Rethinking Shaken Baby Syndrome

by Joseph Shapiro

June 29, 2011

The dispute over shaken baby syndrome is a bitter civil war. On one side, doctors, lawyers and other experts say the diagnosis is key to winning convictions of people accused of the most horrible acts of child abuse. Opponents say the diagnosis is used too freely and that sometimes, innocent people go to prison.

Norman Guthkelch, the pediatric neurosurgeon who is credited with first observing the condition in young children, is speaking out for the first time about his concerns regarding how that diagnosis is used. He worries that it is too often applied by medical examiners and doctors without considering other possible causes for a child’s death or injury.

Guthkelch, who is now 95, would like to play peacemaker. “There are cases where people on both sides, both of whom I admire equally, are barely able to speak to one another,” he says. “And that’s a shame.”

Guthkelch is concerned that there are too many cases like the one he recently reviewed in Arizona. A defense attorney asked him to look at the case of a father who has spent 10 years in prison after being convicted of killing his 5-month-old son by shaking him.

After reviewing the trial record and medical reports, Guthkelch said he was troubled to see that the medical examiner’s autopsy had concluded that the baby died of shaken baby syndrome while discounting other possible causes: A month prior to the child’s death, the boy had been admitted to the hospital with uncontrolled seizures. The baby had also briefly been in the neonatal intensive care ward after a difficult birth.

To Guthkelch, this suggests the boy may have instead died from natural causes. “I think I used the expression in my report, ‘I wouldn’t hang a cat on the evidence of shaking, as presented.’ “

NPR teamed up with PBS Frontline and ProPublica and studied nearly two dozen cases in the U.S. and Canada where people were first convicted of killing children but later acquitted or had the charges dropped. Common patterns in these cases emerged over questionable autopsies and testimony, as well as disputes over medical evidence, such as the shaken baby syndrome diagnosis.

Diagnosing Shaken Baby Syndrome

Three years ago, Guthkelch received a standing ovation when he was introduced at the international conference of the National Center on Shaken Baby Syndrome.

“So who should be credited for discovering shaken baby syndrome? My vote is for Dr. A. Norman Guthkelch,” said Carole Jenny, a pediatrician with a specialty in child abuse prevention, as she introduced him to the group.

Jenny noted that Guthkelch wrote his groundbreaking paper in the British Medical Journal in 1971. It was just two pages long and called “Infantile Subdural Hematoma and its Relationship to Whiplash Injuries.” That paper, Jenny explained, “is the first clear, unambiguous reference in the world’s medical literature to shaking as a mechanism of head injury in infants and small children.”

Guthkelch was trying to solve a medical mystery: Babies, toddlers and other children were showing up at his hospital with subdural hematomas — or bleeding on the surface of the brain — yet there were no signs of the cause. These children came with no broken bones, bruises or other signs of physical abuse.

He solved the mystery with a simple observation: In northern England, where he lived, parents sometimes punished their children by shaking them.

It was socially acceptable. “They had no motive to lie,” Guthkelch says. “So the parents told me the truth. ‘Yes, I shook him.’ “

At the same time, Guthkelch heard a revealing story from William German, a Yale University professor of neurosurgery. German told Guthkelch about a day he took his grandchildren to an amusement park. “They all went on the roller coaster and when it got to the summit of its travel, apparently it stopped violently and everybody was thrown quite violently,” Guthkelch explains.

A few days later, German developed bad headaches. He checked himself into the hospital where he worked and was found to have a subdural hematoma that required surgery. German figured it must have been caused by the violent jerk of the amusement park ride.

Guthkelch put these observations together and came up with his theory that a child could be shaken violently and develop bleeding on the brain — without any broken bones, bruises or other signs of physical abuse.

Controversy Among Medical Experts

Guthkelch’s chief concern was to inform parents about the dangers of shaking and to prevent abuse. And that’s still just as important today, he says. A baby’s brain is soft and surrounded by a thin skull, both of which can be easily damaged.

Other scientists built on his research. Now shaken baby syndrome is diagnosed when doctors find unexplained bleeding on the brain and two other symptoms: bleeding behind the retinas and brain swelling. This constellation of symptoms is referred to as “the triad.”

Too many medical experts see that triad of symptoms and conclude a child has been shaken without considering other possibilities, Guthkelch says. “I don’t think that the famous triad, however well some people think it’s defined, can ever be so well-defined that you can say that and nothing else cause it — that meaning shaking.”

Still, while shaken baby syndrome has been a widely accepted diagnosis for decades, a growing number of medical experts — particularly forensic pathologists — now question the diagnosis. Some skeptics cite research by biomechanical engineers that says you can’t shake a baby with so much force that you cause internal head injuries but leave no external marks, bruises or injuries to the neck or spine.

Others — including many pediatricians — strongly defend the diagnosis and say they often see its devastation. They say that violent shaking alone can cause a child’s death or severe brain damage with lifelong disabilities.

There are no exact numbers on shaken baby syndrome cases. The National Center on Shaken Baby Syndrome, a resource and advocacy group, estimates there are about 1,200 to 1,400 cases a year of severe or fatal head trauma from child abuse. The FBI reports about 500 homicides a year of children under the age of 5, from all causes.

Too Much Caution?

Not all experts share Guthkelch’s desire for new caution in diagnosing shaken baby syndrome. And some, like Teri Covington, who runs the National Center for Child Death Review Policy and Practice, worry that there’s already too much caution. She says that because of disputes over the science, there are growing cases of child abuse where the abuser isn’t punished at all.

Covington’s federally funded research center helps states investigate child deaths. And Covington says that when she meets with prosecutors, police and medical examiners, they say they’re already reluctant to bring even pretty clear cases.

“I have heard many a discussion of reluctance from both law enforcement and prosecutors to even start moving these cases forward in the way that they would have done five or 10 years ago,” she says.

Now, Covington says, many prosecutors won’t pursue cases unless they have a “definite whodunit” that can be proved easily in court. “I’ve seen that happen several times in the last few months,” she adds.

When Medicine Enters The Courtroom

Guthkelch says doctors need to be extra cautious when medicine reaches the courtroom. Medical knowledge changes over time, but the criminal justice system wants certainty to determine guilt or innocence. “In a case of measles,” he says, “if you get the diagnosis wrong, in seven days’ time it really doesn’t matter because it’s cleared up anyhow. If you get the diagnosis of fatal shaken baby syndrome wrong, potentially someone’s life will be terminated.”

That’s one reason Guthkelch says it’s time to get all sides together and try to agree on what can be said with scientific certainty about shaken baby syndrome.

At first he thinks perhaps a funder would sponsor a conference that would bring all the sides together. “If you have a spare couple million bucks and you’d like to finance a meeting, preferably in one of the good places like Vegas or Bermuda or whatever — then away we go,” he says with a laugh.

But then, on reflection, he thinks about the long-standing bitterness between all those competing doctors, lawyers, medical experts and child advocates. He says it’s important to have a civil dialogue — and almost a dream to think it can happen.

http://www.npr.org/2011/06/29/137471992/rethinking-shaken-baby-syndrome

Interview With Dr. Jon Thogmartin

A board-certified forensic pathologist, he’s the chief medical examiner for Florida’s District Six, which covers Pinellas and Pasco counties. During his tenure thus far, he reversed two child death cases handled by his predecessor. He says of one case: “They imagined injuries that weren’t there.” This is the edited transcript of an interview conducted on May 2, 2011.

• The importance of looking at a child’s medical history before autopsy
• Forensic pathologists are under tremendous pressure when a child dies suddenly
• Two cases of alleged child abuse he helped reverse
• “I have seen more lightning strikes than shaken babies.”

What are the challenges of doing an autopsy on a very small child? Why are these difficult cases?

I think mostly it’s because those that are involved in the investigation — the parents, even the agency, if there’s positions caring for the child — they’re emotionally charged. … People tend to get a lot more upset with the loss of a baby or a small child because there are so many years of life lost, so much potential squashed. I think that’s really the hardest thing is to objectify and remember what you’re doing. You’re trying to find out what happened to the kid.

Some doctors tell us, look, compared to stabbings, compared to gunshot wounds, compared to car crashes, child death cases pose a lot of complex medical issues.

“You need to approach the cases with objectivity first. You walk in, you’re not trying to find the murderer; you’re not thinking all child deaths are murders until proven otherwise.”

I think that’s true, because it takes a lot less to kill them. … Adults are generally tougher and harder to kill than a small child, particularly an infant. So you’re looking for very subtle signs of trauma or pressure or small amounts of bleeding that could potentially cause a kid severe illness or death.

Do you spend more time doing child cases than the typical adult case?

It depends on the case. A lot of times with a child, you’re going to slow down; you’re going to take your time. A lot of times, adult cases are typically more routine. So I tend to slow down and probably spend two, three times more on a child. Plus, you’re dealing with smaller structures, so it’s a lot harder to handle, a lot harder to see. So the practical nature of it makes it slower.

Tell me what board certification is for your field. What does that term mean?

Well, it’s exactly like it is if you’re going to get your gallbladder out and your surgeon’s board-certified or your trial attorney is board-certified. It’s a board of colleagues that has basically laid down a predicate of standards of excellence for the person you qualify: Are you good enough? Do you have the qualifications to even make an application to sit for the test? Then you take a test, you’d make a score, hopefully you pass. And after that, you’re board-certified.

And getting your boards in forensic pathology shows the world what?

Well, it shows that you have the necessary training and knowledge to practice in the field to a certain level of competence.

And why would you want to have special training in forensic pathology as opposed to just being a general practitioner and a general doctor?

Well, it would be like me, if I want to open my own private practice, which I guess I could and try to care for the living, it wouldn’t go well. It wouldn’t go well at all. I only diagnose things. I don’t treat things. It’s the same thing with a general practitioner or pediatrician trying to apply their knowledge to forensic pathology. What they do is they treat the sick; they fix things. …

I know that practicing on a living [person] is really beyond my realm of expertise. I never fix anything. Nobody I ever see survives anything. With the difficulty in that is understanding the difference and accepting the limits of your expertise [in] your own field. I think that’s the hardest thing about being a doctor in general, knowing your limitations. …

In Ontario, Canada, there was a scandal where people were wrongly convicted in child death cases, and the government did a review, and they found at least a dozen cases that were problematic, questionable cases. A justice began reviewing those. And Judge Stephen Goudge, he made a lot of recommendations, and one of his chief recommendations was, in cases where you’re looking at possible criminal activity, the person doing the autopsy should be a board-trained forensic pathologist. You think that’s a good recommendation?

That’s bare minimum, yes. … If you’re doing this line of work, you should be boarded. That’s just my opinion. I think that, and that’s a very basic thing. And I think there’s enough of us to go around where you could, at least, you know, have one in every office.

… Is that the standard in the U.S.?

It’s known as the standard of excellence. It’s not a requirement. But if you’re going to have NAME accreditation — National Association of Medical Examiners accreditation — your chief medical examiner has to be boarded, has to be. …

Another thing that Justice Goudge recommended in child death cases is that doctors review all relevant medical records before doing the autopsy. Is that done here in the U.S.? Is that something that people are required to do when they’re doing autopsies in these cases?

In Florida, it’s part of the guidelines of practice that you are to review all pertinent medical records, and luckily, we have the legal authority to get them. It’s funny: If someone was to deny me the medical records, they could be arrested for first-degree misdemeanor, which I think is great. We don’t have any trouble at all getting those. …

On some of the delayed child deaths, a day delayed, two days delayed, maybe even weeks delayed, the autopsy is not going to be as helpful as those medical records.

How important is it on pediatric death cases to look at a child’s medical history?

The more delayed the death, the more time between the initial hospitalization and the death, the more it becomes important, and the less important the autopsy becomes. So I’d say it would be important even if it was an hour. But if you’re talking two weeks, it really is the case. The medical records, the laboratory test, the results of the various radiological tests, what the physicians have to say, that’s really more important than the autopsy.

Why is that?

Well, if let’s say I have a young child that was injured years and years ago and they survived with a palsy … for 19 years, what I’m going to have when they’re 19 years old, I’m going to have basically what looks like a 19-year-old with cerebral palsy. All the original injuries are going to be healed. There’s not going to be much in that autopsy other than for me to find maybe a source of infection or something that caused their premature demise. But as far as being able to describe the original injuries, I won’t be able to do it. I’ll have to go to the old medical records. And that’s an extreme example.

But our most typical example, two or three days, maybe a week, they may even have had their organs removed for donation. A lot of time, you know, one of the surviving parents will give permission, and the actual infant you’re getting doesn’t have a liver, doesn’t have kidneys, doesn’t have a heart. Those are working in some other child. So not only do you have the injuries partially healed or completely healed, but you may not even have all the organs. So again, you know, as the days go on, the autopsy just gives you nothing but artifact and healing.

And if you’re a doctor and you’re doing an autopsy on a child who was hospitalized for a day or two days or a week, and then passed away, and you don’t look at those lab reports, you don’t look at those medical records, what’s the risk of possibly getting a wrong diagnosis, getting the cause of death wrong?

Oh, it’s high-risk. You’re putting yourself out there. It’s almost like doing it with a blindfold on. You’re asking for it. You may be able to get by with it for a while, but eventually, maybe 20 cases down the road, you’re going to miss something.

And you think doctors should review the records before doing the autopsy, after the autopsy? When should they review?

Ideally before. But a lot of times you won’t get them before. A lot of times there’s a lot to copy. A lot of jurisdictions, I understand there may be logistical difficulties with distance that doesn’t allow that. But here we’re able to have it beforehand, and you want to review the best you can before, and that’s typically what occurs.

Another thing that Justice Goudge recommended was he said the M.O. [modus operandi] of the coroner’s office here in Ontario is to think dirty. When you look at child death cases, assume that the child was murdered. He said you need to think through, because not all children are murdered. And if you have that kind of bias, it’s going to throw off your forensic work. What do you think of that?

I think that’s a good thought, and I think that you need to approach the cases with objectivity first. You walk in, you’re not trying to find the murderer; you’re not thinking all child deaths are murders until proven otherwise. You walk in with, “Let’s see what the child has to tell us on their own,” and you compare it to the circumstance. The suspicion comes up where the circumstances don’t [fit] the injury. That’s when you get suspicious. I’m not suspicious until that occurs.

He also recommended that forensic pathologists consult with doctors from different disciplines on particularly difficult cases; that they talk to other experts if they are encountering something that’s challenging in an autopsy. What do you think of that recommendation?

I think that it’s good to do that. We routinely do that. It can be expensive, and it’s oftentimes hard to find the right person, but once you do find the right person, you can approach them with confidence that they’re going to help you. And a lot of times they can turn you in a particular way or give you a clue that will strengthen your opinion, and to try to do it isolated, particularly if you’re alone. A lot of my colleagues are completely alone without even another forensic pathologist in the office. In that case, it would be essential. …

… Are you required in child death cases to be a board-certified forensic pathologist in the U.S.?

No.

Are you required to have any peer review of child death cases?

No.

Are you required to review the medical records in child death cases before or after doing your autopsy?

No.

Are you required to consult with specialists in the field on difficult child death cases?

No.

Do you think these would be good recommendations to adopt nationally or implement across the country?

It would be good. I don’t know exactly what organization would implement them. NAME — National Association of Medical Examiners — is a good one. I don’t know exactly how those could be implemented nationally and by what organization and how well that would work. That’s a tough one to answer exactly how you would do it and how you can get people to comply.

Right. And that’s sort of an ongoing issue in the field of forensic pathology is how to oversee it, how to provide regulation that works, how to have professional standards that work from jurisdiction to jurisdiction that are actually there, right?

Right. And then, you know, every one of these cases, if it’s something like a wrongful conviction, I mean, the ones where you’re missing [the child], you’re missing the homicide, those who disappear and a kid never has his day in court. The ones where you have the wrongful convictions, most of the time it’s the attorney is not doing their due diligence, particularly on the defense side. Anybody who’s doing an autopsy on a kid [who] is not board-certified in the field, they should be blown out of the water. I don’t know how they make it when they’re not. Anyone who’s not consulting the specialist, not getting the medical records, are not doing like, say, full-body X-rays, I don’t see how they make it. I don’t see how they make it on a day-to-day basis. I don’t see how they’re not running [out of] town on a rail. But they make it because nobody bothers to ask. …

So after hearing these recommendations from Judge Goudge, do you think these are the sort of things that we should try to implement in the U.S. and places where we’re not doing this?

… NAME [National Association of Medical Examiners certification] has a standard-of-practice accreditation standard. If it became much more public, which offices were and were not accredited, you ask the question, why is your office not accredited? The accreditation has been available for years; why are you not accredited? Have them explain it. Have it explained publicly.

If an office is able to make it through NAME accreditation, their office is going to have standard operating procedures. They’re going to do certain things like we’re talking about with the child deaths. You’re going to have the board certification [of] at least the chief. I think most of the problems would be addressed. …

So if it was expected that coroner/medical examiner offices were accredited in the same way that we expect hospitals and clinics and labs to be accredited, you think that we could improve this system greatly.

Oh, it will be [a gigantic] leap forward, a huge leap forward if it was required in some way. A lot of times the federal government or the state governments can incentivize this to make it financially worthwhile to go through it. …

Do you think that medical examiners are looking closely enough in child death cases at alternative explanations other than child abuse, at the diseases that can mimic child abuse?

I think most of us are. And I think that’s why you’re not, you know, having a four-hour miniseries on it. There’s so many child deaths; most all of them are fine. You’ll have those in occasional statistical outliers that are pretty hard to miss. I think that probably the majority of my colleagues are really hardworking, competent people, and they do a really good job. But if you find a case that looks bad, it’s usually a non-board-certified person, not trained in forensic pathology or is extremely politically weak and has no spine to say, “No, I don’t think so.”

How important is mind-set for a forensic pathologist when dealing with child death cases? How important is it to be independent?

Well, you have to make your own decisions. You have to be at least relatively isolated. The best system is one where the person is at least somewhat politically isolated. They can’t acutely be pulled by a mayor or a board of county commissioners right away. We in Florida, we’re reappointed every three years by the governor upon recommendation of a commission. They get surveys from everyone. So if you have one person that doesn’t [like] your call on a particular case, they have an opportunity to put “Unfavorable” on your survey and say why. …

You have to be independent. You have to be able to make the tough calls, and you have to be able to have time to explain it. …

Tell me about the kind of pressure that built on a forensic pathologist, when a child dies suddenly?

I think the biggest thing is, [the] most common emotion is anger. Everybody seems to be angry. Let’s say someone says they found retinal hemorrhages, like a clinician says, “I looked in the eyes,” says retinal hemorrhages. Child abuse alarms have already gone off in the hospital. The kid [is] still alive but really so brain-injured they expect the child to die. By the time the child comes here, a lot of people are really, really, on the bandwagon of “This is child abuse” purely because of the retinal hemorrhages that were seen by the clinician.

I don’t walk into the back with the idea that I’m going to find retinal hemorrhages because the clinician told me. We’re going to remove the eyes. I’m going to make microscopic slides, and I’m going to see for myself, because a lot of times those will not actually be there. If there is no subdural hematoma on the CT scan that was done when they’re alive, I’m going to be very careful that I’m going to look for that subdural hematoma.

But you have to have the spine to say: “Look, yes, I know the doctor saw retinal hemorrhages, but here are the slides. There are none. I know that you suspected child abuse, but look, here is the brain; there is nothing wrong with it.” You’ve got to have the spine to be able to do that.

But that’s not such a hard thing to me. The real hard thing is when you find the subdural hematoma, you find the injuries, and you’re asked, “Could this be some alternative explanation?” For me, [you'll] be ending up [in] a situation where you say, well, more likely than not this was inflicted. But standard for court is different. It’s beyond a reasonable doubt.

And so tell me about that. This is a field — I think one thing that makes people uncomfortable on these discussions is that there’s uncertainty that you can encounter a case or you’re not sure if this was a child who was abused or a child who was sick.

Correct. You can have cases where there may be a reasonable possibility [of an] alternative explanation, … and you have to own up to that. The pressure comes in not owning up to that.

Do you think all of your colleagues in this field do that?

Oh, not all of them. I’ve seen some where, you know, they start [at] child abuse. I likened it to … a snowball. It gets bigger and bigger and bigger as it rolls down the hill. And eventually somebody has to try to stop it if it’s wrong. And sometimes it just gets so big that you can’t stop it.

So the child abuse theory start rolling, starts rolling, and the forensic pathologist’s one step is –

A lot of times they are not strong enough and powerful enough to stop it, and they feel helpless, and they just get caught up in it. And I have seen, actually, exculpatory information, you know, that hey, this is definitely not [the cause of death]. They keep it rolling. I’ve seen people imagining things that weren’t there.

You’ve seen doctors who ignore evidence that the child wasn’t harmed?

Absolutely, yes. Yes. Absolutely I have at least one case where retinal hemorrhages were seen grossly, but microscopically there’s none. There were none there. They even showed there was none. Microscopically, there just wasn’t any, but they went ahead and said: “Yes, we saw them with our naked eye. But oh, they’re not visible with the microscope.” That’s impossible.

You know, in Canada they have a dozen questionable cases coming out in one province that prompts a whole review of the system and 168 recommendations on how to improve the system. We’ve seen different jurisdictions in the U.S. where you have multiple wrongful convictions based on a forensic pathologist’s work in Mississippi; questionable cases in Texas; questionable cases in different jurisdictions. Has it provoked that kind of review?

There [are] colleagues of mine that know — we know where the jurisdictions are where there’s problems. And a lot of those jurisdictions where things come up, they come up on a chronic basis, mostly because of the reputation. I don’t know if local government officials really understand how bad they’ve got it. They think that if I have Dr. X, Dr. X has been shown to not be competent. I will get rid of Dr. X, and I’ll go with Dr. Y, but Dr. Y never shows up because everybody knows this is not a good place to be. Or they hire the first warm body. And actually, Dr. Y is [worse] than Dr. X, a lot worse, 10 times worse, but they don’t [realize] the problem is not the physicians they’re hiring; the problem is they need to look in the mirror.

The problem is themselves and the way they hire and how their thought process [is] regarding it, and how they value the office. A lot of jurisdictions just want the office to be quiet, go along, and then they have the bomb go off. And there’s no systematic review of the old cases. They just go to another doctor, and the problems persist.

So you’ve seen it when something goes wrong. There’s a case that’s bungled; somebody goes to jail wrongly. There may not be a full, thorough review of that doctor’s work.

Correct. You know, you have to go back and look. The fortunate thing, though, is I tell people always, I like this field because mostly it’s common sense. This is a common-sense field. I’m not doing tumor markers and trying to diagnose which chemotherapy regimen is best. And basically you have to understand human behavior in order to do this job. You have to have life experience. If you understand human behavior, most of the causes of death that we come by, even child deaths, are relatively common sense. I know what kids would do on a day-to-day basis.

If you ask yourself, can a 2-year-old climb to a height that could cause a fatal head injury? Yes, they can. The thing is where were they, and is there an object they could have climbed and nosedived off of? This is the common sense. And regarding the injuries, what’s there and what’s not there, [in] a bungled case, blood goes into the water, and everybody comes to feed on this one forensic pathologist. Fortunately, even the most incompetent person is going to be right most of the time. So most of the cases reviewed have overwhelming drama that doesn’t present a problem and cause a manner of death, because most of it’s common sense. …

When you looked into the case of Rebecca Long, a girl who was 7 months old and was supposedly murdered by her father, and the medical examiner in this office before you were running the show [Dr. Joan Wood, who served as chief medical examiner in District Six from 1982 to 2000] said this child was murdered, you had a totally different conclusion.

[Editor's Note: In 1999, David Long was charged with first-degree murder in his daughter's death based on an autopsy performed by Thogmartin's predecessor, Dr. Joan Wood. Prosecutors later dropped the charges after Thogmartin concluded that Rebecca had died of pneumonia.]

That’s correct.

What was it?

I think she died of basically complications of her prematurity. She had really, really bad pneumonia, really bad reactive airway disease, and even though she had been on a respirator for a while, the pneumonia was so unbelievably widespread, I think she basically had her cardiac arrest in her crib because of that pneumonia.

And the previous medical examiner said this child had bleeding in the eyes and bleeding in the brain, but when you looked at the evidence, you didn’t see that?

Well, the previous medical examiner had been told that child had retinal hemorrhages, and that’s what caused the whole child abuse snowball to start rolling down the hill, [but it] was shown at [an] autopsy there was no retinal hemorrhages at all. But it just kept going. It just kept going, and it would not stop.

And so this guy lost his daughter and was prosecuted on how much evidence?

Well, basically, it was 100 percent the medical examiner, 100 percent, no doubt about it. There is nothing else that drove it other than the one pediatric ophthalmologist saying there were retinal hemorrhages that didn’t exist.

And was there any real evidence to put this man in jail?

The evidence presented by one expert witness.

Was it real?

No. No, there was nothing there. Like I said, once the child abuse bandwagon is going, once it’s rolling, it’s really tough to stop, and that unfortunate gentleman had his life turned upside down. First his daughter died; his life was destroyed. …

So you [then] began looking into the death of John Peel Jr. What did you find when you looked at his case?

[Editor's Note: John Peel Sr. was charged with shaking his son to death in 1998 based on an autopsy performed by Dr. Wood. He was sentenced to 10 years in prison and served four before State Attorney Bernie McCabe asked a judge to throw out the conviction based on Thogmartin's findings. Peel was freed in October 2002.]

Well, his was worse, because he did not really have medical intervention. He was pretty much, you know, fresh dead, no artifacts, and that ball got rolling because his death was a similar circumstance to most all the deaths of infants that we have. It was a co-sleeping-type death where two parents are co-sleeping with the kid on a twin bed, and they are exhausted, and they’re doing the nightly feeding, and then in the morning, they wake up and the kid is not in bed with them; he is on the floor. So this is not really an unusual thing for me. A lot of times, they wake up on top of the kid.

So the thing that got that one rolling was the kid, they initially said, “Well, he was lying there on its side, and the chief medical examiner here said, ‘Well, children of that age can’t lay on their sides.’ And that’s a pretty flimsy excuse, but that seems to be the excuse that got the thing rolling.

And when you looked at the autopsy of the baby Peel, was there anything wrong with this child?

Well, no, there wasn’t. Probably if we experienced [his case] today, we would have ruled out everything. We certainly would have not — they imagined retinal hemorrhages on the eyes, grossly. …

They imagined injuries that weren’t there?

They imagined injuries that weren’t there: the subdural hematoma that wasn’t there; retinal hemorrhages that weren’t there, aren’t there today, still aren’t there. The slides still aren’t there. They are just not there. …

When you looked at the Peel case and the Long case, what did you tell prosecutors?

I told them that basically the injuries that are described here aren’t here, and Rebecca Long, there is an alternative cause of death anatomically, an explanation for it. In the Peel case, circumstantially, it’s the most typical cause of death we have in infants, a co-sleeping type of case where there [is] an unsafe sleeping environment. But I didn’t have an anatomical cause.

But you didn’t see anything that caused that child [to die]?

No, no, there is actually pictures of the brain. They’re just completely normal. I sent the brain to a neuropathologist. She was also actually on the ME Commission, Medical Examiner[s] Commission of the state at that time. She couldn’t see anything. I looked at the eyes. I looked at every slice of eye tissue, the residual ocular tissue; there is no retinal hemorrhages there. There never were. I don’t know what they were seeing — wishful thinking, bias. I am not sure what was going on. …

What’s the problem?

The problem is an objectivity problem; that’s the problem. There was a lack of objectivity, in my opinion.

And what was her bias?

I think there was a prosecutorial bias, I think that “Go get him” kind of thing. As a forensic pathologist, I don’t testify for the state. I don’t testify for the defense. I testified for the decedent. They are not able to talk, so I tried to talk for them. You have probably heard that cliche many times, but it’s true. I don’t care if the case is lost or won by the prosecution; I can’t care. I treat the defense and prosecution the same. If they call and want to prepare, I prepare with both. You can’t care, and that way you’re able to walk into court or not. If you say objectively that this is not a homicide, chances are you will never walk into court, but if you’re saying it’s a homicide or the person died of automobile accident, have to [consider a] manslaughter case, DUI manslaughter case, you will be in court. But I don’t care if they get convicted or not; I don’t care how long they go to prison. I never follow up, and that’s on purpose.

[Editor's Note: We attempted to contact Dr. Joan Wood for comment, but our attempts were unsuccesful.]

Do you think everybody in your field shares that outlook?

No, absolutely not. No, they don’t. Do I think they should? Yes, they should, because if you act otherwise, you have a bias toward the defense for any reason or toward the prosecution for any reason or toward plaintiff attorneys and civil suits or vice versa, you’re not performing your official duties; you are committing malfeasance. …

Are there people who don’t have the expertise doing the work that you do?

Yes.

And what are the consequences?

Well, the consequences would be, let’s say 95, 99 percent of the time, they’re fine, but then the 1 to 5 percent that require some expertise, they end up being wrong, and there is some huge repercussions from that. Not only are those cases called into question, but every case they touched over the years is called into question. It causes major turmoil in the community, civil liability and turmoil, and they may never recover.

And in real simple, blunt terms, what happens when a forensic pathologist gets it wrong?

… People are let out of prison or sent to prison. That’s probably the worst thing. …

Most of the time, my testimony is not absolutely critical. Probably the most critical thing I do in court maybe or people in my field is saying there is a dead person that the person is dead and this is who it is. Everybody knows they were shot. So it doesn’t matter.

Right.

But those cases, like I said, you know, 1 percent maybe where a testimony is critical, then you need somebody that knows what they are doing, somebody that can stand up to scrutiny, somebody that’s not going to let you down and somebody that’s going to tell the prosecution and the defense and the judge what they think without any bias.

We have had a number of wrongful conviction cases in the U.S. involving child deaths. You have been involved with some. We have had them in multiple different states. Do you think that we should be having a national review or a national discussion of how to handle these cases?

I think a discussion would be good with a prominent role to be played by the National Association of Medical Examiners would be an excellent idea, and if an office is named, accredited, or at least practicing to the NAME standard, you’re going to cut your chances of those kind of problems happening by quite a bit.

And we have had quite an evolution in the thinking about shaken baby syndrome. You are a prominent doctor who says, “I just don’t believe in it.” Do we need to have a look back at the cases of people who have gone to prison based on that theory?

Yeah. The problem is that you don’t have anything to look at. A lot of those cases, they are still alive. You can only look at the records. And, you know, I am not saying that shaken baby doesn’t exist; I have never seen one. Anatomically, I would love see to one, but I have never found [it] necessary to diagnose it. And I have seen more lightning strikes than shaken babies. I’ve seen, you know, more fatal bee stings, even more shark attacks, more dog attacks. I just don’t see it. After a while, you start becoming a little cynical about it and skeptical about its existence.

I really don’t see the necessity when I have a bruise on the scalp and a broken head, so there needs to be some sort of look at those cases, but most of them, it’s a question of nomenclature. Those actually have skull fractures and pretty bad bleed, so they are describing a mechanism and shaking. When you are talking to someone and asking them questions, they are much more likely to admit to shaking the kid than slamming that kid’s head on a kitchen counter.

And that’s more likely to be the mechanism?

Yeah. You are dealing with people, and when they’re confessing, “I just got real mad and shook him,” as opposed to “I took his head and bashed him against the wall,” you will have a lot of confessions that aren’t exactly the right thing. …

Do you think that forensic pathologists are backing away from that diagnosis?

Oh, yes, and in droves, yes. I think the ones that [have] called it, a lot of them have been basically — they’re done. Their career is done. They went too much with it. And now it’s mostly blunt-head trauma, closed-head injury is used instead. …

Should we be looking like Canada is, to require doctors to have more training, more certification, if they are going to be doing these sensitive child autopsies?

You could easily roll that into an approved forensic fellowship program and make it more of a formal rotation. It will be easily done. Most of the accredited locations where you do fellowships would have that available.

So you could build that training into the fellowship that forensic pathologists go through?

Right. I think it would be good to build that in. The thing is, you wouldn’t want to take away from the practical nature that you see everyday, but you could easily build that in, particularly [in] Miami and some of these other places that have large teaching hospitals linked, easily get your experience.

But again, a lot of the pediatric experience comes in your regular pathology training. So it really depends. I don’t think your problem with pediatrics is so much the training. I think it’s more of a mind-set than a training problem. It’s a mind-set problem.

And what’s the mind-set?

The mind-set is prosecutorial — homicide until proven otherwise. They get caught up in the anger, the emotion, the despair, and can’t do that.

What do you need?

You need objectivity. You need to separate yourself and objectify the person that you are working on and do your best to find what killed them. And don’t be afraid to admit you don’t know. Don’t be afraid to admit to reasonable possibilities of alternatives. That’s where the truth lies. …

Read more: http://www.pbs.org/wgbh/pages/frontline/the-child-cases/interviews/jon-thogmartin.html#ixzz1QcoHXMrL

Interview Dr. Michael Laposata

He is the pathologist in chief at Vanderbilt University and specializes in patients with bleeding and clotting disorders. Laposata says such disorders can manifest in ways that look like child abuse. This is the edited transcript of an interview conducted on April 27, 2011.

• Why he’s predisposed to look for blood disorders if bruising is the only evidence of abuse
• “We’re underdiagnosing child abuse far more than we’re overdiagnosing it, but what happens when we overdiagnose it?”
• “Not every case is conclusively diagnosed at autopsy…”
• How many bleeding disorders are there that can mimic child abuse?

You’re an expert in both pathology and blood-clotting diseases?

Yeah. Pathology is the broad spectrum. It is the study of the diseases. … So I suppose what you could say is I know how the diseases develop, and I also know how to treat the diseases. That’s the medical part. …

How is it that you came to be someone who looks at possible child abuse cases?

One of the major manifestations of child abuse is a bruise. … So why couldn’t a child who may have been abused, who has only bruising as a finding, simply have a bleeding disorder? That’s how we got involved.

And as you started looking at these cases where parents were accused of abusing children, what did you find?

The first case in which I got involved was a case in which there were clear signs of bruising and bleeding before the event that was thought to be associated with child abuse actually occurred. And because of those signs of bruising in advance, it raised the question that this child might have been born with a bleeding disorder and that just a mild injury could produce a big bruise. So that was probably the clue in the first case.

“I’ve been looking at patients with bleeding problems for years, more than two decades. And if you show me the two children with the bruises on their legs, I couldn’t tell you that that one is the bleeding disorder.”

In the second case, there was no obvious bleeding or bruising ahead of time, but there was an awareness that you could go through your early days without having enough bumps and bruises to identify you as a bleeder. So we simply did the blood tests, … and sure enough, we found a bleeding disorder in three children, one whose father was accused of child abuse and then his two siblings.

And then other cases appeared where there were clear abnormalities in both lab tests and easy bruisability. And it’s not always just easy bruising. In one family in which there were four sibs, three of who bled, they would not only have easy bruising, they also had significant nosebleeds. The mother told me the story one night that they all sat down to dinner, they said grace, and then three kids started to bleed. And they were all the kids who had the abnormalities in the clotting factors.

So you’ve got these cases where children are coming to you. They’re bruising; they’re bleeding. Their parents are suspected of abusing them. … What do you do? What is your plan to figure out what’s happening?

So the first step is to find out if there’s any evidence of a bleeding disorder. And I’m predisposed to look for it if all we have is bruising, because if the child has burns on the skin, if there are broken bones, old fractures, it’s much more likely that there’s child abuse. But if it’s just bruising, that puts it into a different category.

So we start with the simple tests, the tests that everybody does to look for a bleeding problem. … I think that the important thing to understand as we go forward is you can’t stop with the simple tests. They are often known as the PT [prothrombin time], the PTT [partial thromboplastin time], and the platelet count. But you have to look for things like von Willebrand disease, which would not be made clear by doing those other tests. You would have to specifically look for that. …

The challenge in all of this is sometimes the patients are really small. How much blood can you get from a living child who [is], say, three or six months old? Because these blood tests might require small amounts of blood, but in a child it’s a large amount of blood. So you can do the initial tests, and then you may have to come back and do further tests. You can’t reach your conclusion after the first analysis often because you’ve only done the simple tests. …

And when it comes to small children, what is the concern if you don’t properly diagnose a bleeding disorder? What happens then?

In these cases of is it child abuse, you have the potential for a misdiagnosis. Now, what’s very clear is that the major misdiagnosis out there with child abuse is missing it. So what happens is this child is abused, but for whatever reason, they go back into the home where they’re being abused, and when you miss that diagnosis, that’s terrible, obviously.

So we’re underdiagnosing child abuse far more than we’re overdiagnosing it, but what happens when we overdiagnose it?

Now, when you have the outrage of seeing the child who is lifeless and beaten and your first reaction is, “We have to find the person who did this,” you have to stop for a minute. You have to step back, take an analytical look. … We have to figure out if this really is child abuse, because overdiagnosis may be even worse than underdiagnosis, because not only are we affecting the child, we are now affecting another person, a parent who is being accused of abusing the child.

You’ve looked at a lot of these cases where parents are suspected of abusing their children. What happens if you get it wrong? What are the consequences?

Terrible. So in the first consequence, in the first example, this young man who was accused of abusing his daughter, who clearly had von Willebrand disease, was given the opportunity at sentencing by the judge to either admit that he had hurt his daughter purposely or to go to jail. And he said, “I love my daughter, and I simply can’t say that I did it, because I didn’t.” They put the handcuffs on him and took him to jail.

In the second case, the father had to live in the neighbor’s house because he was not allowed to be unsupervised with his children. So for an entire year, they were in this unusual situation. And the mother worked into the evening hours, and he had always given the kids their supper, gotten them ready for bed — all of that had to stop. So they no longer had their father in the traditional way that they had had him because he was not permitted to be unsupervised with his children. …

In the case of the woman with the three out of four bleeding children, she said she was accused of abusing the children on multiple occasions, [once when] they were standing in front of the supermarket where somebody saw three bruised children with her and reported her to the police, and they came to her house. So she never went to jail, but the consequences of these problems are immense.

You told me that people who don’t understand blood-clotting disorders don’t understand some of the things that you’ve seen. … Tell me about the kind of symptoms that people can have when they have these kind of disorders and diseases.

It’s surprising actually, but one of the areas that many physicians understand the least is blood clotting. … About 30 years ago, the field of hematology merged with the field of oncology, and they created a discipline called hematology-oncology. And when they created that discipline, they decided to pay for cancer care far more than caring for hematologic problems, so people who entered this discipline mostly became cancer doctors. And therefore there was not that same sense of urgency to understand the hematology, especially the clotting, and that, over the past 20 or 30 years, has reduced the number of people who are experts in coagulation.

We’ve been looking at cases where people were wrongly convicted of killing children or possibly wrongly convicted. We went to Canada; we interviewed Justice [Stephen] Goudge, who oversaw an inquiry into people being wrongly convicted of killing children there. One of his recommendations was when a forensic pathologist is dealing with a child death case, they should consult with other experts to make sure that they understand all the possible diagnoses. Is it something that you think is a good idea?

Oh, it’s a great idea. It probably doesn’t happen much. I think that if you look at many of the cases that appear in the forensic pathology suite, they are often straightforward — a gunshot wound, a stab wound. But I think it’s important to understand that not every case is conclusively diagnosed at autopsy, and bleeding disorders is one of them. …

The diagnostic testing to find out if you have bleeding disorder requires a live patient and flowing blood, so you see, this is one of those cases where to identify a bleeding disorder, you can’t do it in the forensic pathologist’s office; you have to do that in a hospital. …

And in your experience, how often do the worlds of forensic pathology and the worlds of academia and medical research and clinical treatment really overlap?

Not enough. I think that there probably are times when they overlap, and it would be highly dependent upon the forensic pathologist who would look at the case and say: “I need help. Why don’t I call somebody?”

And I’ll bet you that there are some very special forensic pathologists who do this and do a great job because of that. On the other hand — I certainly have seen it with this child abuse — is that the personal outrage of the circumstance stops people from being analytical, and then they stop asking questions.

And what happens?

And then a misdiagnosis is given a chance to occur.

And in the end?

And then somebody goes to prison who shouldn’t go to prison. …

You have a PowerPoint presentation that compares children with bleeding disorders to children who definitely have been abused.

Right.

What happens when you show it to people?

So I usually tell people in advance that the pictures are graphic because these are children who are bruised. But what I did was I took pictures of children who had a bleeding disorder and I put it right next to a picture on the same slide of a person, a child, who suffered child abuse.

And the title of the slide is “Which one of these cases is child abuse?” And nobody can ever tell. …

And what do you think of that?

Well, it shows you the magnitude of the problem. … I’ve been looking at patients with bleeding problems for years, more than two decades. And if you show me the two children with the bruises on their legs, I couldn’t tell you that that one is the bleeding disorder. I’d have to do the blood test to find out.

We’ve been looking at cases where children died, and medical examiners doing autopsies of these children either didn’t consult the medical histories and the medical records of the children or didn’t consult them very closely. What do you think of that?

Well, gee, just imagine if you came in, and you had the worst headache of your life. And we just said, we’re not worried about any of your blood tests; we’re not going to do any imaging studies. I’m just looking at you, and since it’s the worst headache in your life, I’m going to presume it’s a cerebral aneurysm, so I’m going to make an incision right here and look at the bottom of your brain.

I mean, come on, right? You have to put the whole picture together to be able to get to a diagnosis. It’s a 500-piece puzzle. And sometimes that 500-piece puzzle is a snowstorm, and it takes a long time to put the pieces together.

So in those circumstances, it seems overly presumptuous that you could just by looking at something figure out what it is. There are lots of other diagnostic pieces usually within your grasp that you need to pursue, understand, and fit them into this big puzzle until you have some satisfaction that’s the reason. …

So let’s talk about Isis [Vas] in a little more detail. This is a six-month-old baby who comes to the hospital with marks on her body, and she’s allegedly bleeding from her vagina. She has dark, tarry stools. And the police arrest the man that last had custody of her, Ernie Lopez. When you looked at her lab reports, you looked at her medical records, what made you think the police might have gotten it wrong here?

If you look at some of the findings in the lab studies that were done, and in the presentation, some of them take longer to evolve than the time period during which Ernie and the child were together.

So dark, tarry stools don’t appear in 40 minutes. So if you look at how long it takes to elevate your white count to get dark, tarry stools, to turn your liver function tests abnormal, something had to be going on for days, days. …

… The medical examiner who did Isis Vas’ autopsy [was asked], “Is it customary for you to look at lab reports before doing the autopsy?” And the medical examiner replied, “A lot of times we don’t have the lab reports.” She went on to say that basically she didn’t always consult lab reports or medical records when doing autopsies or drawing her conclusions. What do you think?

So I think part of the problem is that there is an opportunity for better communication among doctors. Is it quite possible that patients appear and they don’t have the lab tests? Absolutely. And it could be that after you’ve gotten used to not having the lab tests, you don’t think about what you would do if you had them.

But the reality is, especially for a disorder which you can only diagnose in the living patient, like a bleeding disorder, you have to look at the lab tests, because it’s your only clue. The bruise on the expired patient tells you nothing.

So in the case of Isis Vas, she came into the hospital and had a whole battery of tests done on her before she passed on.

Right.

And that could have given the medical examiner clues that she didn’t look at.

There were clear abnormalities even in the routine lab tests in this case. The tests called PT and PTT were markedly abnormal. The platelet count was low. There’s another test called fibrinogen that was low. It was a classic picture as you’re putting in this puzzle together of a disorder called DIC, disseminated intravascular coagulation, and you can bleed from that.

And there are plenty of different causes, and one of them is infection. So if you look for causes of infection, there were some clues in this — an elevated white blood cell count; she’d also had some bleeding; she had a tarry stool, so there was blood in her stool. So it was clear that she’d been bleeding for some period of time. And she had lab tests associated with the bleeding disorder. So it was a pretty good speculation that there’s an infection as a cause of this, but the one thing that’s for certain is there is a bleeding disorder.

Now, that said, one could not rule out the possibility that a child with a bleeding disorder is abused. So I think that probably makes a lot of people uncomfortable, especially in the legal system, where somebody could say, “Well, I don’t care if there was von Willebrand’s disease; this patient was beaten by the father.” Well, I think if the question in the legal system is do we have some level of doubt based upon the presence of a bleeding disorder and that’s what we’re looking for, there’s clear doubt here, because this child had a significant bleeding disorder.

When you reviewed the laboratory results for Isis, what were you thinking? How did these results compare to other patients that you’ve had?

Sometimes when you look at a report, you only have a few tests, and maybe there’s a minor abnormality. It’s very hard to interpret those because it’s hard to know if that minor abnormality really could have produced the kind of bleeding that was observed.

The difference in this case is that the abnormalities were significant. They were so very abnormal, it wasn’t a question of could this be associated with increased bleeding? It was obvious, so there was not a question in this case. And some of them are more challenging.

So you look at these lab reports, and you say, “This is a child with a very serious bleeding disorder”?

Correct.

I’ll read you something else that the medical examiner in this matter said. She was asked about the blood-clotting test, and she said: “I don’t get into PTT. I’m a forensic pathologist, and all my people are dead. We don’t run PTTs.” …

You obviously highlighted the point that was made earlier, that many people don’t understand coagulation well enough. …

Clearly, if we’re talking about bruising, the presence of a prolonged PTT and abnormal PTT test is related to that. So I think you have to know. You just have to say for the benefit of my patient, for the benefit of getting the right diagnosis every time, I have to get into it.

From the time Isis was brought into the hospital, she was treated as a suspected child abuse case. You noted when you reviewed the case that tests that would have been really helpful were not run on Isis. What are those tests, and what can help diagnose child abuse or a bleeding disorder before a child dies?

When you have a prolongation of the PT or the PTT, there are many further studies that you could do to find out why. … There are tests that you can use if you have the living patient to follow up to not only say general-category bleeding disorder, but you have DIC; you have vitamin K deficiency; you have DIC because of leukemia. And you can put all the pieces of the puzzle together. So that’s when it becomes much more comfortable to say we know there’s a bleeding disorder. …

The state’s experts in this case, they’ll say: “Dr. Laposata, you got it wrong. When a child or an adult has head trauma, they can get a blood-clotting disorder. So you know that must be what happened, that the child was beaten and got this clotting disorder. You got it wrong.” What do you say to them?

Well, they got it half right. I think it’s fair to say that there are other stimuli for what we’re calling DIC. One is infection, which is what we have proposed based upon the findings. Another one is trauma, so, yes, you could be hit on the head; yes, you could have an auto accident, and you could go into DIC.

The trouble is that all those findings that we’re talking about — liver function; test abnormalities, in particular the tarry stools — if she were hit on the head, they don’t occur in the short number of minutes that we’re talking about.

So there are multiple facts to consider here, and a lot of them relate to the temporal association of events. So if you just put the pieces together, you have to remember that you’re putting together a puzzle for the patient at time zero. And then 10 minutes later it’s a different puzzle, because now it’s evolving. And you could easily make a case when something is happening for days, like an infection that this occurred. But I think it’s a pretty difficult case to make that the inciting event for the DIC was trauma, and that over some short number of minutes all these abnormalities appeared.

Because the lab results were just so abnormal that you wouldn’t expect them to crop up in a really short period of time.

In minutes. In minutes.

In your practice, that’s not something that you’ve seen a lot of, I take it?

Correct. Correct.

So in the case of Isis, who died — and this is a case you reviewed — she had vaginal bleeding, and that was taken by the doctors who treated her and by the medical examiner who examined her as a sure sign that this child had to be sexually abused, that this was the only explanation for it. Is it possible that there is some other explanation?

Oh, sure. I’ve had a patient once who unfortunately lost the baby in the ninth month. She had a fetal death in utero. And that is also another cause for DIC. When I saw this patient, she was bleeding from every orifice, every orifice. So there was vaginal bleeding; there was bleeding in the mouth; there was bleeding from the nose. So when you have rampant DIC you can just bleed from everywhere. So I think that to conclude that [Isis] was sexually abused is an overstatement given what we know about the whole picture in this case.

And when you see these lab results, you say this is rampant DIC?

Yeah, absolutely. Absolutely.

It’s not a mild case?

It was not a mild case.

You co-authored an article about diseases and disorders that can mimic child abuse symptoms. Tell me about that.

The reason that article was written is because when I testified in the first case, the prosecuting attorney said, “How many cases are there in the medical literature that have been reported that show kids with [diseases] that look like child abuse?”

And it turns out there were really none. There was one that was a maybe, but then I realized that the problem is that doctors don’t write up and publish all of what they see. In fact, it’s only the tiniest percentage.

So for the last 20-some years, I’ve been reviewing 10 or 20 cases a day of people with bleeding or clotting disorders. And so every day I see one or two that are unusual presentations. There are new [pieces of] information, but they don’t appear in the literature, because if all I did was to write the cases, I would have no time to do all of my other responsibilities. …

I thought it was appropriate to collect all of what was out there. So we did an entire search of the literature, and we found children who had vitamin K deficiency, who had bleeding. We found people who had ITP; they had the flu; their platelet count went down; they had idiopathic thrombocytopenic purpura (ITP). …

So that article is a compilation of all of those, and since that time I’ve been able to reference that article when people say, “So, what other things masquerade as child abuse?” And now we have at least got a collection of things that are published. …

How many major diseases or disorders do you think mimic child abuse symptoms? How many are out there that are prominent?

I think that there’s probably at least a dozen prominent bleeding disorders, and then there’s plenty hundreds that are not so prominent. The question is how many of these people, how many of these kids with a bruise — just a bruise now; no burns, no broken bones on top, just a bruise — how many of these could potentially be misdiagnosed?

I think it’s a scary number. … What if 1 to 2 percent of those are misdiagnoses? We probably have hundreds of men in jail because their child had a bleeding disorder. They had a minor injury, and the father was disbelieved. And so I think the ability to go back and say, “What were those findings, and let’s review them again,” much like when DNA evidence appeared, where people were re-evaluated and it was found, goodness, you know, the DNA evidence shows that it was somebody else, and it was not you.

I think it’s time to look at these cases again and to say is there some doubt, was there really a coagulopathy here, even if we look at the simple test that I think would result in the liberation of a number of falsely accused people. And I don’t think it’s a handful. I think it’s far more, and probably in the hundreds.

That is a haunting notion.

It’s a haunting notion. I will tell you that when I was holding my six-month-old daughter in the middle of this first case of child abuse, and at six months, with her wiggling, she was sitting on my lap at the table, and she got floppy, and she went bunk, right on the table with her head.

And I thought, if she has von Willebrand’s disease I’m going to jail. And that was the scary thought about it, because who is going to believe me? …

We’ve been going around the U.S. and Canada, and what we hear from forensic pathologists is that a lot of times the mentality in the morgue is if you see a dead child, suspect immediately that the child was murdered, that this was child abuse. Is there a problem with that?

Well, yes, of course. I can understand how that thinking occurs. … But I think what’s wrong with it is there is an acceptance that we could get it wrong by overdiagnosis, and that’s OK. That part is not OK. …

And the medical examiner who did the autopsy [on Isis Vas] she says: “Dr. Laposata, you’re wrong. This child had marks from bruises where someone must have struck her. She had bleeding from her vagina, so she must have been violated. It had to be trauma because of these marks, because of this bleeding. And she had bleeding on her brain.” What do you say to that?

… I certainly know that if you have trauma, you can produce a bruise. But the reality is, when your blood is so thin, when you’re so unable to make a clot, you can just develop bruises, and they can be spontaneous. So just because there were bruises doesn’t mean that the child was ever hit.

In this case, there’s a report that the child developed a bruise after being strapped into a seat belt, a bruise up by her neck or shoulder area. Does that raise a red flag for you?

It does, because think about it a moment. What is the level of trauma associated with placing a seat belt on a child? It’s very minor. So if you develop bruises with that level of minor injury, it’s easy to assume that something a little stronger than that could produce a major bruise. …

So you reviewed the medical evidence in the Ernie Lopez case. Did you get a fee for that or any compensation? I mean, some people talk about experts, and they’ll say, “These guys are hired guns.”

Yeah. I have to say that I feel so bad, because these people are falsely accused, and they’ve had to pay for their legal defense. I’ve never charged anybody anything. One family was kind enough to give us the Marriott Miles for a family vacation.

But I asked the father, “How much did it cost you in legal expenses for this case?,” and he said, “One hundred thousand dollars.” I said, “Then you should pay me nothing.” We do it in the hospital all the time. In my role, I’m salaried. Whether I see one patient or 100 patients, I get paid what I get paid.

I think it’s just too much to think that somebody should have to have one more insult to being falsely accused, and that is to pay for this kind of support. We should do it as a public service. We the physicians need to get together in a room, talk about the case, reach a consensus. And then somebody sends you a thank-you note, and everybody feels better because the right answer was reached. …

Read more: http://www.pbs.org/wgbh/pages/frontline/the-child-cases/interviews/michael-laposata.html#ixzz1Qbc03jkn

Interview with Dr Patrick Barnes

He is a doctor and Stanford professor who specializes in pediatric radiology and neuroradiology, and also is a member of the Lucile Packard Children’s Hospital SCAN [Suspected Child Abuse and Neglect] team. Barnes was a key prosecution witness in the 1997 trial of Louise Woodward, the British nanny who was accused of shaking an 8-month-old baby to death, hitting his head and causing fatal bleeding. The trial was a turning point for Barnes — while it was clear something happened to the child, he now says, “Shaking was irrelevant in that case in retrospect.” This is the edited transcript of an interview conducted on May 26, 2011.

• Diseases that can mimic child abuse
• The Isis Vas case: why the “Sherlock Holmes” approach is ineffective in forensic pathology
• “It’s absolutely critical” to examine a child’s medical history in a possible abuse case
• The “very painful” Louise Woodward case: how it changed his thinking about shaken baby syndrome

Tell me about Isis Vas. You looked at her medical records and her CT scans and X-rays. What did you think when you saw them?

First of all, when I looked at her brain CT and saw the diffuse injury to her brain, primarily swelling, the first thing that I thought of is she may have suffered from a lack of oxygen or blood flow to her brain if she wasn’t breathing properly or if her heart wasn’t getting blood to her brain. She did have a small amount of hemorrhage between the brain and her skull, but it’s not the type of hemorrhage that we would expect to see, for instance, with trauma. So even though it potentially could have been trauma, I was beginning to want to ask questions about other medical conditions that could produce this type of brain injury, including the swelling and the bleeding.

So from the scans, you said this does not look like enough bleeding to be a typical abuse case. Is that what you are saying?

That’s correct, and we started learning mid- to late ’90s, particularly after my experience being a prosecution expert witness in the nanny case, the [Louise Woodward] case in Boston, and then when we started using more advanced imaging techniques such as MRI, we started seeing findings that we had previously attributed to abuse or shaking. Yet we started realizing there were a number of medical conditions that can affect a baby’s brain and look like the findings that we used to attribute to shaken baby syndrome or child abuse.

And what kind of medical conditions are we talking about that seem to mimic child abuse?

Infection is a very important one, and when we started really looking at these cases more carefully, we started finding babies who may have had an ongoing illness. They may have had relatively nonspecific symptoms, because a baby can’t tell you, “I have a headache,” “I have got an earache” or whatever, so they may act with just maybe irritability, not eating well; they may not be sleeping well. And sometimes they can get worse if they don’t get immediate medical attention and diagnosis, and then at some point they may crash, like this child did. So infection is very important, and undiagnosed infection may be even a virus that maybe the majority of babies may get over in a few days.

“We started realizing there were a number of medical conditions that can affect a baby’s brain and look like the findings that we used to attribute to shaken baby syndrome or child abuse.”

There is a small percentage that can progress. They may stop eating, they may not have a normal fluid balance, they get dehydration, and then they collapse and stop breathing, which is a common crash-type symptom, or they may in fact have a epileptic-type seizure. So they may progress slowly, then crash, have brain-injury findings and have a little bleeding, and then the impression might be, “Well, this baby was abused,” was either shaken — and that had to have happened just before the baby collapsed. …

And so here we have a baby that’s handed off from one caretaker — let’s say the mother, as in this case [of Isis Vas] — to another caretaker. And then the last person standing, the last caretaker when the baby crashes, it was pretty much traditional for 30 or more years that that baby had to be abused by the last caretaker. And automatically the caretaker, who could not otherwise explain the baby’s injuries, would be charged — murder, for instance, when we lose a child, such as we did in this case — and be indicted and convicted, for instance, for shaken baby syndrome, just because the baby has what at one time was thought to be the characteristic findings, what we call the “triad,” and that is the hemorrhages in the brain, subdural hemorrhages between the brain and the skull; hemorrhages in the eye; and then the brain injury.

The brain swelling?

Yeah, the brain swelling. And that could carry the case all the way through the child protection process, all the way through the criminal justice system process, and result in convictions with significant prison sentences with little investigation into what was really going on with the baby in terms of days, sometimes maybe a week or so before this happened.

So we have learned our lesson with that, particularly since we started doing more advanced imaging with magnetic resonance imaging [MRI], which is 100 to 1,000 times more powerful than CT scanning, and then we started seeing other findings that we go, you know, that’s not what we used to think we saw with trauma. We saw no traumatic brain injury, no tearing or bruising of the brain. It just looked like it didn’t get enough oxygen or blood flow.

So why did the baby stop breathing? Why did the baby’s heart stop? Maybe the baby had an infection that became sepsis. The baby bled because of that, and then the baby stopped breathing or had a seizure. So as a result of MRI showing these findings and then correlating in our research the MRI findings with postmortem much more carefully than we did, and particularly correlating the MRI findings with the laboratory testing, which in this particular child also showed the child had a bleeding and clotting problem — previously we would have blamed that on extensive shaking or a shaking-impact injury to the baby’s brain that would secondarily trigger this bleeding or clotting problem. …

When Isis came into the hospital, she had bruising on her body, she had bleeding from her vagina, she had bleeding on her brain, and the doctors at the hospital said, “This looks like abuse.” The forensic pathologist who did the autopsy said, “This child was a victim of blunt-force injuries; this child was violated; this was an attack by adults.” What’s wrong with that analysis?

… We had always assumed using the Sherlock Holmes approach that when we saw these findings that this had to be child abuse. We stopped there. We made that medical diagnosis, and then it carried over into child protection and into the criminal justice system without doing an adequate evaluation of what is going on, and then bring it forward and put it together. So once we put the details of this illness in this baby together and come from the beginning to forward, which is the logical way to analyze these cases and the proper way, it does explain all the injuries of the baby based upon a complicated medical condition.

What are the symptoms of the child [Isis Vas] and the medical history that suggests to you this wasn’t abuse? What stuck out to you that said, “Hey, this might not be child abuse”?

For instance, the pattern of the brain injury made us think something other than abuse. The pattern of the bleeding in the baby’s brain made us think of something other than abuse. We found no evidence on the brain imaging, the CT scan, for instance. And as I recall, on the postmortem imaging, [there was] no impact-type injury to this baby’s brain, tearing, bruising of the brain itself. So those were the types of things that we pay attention to. Of course, a baby that presents with bruises or bleeding, we pay attention to that. And yes, that certainly could be due to impact like trauma, but there ought to be other physical signs of impact trauma or imaging signs of impact trauma.

So that’s, in my mind, what was really lacking in this case, both on the imaging as well as on the postmortem examination, and even though the baby did have an old healing clavicle fracture, that was much older than what could be attributed to this more acute presentation, where most people thought that the beating had to have happened by the second caretaker as opposed to the first caretaker, and trying to split that by a matter of hours or parts of a day between the two. Also, any potential rib deformities that were old or new or acute. So it didn’t all come together as a single acute assault-type of injury pattern. So that’s when we start looking at the other aspects of the case.

This was a child who had a PTT [partial thromboplastin time] score that was off the scale. What does that say to you?

Well, that’s when we start looking into bleeding and clotting problems. That is telling us we have a severe problem, or the baby did, with normal clotting, and she is bleeding because that particular measure of clotting was so far off the scale. And correlating with these multiple areas of breathing or bruising, if we had trauma causing that, there should have been extensive traumatic injury to this child’s brain, tearing of the brain, bruising of the brain, because if you are going to get a secondary bleeding or clotting problem from trauma to the brain, it is that tearing and bruising of the brain that incites that type of bleeding. This baby had none of those findings on the imaging or the postmortem.

If that’s true, you have to start considering other causes of bleeding. Infection, particularly if it spreads, is a cause of bleeding in babies, and we know that particularly if that’s progressing and going on for a while. And if the baby also then stops breathing or the heart stops and there is not getting any oxygen in the brain and you get injury from that, that can contribute to the bleeding. So that particular parameter in itself was quite suspicious for a process going on that was really a medical condition or a natural condition, not a traumatic condition.

Now, the forensic pathologist who did the autopsy shall say: “Dr. Barnes, you got it wrong. Children can get blood-clotting disorders after they have had head trauma. This blood-clotting disorder could have come from the child being abused.” What do you say to that?

What I say to that is if that’s true, then you have to show that there is traumatic injury associated with the abuse, OK? And there was no traumatic injury, direct traumatic injury to this baby’s brain on the imaging or the postmortem. …

Can you get a PTT score of 212 [as was the case with Isis Vas] within an hour of sustaining a head injury, in your experience?

I think you could, but it would have to be massive brain injury that we have seen in some children with high-impact brain injuries — diffuse tearing, extensive tearing of the brain, extensive bruising of the brain — and then the release from that injury of those chemical factors that can be associated with this type of bleeding, particularly what we call multiple-trauma victims, not just brain injury but those that particularly have multiple injuries elsewhere — acute bone injuries; acute muscle injury; acute injury, for instance, to the heart or chest. And now you have much more extensive trauma that can trigger to have bleeding parameters that [are] out of normal range. This child had none of those.

So we would be talking about car crash-type injuries?

Yes, and potentially a massive assault by an individual on a child, which would usually be a beating. That would be the classic situation — usually a beating and breaking of bones, impact to the abdomen, injury to the organs, extensive injury that releases these chemicals that then trigger that type of bleeding or a problem. We had none of that in this particular case.

So you just didn’t see the type of injuries that would trigger a clotting disorder of that magnitude?

Correct. And none of those factors supported a secondary bleeding or a clotting problem due to trauma, because we did not have findings of that type of trauma in this case. And that’s true of many other cases that we see of alleged or suspected shaken baby syndrome. So we have gotten smarter in the last decade or so about these.

So our new approaches to this, my part of [it] as being a co-founder of [a] child abuse task force the last 10 years, coming from Boston, and now working with multiple specialists in addition to our child abuse pediatrician and a much more careful approach to these cases, a proper medical workup. While we are also using our very good social workers and our child protection professionals to help us sort out caretaker issues, at-risk potential family members, other caretakers who are protecting the child and the family, and the caretaker is on one side, a simultaneous process [is occurring] while we are also doing the medical workup and getting detailed historical data having to get the records, and maybe even talk directly with prior caretakers to sort out the story and not just automatically turn the case over to police investigators, for instance. So we have really changed our approach to this to a much more thoughtful and compassionate approach.

That was something I wanted to ask you about. As we have been looking at these cases around the country, one thing that seems to come up repeatedly is whether the hospital doctors and whether the forensic pathologists are delving into the child’s past, whether they are looking at lab reports in great detail, whether they are looking at medical history. How important do you think it is to go into a child’s past when you have a possible abuse case?

It’s absolutely critical, because number one, we no longer want to make the mistake of the misdiagnosis, and it really can’t be a medical diagnosis any longer, a misdiagnosis of child abuse when it really doesn’t exist because of what it means to that child, that caretaker or that family. …

Number two, we want to protect that child, particularly a child that may have had a previously undiagnosed condition. Now that we have the advanced laboratory techniques and the advanced imaging to do that, we no longer do what we did in past decades, and that is just because a child presents with a triad, we assume child abuse, and we don’t do the medical workup, and then we find at a postmortem exam when we have lost the child that there was a different diagnosis. Now we have made a huge error.

It is critically important, particularly for children and babies six months and younger, because at that age they could actually have conditions that have yet been diagnosed that stem from birth process, that are delayed effects of trauma at birth or other conditions passed from the mother to the baby and so forth. Plus, for the babies that we lose, or even if they survive, number one, we need to diagnose those conditions, because even if the baby survived, that baby may suffer another episode due to that medical condition. We didn’t diagnose it, we didn’t treat it, or we lost the baby, let’s say, and the mother and father who may have been thinking that the caretaker did this to the baby want to have other children. And if we didn’t diagnose that condition that maybe the next child may have, then we have done a disservice to family planning for that family.

Plus, even in the case that I have seen and others have seen that we cannot 100 percent say that there has not been some neglect or abuse, yet we have diagnosed a predisposing condition, those children need to be protected, but they need to be treated. We have found that many of our physicians were not going back and doing those adequate evaluations of past history, even back to birth and pregnancy. We found that adequate tests were often not being done, and what’s even more unethical, if you want to put it that way, is we had children who we assumed were abused, and then we turned our backs on them. We didn’t follow them up. There were pediatricians and other doctors who did not want to see children that had been abused or parents that may have been accused [of] abuse, so they were being discriminated against.

We have a 100-year history of discrimination regarding mothers, their babies and young children that we’re just now getting around to realizing. There are conditions there that can predispose children to brain and bone findings that look just like abuse, particularly under six months, and actually stem from conditions in the mother passed on to the baby. So the important thing here is a much more compassionate, thoughtful, comprehensive approach in these cases, particularly if we have an injured child that maybe is not too severely injured but did have injuries, and that’s to do our best to help bring the families back together if we can with that child ultimately — reunification — look after that child and family with regard to their follow-up care and diagnosis for any of these predisposing or complicating conditions.

And because in this particular era of American [medicine], with all of our cultural challenges, the lack of adequate education, people being sent home from the hospital with sick preemies, not adequately being educated on how to take care of them — and, for instance, sick preemies become babies who are thought to be abused when in fact that they were premature was part of why they had these type of injuries.

So our approach has changed from working at the back end, calling [it] child abuse — breaking up the family, sending the other children elsewhere, maybe they go to foster care, and then they are adopted out of state, never seen again, send one or both parents to prison — breaking up that family to now really working hard with our professionals to try to hold these families together better. …

What was it exactly about the Louise Woodward case that made you rethink your approach to child abuse?

It was a very painful case. … The baby had a skull fracture, and even though we were talking about shaking in that instance, we couldn’t really time the skull fracture [so] that it had happened within a few hours of when the baby came to Children’s [Hospital Boston], and that would implicate the nanny as opposed to anyone else. That could have been an older skull fracture.

The collection between the brain and the skull on that baby’s head and the bleeding in it, that may have all happened during that period of time, but the imaging didn’t exclude that there was an older collection with a new bleed in it. Plus, the baby had a much older fracture of the wrist that was up to four weeks old, and there were rumors that maybe there had been some prior, maybe accidental traumatic event in that baby.

So I was really affected by all of that and began to question my role as a pediatric radiologist and a neuroradiologist as part of the child abuse team in these particular cases and [decided] that I needed to be more proactive in these cases and insist that we do more thorough investigations in these particular cases. …

Do you think Louise Woodward was wrongly convicted?

I think it’s possible. I think looking back on the case — and subsequently I was contacted by writers about that case. Looking back on it, and [taking] a second look and [thinking] about some other individuals that had come forward, witnesses about other things that may have been going on in that home or elsewhere, I was forwarding this information on. And I knew from that point on that I just have to be more careful with these cases. I do believe it was a trauma case; it wasn’t a medical condition. It could have been potentially abuse. I am not sure Louise Woodward was the one who abused the child. …

[Editor's Note: In October 1997, British au pair Louise Woodward was convicted of second-degree murder in the death of 8-month-old Matthew Eappen, who was in her care. Less than a month later, the judge in the case reduced her sentence to involuntary manslaughter and sentenced her to time served.]

… Do you think the child in that case was shaken to death?

No, the child had an impact injury. You can’t get a skull fracture from shaking. You can’t get a wrist fracture from shaking. The child had a traumatic impact injury. Shaking was irrelevant in that case in retrospect.

But the prosecution’s theory was this child was shaken.

That’s correct. And at that time, that was my theory going into that case, based on my previous 20 years of experience in child abuse and accepting shaken baby syndrome without ever questioning it. And that case changed my entire approach. …

If you were called to testify in the Woodward case today, what would you say?

I would say that this is most likely a traumatic impact injury, that I would not be considering shaking, that this could be accidental just as it could be non-accidental or abusive. And I would say that from the imaging findings, my area of expertise, you cannot select out, accuse, indict or convict any particular caretaker based on the medical evidence that we have.

Do you believe it is possible to shake a small child to death?

I believe in a situation, that the current state of research and science shows, and particularly for babies under six months of age, [what] I am concerned [about] particularly with a violent shake, and maybe not so much violent shaking but a baby that [is] maybe shaken. But there is an impact associated with it, is [there] the possibility that for these particularly young infants that don’t have good head control and they have very weak necks. It would be the neck that would, with severe shaking, potentially, that could be injured, and a neck injury particularly involving the spinal cord and the upper neck where it attaches to the brain stem at the skull base where the breathing center is, for instance, could potentially be lethal.

So that’s the one scenario that I would worry about with a potentially violent shaking, or what may not be a shake at all, but an assault that would involve impact.

We spoke to a shaken baby theory proponent the other day, and this person said to us: “We have never said that these children were only shaken. We have always said that there had to be some impact along the way, that they were shaken and their small heads hit something as well.” Is that true?

No, that’s not true. For 20 years prior to the nanny case in the mid- to late-’90s, we were implicating shaking for just about every injury that we are seeing, particularly in the young infants. …

And looking back on it, does it seem strange to you that you would see these children presenting with bleeding on the brain but no bruising on their heads, no sign that their head had hit anything?

Yes, that was very important. Probably the next case that opened my eyes was the baby [Mariah] Scoon case in New York that I was, after the nanny case, asked by the defense to review. And that was a very sick young baby girl, former preemie, who had meningitis and strokes in the brain and the imaging supported that, and the postmortem, yet the father was convicted of shaken baby syndrome.

Do you believe people have been wrongly convicted of shaking their children to death?

I do, yes.

Is it a big number? Is it a small number? I mean, what’s your guess?

I don’t know for sure. What I am worried about and concerned about in terms of my role in the past and even what continues to this day [is] that there is more than we think that have been convicted because of shaken baby syndrome. …

So there is a whole range of cases in which people may have been wrongly convicted of killing children. Is that correct?

Yes. And that’s why it’s so important for the pediatricians who are training in child abuse pediatrics, now that it’s board-certified, is to make sure they have the adequate training outside of child abuse and keep up on the conditions and the environmental conditions and the safety factors out there that can hurt children that have nothing to do with abuse.

That’s just in the environment and the safety issues at home, that accidental injuries can happen at home that can hurt and kill children that are not abused. … There is a lot of factors going on that really have to be looked at more carefully and in fact are being looked at more carefully: the lack of good nutrition in this country — I’ve talked about vitamin D deficiency, but deficiencies in other nutrients that can be passed on from mother to baby; toxic factors in the environment; child safety factors with regard to child seats and child swings and child toys. And this means we need to be better with educating our new parents about those potential safety issues, things that can happen in the home that are accidental but get called child abuse. …

I want to run a scenario by you. A child dies in the hospital after having three probes inserted into his head. When the child is autopsied, the forensic pathologist says, “These three bruises on the child’s head were caused by abuse.” What does that say about the forensic pathologist?

Yes, we have seen other cases like that, where some of the pathologists — there is a total disconnect with the process of a postmortem examination in isolation, [where it's] separate from the medical record, completely dissociated, out of context, and that’s, believe it or not, still happening in some cases that we see. We just can’t allow that to continue to happen, particularly once it gets into the justice system. Then here come the experts who go back through and look at everything that they should look at everything in a proper CSI way, right, crime scene investigation way, you know? So that’s a big problem. …

But you have seen that in other cases, where it seems like there is a disconnect between the doctor and the morgue and the doctor and the hospital.

Yes. For instance, a situation where I looked at a postmortem exam and a pathologist reported a laceration in the right frontal lobe, and I looked at the imaging, and there was a probe put there, a catheter by the surgeon to try to help reduce the pressure in the baby’s brain, and I go, “You know, that’s not really a penetrating traumatic abusive brain injury; that was a medical intervention.” …

The stance you have taken is not popular with a lot of people. A lot of people who have similar views in the medical field to you did not want to go on camera with us. Tell me about that.

Well, I didn’t either. And I have really tried to stay away from this. I didn’t want to do The New York Times Magazine article recently. But after participating in a number [of cases] for [the] Innocence Project in this country, and the Innocence’s cases convicted individuals getting new trials and everything and looking at the entire environment on all of this, I just felt that it was important to be more involved and hopefully, possibly become maybe not so much a leader, but [a] modeler in this particular area, and for us to develop these types of model programs, because I see abused children as part of our child abuse team.

We see neglected children; we see abused children, physically abused, and we see sexually abused children. But we make sure that those cases that are alleged cases get — we are doing our best to get a thorough workup, and we get the right specialists involved and come to determination that maybe this is not abuse.

So instead of splitting up the family, sending someone to jail, let’s do our best, and it takes a lot more work to do that, to protect this child and the other children in the family, and see if there is a process working with our very good social workers and child protection workers, that we can bring these individuals back together, because what we have found in the past, talking with public defender[s], colleagues of mine, that children who have been separated from parents, for instance, say, on alleged child abuse and maybe they have gone in a foster home, or maybe have been adopted, something like over 50 percent of those children when they get older want to go back and find their original parents and try to reunify [sic]. I was struck by that, and those are cases that in retrospect you look at and go, “This may not have been abuse at all.” …

Read more: http://www.pbs.org/wgbh/pages/frontline/the-child-cases/interviews/patrick-barnes.html#ixzz1QbYGi0cT

A “Live Chat” About Shaken Baby Syndrome

June 28, 2011, 3:37 pm

By LISA BELKIN

So many of you were troubled and transfixed by Emily Bazelon’s New York Times Magazine article in February about Shaken Baby Syndrome — and the growing evidence that caregivers might be wrongly accused.

Tonight “Frontline,” in collaboration with the investigative Web site ProPublica and NPR, will air (and also post online) a documentary on the same subject.

Watch the full episode. See more FRONTLINE.

“The Child Cases,” which you can watch on PBS at 9 p.m., or view here on your computer, looks at “more than 20 pediatric death cases in which people were jailed on medical evidence – involving abuse, assault and “shaken baby syndrome” – that was later found to be unreliable or simply wrong. The film goes deep inside several cases to assess what’s happening and why. Are death investigators being properly trained for child cases?”

As the companion story on ProPublica’s Web site begins:

Her name was Isis Charm Vas and at 6 months old she was a slight child — fifth percentile in height and weight.
When the ambulance sped her to Northwest Texas Hospital on a Saturday morning in October 2000, doctors and nurses feared that someone had done something awful to her delicate little body.

A constellation of bruises stretched across her pale skin. CT scans showed blood pooling on her brain and swelling. Her vagina was bleeding, as well. The damage was so severe that her body’s vital organs were shutting down.

Less than 24 hours later, Isis died.

An autopsy bolstered the initial suspicions that she’d been abused. Dr. Joni McClain, a forensic pathologist, ruled Isis’ death a homicide and said the baby had been sexually violated. McClain would later describe it as a “classic” case of blunt force trauma, the type of damage often done by a beating.

The police investigation that followed was constructed almost entirely from medical evidence. In the end, prosecutors indicted one of the child’s babysitters: Ernie Lopez.

Today, Lopez is serving a 60-year prison term for sexual assault and is still facing capital murder charges.

But in the years since Lopez was sent to the penitentiary, a growing body of evidence has emerged suggesting that McClain and the hospital staffers were wrong about what happened to Isis — and that her death was not the result of a criminal attack.

If Lopez is ultimately exonerated, his case will not be unique. An investigation by ProPublica, PBS “Frontline” and NPR has found that medical examiners and coroners have repeatedly mishandled cases of infant and child deaths, helping to put innocent people behind bars.

Then, tomorrow, we can talk about this together, in real time. Motherlode is teaming with journalists from “Frontline,” ProPublica and NPR, for an hourlong live chat to be posted simultaneously on all four sites. Just come to Motherlode at 1 p.m.  on Wednesday June 29 and participate. Emily Bazelon will be moderating and anyone can ask a question (you don’t need a user account). I know I will be asking a few.

See you then? Tough subject. Vitally important conversation.

 

Source

http://parenting.blogs.nytimes.com/2011/06/28/a-live-chat-about-shaken-baby-syndrome/

Is Shaken Baby Syndrome Real?

Tuesday, June 28, 201

Shaken baby syndrome has been the diagnosis for hundreds of untimely infant deaths for years. But more and more cases of alleged baby shaking are facing doubt by experts in the medical community. A new Frontline documentary, airing tonight on PBS stations, looks at some of these cases.

It’s called “The Child Cases,” and it’s directed by A.C. Thompson, who joins us from WGBH in Boston. Dr. Jon Thogmartin, Florida’s district 6 medical examiner appears in the Frontline special. He joins us from Clearwater, Fla.

Guests:

Jon Thogmartin and A.C. Thompson

Produced by:

Kristen Meinzer

Source:

http://www.thetakeaway.org/2011/jun/28/shaken-baby-syndrome-real/?utm_source=feedburner&utm_medium=%24{feed}&utm_campaign=Feed%3A+%24{takeaway}+%28%24{The+Takeaway}%29

The Hardest Cases When Children Die, Justice Can Be Elusive

 

by A.C. Thompson and Chisun Lee, ProPublica, and Joe Shapiro and Sandra Bartlett, NPR June 28, 2011, 12 a.m.

This story was produced in collaboration with PBS “Frontline” and NPR.

Her name was Isis Charm Vas and at 6 months old she was a slight child — fifth percentile in height and weight.

When the ambulance sped her to Northwest Texas Hospital on a Saturday morning in October 2000, doctors and nurses feared that someone had done something awful to her delicate little body.

A constellation of bruises stretched across her pale skin. CT scans showed blood pooling on her brain and swelling. Her vagina was bleeding, as well. The damage was so severe that her body’s vital organs were shutting down.

Less than 24 hours later, Isis died.

An autopsy bolstered the initial suspicions that she’d been abused. Dr. Joni McClain, a forensic pathologist, ruled Isis’ death a homicide and said the baby had been sexually violated. McClain would later describe it as a “classic” case of blunt force trauma, the type of damage often done by a beating.

The police investigation that followed was constructed almost entirely from medical evidence. In the end, prosecutors indicted one of the child’s babysitters: Ernie Lopez.

Today, Lopez is serving a 60-year prison term for sexual assault and is still facing capital murder charges.

But in the years since Lopez was sent to the penitentiary, a growing body of evidence has emerged suggesting that McClain and the hospital staffers were wrong about what happened to Isis — and that her death was not the result of a criminal attack.

If Lopez is ultimately exonerated, his case will not be unique. An investigation by ProPublica, PBS “Frontline” and NPR has found that medical examiners and coroners have repeatedly mishandled cases of infant and child deaths, helping to put innocent people behind bars.

We analyzed nearly two dozen cases in the United States and Canada in which people have been accused of killing children based on flawed or biased work by forensic pathologists, and then later cleared.

Some spent years in prison before courts overturned their convictions. In 2004, San Diego prosecutors moved to dismiss charges against a man who’d been imprisoned for two decades for murdering his girlfriend’s son.

Others were freed more swiftly but endured hardships nonetheless. An El Paso, Texas, jury acquitted a woman of killing her child in 2010, but after spending 22 months in the county jail, she still had to wage a legal battle to regain custody of her other children.

The questionable prosecutions identified in our investigation had common elements:

Often, authorities had little to go on other than autopsy findings. Many of the doctors who conducted post-mortem examinations failed to consult specialists in childhood injuries or ailments, or to thoroughly review medical records that could have affected their conclusions. In several cases, forensic pathologists worked so closely with authorities, they effectively became agents of law enforcement, rather than objective arbiters of scientific evidence.

Some experts in the field say worries about mistakes in child death cases are overstated. “The vast majority of forensic pathologists recognize a child abuse case when they see it, and it’s not because they want to persecute people,” said Dr. Mary Case, chief medical examiner for four Missouri counties including St. Louis County.

But others say the criminal justice system has yet to confront the full scope of the problem, and that, as a result, more innocent people may be serving time for crimes they didn’t commit. “I think it’s time to look at these cases again,” said Dr. Michael Laposata, chief pathologist at Vanderbilt University Medical Center, adding that this could “result in the liberation of a number of falsely accused people.”

Lopez, 40, a soft-spoken man with a slight twang, still can’t quite believe he may spend the rest of his life locked up for something he says he didn’t do: harming the infant he nicknamed “Little Bird.”

“Sometimes I wake up and I look at my cell and man, it just hits me: You know, I’m in prison,” he said in an interview. “I never thought I would be in prison, never in a hundred years.”

* * *

Isis Charm Vas (Source: District Court of Potter County, Texas)

At 10:55 a.m. on Oct. 28, 2000, Ernie Lopez grabbed the cordless phone at his house and punched in the numbers 9-1-1.”What’s going on? What’s going on?” asked the operator.

“OK, my … We’re babysitting this little baby girl for Dr. Vas,” said Lopez, according to a recording and transcript of the call. A spider, he explained, had bitten Isis a week earlier, “and she’s been acting funny ever since.”

Lopez and his wife, DeAnn, regularly babysat Isis and her two older siblings, both toddlers. The children’s mother, Veronica Vas, was a physician at a nearby hospital, and on that morning she was on her way to Detroit for the weekend.

Lopez, a burly, gregarious man who worked as a mechanic, was looking after the children while DeAnn went shopping for a dress for the annual Lopez family Christmas photo, scheduled to be taken that afternoon. He had been watching the Vas children for 40 minutes when he called for an ambulance.

“Is she breathing right now?” asked the operator.

“No, she’s not breathing on her own. I was fixing to put her in a bath and she stopped breathing and I have been trying to get her CPR for the last two to three minutes,” Lopez replied, stress permeating his voice.

On the phone, Lopez described his efforts to revive Isis. “I tried to slap her on the bottom and slap her on the face and she won’t wake up. She won’t do nothing.” Blood spilled from her mouth. “She was bit about 14 times. … She’s got all these bruises around her neck and on her face where she was bitten.” After the ambulance arrived at his modest one-story home, Lopez rode with Isis to the emergency room.

Police detectives, alerted by hospital staffers, quickly showed up at the hospital to question Lopez. He wept as he spoke to the officers.

They weren’t the only people asking questions. One of Lopez’s brothers pulled him into a hospital bathroom and confronted him. Had he attacked the infant? “I said, ‘No, I didn’t do this,’” recalled Lopez. “Why would I do it?”

By the time Isis died a day later, police had arrested Lopez.

The body of the baby, wrapped in a colorful blanket, was transported to Dallas, where McClain performed the autopsy. To the doctor, the evidence pointed to sexual assault and murder.

“It is my opinion that Isis Charm Vas, a 6-month-old white female, died as the result of multiple blunt force injuries,” McClain wrote in the autopsy report. (McClain declined to comment for this story.)

For police, solving the case was an exercise in elimination. Lopez was the only adult present when Isis collapsed. That made him the sole suspect. Who else could have done it?

In October 2001, a grand jury indicted Lopez on charges of capital murder and sexually assaulting a young child.

* * *

Justice Stephen Goudge conducted an extensive inquiry into Ontario’s forensic pathology system. (Photo courtesy of PBS Frontline)

Forensic pathologists like McClain play a critical role at the intersection of medicine and law enforcement. Employed by medical examiners and coroners’ offices, they are called in to figure out how people have died. They scrutinize corpses, searching for clues. Was the person murdered? Was it suicide? An accidental overdose? A heart attack?Their findings carry enormous weight within the criminal justice system. As anyone who’s watched an episode of “CSI” knows, if a forensic pathologist says it’s a homicide, police will soon be hunting for the killer.

Though depicted as glamorous and high-tech on TV, the field of death investigation is plagued by chronic underfunding, a shortage of specialists, and a lack of national standards, according to a 2009 report by the National Academy of Sciences.

Many of the nation’s morgues are staffed by doctors who aren’t board-certified in forensic pathology. To become certified, doctors need an extra year of training and must pass a day-long test. Earlier this year, an investigation by ProPublica, “Frontline” and NPR showed that more than 100 physicians without board certification were working at the country’s busiest coroner and medical examiner offices.

Even for the best educated and trained doctors, performing an autopsy on a baby or young child poses particular technical challenges. Their developing bodies function differently. It’s why doctors who treat living children — pediatricians — receive different training than those who deal with adults.

“Adults are generally tougher and harder to kill then a small child. Particularly an infant,” said Dr. Jon Thogmartin, chief medical examiner for Pasco and Pinellas counties in Florida, a jurisdiction that includes St. Petersburg. “So, you’re looking for very subtle signs of trauma or pressure, or small amounts of bleeding that could potentially cause a kid severe illness or death.”

When toddlers and infants die, autopsies frequently play a primary role in the police investigation. Adults often kill one another in public places where witnesses might catch glimpses of the violence. They tend to use guns or knives, weapons that leave obvious and distinct wounds. When adults kill children, they are more likely to use their hands and to commit their crimes out of view of anyone else.

“Often there are only two pieces of evidence,” said Justice Stephen Goudge, a Canadian judge who conducted an extensive inquiry into Ontario’s forensic pathology system. “The first: who had care of the infant in the hours leading up to the death, normally a parent or caretaker. And secondly, the forensic pathology, which attempts to give an opinion on what the cause of death was.” If the autopsy findings are flawed, the judge said, “then the risk of a miscarriage of justice is high.”

Thogmartin said the charged emotions inevitably triggered by a child’s death add another layer of complexity. Forensic pathologists, in his view, can get “caught up in the anger, the emotion, the despair.” Their mindset can become prosecutorial, Thogmartin said, until every child death is a “homicide until proven otherwise.” When he took on his current job as chief medical examiner in 2000, he stressed the need for neutrality to his staff.

“As a forensic pathologist, I don’t testify for the state. I don’t testify for the defense. I testify for the decedent,” he said. “They are not able to talk, so I try to talk for them.”

Thogmartin overruled the autopsy conclusions in two child death cases handled by his predecessors that he said might have been colored by bias. In one case, a man was four years into a 10-year prison term for killing his infant son. In the other, a father was facing trial on murder charges for killing his 7-month-old daughter.

When Thogmartin sifted through the autopsy files and tissue samples, he was shocked: He saw no evidence of violence. In his opinion, the children had died of natural causes.

Both men were subsequently cleared by the courts, but even the one exonerated before standing trial suffered life changing consequences, Thogmartin said. “That unfortunate gentleman had his life turned upside down. … His life was destroyed.”

* * *

Dr. Jon Thogmartin, chief medical examiner for Pasco and Pinellas counties in Florida (Photo courtesy of PBS Frontline)

Ernie Lopez was born in Amarillo, a dust-swept, blue-collar city in the northern reaches of Texas and spent most of his life there.His father, Ernest Sr., toiled as a diesel mechanic at a Caterpillar dealership. Lopez, too, was fascinated by motors. At 13 or 14, he replaced a wrecked engine cylinder on a Kawasaki dirt bike all by himself. He moved on to American muscle cars, spending weekends screaming across the asphalt at the drag strip on the edge of town and weekday evenings tuning his Ford Mustang.

His mother, Rosa, operated a daycare center for neighborhood children out of the family home. Growing up, Lopez said, “we had kids all the time in the house.”

By the time he turned 30, Lopez had three children of his own, two with DeAnn and one from an earlier relationship.

Lopez and DeAnn lived across the street from the house he’d been raised in, where his mom and dad still lived. His brother Eddie lived next door to their parents. His brother Sabian lived a few minutes down the road. The whole tribe often converged at Rosa and Ernest Sr.’s home for barbeques and birthdays and holidays, the grandchildren scampering up the big willow tree out front.

Lopez “was a good dad, a very good dad, a very good uncle to my kids and to Sabian’s kids,” said Eddie, a heavily muscled truck driver.

Lopez worked at Hand Industrial, a company that manufactures and repairs heavy factory equipment. “At work, Ernie stood out as a very gentle person,” said Becky Hand, the firm’s accountant and office manager, in a court affidavit. “He would joke with the other male employees, but he was softer and kinder.”

In the days before Isis died, Hand said, Lopez had asked her for advice because the baby “hadn’t been eating and was lethargic,” and he was worried that she might be seriously ill. Lopez was also alarmed by the marks on her face. “He said they started above one eyebrow and were almost in a pattern. … Ernie said the bumps were strange and weren’t like anything he’d seen before,” Hand stated.

After Isis’ death, the child protection system swung into action, tapping psychologist Edwin Basham to determine if Lopez should be separated from his own children while awaiting trial. Basham figures he has done around 4,000 such evaluations, including some on people who’ve admitted to killing children. Child abusers, in his experience, “have difficulty coping with relationships, with stress. They lose their temper. They blow up.”

In Lopez, he saw none of the normal warning signs — Lopez had no previous criminal record, no history of domestic dysfunction, no issues with drugs or alcohol. “He seemed to be a very concerned, family-focused kind of person,” recalled Basham, who wrote in his 2001 report that he could find “no signs of serious psychological problems.”

Lopez was confident he’d be cleared by the courts because he had done nothing wrong, Basham said. But after interviewing Lopez, the psychologist had an uneasy feeling. “He was caught up in this legal system that was determined to convict somebody,” Basham said. “They had a dead baby. Somebody was going to get convicted of it. And he was nominated.”

* * *

Veronica Vas, with her children, from left, Alex, Isis and Emily (Source: District Court of Potter County, Texas)

The trial of Ernie Lopez began in April 2003.Potter County prosecutors decided to try him only on the sexual assault charge; the capital murder charge was left pending, allowing prosecutors to try him for that offense at any time.

There were no witnesses to the alleged attack, and Lopez had not confessed, so the prosecution’s case relied heavily on medical testimony. Over five days, a stream of doctors and nurses who had treated Isis at the hospital told the jury she must have been brutalized.

Dr. Eric Levy, who treated Isis in the hospital’s pediatric intensive care unit, said the child’s symptoms indicated she had been the victim of a violent attack. Looking at a photo of the baby’s lower half, Levy pointed out bruise after bruise.

Michelle Gorday, a veteran nurse who specialized in sexual assault examinations, said it was one of the worst cases she’d witnessed in her 20-year career. “I’ve never … ever seen that kind of trauma,” she testified.

The defense called no expert witnesses. Basham, the psychologist, was surprised Lopez’s attorneys never asked him to testify. “I would have said that there wasn’t a basis to suggest that he would be someone likely to have harmed a child,” Basham said.

Lopez chose to take the stand, insisting he had never hurt Isis and testifying about the strange ailments that shadowed the last days of her life.

With each day, more health issues cropped up, he said. Blood spots speckled Isis’ left eye. Congestion made it hard for her to breathe, prompting the Lopezes to treat the baby with a nebulizer. When Lopez changed her soiled diapers, her fecal matter, he testified, was “black” and “really thick and sticky.”

DeAnn Lopez corroborated her husband’s testimony. When Isis’ mother brought the baby to the Lopez home on Oct. 25, the child had bumps on her head and bruises on her chest, DeAnn told the jury. The infant was “lethargic” and reluctant to drink from her bottle, DeAnn said, consuming about six ounces of liquid over the span of several days, far less than a healthy 6-month-old would have.

Veronica Vas, Isis’ mother, disputed the Lopezes’ account, maintaining that Isis was only mildly ill before she died. “She had about six little bumps on the left side of her forehead, but those were already healing up,” Vas testified. The baby’s energy level was “quite normal.”

Addressing the jury, Assistant District Attorney J. Patrick Murphy summed up the case by saying, “Common sense tells you who had to have done it. … This child could not fight back. This child could not consent. This child could do nothing but lay there.” The jury found Lopez guilty.

McClain, the medical examiner, testified in the sentencing phase of the trial, telling the jury she had ruled Isis’ death a homicide and detailing what she discovered during the autopsy. The baby, she said, suffered a “laceration of the vagina area” and injuries to her brain.

“The brain is covered by a thick fibrous covering called the dura,” the forensic pathologist testified. “There was a hemorrhage beneath this dura, on top of the brain.” Such bleeding, explained the doctor, can occur when a baby’s brain is buffeted by a powerful impact.

“In this case,” McClain continued, “we know the head has struck something, because we’ve got bruising in that area.”

Scrutinizing Isis’ eye tissue under a microscope, McClain said, she had discovered more bleeding, which she interpreted as another indicator of violent head trauma. Seven other doctors in her office had reviewed the case and concurred with her findings, McClain added.

Lopez was sentenced to 60 years.

Stunned, he turned to his brother Eddie. “It’s like we’re at my funeral,” he said, “but I’m still alive.”

* * *

Dr. Michael Laposata, chief pathologist at Vanderbilt University Medical Center (Photo courtesy of PBS Frontline)

Heather Kirkwood was an unlikely candidate to take on Lopez’s case. She had spent the bulk of her career litigating anti-trust cases for the Federal Trade Commission, and she lives 1,700 miles away in Seattle.After learning about Lopez from a relative living in Texas, Kirkwood agreed to represent him. For her, Isis’ death presented a fascinating jigsaw puzzle to solve. Lopez struck her as “a nice young man” and the “circumstances of the case seemed weird as hell.”

“My gut sense kept telling me this was a sick baby who was neglected,” she said.

After taking on Lopez’s case, Kirkwood started contacting physicians in hopes of getting them to analyze Isis’ medical history. She sent a stack of documents to Dr. Richard Soderstrom, an emeritus professor of gynecology at the University of Washington. As an adviser to the Food and Drug Administration, Soderstrom served on a panel that studied the accuracy and safety of the colposcope, a device that can be used to take photos of injuries in sexual assault exams.

Isis Vas had been examined using a colposcope. But as Soderstrom stared at the photos taken of her, he wasn’t convinced that she’d been violated. “I couldn’t see anything that would say, beyond a reasonable doubt, that there was penetration,” he said.

Soderstrom gave a sworn affidavit stating that, in his opinion, the photos did not suggest there had been sexual abuse. No semen or pubic hair had been found on Isis’ body. Further, Soderstrom said, the lack of injuries to the child’s inner thighs, labia major, and hymen, was “inconsistent with abuse.”

Kirkwood also approached Dr. Michael Laposata, the chief pathologist for Vanderbilt University Medical Center in Nashville and a leading expert on blood disorders. At Laposata’s sprawling lab, white-coated technologists run some 6 million tests per year, feeding a never-ending line of blood samples into an array of machines.

Looking at the file on Isis, Laposata quickly homed in on the tests run on her blood while she was in the hospital. To gauge how the blood is clotting, physicians typically begin with a pair of basic tests called the PT and PTT. In Isis, the “PT and PTT were markedly abnormal,” Laposata said, adding that other tests also suggested a coagulation disorder. Where McClain had seen a “classic” case of blunt force trauma, Laposata saw something entirely different, a “classic picture” of Disseminated Intravascular Coagulation, a potentially lethal condition that can cause bleeding from sufferers’ every orifice.

Based on the baby’s “dark, tarry stools,” elevated white blood cell count, and abnormal liver function tests, Laposata concluded, “something had to be going on for days” — long before the 40 minutes Lopez was alone with the baby.

An infection could have led to DIC, and, eventually, to a fatal collapse, Laposata said. DIC could also explain Isis’ bruises and the bumps on her head that Lopez and others believed were spider bites, he added.

“The reality is when your blood is so thin, when you’re so unable to make a clot, you can just develop bruises and they can be spontaneous,” he said.

In an interview, Laposata pulled up a PowerPoint presentation he uses to teach students how hard it is to distinguish child abuse from blood-clotting afflictions. One slide featured photos of two small children. Both of their faces were splotched with bruises. One had been battered. The other had idiopathic thrombocytopenic purpura, a condition that causes the blood to quit making platelets.

Without a host of lab tests, Laposata said, it would be impossible to figure out which little boy needed medical help and which one needed child protective services.

* * *

Melonie Ware (Photo courtesy of PBS Frontline)

There is a growing awareness among medical practitioners of “mimics”: ailments that can cause the kind of bruising and bleeding once assumed to be telltale indicators of child abuse. A 2006 textbook on head injuries in children listed literally dozens of afflictions — including some fairly common illnesses — that can produce hemorrhaging in the brain.This is just one way that the science of how children die has evolved in recent years. The most notable — and controversial — example of this is the intense debate over “shaken baby syndrome,” which has played out in scientific journals and mainstream outlets such as the New York Times Magazine.

Based on studies dating back to the 1960s, many forensic pathologists — as well as other physicians — came to believe that a signature trio of symptoms provided definitive proof that someone had violently shaken a child. Under the theory, certain patterns of bleeding and swelling of the brain, and hemorrhages of the retinas came to be seen as conclusive evidence that a child had been assaulted with terrible force, even if there were no other signs of trauma.

But many experts now view the diagnosis with increasing skepticism. In Canada and Britain, official reviews have uncovered nine cases in which people may have been wrongly convicted based on the shaken-baby theory.

Dr. Case, the Missouri medical examiner, said the controversy is a “sideshow”: Typically, children who’ve been shaken have also suffered other serious injuries from being battered. “Yes, there is a scientific debate,” she said. “I personally believe that you can shake a child and kill it.”

The thinking of other doctors has undergone a radical change. Dr. Patrick Barnes, a pediatric radiologist at Stanford University, was a key prosecution witness in what is arguably the most famous shaken-baby case of all, the trial of Louise Woodward. Woodward was a 19-year-old nanny charged in 1997 with shaking an 8-month-old baby to death, hitting his head and causing fatal bleeding. With Barnes’ help, the jury found Woodward guilty of second-degree murder. (She was ultimately released after serving less than a year in prison, when a judge reduced her charge to manslaughter.)

Barnes said he wouldn’t give the same testimony today. There’s been a “revolution” in the understanding of head injuries in the past decade, in part due to advances in MRI brain scanning technology, he said. “We started realizing there were a number of medical conditions that can affect a baby’s brain and look like the findings that we used to attribute to shaken baby syndrome or child abuse,” Barnes said.

The case of Melonie Ware shows how profoundly a closer reading of medical evidence can affect the outcome of a child death investigation.

Ware was convicted in 2004 of murdering a 9-month-old boy she was babysitting, based in large part on the testimony of a local forensic pathologist, Dr. Gerald Gowitt. Gowitt said someone shook the child violently, damaging his brain, and slammed his head, causing three near-identical bruises beneath the scalp.

Ware was sentenced to a life term in a Georgia prison.

After an extensive legal battle, a judge granted Ware a new trial in 2009. This time, her attorneys produced evidence from the baby’s medical records overlooked in her first trial: Hospital staffers had tried multiple times to insert a probe into the child’s skull, as part of their attempt to save his life. The bruises under the baby’s scalp, experts for Ware testified, were likely caused by those failed attempts.

Two prominent physicians testified that shaking had nothing to do with the boy’s demise. The child had died from sickle cell anemia, said the doctors, both specialists in the disease, which is known to cause cerebral bleeding.

Gowitt declined repeated requests for comment on the case.

The jury acquitted Ware, but her life is not the same. Her husband spent more than $700,000 on her defense, selling off and mortgaging real estate acquired over decades.

“We had to move in with my parents,” said Ware, 38. “It’s just messed us up totally.”

After she was freed from prison, Ware, who had worked as a day-care provider, was rejected for job after job. “I even tried McDonald’s,” she recalled. She thinks potential employers were frightened off by her time in jail.

The stain of the case lingers. To this day, Ware’s mug shot appears on the Georgia Department of Corrections’ website, which lists her as still incarcerated.

* * *

(Photo courtesy of PBS Frontline)

In prosecuting Ernie Lopez, law enforcement officials focused almost exclusively on Isis Vas’ final hours.Lopez’s legal team looked back further, however, marshaling evidence suggesting that the baby’s deteriorating condition might have been overlooked by her mother.

Veronica Vas had moved to Amarillo in 1995 to do her residency at a branch of Texas Tech University. She began dating a doctor, with whom she had two children. Then, in a subsequent relationship, Vas, 32, became pregnant with Isis. By all accounts, Isis’ father wasn’t involved in her life.

Court records from a custody dispute between Vas and the father of her older children, as well as statements submitted as part of the Lopez case, depict the Vas household as chaotic in the period surrounding Isis’ birth.

Dena Ammons, a nurse who worked closely with Vas during her residency, said Vas changed during her pregnancy with Isis. She began showing up late for work, her hair matted and uncombed. In a sworn statement, Ammons said that Vas drank and smoked throughout the pregnancy.

Lorrie Word worked for Vas as a live-in nanny from August 1999 until the summer of 2000, caring for Isis from the time she was born. Word said in an affidavit that, on one occasion, she returned from her night off to find Isis alone in a darkened house, crying and soaked with urine. Vas would later say she only left the child for 10 minutes. Soon after the incident, Word quit her job.

A family therapist who visited the Vas home in 2000 as part of the custody dispute described it as “extremely cluttered.” “It was difficult to walk across the floor because of blankets, clothes, and toys,” she wrote in a report submitted to a family court. “The home appeared extraordinarily disorganized.”

Vas declined repeated requests for comment for this story. She has moved to Michigan, where the state medical board recently suspended her medical license due to alcohol abuse.

During Lopez’s trial, Vas testified that in the months after Word quit she came to depend on the Lopez family to help care for her children.

According to Ernie Lopez, the day before Isis went into cardiac arrest he became so worried about the baby’s health that he asked Vas for a note authorizing him or his wife to take the child to the doctor.

Vas didn’t give him the note before leaving town for the weekend, he recalled in an interview. “Isis will be fine,” Lopez said Vas told him.

* * *

Ernie Lopez (Photo courtesy of PBS Frontline)

By 2009, the new medical evidence gathered by Heather Kirkwood had captured the attention of the courts. After she filed an appeal, a habeas corpus petition, a judge granted Lopez a new evidentiary hearing. It represented a step toward possibly overturning his conviction.The hearing lasted nearly twice as long as the original trial. This time, seven doctors testified — for free — on Lopez’s behalf.

Kirkwood also had the chance to question Joni McClain, the forensic pathologist who ruled Isis Vas’ death a homicide. McClain stood by her conclusion that Isis was killed by violence, not disease.

But she acknowledged that she’d paid little attention to Isis’ blood-clotting tests and had only a vague understanding of their possible significance. “Did you look at these lab tests before reaching your conclusions?” Kirkwood asked. “I don’t think I did beforehand because it was such a clear case of blunt force injury,” McClain replied.

Kirkwood read through the results of five tests, starting with the PT and PTT, which measure blood coagulation in seconds.

McClain admitted the tests went beyond her expertise as they can only be run on the living. “I don’t get into a PT, PTT. It’s a useless test after someone’s dead,” the doctor said.

Four other doctors testified for the state, saying Isis had died from blunt-force injuries, not a bleeding disorder. “This is a pattern of injury that we see with trauma,” said Randell Alexander, a pediatrician who heads the child abuse division at the University of Florida’s College of Medicine, in Jacksonville. “This is not a bleeding death.”

McClain also argued that it was possible for head injuries to cause the type of clotting problems Isis had suffered.

In an interview, Laposata agreed head trauma can have that effect but said Isis’ lab results were too abnormal to have resulted from an attack that allegedly occurred about an hour before her hospitalization.

It would be nearly a year before Potter County Judge Dick Alcala issued his opinion on the case. In August 2010, Alcala made a recommendation to the state’s highest criminal court that Lopez’s conviction should be overturned. He found that Lopez’s original attorneys had failed to “fully investigate the medical issues of whether a sexual assault had occurred” and “the cause of death of the child.” If they had investigated properly, Alcala wrote, the jury might not have convicted Lopez.

The judge rejected Lopez’s claim of innocence, which would have required a conclusion that “no reasonable juror would have convicted him” — a high legal standard.

The case is now in the hands of the Texas Court of Criminal Appeals. It has the power to throw out Lopez’s conviction and free him.

Potter County District Attorney Randall Sims continues to fight Lopez’s appeal. In an interview, Sims said he could not discuss the case in detail because it is still ongoing. (He also said he had discouraged state witnesses, including the medical examiner, from speaking with us.) Sims said he thought Lopez had received a fair trial.

“The jury found him guilty,” he said. “And we’re defending that conviction.”

There is no timetable for the appeals court’s decision. Even if it overturns Lopez’s conviction, he could remain tangled up in the criminal justice system for years. Sims could refile charges and try him a second time.

* * *

Tammy Marquardt (Joe Shapiro/NPR)

The United States is not the only country in which forensic pathologists have had difficulty investigating child deaths. Canada was rocked by a scandal that affected at least 20 criminal cases, sending officials there on a search for systemic solutions to prevent future miscarriages of justice.The controversy centered on the work of Dr. Charles Smith, once one of Canada’s leading forensic pathologists. Based at a children’s hospital in Toronto, Smith specialized in performing autopsies in grisly child deaths and, over a span of 24 years, he testified regularly for prosecutors.

But by 2005, the province’s chief coroner had become openly skeptical of Smith’s findings and assigned five other forensic pathologists to conduct a top-to-bottom review of his work in 45 child death cases.

The results of the study were devastating: In 20 of the cases, the reviewers disagreed with Smith’s autopsy reports or court testimony. Over and over, Smith cited evidence of murder where there was none, they found. (Smith would not respond to our questions.)

In a dozen cases, people were wrongly accused of killing children in Ontario based on Smith’s work or testimony. Tammy Marquardt, who was sentenced to life in prison for murdering her son, spent 14 years behind bars before being exonerated.

In prison, she said, the other inmates despised her. “A baby killer would basically get the living daylights beaten out of them,” she said. “A baby killer is classified as one of the lowest on the totem pole.” The courts reversed her conviction earlier this year.

The Ontario chief coroner’s internal review led to an official inquiry by Justice Goudge, who set out nearly 170 recommendations for remaking the province’s broken death-investigation system.

Forensic pathologists who conducted child autopsies should be formally trained and board-certified, Goudge said. They should read all relevant medical records. While forensic pathologists often toil in a certain amount of isolation, Goudge recommended a more collaborative approach, saying they should consult with specialists in other medical disciplines and have other doctors review their autopsy findings.

Bias was a major concern for Goudge. In Ontario there was a mantra among forensic pathologists, he said in an interview: “Think Dirty.” When doctors dealt with cases involving children who had died unexpectedly, they assumed parents or caregivers had murdered them. That outlook, the justice said, skewed the conclusions they reached in the autopsy suite. “The scientist’s objective is to ‘think truth’ not ‘think dirty,’” he said.

Many of Goudge’s suggestions are being implemented in Ontario. But policy-makers in the United States have largely ignored them. There are no national standards or regulations regarding forensic pathology and practices vary widely from place to place.

Barnes, the Stanford pediatric radiologist, said it was imperative for the U.S. system to absorb the lessons from Ontario. “We need to establish the new standards at all levels, just like what is happening in Canada,” he said.

* * *

After Lopez was bused off to prison, his mother would look out her kitchen window and stare across the street at his former home, her mind turning back to the day everything changed. “It was too much to bear,” Rosa remembered. So she and Ernest Sr. sold their house and moved to a place on the outskirts of Amarillo. Eddie and his wife did the same.

Lopez now lives in a cell in the Connally Unit, a maximum-security lock-up about 600 miles away in the scrubby countryside south of San Antonio. Every three or four months his parents make the 10-hour drive to the facility, a journey that costs about $1,000 between gas and hotels. “When we go, we have an enthusiasm, ‘We’re going to go see him,’ you know, ‘We’re going to touch him and hold him,’” Rosa said. “And then on our way back it’s really emotionally hard because we have to leave him there.”

Lopez’s imprisonment gnaws at Eddie, who weeps repeatedly when talking about his brother, tears streaking across his broad face. “Him being away this whole time, it’s like a part of me is dead, because we were that close,” Eddie said.

The two men are separated in age by 11 months, but these days Ernie looks years older. His close-cropped hair, once brown, has turned the color of iron.

Behind the prison’s thick cinderblock walls, Lopez struggles to hold onto what’s left of his old life. Every Tuesday evening he calls his children collect, offering fatherly guidance despite the circumstances. He communicates less frequently with DeAnn, who divorced him and remarried after he was sent away. (DeAnn has participated in his appeal, giving a sworn statement that corroborated his account of the day Isis died. She declined to be interviewed for this story.)

Because of the seriousness of his offense, Lopez is barred from working a prison job. He fills his mental space with the written word, reading more than 50 books last year alone. He’s a big fan of the Western pulp novelist Louis L’Amour and an avid student of the Bible, which he’s been through eight times.

Many men discover religion while incarcerated, but Lopez was devout long before he found himself in handcuffs. The night before he allegedly attacked Isis, he was at his church, acting in a play about good and evil.

Today, nearly 11 years after Isis died, Lopez continues to maintain — emphatically — that he never harmed her.

“Why should they believe that I’m innocent?” he asked during a two-hour interview. “Well, because that’s not my character. That’s not who I am.”

Thinking back to that Saturday, Lopez paused and went silent, anguish filling his face. He exhaled heavily. “Her heart was beating a hundred miles an hour and she wasn’t breathing. I put my ear to her chest, and I heard her heart just beating, just racing and …” His head tilted downward and he stared at the floor. “She was there and then she wasn’t there.”

Lopez’s voice grew quiet as the words trickled out slowly. “So many times,” he said, “I think about what I could have done different to help her more.”

Additional reporting contributed by Catherine Upin of PBS “Frontline.” Lisa Schwartz, Sergio Hernandez and Liz Day contributed research to this story

Source:

http://www.propublica.org/article/the-hardest-cases-when-children-die-justice-can-be-elusive

The Child Cases Exposes Shaken Baby Syndrome

Frontline: The Child Cases

When a child dies under suspicious circumstances, abuse is often suspected. That’s what happened in the case of six-month-old Isis Vas, whose death was deemed “a clear-cut and classic” case of child abuse, sending a man named Ernie Lopez to prison for 60 years. But now a Texas judge has moved to overturn Lopez’s conviction, and new questions are being asked about the quality of expert testimony in this and many other similar cases. In this joint investigation with ProPublica and NPR, FRONTLINE correspondent A.C. Thompson unearths more than 20 child death cases in which people were jailed on medical evidence — involving abuse, assault and “shaken-baby syndrome” — that was later found unreliable or flat-out wrong. Are death investigators being properly trained for child cases? The Child Cases is the first of three magazine segments airing June 28 at 9 p.m. (check local listings).

 

Read more: http://www.pbs.org/wgbh/pages/frontline/the-child-cases/#ixzz1QP2DIoDQ

Miscarraiges Of Justice In Shaken Baby Cases

Linda Pressly

Assignment: Shaken Babies

Linda Pressly reports for Assignment on the growing disquiet over miscarriages of justice in shaken baby cases.

http://www.bbc.co.uk/i/p00h1q6r/

 

 

 

Shaken babies room for doubts

Who do you believe?

If shaken-baby syndrome confuses the medical and legal professions, how can a jury hope to decide guilt or innocence?

It will take some brave decision-makers and forensic investigators to thoroughly explore this truly terrifying problem so there is justice for all.

 

• Sunday Herald Sun
• June 11, 2011 11:53PM

WE abhor adults who hurt and kill babies – consider them the lowest of the low – and view shaken-baby syndrome as the act of gutless monsters.

It is abhorrent; shaking a baby so violently that its tiny brain swells.

For decades the triad of encephalopathy (brain swelling), retinal haemorrhages and subdural haemorrhage (shallow collections of blood over the surface of the brain) have been used as the telltale signs of shaken-baby syndrome (SBS).

And this constellation of symptoms has put people behind bars – as it should if they are guilty of such violence.

Some experts say SBS is triggered by parents or child minders taking out their frustrations on a defenceless infant whose only “crime” is to cry too much or soil a nappy.

Others question whether SBS should be accepted as fact when it really is just a theory.

Either way, every year hundreds of babies are shaken until their body starts to break from the inside out. The injuries are so catastrophic that one in four dies.

In Australia we do not know how many babies are shaken because SBS is not a legitimate disease classification diagnostic code, so no figures are collected.

Dr Anne Smith, medical director of the Victorian Forensic Paediatric Medical Service, told me that when infants arrived in hospitals with injuries that might have been caused by trauma but there was no history of trauma, care-givers were rightly viewed with suspicion.

“Even when a story about trauma is offered by care-givers, it is important for doctors and nurses to question whether the story accounts for the observed findings and whether other causes might explain, or better explain, the child’s condition,” she said.

She said the consequences of a misdiagnosis of shaking were as serious as a missed diagnosis.

“On the one hand an innocent person might be jailed and on the other, an infant might be returned to an abusive home, possibly with fatal consequences,” she said.

Several cases in the US and UK have put this debate on the radar this month and make us question whether there could be other explanations – perhaps a bump or an infection – for some of these injuries.

The Victorian Forensic Paediatric Medical Service is unique.

It provides evaluations of infants when shaking is suspected and gives expert opinion for child protection and the courts.

Importantly, it is staffed by a team of people who hold qualifications in both paediatric and forensic medicine – a model that could become standard practice worldwide.

Dr Smith said this unique mix enabled the team to consider a broad range of medical conditions that might be confused with shaking, as well as the forces and patterns of injury caused by shaking, impact and other causes of head injury – deliberate and accidental.

Last month, British mother Keran Henderson – who spent 18 months behind bars for the manslaughter of Maeve Sheppard – spoke for the first time as she considers another appeal over her conviction.

And in the US, a woman with an impeccable record in child care is serving 10 1/2 years after she was charged with shaking a baby boy in her care.

Keran Henderson spoke to investigative journalists Peter and Leni Gillman and her story was published in the UK’s Sunday Times last month. In the article, there is no suggestion the syndrome does not happen – far from it – but it claims that in a minority of cases there must be room for doubt.

Mrs Henderson has always maintained she did not harm Maeve, but a pathologist gave evidence at her trial saying the injuries – the retinal haemorrhages, bleeding in the brain and bruising or swelling of the brain – indicated “a great deal of force”.

There are 250 shaken-baby cases in Britain a year. Most are the result of abuse, but some experts suggest the syndrome is a theory that the legal and medical fraternities have accepted as fact.

The Gillmans wrote: “A second, equally determined group contends shaken-baby syndrome is a deficient theory that results in innocent carers and parents being jailed because of flawed science.”

MRS Henderson told the Gillmans that for the two months she cared for Maeve in 2005 she was sickly, often grizzly and reluctant to eat.

Twice, she claimed, Maeve needed urgent medical attention – once seemingly for a seizure. Could that have indicated a previous injury or an illness such as meningitis?

Mrs Henderson was the last person to handle Maeve before the child arched her back and went floppy while her nappy was being changed.

And, as the last person to handle the baby, Mrs Henderson was blamed for her death.

British paediatric radiologist Dr Patrick Barnes testified against British nanny Louise Woodward in 1997 when she was accused of shaking baby Matthew Eappen before he died while in her care.

In the New York Times this year, writer Emily Bazelon said a lasting legacy of the Woodward case was the eventual conversion of Patrick Barnes from an upholder of the medical orthodoxy surrounding shaken-baby cases to one of its strongest critics.

In the US Trudy Rueda was accused of shaking Noah Whitmer when he was four months old.

Noah survived his injuries, though at two years he is still not talking and has vision problems.

Rueda, his carer, was sentenced to 10 1/2 years after six doctors testified that Noah’s brain scans showed he had been abused. Another doctor offered it was possibly a rebleed, the result of trauma from birth.

Who do you believe?

And if shaken-baby syndrome confuses the medical and legal professions, how can a jury hope to decide guilt or innocence?

It will take some brave decision-makers and forensic investigators to thoroughly explore this truly terrifying problem so there is justice for all.

http://www.heraldsun.com.au/opinion/shaken-babies-room-for-doubts/story-e6frfhqf-1226073640796