Melissa Staas is a staff attorney with the Family Defense Center in Chicago, and has recently made the SBS (Shaken Baby Syndrome) defense community aware of a case in Chicago that exemplifies many of the problems with the extant pediatric medical establishment in dealing with medical conditions that are misread by uninformed doctors diagnosing abuse. This is a classic case of what I call “dueling experts.” See the previous WCB post addressing SBS medical expert testimony and “dueling experts” here.
Melissa sent an e’mail describing an appellate court brief recently filed by the Family Defense Center in a so-called “abuse” case in Chicago. That e’mail follows: (posted here with her permission)
“We thought you might be interested in seeing the appellate court brief the Family Defense Center filed this week challenging a juvenile court finding of abuse (attorneys Diane Redleaf and Melissa Staas as appellate counsel for the parents). The court’s finding was grounded in the same sort of questionable theory underlying “shaken baby syndrome”: i.e., the mere presence of certain “injuries” is indicative of abuse and sufficient to sustain a finding of abuse even when there is no direct evidence of an abusive action.
“In its written ruling, the court found that the parents were “loving and responsible” caretakers who nurtured their children and attended to all of their needs (indeed, the record is packed with evidence about how wonderful Teresa and K.S. are, both as parents and as good and decent people). Nonetheless, and even though no person other than the parents had been with the baby unsupervised, the court concluded that the State had met its burden of proving abuse based upon their then-5-week-old infant (Yohan) having been diagnosed with intracranial bleeding, retinal hemorrhaging, and a fracture to his left knee (the actual existence of which was hotly-contested).”
“At the dispositional hearing, the court returned the children to Teresa and K.S. (evidencing the true belief of the court that these parents never caused their son’s injuries). When the GAL appealed the return home ruling, the parents decided to file a cross-appeal of the underlying finding of abuse.”
“Testifying at trial on behalf of the parents (where they were represented by outstanding trial attorney Ellen Domph — a Chicago-based criminal defense attorney who also has experience practicing in juvenile court) were three preeminent medical experts.”
“Dr. Frim, pediatric neurosurgeon at the University of Chicago where he is the Chief of the entire neurosurgery section and is an endowed professor with a fully-funded research lab, testified that Yohan had a pre-existing medical condition (benign external hydrocephalus) predisposing him to intracranial bleeding, which can then cause retinal hemorrhaging by blood traveling through the subarachnoid spaces (referencing Dr. Piatt’s article — the State’s ophthalmologist and child abuse pediatrician could not identify any differences between Yohan’s retinal findings and the retinal hemorrhages in the Piatt article). Dr. Frim confirmed that triggers for intracranial bleeding can include birth trauma (which was a possibility in this case) as well as the incidental impacts of daily life. Dr. Frim has published a peer-reviewed article and a textbook chapter on the issues of benign congenital fluid collections.”
“Dr. Sullivan, Chief of Pediatric Orthopedics at the University of Chicago, testified that there was insufficient radiographic evidence to diagnose a fracture. Though there was an irregularity at the left knee, the irregularity was consistent with congenital rickets, not a fracture. Furthermore, the fact that there were no clinical symptoms of a fracture (even when palpated at his knee by doctors checking for tenderness, Yohan exhibited no pain or distress) was entirely inconsistent with the existence of a fracture.”
“Dr. Barnes, Chief of Pediatric Neuroradiology at Packard Children’s Hospital and Professor of Radiology at Stanford, also testified for the parents. As a published expert on both BEH and on congenital rickets, he corroborated the diagnosis of BEH in Yohan and also diagnosed Yohan as having congenital rickets based upon many classic indicators in Yohan’s skeletal survey and Yohan’s severe vitamin D deficiency.”
“The medical witnesses testifying for the State all came from the same institution — Lurie Children’s Hospital (formerly Children’s Memorial Hospital) — and had all been board-certified for less than 3 years. These witnesses contested the existence of congenital rickets, yet admitted that a full rickets work-up was never completed. The State orthopedist had never even heard of congenital rickets. The State neurologist had only ever seen 2 patients with BEH and had never himself made a diagnosis of BEH; the State ophthalmologist had no idea how BEH would impact retinal hemorrhages.”
“Though the orthopedist, neurologist, and child abuse pediatrician all testified that the injuries were caused by inflicted trauma (with the ortho and neuro saying “shaking” as a possible force and the CAP using the euphemism “acceleration-deceleration forces”), none of them testified to NON-ACCIDENTAL trauma, and they all stated that they were not offering an opinion as to the specific mechanism that caused Yohan’s injuries (rather, they couched their opinions as the type of force that “could” cause these injuries).”
“Despite the overwhelming evidence for the parents and the weak, vague, and equivocal evidence for the State, the trial court concluded that it was unreasonable to believe that Yohan had both BEH and congenital rickets (the court’s opinion relies upon fundamentally flawed analysis, including the court’s assumption that there must have been a connection between the bone-related findings and the head-related findings). Based on this faulty logic, the court concluded the State had met its burden of proving abusive causation by a preponderance of the evidence.”
“Hopefully, the appellate court will be more discerning and analytical than was the trial court. That Teresa and K.S.’s children could be adjudicated abused means, of course, that any family that has a child with a rare medical condition is vulnerable to similar State action.” (emphasis added)
Melissa L. Staas, Staff Attorney, The Family Defense Center, Chicago, IL
You can read the brief in full here: Yohan and Marika K. – Parents’ Brief FINAL