett

10-08-2009
Whether New York City social workers and agency officials should face liability for wrongfully or mistakenly removing children from allegedly abusive homes was at the center of oral arguments yesterday at the U.S. Court of Appeals for the Second Circuit.
Judges Jose A. Cabranes and Roger Miner, and Southern District Judge Jed S. Rakoff, sitting by designation, heard argument in four cases concerning the proper degree of legal exposure for the city and employees of its Administration for Children’s Services (ACS).
Carolyn Kubitschek of Lansner Kubitschek Schaffer & Zuccardy in Manhattan, arguing for parents, foster parents and children who have been wrongfully removed from their homes, called the city agency “out of control.” She contended that agency officials should be liable under federal civil rights law for relying on a doctor criticized for over-reporting child abuse, and that caseworkers should be held liable for prematurely removing a child or failing to act quickly in returning them once the parent or foster parent has been cleared of responsibility for the child’s injury.
But in arguing for immunity, Deborah Brenner of the New York City Law Department told the court that caseworkers should not be held liable for decisions they make under pressure. “Caseworkers walk a very fine line every day,” she said. “They have to balance the right of the parent to family integrity” versus the safety of the children. New York City was represented by four senior counsels with the Law Department’s Appeals Division: Tahirih Sadrieh argued Green v. Mattingly, 08-4636-cv; Ms. Brenner argued V.S. v. Mattingly, 08-5157-cv; Drake Colley argued Graham v. Mattingly, 08- 5271-cv; and Janet Zaleon argued Cornejo v. Bell, 08-3069-cv.

The panel was openly skeptical about Ms. Zaleon’s argument in Cornejo that caseworkers and ACS lawyers should have absolute immunity for their actions. In Cornejo, caseworkers removed a baby who later died from injuries that included a fractured rib allegedly suffered when the mother was not home. It was later revealed the child died of a birth defect. Agency lawyers stuck by the removal in Family Court even after some staff said it should drop the case. The attorneys continued, the court was told, because there remained a belief the father may have shaken the baby.
“That’s a novel theory we don’t have any support for,” Judge Cabranes said. Judge Miner said, “Absolute immunity is a pretty heavy concept.” He also wanted to know if there is “any historical or common law basis for this assertion?” Ms. Zaleon said the situation with caseworkers and lawyers at ACS was unique because, unlike police officers and prosecutors, they work for the same agency and are supposed to assist the court in determining what is in the best interests of the child on an ongoing basis. But Ms. Kubitschek said the attorneys in Cornejo “stepped out of that function when they resisted their clients’ efforts” to drop the case, she said. “They were acting contrary to the
instructions as given” by caseworkers and supervisory staff.

Agency’s Responsibilities

A central figure in the arguments was Dr. Deborah Esernio-Jenssen of Long Island Jewish Hospital, who has been criticized by Family Court judges for incorrect diagnoses of Shaken Baby Syndrome. The issue is whether ACS workers, knowing about Dr. Esernio-Jenssen’s reputation, could be held liable for relying on her opinion in what turned out to be the mistaken removal of a child. Ms. Brenner said it “can’t be the correct constitutional standard” to require “that ACS has to look into a history of over-reporting.” “The plaintiffs would ask this court to place the onus on the ACS” and demand that caseworkers in a situation of likely child abuse look into a doctor’s history, she said. But Ms. Kubitschek said Dr. Esernio-Jenssen “has a long history of giving incorrect diagnoses,” and the agency should have gotten a second opinion. Simply because a doctor has a medical degree, she said, “does not entitle caseworkers whose duty is to do what’s best for children to rely on a doctor who is biased.”

Ms. Brenner countered that it was enough that Dr. Esernio-Jenssen “was qualified by the state of New York and she has given ACS a list of injuries and a diagnosis.” Judge Miner asked, “Suppose she had been wrong on a number of cases and ACS knew it,” would that be enough? “Yes,” Ms. Brenner responded. “ACS has some very serious responsibilities here. ACS simply as a matter of policy can’t be required to check on a doctor’s reputation.” In the Graham case, a woman unsuccessfully sued the city after she had three grandchildren and five children removed from her home. The woman had been asleep two floors away while a friend of a relative attacked one of the children, an 11 year-old girl, and Ms. Kubitschek said the agency removed all the children even though the person the girl “accused of abusing her had been arrested and the other children weren’t in danger.”
This ran contrary to the holding in another case Ms. Kubitschek and partner David Lansner had handled, Nicholson v. Scopetta, 344 F.3d 154 (2003), where the circuit, with guidance from the New York Court of Appeals, held in part that ACS should not insist on keeping the child out of the home once the danger had been removed. She also told the judges that ACS has a number of practices and policies that conflict with court holdings on due process and other violations.
She said the agency does not provide pre-deprivation hearings before removal, the agency “resolves any ambiguity in favor of removing the children,” officials make it “acceptable to misrepresent facts” in Family Court, and the “parent is required to explain how a child was injured even if the parent wasn’t present during the injury and someone else was caring for the child.” The law department’s Mr. Colley countered that, in the Graham case, a jury had correctly found that “the defendants’ lawful actions were shown not to violate procedural due process rights” and the Fourth Amendment claim brought by the grandmother “was rightfully dismissed.”
Mr. Colley said the grandmother missed the 11-year-old’s injuries, which were only discovered by school officials the following day. Ms. Kubitschek responded that the grandmother “could not have been expected to anticipate this would happen” and the 11 year-old child “said it hadn’t happened to her before.”
@|Mark Hamblett can be reached at mhamblett@alm.com.

Source:

http://familyrightsassociation.com/news/archive/2009/oct/CAK_NYLJ.pdf

Challenging An Assumption Response

Letters to the Editor

In our August 2009 issue, we published the article “Challenging an Assumption” (p. 29), which
was a profile of Dr. John Plunkett, a Minnesota pathologist who questions the validity of the
shaken baby syndrome diagnosis. In January, we received and published a letter critical of our
article and of Dr. Plunkett’s views (p. 5). That letter was signed by members of the international
advisory board of the National Center on Shaken Baby Syndrome. Since then, we have received
numerous letters taking issue with their letter and the views of its signers. Clearly, we have
touched a nerve in writing about this issue. Our intent for the story about Dr. Plunkett was
neither to validate nor to denigrate his work. We merely wanted to highlight the fact that a
Minnesota physician is taking part in a highly controversial debate that has ramifications for
medicine and the legal system. Below are some of the letters we have received recently on this
topic. Others can be viewed online at www.minneotamedicine.com.
—the editors

Growing Body of Contrary Evidence

In your January 2010 issue, nine doctors, a prosecutor, and a police detective—all of whom are
associated with the National Center on Shaken Baby Syndrome, an advocacy group devoted to
the promotion of “shaken baby” theory—attacked Dr. John Plunkett, who was featured in the
August 2009 issue of Minnesota Medicine. Dr. Plunkett has spent his recent career applying
basic biomechanical and medical principles to shaken baby syndrome (SBS) and testifying, if
needed, when accused parents or caretakers are confronted with unproven or demonstrably
incorrect medical claims. Because of his work and research by others, the literature on SBS has
changed substantially since 2000, forcing major changes in the SBS position papers of the major
medical organizations. In their 2010 letter, the representatives of the National Center on Shaken
Baby Syndrome claim that Dr. Plunkett’s findings are based on “belief” rather than “evidence.”
In fact, doctors have been diagnosing SBS for nearly 40 years without an adequate scientific
basis—and in the face of a growing body of contrary evidence.
In the 1970s, “shaking” was advanced as a theory to explain a triad of findings (subdural
hemorrhage, retinal hemorrhage, and/or brain swelling) that is sometimes seen in infants or
children who have no signs of trauma. The theory was that shaking caused these findings by
rupturing bridging veins and tearing the axons within the brain. In 1987, Dr. Ann-Christine
Duhaime, a neurosurgeon working with biomechanical engineers at the University of
Pennsylvania, attempted to prove that shaking could cause these injuries. However, her study
showed the opposite: The forces of shaking fell well below established injury thresholds and
were 1/50th the force of impact, including impact on soft surfaces.1
Despite these findings, many doctors continued to testify that shaking was the primary or sole
cause for the triad of symptoms and that it would take a fall from a multistory building to cause
these findings. In 2001, Dr. Plunkett disproved this premise in an article that included a
videotaped fall of a toddler from a 28-inch plastic indoor play structure that resulted in subdural
hemorrhage, retinal hemorrhage, and death.2 This videotape proved definitively that short falls
can cause the triad and are sometimes fatal. Although SBS proponents initially suggested that
the videotape had been altered, Dr. Case (one of the signatories to the attack on Dr. Plunkett) has
acknowledged the validity of the videotape, which has been shown in courtrooms and at teaching
seminars in the United States and England.3 Numerous biomechanical studies have further
confirmed that the force from short falls meets the injury thresholds, while shaking does not.4-6
Short falls are not the only cause of medical findings previously attributed to shaking. Studies
by Dr. Jennian Geddes published in Brain, England’s leading neurology journal, from 2001 and
2003 found that the brain injuries of allegedly shaken children were generally hypoxic rather
than traumatic in origin, and that subdural hemorrhages are also found in natural deaths.7,8 In
2002, Drs. Hymel, Jenny, and Block (two of whom signed the attack on Dr. Plunkett) listed the
alternative causes for findings previously attributed to shaking or inflicted head trauma as
accidental trauma; medical or surgical interventions; prenatal, perinatal, and pregnancy-related
conditions; birth trauma; metabolic, genetic, oncologic, or infectious diseases; congenital
malformations; autoimmune disorders; clotting disorders; the effects of drugs, poisons, or toxins;
and other miscellaneous conditions.9 A 2006 text on abusive head trauma in infants and children
(co-edited by Dr. Alexander, another signatory to the attack on Dr. Plunkett) and a 2007 review
article by Patrick Barnes, professor of radiology at Stanford University and chief of pediatric
neuroradiology at Lucile Salter Packard Children’s Hospital, are in accord.10 Despite this
consensus, hundreds to thousands of parents and caretakers have been imprisoned based on
testimony by doctors that subdural hemorrhages, retinal hemorrhages, and/or brain swelling are
diagnostic of abuse, with little or no regard to the alternatives, including short falls and natural
causes.
At the same time, many doctors and academics have recognized that the real problem lies in the
lack of an evidence base for shaken baby theory. In 2003, a review article by Dr. Mark Donohoe
found that “[T]he evidence for SBS appears analogous to an inverted pyramid, with a small data
base (most of it poor-quality original research, retrospective in nature, and without appropriate
control groups) spreading to a broad body of somewhat divergent opinions.” 12 In 2006, the
National Association of Medical Examiners withdrew its position paper on shaking, and its
annual conference included presentations with titles such as “‘Where’s the Shaking?’: Dragons,
Elves, the Shaking Baby Syndrome, and Other Mythical Entities” and “Use of the Triad of Scant
Subdural Hemorrhage, Brain Swelling, and Retinal Hemorrhages to Diagnose Non-Accidental
Injury is Not Scientifically Valid.” In subsequent publications, Dr. Waney Squier of Oxford
University, one of England’s leading neuropathologists, and Dr. Jan Leestma, author of the
textbook Forensic Neuropathology, similarly concluded that the evidence base for shaken baby
syndrome is lacking.13,14 None of this material is addressed or cited in the attack on Dr. Plunkett.
The problem, in short, is not that Dr. Plunkett was wrong; the problem is that he was right. Over
the past decades, hundreds to thousands of caretakers—many of whom are innocent—have been
convicted based on theories that lack a scientific basis. These convictions must now be revisited.
Of course children are abused. But there are many ways to abuse children, one of which is
ripping them from their families and imprisoning their parents and caretakers based on
misdiagnoses of abuse. We therefore urge the medical profession to join us in developing a
calm, rational and evidence-based approach to pediatric head injury and child death.

Heather Kirkwood, J.D.

Seattle, Washington

Barry S. Scheck, J.D.

Co-director, Innocence Project
Benjamin N. Cardozo School of Law
New York City

Keith Findley, J.D.

President, Innocence Network
Co-director, Wisconsin Innocence Project
University of Wisconsin Law School
Madison, Wisconsin

Bridget McCormack, J.D.

Co-director, Michigan Innocence Clinic
University of Michigan Law School
Ann Arbor, Michigan

Julie Jonas, J.D.

University of Minnesota Innocence Clinic
Managing Attorney, Innocence Project of Minnesota
Minneapolis, Minnesota

Jacqueline McMurtrie, J.D.

Director, Innocence Project Northwest Clinic
University of Washington School of Law Seattle, Washington

References

1. Duhaime AC, Gennarelli TA, Thibault LE, Bruce DA, Margulies SS, Wiser R. The shaken baby syndrome. A clinical,
pathological, and biomechanical study. J Neurosurg 1987;66(3):409-15.
2. Plunkett J. Fatal pediatric head injuries caused by short-distance falls. Am J Forensic Med Pathol 2001;22(1):1-12.
3. Seventh North American Conference on Shaken Baby Syndrome (Abusive Head Trauma), Vancouver, B.C. October
2008.
4. Ommaya AK, Goldsmith W, Thibault L. Biomechanics and neuropathology of adult and paediatric head injury. Br J
Neurosurg 2002;16(3):220-42.
5. Prange MT, Coats B, Duhaime AC, Margulies SS. Anthropomorphic simulations of falls, shakes, and inflicted impacts
in infants. J Neurosurg 2003;99(1):143-50.
6. Goldsmith W, Plunkett J. A biomechanical analysis of the causes of traumatic brain injury in infants and children. Am
J Forensic Med Pathology 2004;25(2):89-100.
7. Geddes JF, Hackshaw AK, Vowles GH, Nickols CD, Whitwell HL. Neuropathology of inflicted head injury in children,
I and II. Brain. 2001;124(part 7):1290-8.
8. Geddes J, Tasker RC, Hackshaw AK, et al. Dural haemorrhage in non-traumatic infant deaths: does it explain the
bleeding in ‘shaken baby syndrome’? Neuropathol Appl Neurobiol 2003;29:114-22.
9. Hymel KP, Jenny C, Block RW. Intracranial hemorrhage and rebleeding in suspected victims of abusive head trauma:
addressing the forensic controversies. Child Maltreat 2002:7(4):329-48.
10. Frasier L, Rauth-Farley K, Alexander R, Parrish R. Abusive Head Trauma in Infants and Children: A Medical,
Legal, and Forensic Reference. G.W. Medical Publishing, Inc.; St. Louis, MO: 2006.
11. Barnes PD, Krasnokutsky M. Imaging of the central nervous system in suspected or alleged nonaccidental injury,
including the mimics. Top Magn Reson Imaging 2007;18:53-74.
12. Donohoe M. Evidence-based medicine and shaken baby syndrome part I: literature review, 1966-1998. Am J Forensic
Med Pathol 2003;24(3):239-42.
13. Squier W. Shaken baby syndrome: the quest for evidence. Dev Med Child Neurol 2008;50(1):10-4.
14. Leestma J. Forensic Neuropathology, Second ed. CRC Press; Chicago: 2009.

Circular Reasoning

We read with interest Kate Ledger’s article “Challenging an Assumption: A pathologist
questions shaken baby syndrome” (Minnesota Medicine, August 2009) and the response of Drs.
Alexander, Barr, Block, et al. (January 2010).
Dr. Block and his cosigners complain that Ms. Ledger ignored the enormous body of
international peer-reviewed medical literature about shaken baby syndrome. Much of this
literature exhibits circular reasoning, selection bias, or misrepresents the data. Of the 14
references they cite, six are unsystematic reviews or consensus statements that mingle opinion
with fact and add no original supporting evidence. Two are based on data described by the
authors as “explorative.” Those authors suggest that “further surveillance … and modelling will
be required.” Two are invalidated by insufficiently robust criteria to reliably diagnose abuse and
one by failure to address the fundamental methods on which the study was based.
Dr. Block and his cosigners suggest that this literature “consistently and repeatedly supports the
concept of shaken baby syndrome.” We do not disagree with this but would point out, as Ms.
Ledger clearly did, that supporting a concept is far from demonstrating the scientific basis for it.
Just as disturbing as the literature Block and his cosigners cite is the indignation they expressed
that someone should challenge their opinions as medical “experts” in a court of law—as if they
are somehow exempt from the human tendency for cognitive errors in medical decision making.
What scientist is afraid of debate that is crucial to our understanding of evolving ideas?
Fortunately, medicine has never been static. There is much to learn about the pathophysiology of
infant brain trauma. We cannot make up for this lack of knowledge by reiterating opinion and
poor data: Ignoring new evidence and failing to question and engage in debate is a dereliction of
our duties to our patients and their families.

Waney Squier, FRCP FRCPath

Consultant neuropathologist
John Radcliffe Hospital
Oxford, United Kingdom

Julie Mack, M.D.

Assistant professor of radiology
Penn State Hershey Medical Center
Hershey, Pennsylvania

Patrick E. Lantz, M.D.

Professor of pathology
Wake Forest University
Winston-Salem, North Carolina

Patrick D. Barnes, M.D.

Chief of pediatric neuroradiology
Lucile Packard Children’s Hospital
Stanford University Medical Center
Stanford, California

Irene Scheimberg, M.D.

Paediatric and perinatal pathologist
The Royal London Hospital
London, England

James T. Eastman, M.D.

Clinical professor of pathology and laboratory medicine
University of Wisconsin
Madison, Wisconsin

Marta Cohen, M.D.

Sheffield Children’s Hospital NHS Foundation Trust
Sheffield, United Kingdom

Peter J. Stephens, M.D., FCAP

Forensic pathologist
Burnsville, North Carolina

Darinka Mileusnic-Polchan, M.D., Ph.D.

Medical Examiner for Knox and Anderson Counties
Regional Forensic Center
University of Tennessee Medical Center Knoxville, Tennessee

Persuasive Evidence and a Theory

I serve on occasion as an expert witness for the defense in shaken baby syndrome (SBS) cases.
That is a matter I disclose as a potential conflict of interest. I wish the writers of the letter in your
January 2010 issue had done the same.
When I cast doubt on the validity of SBS, I cite the original literature. In my judgment, SBS is so
lacking in evidence, it is hard to understand how the hypothesis ever gained traction.1,2
I cite a review of seminal SBS literature up to 1998. It concluded the evidence was inadequate.3 I
cite Ommaya, et al., who did the original work on whiplash biomechanics that debunks the SBS
hypothesis.4 I cite experimental work that indicates forces generated by manual shaking are an
order of magnitude less than forces of impact, and less than the threshold for injury.5 I cite an
article that states the neck should be destroyed if manual shaking were capable of producing
brain damage.6 I have seen no case in which neck injury was observed.
Finally, I cite my own hypothesis. It is untested, just as the SBS hypothesis is untested. If the
forces of shaking are sufficient to cause brain damage, the thumbs of the shaker and the places
where the thumbs are applied on the victim should be conspicuously injured. They are not.

Edward N. Willey, M.D.

St. Petersburg, Florida

References

1. Guthkelch AN. Infantile subdural haematoma and its relationship to whiplash injuries. Br Med J 1971;2(5759):430-1.
2. Caffey J. On the theory and practice of shaking infants. Its potential residual effects of permanent brain damage and
mental retardation. Am J Dis Child 1972;124(2):161-9.
3. Donohoe M. Evidence-based medicine and shaken baby syndrome: part I: literature review, 1966-1998. Am J Forensic
Med Pathol 2003;24(3):239-42.
4. Ommaya AK, Goldsmith W, Thibault L. Biomechanics and neuropathology of adult and paediatric head injury. Br J
Neurosurg 2002;16(3): 220-42.
5. Duhaime, AC, Gennarelli TA, Thibault LE, et al. The shaken baby syndrome. A clinical, pathological, and
biomechanical study. J Neurosurg 1987;66(3): 409-15.
6. Bandak FA. Shaken baby syndrome: a biomechanics analysis of injury mechanisms. Forensic Sci Int 2005;151(1):71-9

Source:

http://www.edwilleymd.com/mn-medicine.pdf

Into The Abyss Of Shaken Baby Syndrome

A Sojourn in the Abyss: Hypothesis, Theory, and Established Truth in Infant Head Injury

To the Editor.—

Dr Block’s criticism1 of the work by Geddes is disturbing. The response by Pediatrics Editor Lucey2 is equally disturbing, because Pediatrics typically gives a balanced perspective of controversial issues. Geddes, a neuropathologist with many years’ experience examining infant brains, observed that she was not finding traumatic brain injury in infants thought to be victims of inflicted trauma/shaken-baby syndrome. She was not alone in her observations, as the co-authors of her articles attest.3,4 She found anoxic axonal damage rather than traumatic brain injury, except for a small number of cases in which there were significant impact injuries such as skull fractures. A number of the infants in her study also had evidence for axonal injury in the brainstem but no other structural damage, suggesting that primary brainstem damage may lead to an anoxic event. Interestingly, her group of infants with morphologic evidence for brainstem damage included a number of children who apparently died suddenly and unexpectedly and were not resuscitated, suggesting that the observed brainstem damage significantly preceded the collapse of the infant and death. Thus far, there is no problem from the child abuse professional’s perspective except that Geddes et al were suggesting that “violent” shaking may not be necessary to cause the observed pathology. In fact, her studies were widely cited in the presentations at the 4th National Shaken Baby Syndrome Conference in Salt Lake City, Utah, in 2002 and at the Shaken Baby Syndrome Conference, Edinburgh, Scotland, in 2003. Geddes had found the holy grail: the evidence that “shaking” caused direct neck damage.
The problem (and Block’s ire) arose when Geddes et al published a subsequent article suggesting that hypoxia, not “violence,” was the common denominator in the pathology of many cases of both assumed inflicted injury and deaths due to natural causes. The article was published as a “hypothesis paper,” as reference to the actual print title of the work will confirm.5 The authors’ conclusions are supported by the observations. (We urge those interested to look at the actual publication photographs rather than a photocopy and decide for themselves.) Her hypothesis is testable and, if repeated and confirmed, will be a significant advance in understanding cascade or secondary phenomena that may lead to symptoms and death hours and perhaps days after the primary event.
Physicians should be troubled by Geddes’ work and the other studies that question the causes of traumatic brain injury in children. However, it is not the scientific bases for these studies that should concern us but rather the implications of these findings to the public. If shaking is not the cause of traumatic brain injuries/ shaken-baby syndrome, then many thousands of parents/caretakers have been unjustly accused and convicted for the past 30 years. Families, finances, and reputations have been destroyed. If the mechanism(s) that cause(s) subdural hematoma and retinal hematoma may be other than inflicted trauma, then the floodgates would open for these prior cases to be revisited in our legal system. Perhaps Block’s criticism and Lucey’s acquiescence of Geddes’ “unfashionable” work has a political rather than a scientific basis.
Drs Block and Lucey may find that the Geddes’ hypothesis paper is “junk science” and that Neuropathology and Applied Neurobiology and the British Medical Journal are lax in their publication standards. However, these are well established, peer-review journals, and many neuropathologists, forensic pathologists, neurosurgeons, and biomechanical engineers have found her observations and conclusions reasonable and provocative. To accuse the editors of these journals of sloppy standards is disingenuous. We urge the pediatrics and general medical communities to read the relevant literature, including studies that may have conclusions different from the perceived truth, and decide for themselves what is and what is not junk science.6–8
Marvin Miller, MD
Department of Pediatrics
Wright State University School of Medicine
Dayton, OH 45404
Jan Leestma, MD
Nyxis Neurotherapies
Chicago, IL 60622
Patrick Barnes, MD
Department of Pediatric Neuroradiology
Stanford University Medical Center
Palo Alto, CA 94305
Thomas Carlstrom, MD
Department of Neurosurgery
Iowa Methodist Medical Center
Des Moines, IA 50309
Horace Gardner, MD
Department of Pathology
Regina Medical Center
Manitou Springs, CO 80829
John Plunkett, MD
Department of Pathology
Regina Medical Center
Hastings, MN 55033
John Stephenson, BM, DM
Department of Paediatric Neurology
Royal Hospital for Sick Children
G3 8SJ Glasgow, Scotland
Kirk Thibault, PhD
Biomechanics Inc
Philadelphia, PA 19112
Ron Uscinski, MD
Department of Neurosurgery
George Washington University School of Medicine
Olney, MD 20832
Julie Niedermier, MD
Columbus, OH 43214
John Galaznik, MD
Northport, AL 35476
REFERENCES
1. Block RW. Fillers [letter]. Pediatrics. 2004;113:432
2. Lucey JF. Fillers [letter]. Pediatrics. 2004;113:432–433
3. Geddes JF, Hackshaw AK, Vowles GH, Nickols CD, Whitwell HL. Neuropathology
of inflicted head injury in children. I. Patterns of brain
damage. Brain. 2001;124:1290–1298
4. Geddes JF, Vowles GH, Hackshaw AK, Nickols CD, Scott IS, Whitwell
HL. Neuropathology of inflicted head injury in children. II. Microscopic
brain injury in infants. Brain. 2001;124:1299–1306
5. Geddes JF, Tasker RC, Hackshaw AK, et al. Dural haemmorhage in
non-traumatic infant deaths: does it explain the bleeding in ‘shaken baby
syndrome?’ Neuropathol Appl Neurobiol. 2003;29:14–22
6. American Academy of Pediatrics, Committee on Child Abuse and Neglect.
Shaken baby syndrome: rotational cranial injuries—technical report.
Pediatrics. 2001;108:206–210
7. Donohoe M. Evidence-based medicine and shaken baby syndrome. Part
I: literature review, 1966–1998. Am J Forensic Med Pathol. 2003;24:239–242
8. Lantz PE, Sinai SH, Stanton CA, Weaver RG Jr. Perimacular retinal folds
from childhood head trauma. BMJ. 2004;328:754–756

Errors Made When Ignoring Differential Diagnosis

Inflicted Brain Injuries: Don’t Discard Differential Diagnosis

Michael D. Innis, M.B.B.S.

The great enemy of the truth is very often not the lie: deliberate, contrived and dishonest; but the myth: persistent, persuasive, and unrealistic.
–John F. Kennedy

There are, in fact, two things: science and opinion. The former brings knowledge, the latter ignorance.
–Hippocrates of Cos

The concept of shaken baby syndrome is an unfortunate example of a theory being adopted by consensus rather than being supported by science and clinical observation.
The proposed causative mechanism, shaking, is often contaminated by incidents involving actual head trauma. Flaws in the biomechanical theory underlying the concept, [1] and flaws in the “confessional” literature used to support the concept have been reviewed by others. [2]
In recent years, the concept of shaken baby syndrome has taken on increasingly pejorative labels, such as “abusive head injury,” and now “inflicted brain injury.” One group of authors, Maguire et al.,[3] claim that their systematic review, the largest of its kind, offers for the first time a valid “statistical probability” of inflicted brain injury when certain key features are present.
One of the “key features” upon which Maguire et al. base their opinion, retinal hemorrhages, has long been known to be associated with raised intracranial pressure from any cause, [4] as in Terson’s syndrome [5] and following vitamin C or vitamin K deficiency [6-10]. Relying solely on this “key feature” can have disastrous consequences for the child’s caregivers.
Under these circumstances, inappropriate accusations of child abuse could be appropriately avoided by doing the recognized, accepted, and pertinent laboratory tests for deficiency of vitamins C or K. [6, 9] It is likewise pertinent to ask in how many cases, in the “largest review of its kind,” was the modified prothrombin time known as the PIVKA test (proteins induced by vitamin K antagonism or absence) performed? And, how often was serum level of vitamin C estimated?
In light of what is now known about the effects of nutritional deficiencies, the diagnosis of inflicted brain injury should not be accepted unless pertinent nutritional disorders have specifically been excluded.
In a recent case, the Dublin city coroner, ignoring the opinions of specialists involved in the case, recorded the cause of death in an infant as “natural causes,” saying: “there is no evidence of cerebral trauma or ‘shaken baby syndrome,’ despite the radiological and clinical findings of subdural hemorrhage and retinal hemorrhages.” [11]
Despite pronouncements about “rotational cranial injuries” in shaken baby syndrome, [12] these conclusions are based on opinion and consensus, not science.
Apnea is also rated high on their list of statistical markers of inflicted brain injury, and Maguire et al. [3] claim that it is a distinguishing feature. As evidence for this opinion, they cite 2003 article by one of their group, A.M. Kemp [13] and an article by Geddes et al., [14] in which it is assumed, without proof, that the injuries associated with apnea were inflicted. Kemp et al. conclude that “at this point in time we do not know the minimum forces necessary to cause NAHI [non-accidental head injury].” [3]
These authors disregard the fact that apnea is a feature of the condition known as an apparent life threatening event (ALTE)] which can be caused by prematurity, gastroesophageal reflux, cardiac arrhthymia, laryngomalacia, tracheomalacia, infection, metabolic disorders, and seizure, and other conditions. [15]
Apparent Life Threatening Event (ALTE) was defined by the 1986 National Institutes of Health Consensus Development Conference on Infantile Apnea and Home Monitoring as follows:
[ALTE is] an episode that is frightening to the observer and is characterized by some combination of apnea (central or occasionally obstructive), color change (usually cyanotic or pallid but occasionally erythematous or plethoric), marked change in muscle tone (usually marked limpness), choking or gagging. In some cases, the observer fears that the infant has died. ALTE is not so much a specific diagnosis as a description of an event.
In 2003, Geddes et al. reported that apnea associated with an ALTE resulted in severe cerebral hypoxia, brain swelling, and intracranial hemorrhage. [16] Maguire et al. do not mention this article by Geddes, in which she stated: “We emphasize, that the literature to support a diagnosis of shaken baby syndrome/inflicted head injury is based on imprecise and ill-defined criteria, biased selection, circular reasoning, inappropriate controls, and conclusions that overstep the data. If it is the questioning of the criteria that is worrisome, we will continue to do so and to cause worry.” Maguire et al. did not mention that Geddes changed hier view between 2001 and 2003. In fact, ALTE is associated with all of the signs and symptoms hitherto attributed to shaken baby syndrome, [10] which Maguire, Kemp, and their coauthors now refer to as inflicted brain injury.

When fractured vertebrae, ribs, skull, and limbs are associated with bruises or missing teeth that parents or caregivers are unable to explain, nutritional deficiencies should be ruled out before concluding that physical violence was the cause of such findings.

Even when a child has clinical findings that resemble “bite marks” or “ligature marks on hands and feet,” missing fingernails, or tissue tears that suggest lacerations or avulsive injuries, the possibility of microscopic polyarteritis should be ruled out by tests for neutrophilia; lymphopenia; and elevated levels of aspartate aminotransferase (AST), alanine aminotransferase (ALT), C-reactive protein (CRP), and lactate dehydrogenase (LDH) before accusing the caregiver of committing a crime.

Referring to the use of orthodox medical evidence, at the re-trial of a woman whose life sentence was quashed after she had already served three years for the alleged murder of a child in her care, Lord Justice Toulson said, “Today’s orthodoxy may become tomorrow’s outdated learning.” [17]

Although pattern recognition is important and efficient in making diagnoses in medicine, physicians must always remember that symptoms and findings typically have a differential diagnosis, and when the differential diagnosis is bypassed, errors can be made, causing harm to both patient and caregivers.

Michael D. Innis,

MBBS, DTM&H, FRCPA, FRCPath, is honorary consultant hematologist, Princess Alexandra Hospital, Brisbane, Queensland, Australia. Contact: 1 White-Dove Court, Wurtulla, Queensland, Australia 4575. Phone +61 (0)7.5493.2826. Fax +61 (0)7.5493.2826. E-mail: micinnis@bigpond.com

Disclaimer: The views expressed are solely those of the author.

Potential conflict of interest: Dr. Innis has been paid consulting fees in three cases of alleged child abuse. He has given his opinion pro bono in several other cases.

REFERENCES

1. Uscinski R. The shaken baby syndrome. J Am Phys Surg 2004;9:76-77.
2. Leestma JE. “Shaken Baby Syndrome”: Do confessions by alleged perpetrators validate the concept? J Am Phys Surg 2006;11:14-16.
3. Maguire S, Pickerd N, Farewell D., et al. Which clinical features distinguish inflicted from non-inflict brain injury? A systematic review. [Published online ahead of print June 15, 2009] Arch Dis Child. doi:10.1136/adc.2008.150110.
4. Muller, PJ, Deck JHN. Intraocular and optic nerve sheath hemorrhage in cases of sudden intracranial hypertension. J Neurosurg 1974;41:160-166.
5. Medele RJ, Stummer W, Mueller A, Steiger H, Reulen H. Terson’s syndrome in subarachnoid hemorrhage and severe brain injury accompanied by acutely raised intracranial pressure. J Neurosurg 1998;88:851-854.
6. Clemetson CAB. Child abuse or Barlow’s disease. Med Hypotheses 2002;59(1):52-56.
7. Clemetson CAB Vaccinations, inoculations and ascorbic acid. J Ortho Mol Med 1999;14:137-142.
8. Innis MD. Vaccines, apparent life-threatening events, Barlow’s disease, and questions about “shaken baby syndrome.” J Am Phys Surg 2006;11:17-19.
9. Rutty GN, Smith M, Malia RG. Late form hemorrhagic disease of the newborn. A fatal case report with illustrations of investigations which may assist avoiding the mistaken diagnosis of child abuse. Am J Forensic Med Path 1999;20(1):48-51
10. Innis MD. Vitamin K deficiency disease. J Orthomol Med 2008;23:15-20.
11. Duncan P. Parents given apology over their baby’s death. Irish Times, Jul 17, 2009.
12. American Academy of Pediatrics. Shaken baby syndrome: rotational cranial injuries. Pediatrics 2001;108(1):206-210.
13. Kemp AM, Stoodley N, Cobley C, et al. Apnoea and brain swelling in non-accidental head injury. Arch Dis Child 2003;88:472-476.
14. Geddes JF, Hackshaw AK, Vowles GH, Nickols CD, Whitwell HL. Neuropathology of inflicted head injury in children. I. Patterns of brain damage. Brain 2001;124(Pt7):1290-1298.
15. McGovern MC, Smith MR. Causes of apparent life threatening events in infants a systematic review. Arch Dis Child.2004;89:1043-1048.
16. Geddes JF, Taskert RC, Hackshaw AK, et al. Dural hemorrhage in non-traumatic infant deaths: does it explain the bleeding in “shaken baby syndrome”? Neuropathol App Neurobiol 2003; 29:14-22.
17. Lewis P, Dodd V. Babysitter freed from jail after court orders retrial on murder charge. Guardian, May 2, 2008.

Source:

http://www.jpands.org/vol15no1/innis.pdf

Are You A Disruptive Physician

Abuse of the “Disruptive Physician” Clause

Editorial:
Lawrence R. Huntoon, M.D., Ph.D.
Buried deep in the “Corrective Action” section of most medical staff bylaws is a provision known as the “Disruptive Physician” clause. It is arguably the most dangerous and, in recent years, the most abused provision in medical staff bylaws.

The term “disruptive physician” is purposely general, vague, subjective, and undefined so that hospital administrators can interpret it to mean whatever they wish.

How this treacherous trap got into medical staff bylaws is no mystery in most instances. It was added at the urging of hospital administrators, often with help from a medical staff president who was duped into believing that the clause would only be used in those extreme cases where a physician was found running drunk or naked through the halls of the hospital.

Lack of vigilance by physicians, and failure of medical staffs to obtain independent legal advice on changes to the bylaws, allowed most hospital administrations to insert this clause without difficulty or any meaningful opposition.

Why this clause was strategically placed in medical staff bylaws is also no mystery. It is part of the strategic plan developed in 1990 by the hospital industry. The stated goal was to gain more control over physicians in hospitals. Abuse of the disruptive-physician clause and increasing use of sham peer review has allowed hospital administrations to make great strides in achieving that goal.
Attorneys who specialize in representing hospitals have definite recommendations on how “disruptive physician” can be defined by a hospital, in order to remove a targeted physician from staff. In fact, some law firms offer seminars for hospital officials and their legal representatives that teach optimal methods for eliminating certain physicians that the hospital dislikes. Here are a few of the criteria for identifying a “disruptive physician”:

1) Political: Expressing political views that are disagreeable to the hospital administration.
2) Economic: Refusing to join a physician-hospital venture, or to participate in an HMO offered to hospital employees, or offering a service that competes with the hospital.
3) Concern For Quality Care: Speaking out about deficiencies in quality of care or patient safety in the hospital, or simply bringing such concerns to the attention of the hospital administration.
4) Personality: Engaging in independent thought or resisting a hospital administration’s “authority.”
5) Competence: Striving for a high level of competence, or considering oneself to be right most of the time in clinical
judgment.
6) Timing: Making rounds at times different than those of the “herd.”

Although the disruptive-physician clause and sham peer review are current weapons of choice used by hospital administrations across the country, more weapons of physician destruction loom on the horizon.
Physicians should be aware of the “Code of Conduct” and Exclusion from the Hospital Premises” clauses currently being promoted by the hospital bar.
AAPS has posted a letter dated January 31, 2003, to the General Counsel of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), which was drafted by the leaders of the credentialing and peer review practice group of the American Health Lawyers Association, in the Hall of Shame on our website (see www.aapsonline.org). The letter is rated “R” for stark Reality. Physicians need to wake up quickly and take notice because this is what hospitals really have in mind for medical staffs across the nation. Interested readers can also learn more about the
hospital industry’s strategic plan, developed in 1990: see Hospital Industry Reveals Its Strategic Plan: Control Over
Physicians” in theAAPSHall of Shame.
Physician vigilance, and advice from knowledgeable, independent counsel, are key to preventing further abuse of medical staff bylaws by hospital administrations.

Lawrence R. Huntoon, M.D., Ph.D., is a practicing neurologist and editor-in-chief of the Journal of American Physicians and Surgeons.
Memo to the Disruptive Physician
Oh how we strive
For quality high,
For health
And most of all safety.
But a word to the wise:
Reproof we despise
And outspoken physicians:
We hate thee.
Feel free to opine,
But note we define
All critics
As never constructive.
And, thus shall ensue
A sham peer review
And henceforth
You’re labeled “disruptive.”
68 Journal of American Physicians and Surgeons Volume 9 Number 3 Fall 2004

Source:

http://www.jpands.org/vol9no3/huntoon.pdf

Pathologist’s Testimony ‘Mind-Boggling’, ‘False’

KIRK MAKIN

September 19, 2007 at 4:30 AM EDT

Review of disgraced Ontario doctor’s conclusions forces prosecution to concede second degree murder conviction cannot stand

Testimony by disgraced pathologist Charles Smith at a 1998 murder trial was inept, hyperbolic and prodded a jury into wrongly convicting a father of intentionally killing his son, according to two of the country’s top pathologists.

As a result, the Crown now concedes that Marco Trotta’s conviction for second-degree murder cannot stand in light of the fresh evidence.

“The respondent acknowledges that the fresh evidence is credible and bears upon a potentially decisive issue,” prosecutor Lucy Cecchetto said in a brief filed with the Supreme Court of Canada, where an appeal of the convictions of Mr. Trotta and of his wife Anisa will be heard next month.

The Crown will ask the court to uphold Mr. Trotta’s convictions for manslaughter, aggravated assault and assault causing bodily harm, as well as Ms. Trotta’s convictions for criminal negligence causing death and failing to provide the necessities of life.

In her brief, Ms. Cecchetto insisted that there is ample evidence to show that Mr. Trotta inflicted repeated blows on Paolo – breaking or fracturing bones, and leaving prominent bruises and bite marks – while Ms. Trotta stood silently by and acquiesced to the abuse.

Ms. Trotta has already served her five-year sentence. Mr. Trotta, who received a 15-year sentence, was released on bail last spring after serious doubts arose in connection with 20 cases in which Dr. Smith played an instrumental role.

The fresh revelations are contained in affidavits and statements made by Ontario’s Chief Forensic Pathologist, Michael Pollanen, and Newfoundland’s Chief Medical Officer, Simon Avis.

Dr. Smith’s trial testimony is described as “mind-boggling,” “irresponsible” and “false.”

The pathologists say it is not possible for any forensic pathologist to make a reliable link between various injuries that eight-month-old Paolo suffered and his death on May 29, 1993.

“I cannot see how anyone – particularly anyone with the status that Dr. Smith enjoyed at that time – could possibly reach that conclusion,” Dr. Avis said.

“I still, to this day, stand in wonder.”

Dr. Avis concluded that there “was certainly no evidence at autopsy to indicate any recent trauma or any trauma that could, in any way, shape or form, cause or contribute to his death. … The jury heard contradictory, misleading and inaccurate pathological evidence under the guise of Dr. Smith’s expertise.”

Coming on the eve of a public inquiry into Dr. Smith’s work, the evidence bears witness to profound shortcomings in the way autopsies and suspicious infant death investigations take place.

The documents reveal that Paolo’s original autopsy was botched by pathologist David Chan, who failed to find evidence of suspicious injuries and concluded that Paolo’s cause of death was sudden infant death syndrome.

A year afterward, the Trotta’s newborn child – Marco Jr. – was admitted to a hospital in Kingston suffering from a fractured femur and multiple bruises.

Dr. Smith ordered an exhumation of Paolo’s remains and found multiple signs of abuse.

In an attempt to win a new trial for their clients, defence lawyers James Lockyer and Michael Lomer approached Dr. Avis and Dr. Pollanen two years ago to have them review Dr. Smith’s work.

Dr. Avis said it is inexplicable that Dr. Smith could have mistaken an old, partly healed skull fracture for an injury Paolo might have sustained as recently as 10 minutes before he was found dead in his crib. He said that even a layman could scarcely have made such a basic mistake.

“To examine Paolo Trotta’s skull – to see the fracture and to opine that that fracture is from minutes to, at most, two days old – simply boggles my mind,” Dr. Avis said.

Dr. Pollanen said that Dr. Smith jumped to erroneous conclusions and engaged in baseless speculation.

“The overall analysis … in my view, would be that there is no factual foundation in the medical evidence to conclude that head injury or an asphyxial event – such as pressure on the neck, suffocation, smothering – was the cause of death,” he said.

Mr. Lockyer and Mr. Lomer state in a legal brief that Dr. Smith “misdiagnosed through over-interpretation of findings at the exhumation, and his evidence was grossly imbalanced. Almost all of his interpretations of Paolo’s injuries were erroneous.”

The brief is highly critical of the fact that while Dr. Smith’s autopsy report listed Paolo’s cause of death as “undetermined,” he then painted an emotive picture for the jury of two main possibilities that could explain Paolo’s death. “One is that he died of a head injury, presumably on a non-accidental basis,” Dr. Smith testified.

“And the second is that he died of an asphyxial event.”

Until someone comes along with another credible explanation, Dr. Smith told the jury, “I have to regard Paolo’s death as being non-accidental in nature.”

Dr. Pollanen said this type of testimony is improper in a criminal trial.

“Making a judgment about an unlawful killing is not the duty or responsibility of the pathologist,” he said.

“It is not for the pathologist to usurp the role of the trier of fact.”

In her brief to the court, Ms. Cecchetto said that should it refuse to simply strike the murder and manslaughter charges and leave the other convictions intact, then the court should order a new trial.

She said that the vast amount of evidence showing the abuse Paolo suffered is still capable of persuading a jury to convict Mr. Trotta of murder.

“The evidence that Paolo had suffered a lifetime of systematic abuse and devastating injuries at the hands of his father, and that his mother knew, was overwhelming,” she said.

***

‘MEDICAL PROFESSION FAILED PAOLO’

Testifying at Marco Trotta’s 1998 trial for the murder of his son, pathologist David Chan did not try to candy-coat the errors he made years earlier when he conducted an autopsy on the dead infant.

“The record indicates that Dr. Chan, inexperienced in pediatric pathology, committed a number of errors which, when confronted with medical and radiological evidence and the history of Paolo Trotta, he recognized,” Crown prosecutor Lucy Cecchetto acknowledges in a legal brief to the Supreme Court of Canada.

“It cannot have been easy for Dr. Chan to admit the errors he made.”

Coupled with the mistakes made by pediatric pathologist Charles Smith at a second autopsy in 1994, the Trotta case is a textbook example of why the exacting science of pediatric pathology is under siege.

Dr. Chan, who works at Oshawa General Hospital, conceded in testimony that he:

Failed to notice three skull fractures;

Did not detect a healing fracture to the humerus;

Neglected to check carefully for a previous record of abuse of the eight-month-old child, a routine act that would have triggered close scrutiny into Paolo’s death;

Failed to preserve Paolo’s brain or make slides of the brain tissue, a mistake that crippled reinvestigations of the case;

Erroneously considered the child’s brain-weight – 940 grams – to be normal.

After conducting a second autopsy in 1994, Dr. Smith concluded that the brain was abnormally heavy, indicating that it had swelled after sustaining a recent blow.

Dr. Chan promptly reversed field and agreed.

To muddy the waters further on the brain weight issues, pathologists Michael Pollanen and Simon Avis have since concluded that it is an outmoded and misleading method of detecting abuse.

“These ‘normal ranges’ were established between 40 and 60 years ago, and do not reflect modern knowledge,” Dr. Avis said in a document filed with the Supreme Court. “The conclusion that the brain weight of Paolo Trotta reflects cerebral edema is not valid.”

In a Crown brief to the Court, Ms. Cecchetto summed up the autopsy fiasco candidly: “The medical profession failed Paolo in life and in death.”

She said that these failures dated back to Paolo’s first hospital admission, when he was just two months old.

Doctors took note of facial bruises and a skull fracture, she said, but somehow failed to detect a second skull fracture.

“Abuse was suspected, given the nature of the fracture and bruising,” Ms. Cecchetto said. “However, Paolo was ultimately released to his parents under CAS supervision.

“The second skull fracture would have reinforced the concerns relating to abuse.

“The CAS involvement was terminated as a result of incomplete and inaccurate information from the family doctor, as well as the CAS’s own inadequate investigation.”

Kirk Makin

From Wednesday’s Globe and Mail***

Forensic errors

Many a wrongful conviction has been caused by forensic pathologists who erred or drew unwarranted conclusions about a suspicious death. The most sensational examples include:

RONALD DALTON

The Newfoundland man spent eight years in prison for the murder of his wife. He was acquitted at a retrial, after new evidence indicated the victim choked on cereal, as opposed to being strangled.

WILLIAM MULLINS-JOHNSON

Mr. Mullins-Johnson spent 12 years behind bars for the murder of his four-year-old niece, Valin, after doctors and pathologists concluded that the child had been raped and killed.

A decade later, a review of forensic evidence in the case concluded that Valin died mysteriously in her sleep – perhaps after breathing in some of her own vomit, but without any foul play.

GUY PAUL MORIN

The Ontario man was charged with the 1984 murder of nine-year-old Christine Jessop. An autopsy conducted by top Ontario pathologist John Hillsdon Smith led police to draw certain conclusions about the nature of the killer and his window of opportunity to commit the crime.

Five years later, a second autopsy turned up a massive skull fracture, knife marks on two ribs, damaged vertebrae and a horrific breastbone injury – all of which had been overlooked by Dr. Hillsdon Smith. The new results pointed toward a different killer.

Kirk Makin

Source

Source:

http://www.ottawamenscentre.com/news/20070919_mind.htm

Judge Ordered Case To Be Thrown Out

Blood tests destroyed

Failure to follw NHS protocol to determine infection

Opthalmologist stated : “No opthalmologist can look at this child’s eyes and know absolutely sure that this is a case of shaking.”

Man accused of shaking 11-week-old baby is cleared

after three year ordeal

By Aislinn Simpson
Published: 7:00AM GMT 18 Feb 2009

Stuart Bailey who has been cleared of child cruelty at Sheffield Crown Court Photo: BEN LACK

Supermarket worker Stuart Bailey, 41, was accused by prosecutors of shaking the child with “catastrophic consequences” when she would not stop crying as he gave her a bath.

He insisted he had done nothing wrong, with his lawyers saying the case against him was “very seriously flawed” and based on mistakes by doctors.

On Tuesday a judge at Sheffield Crown Court ordered his case to be thrown out after 10 days of prosecution evidence after it emerged that doctors had only found evidence the baby could have been shaken during a later examination.

Doctors also failed to follow NHS protocol by carrying out a lumbar puncture test that would have identified whether the baby had an infection.

Mr Bailey’s barrister told the court her injuries, which have left her blind, deaf and severely disabled, could have been caused by an infection.

A blood test was taken but the results were destroyed once Mr Bailey was charged with child cruelty.

The case coincides with fresh doubts being raised about the “triad” of injuries used by doctors to diagnose “shaken baby syndrome” – bleeding on the brain and retinas, swelling of the brain and oxygen deficiency.

A team of researchers led by staff at Bart’s and The London NHS Trust looked at 55 babies who died of brain haemorrhages either before birth or shortly afterwards. They concluded the symptoms are common in newborns and could be caused by genetic conditions or by a traumatic birth.

In Mr Bailey’s case, the baby was born on May 7, 2005 and suddenly collapsed on July 21, 2005 while in Mr Bailey’s care.

Mr Bailey and the mother took the baby by car to Barnsley District Hospital before she was transferred to Sheffield Children’s Hospital for specialist treatment. Her ventilator was eventually turned off in the intensive care unit at Sheffield Children’s Hospital but unusually, she survived.

Andrew Robertson QC, prosecuting, said the baby’s injuries were caused by non-accidental shaking and the baby’s head going backwards and forwards. He said “It was a repeated shaking of the baby with force.”

The prosecution experts included Dr Christopher Ritty, a consultant paediatric neurologist at the Children’s Hospital.

He said: “I felt that it was overwhelmingly probable that the girl had suffered this as a result of non-accidental injury, so-called shaken baby syndrome.”

Opthalmic surgeon Richard Gregson from the Queen’s Medical Centre, Nottingham, said “on the balance of probabilities” he thought the injuries were caused by shaking but added: “No opthalmologist can look at this child’s eyes and know absolutely sure that this is a case of shaking.”

The case collapsed after Dr Carlos de Souza, a consultant neurologist from Great Ormond Street Children’s Hospital in London, said the notes showed retinal bleeding was only discovered by doctors on the fourth examination of the child.

For that reason, he said he would not be able to say the most likely explanation was shaking.

After an adjournment, the prosecution decided not to offer any more evidence in the case and the jury formally acquitted Mr Bailey on the orders of Judge Michael Murphy.

As Mr Bailey, of Hoyland Common, Barnsley, walked free from court, his solicitor Tim Gaubert said he had lined up seven “eminent doctors” who all had serious concerns about a shaking diagnosis.

He said his client was relieved with the decision, although he was always confident he would be cleared.

He added: “But his relief is tempered by the fact that the child is seriously ill and has lots of health problems.

“She has a very severe brain injury, is blind and cannot feed herself. There are no winners and losers in this case.”

Source:

http://www.telegraph.co.uk/news/uknews/4684482/Man-accused-of-shaking-11-week-old-baby-is-cleared-after-three-year-ordeal.html

This case has also been covered on The Charles Smith Blog

http://smithforensic.blogspot.com/2009/03/stuart-bailey-case-part-3-prosecutions.html

Quote From Harold Levy

We know from the recently released report of the Goudge Inquiry into Ontario’s pediatric pathology system, that the evidence of the Crown experts, such as Dr. Ritty, can be extremely influential with the jury.

It is therefore frightening to imagine what little chance Mr. Bailey had of being acquitted – if the charge had not been dropped – after the jurors heard Dr. Ritty’s super-confident testimony that it was ” overwhelmingly probable” that she (the 11-week old baby) had non-accidental injuries or shaken baby syndrome.”

Mr. Bailey deserved much better than that from the British criminal justice system;

Dr. Squire’s Shaken Baby Syndrome

Shaken Baby

Syndrome

Dr. Waney Squire

Introduction
The diagnosis “shaken baby syndrome” (SBS) has been widely accepted for over 30 years, but recent evidence from biomechanical and clinical observational studies questions the validity of the syndrome.

The diagnosis of SBS is based on the clinical triad of encephalopathy, retinal hemorrhage (RH), and subdural hemorrhage (SDH) in infants, usually under six months of age, who may die unexpectedly or survive with greater or lesser degrees of neurological damage [1]. The term non-accidental head injury (NAHI) has been preferred as it has no implications for mechanism of injury. Other features often associated include a sole carer at the time of collapse and a clinical history that is incompatible with the severity of the injuries. The diagnosis of inflicted injury becomes less problematic if there is objective evidence of violence, such as bruises, fractures, or burns, but objective evidence of trauma has not always been necessary in making the diagnosis. Central to the assessment of these cases is whether the triad of findings can be regarded as diagnostic of abuse with any degree of certainty. This review examines the evidence base for each element of the triad and the current biomechanical evidence regarding mechanisms of infant head injury and its pathological investigation.

Excerpts:

Retinal Hemorrhages (RHs)

RHs have been regarded as an important indicator of inflicted injury, but many other causes of retinal bleeding are recognized in infants, for example after normal birth, raised intracranial pressure, blood dyscrasias, hemoglobinopathies, extracorporeal membrane oxygenation, cataract surgery, and accidental trauma [8]. Postmortem indirect ophthalmoscopy has shown RHs to be more common after natural disease and accidental injury than after inflicted injury.

Lucid Intervals

Lucid intervals are more frequently seen in infants less than two years of age [18], reflecting the very different responses of the infant brain to injury due to the specific intracranial pathophysiology before the skull bones fuse.

Subdural Hemorrhage (SDH)

SDH is perhaps the most important and consistent component of the triad. In the acutely sick infant, it is frequently the first clinical sign, identified on brain scan, to raise the question of abuse. There are no specific imaging patterns that can distinguish inflicted from accidental intracranial injury. Autopsy and imaging studies show that infant SDH is usually a thin bilateral film and not a thick, unilateral space occupying clot as seen in traumatic SDH in older children and adults. This raises the question of whether the two forms have the same etiology and anatomical source.
Causes of Subdural Hemorrhage

The commonest cause of SDH in infants is said to be trauma although a recent study has shown a significant
Shaken Baby Syndrome incidence (26%) of birth-related SDH . Other causes in infants include benign enlargement of
the extracerebral spaces (BEECS), clotting disorders, hemorrhagic disease of the newborn, rare metabolic diseases, vascular malformations, and neurosurgical procedures.

Traumatic SDH

Proposed traumatic causes of infant SDH are inflicted injury such as shaking and/or impact and accidental injuries such as falls. Impact includes blunt impact of an object on the head and that resulting from a fall or striking the moving head on a rigid surface. The biomechanical aspects of these injuries are discussed below. The vast majority of cases described as SBS have evidence of impact [28]. While the pathologist may be able to determine features indicative of impact, it is not, of course, possible to distinguish accidental from non-accidental injuries by pathology.

Low-Level Falls

Low-level falls have the potential, albeit only rarely, to cause SDH in infants and young children. Absolute height is not as important a criterion for injury as the exact nature of the fall for a particular infant, in a particular circumstance. The effects of twisting, rotation, or crushing of the structures of the neck are crucial in terms of outcome. Biomechanical studies show that falls even from low levels of 3–4 ft can generate far greater forces in the head than shaking. There are a number of case series demonstrating that infants and children may suffer intracranial damage including retinal and intracranial hemorrhage after falls from levels as low as 3 ft. While most babies may suffer little from an apparently trivial fall, this is clearly not always the case.

It is likely that the forces required to cause intracranial injury will also damage the weak infant neck. In road traffic accidents, infants who suffer single severe hyperextension forces have cervical fractures, dislocations, spinal cord injury, and torn nerve roots, not SDH.

Differential Diagnosis of SBS

The most common causes of the triad are impact, birth-related SDH, BEECS, coagulopathies, apnoea, asphyxia and choking, acute life-threatening events, (ALTEs), osteogenesis imperfecta, osteopenia of prematurity, and metabolic diseases.

Biomechanics

Biomechanics is the application of principles of physics to biological systems and has been the mainstay of research into motor vehicle safety for six decades. It was just such research into noncontact head injury from rear-end shunts that stimulated Guthkelch to formulate his hypothesis for SBS in 1971. Ommaya had caused concussion, SDH,

and white matter shearing injury (diffuse axonal injury) in primates by whiplash. Guthkelch suggested that the rotational forces of shaking would cause tearing of bridging veins and bilateral subdural bleeding, although Ommaya himself warned that “It is improbable that the high speed and severity of the single whiplash produced in our animal model could be achieved by a single manual shake or even a short series of manual shaking of an infant in one episode”.

More recent studies using “crash test dummies” indicate that impact generates far more force than shaking and that impact is required to produce SDH . Cory and Jones generated forces that exceeded the injury threshold for concussion, but not for SDH or axonal injury. Their adult shaker volunteers fatigued after 10 seconds. While they concluded that “It cannot be categorically stated, from a biomechanical perspective, that pure shaking cannot cause fatal head injuries in an infant ”, they noted that in their experiments there were chin and occipital contacts at the extremes of the shaking motion that could have caused impact. These authors expressed their concerns regarding the difficulties in extrapolating to human infants the findings in both dummy and animal models.

Biomechanical studies have shown that falls and impact to the head produce significant rotational forces when the impacting forces are not aligned through the center of gravity of the head, due to hinging of the head on the neck. Shaking is not necessary to cause rotational acceleration.

Other Contributing Experts:

Dr Irene Scheimberg

Dr Pat Lantz

Dr Chris Van Ee

For Full Article See Source:

http://media.wiley.com/product_data/excerpt/67/04700182/0470018267-3.pdf

Blood Brain And Bones

Evidence Based Update

Imaging In Non Accidental Injury And The Mimics

Patrick D. Barnes, MD
http://www.stanford.edu/~pbarnes/
pbarnes@stanford.edu

Can imaging distinguish between accidental or non accidental or from predisposing or complicating medical conditions? Can it discern bone fragility disorders? What is shaken baby syndrome and the battered child syndrome according to traditional literature? What is evidence based medicine and quality evidence? What are the Rules Of Evidence and the Standards For Admissibility For Expert Testimony? Do SDH rebleed? Can you have a lucid interval? Does birth ever cause a SDH? Do retinal hemorrhages occur only with SDH in non accidental injuries? What are the dural and retinal hemorrhage differential diagnosis’?

An evidenced based presentation involving shaken baby biomechanics of the brain.  Historical reviews of the theory from:

1) Caffey 1972 Whiplash Shaking

2) Guthkelch 1971 Infant SDH Whiplash Theroy

3) Ommaya 1968 Whiplash History

4) Duhaime et al 1987 SBS

5) Prange 2003 Falls, Shakes And Impacts

References for evidence based head injury in NAI neuropathology, acute life threatening event and the differential diagnosis for acute life threatening events.

Neuropathology + Biomechanical Evidence Base Conclusions:

• Shaking may theoretically cause brain injury if associated with
cervical spinal cord injury.

• Impact may produce direct or indirect brain injury (accidental or
NAI).

• Brain edema with thin SDH (dural vascular plexus origin) may
reflect Hypoxia-Ischemia + Cascade (accidental or NAI).

• Brain edema with thin SDH may result from medical causes (e.g.
Hypoxia-Ischemia + Cascade) from any cause of ALTE).

• Should always do both Brain and Cervical Spine CT, as well as
MRI.

• Imaging may not distinguish accidental from nonaccidental injury, or
from predisposing or complicating medical conditions.

• Significant head injury, including death, may result from low fall levels
(or any Impact, accidental or NAI).

• Such injury may be associated with a lucid interval (i.e. caretaker
blamed for delay).

• The lucid interval invalidates the premise that the last caretaker is
always responsible in alleged NAI.

• In other cases, the injury may result in immediate deterioration with
malignant edema & progression to death.

• Predispositions including Genetic?

• Imaging may not distinguish nonaccidental from accidental injury.

• Re-hemorrhage may occur in an old SDH without recent
trauma and be associated with a lucid interval (Sutures !!).

• SDH occurs in benign extracerebral collections.

• Old SDH may date back to Birth.

• Serial head circumference measurements, caregiver
education, preventive measures, attention to nonspecific
symptoms, early imaging “before the crash”.

• Imaging may not distinguish nonaccidental injury from
accidental injury.

Evidence Base Conclusions
• The Triad: RH + SDH + Edema not specific for NAI.
• May occur with accidental trauma.
• May occur with medical conditions.
• Must consider Predisposing Risk Factors.
• Must consider Multifactorial, Synergistic, & Cascade Effects.

Doctors corner:

-Vaccinations

-NAI Recommendations – A Compassionate Approach

- Madatory Reportings

- CT and MRI In Alleged NAI Limitations

- Timing of Hemorrhage

- Comparison Imaging Of SDH

- NAI Skeletal Fragility Disorders With Comparison Imaging

- Case Studies

Source:

http://www.stanford.edu/~pbarnes/docs/publications/UpdateBrainImagingNAI.pdf

Man Claims He Was Wrongfully Accused of SBS

Man Claims He Was Wrongfully Accused Following Smith’s Testimony

2008/10/01 | CityNews.ca Staff

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In light of Justice Stephen Goudge’s scathing review of Ontario’s child forensic pathology system, up to 140 cases involving the deaths of children will be reviewed.  That includes the case of Dinesh Kumar, who was accused of shaking his young son to death in 1992.

He’s one of a slew of people who claim they were wrongfully accused of a crime they didn’t commit.

His 5-week-old son died suddenly and inexplicably 16 years ago.  Disgraced pathologist, Dr. Charles Smith, concluded at the time that the child died from shaken baby syndrome and Kumar was charged.

It’s a charge he adamantly denies, and now that Smith’s incompetence has been revealed, he’s hoping to be fully exonerated.

“It’s very hard to explain…when you suffer these type of situations,” Kumar said Wednesday.  “Those pains, nobody can explain it.”

Despite his vehement claim that he had nothing to do with the death, Kumar still pleaded guilty to criminal negligence causing death rather than face Smith’s testimony — which at the time was considered infallible.

He served just three months in jail but has had to live with the stigma of being called a baby killer.

“It was very painful for me…especially when they charged me, I was totally destroyed.”

Now he’s determined to clear his name.

He’s being represented by attorney for the wrongfully accused, James Lockyer, who has filed a formal notice of appeal.  They hope that once the Crown has a closer look at the evidence, he’ll be exonerated without having to go through a full trial.

http://www.citytv.com/toronto/citynews/news/local/article/5386–man-claims-he-was-wrongfully-accused-following-smith-s-testimony