From the July 2004 Idaho Observer:

Court rules of evidence affect SBS defenses

by Harold E. Buttram, MD

Among the many adversities and difficulties facing the American family today, there is a relatively new and growing hazard -- one featuring a parent or caretaker who may be falsely accused of murdering or injuring an infant by shaken baby syndrome, when the true cause of death or injury arises from other sources. Very tragically, child abuse does occur and deserves appropriate punishment. However, it is equally tragic when a family, already grieving from the sudden and unexpected death of their infant, finds a father or mother unjustly accused, convicted, and imprisoned for murder of the infant, a murder of which he or she is innocent. I know of an attorney, an anesthesiologist, a Mormon mother, an Amish mother, and others accused and/or imprisoned (many believe falsely) on charges of injuring or murdering an infant by SBS. It could happen to anyone regardless of race, sex, education, finances, or social status.

Although I am a relative novice as a witness in SBS cases, I have observed and experienced enough to know that trials in these cases are generally one-sided processes, especially if they take place in larger cities with regional medical centers where all of the major medical specialties are available.

Once an infant or child has been admitted to a hospital with findings of brain hemorrhages, retinal hemorrhages, and/or skeletal fractures, where there is no other explanation for the findings such as major accidental trauma, a parent or caretaker comes under immediate suspicion of having inflicted the injuries by what is being termed shaken baby syndrome.

Usually the suspicion falls on the last parent or caretaker caring for the infant prior to the infant's collapse. An immediate protocol is then set in motion with notification of child protection agencies and appropriate medical specialists, depending on the nature of the findings, but always including an ophthalmologist to examine the infant for retinal hemorrhages, in addition to a pediatric intensive care specialist usually providing primary care for the infant. Other specialties may include neurosurgery when brain hemorrhages are found; pathology for performance of autopsy in case of death; hematology in some instances; and a specialist in metabolic bone disease when skeletal fractures are present.

I have been told that those medical specialists involved in the child's hospital care who are subpoenaed by the prosecution usually testify in court trials without payment. In general, it seems as if they (the specialists) are quite willing to do this since they live and practice in the locality and are already familiar with the case. Their court testimony may not require too much additional time.

It is an entirely different matter for the defense. Very often accused parents or caretakers lose their jobs and sources of income simply based on charges brought against them or as a result of their incarceration. Consequently they are without funds, often to the extent of being impoverished.

In such situations the parent or caretaker has little choice but to accept a public defender assigned by the courts for his or her defense. Many public defenders are very good attorneys, but they are also very limited in funds required to pay for expert witnesses, which almost always must be brought in from a distance and which need to be compensated for time lost from their regular professional employments.

Limited in funds as they are, in many of these cases the defenses may depend on one expert witness, such as a pathologist, who may have excellent credentials in his field, but who, of necessity, must testify in areas in which he (or she) does not have credentials as an expert. Very clearly this is a disadvantage to the defense, as numbers of witnesses as well as their credentials do count in the courtroom.

Based on personal observation and experience, when extending beyond his area of expertise, an expert may quote from standard textbooks from any specialty, but he may not quote from recent publications in the scientific literature.

This is a crippling restriction because even a cursory review of medical history will reveal that it is replete with examples revealing that medical consensus in one generation of doctors became abandoned or even grounds for malpractice in the next generation.

Having intensely studied various aspects of SBS for over four years, it is apparent to me that concepts of SBS are in rapid flux and change based on an increasing volume of recent publications from reputable research centers, publications challenging the validity of many current concepts upon which diagnoses of SBS are based.

A prime example of this is the issue of retinal hemorrhages in an infant, which in many instances is considered very strong evidence of shaken baby syndrome by hospital physicians in the absence of major accidental trauma. In contradiction to this, one now has little difficulty in finding references in the medical literature which dispute this conclusion. For example:

* In 1999 GN Rutty et al in American Journal Forensic Medicine and Pathology did a comprehensive review on the late-form hemorrhagic disease of the newborn, a condition caused by vitamin K deficiency, which has strong predilections for brain and retinal hemorrhages.1 Risk factors in the baby include antibiotics (reduce intestinal production of vitamin K), breast feeding (poor source of vitamin K), prematurity, diarrhea, malabsorption, and other predisposing factors. It is a condition that is easily missed unless appropriate tests are done.

* In 2003 J Geddes and coworkers described findings in infants dying from injuries to the respiratory center at the base of the brain resulting in respiratory collapse, injuries which did not necessarily involve inflicted violence.

The authors hypothesized that, once the infants stopped breathing, there was a rapid onset of cerebral edema (swelling), with retinal and brain hemorrhages secondary to the brain edema.2

* In the Journal of Neurosurgery, 2003, Prange et al performed a series of studies with a surrogate of a 1.5-month-old infant involving shakes, falls, and impact. In the study it was found that forces generated by shakes were equivalent to those of short distance falls, which have generally been considered inadequate to cause serious injury.

In common with other previous studies, there were no claims of proof that shakes alone could generate sufficient force to cause brain or retinal hemorrhages. 3

To the contrary, the findings from this and other previous studies would tend to indicate the opposite: that it is “very unlikely that shaking without impact can generate sufficient force to cause brain or retinal hemorrhages.”

And yet, I know from review of SBS cases over the past four years of a number of SBS accusations and convictions that have been based on this assumption: that vigorous shaking had been the cause of brain and/or retinal hemorrhages, an assumption that is not supported by research evidence.

In order to have these critically important pieces of information and evidence available for trials to counteract as many as 4 or 5 or more witnesses available to the prosecution, the only option for defense attorneys under current rules of evidence would be to bring the researchers into court in person to testify on their research findings.

In the first two examples given above, it would involve bringing the researchers from England and providing for all expenses as well as a stipend. This of course would be beyond the resources for all except the wealthiest of clients.

It is this type of evidence which could be of legitimate and critical importance for defenses in these cases, but it has been placed out of reach by current rules of evidence.

References

1. Rutty GN, Smith CM, Malia RG, Late-form hemorrhagic disease of the newborn, Amer J Forensic med Pathol, 1999; 20(1):48-51.

2. Geddes JF, Tasker RC, Hackshaw CD et al, dural haemorrhage in nontraumatic infant deaths: does it explain the bleeding in 'shaken baby syndrome'? Neuropathol & Applied Neurobiol, 2003; 29:14-22.

3. Prange MT, Coats B, Duhaime AC, Margulies SS, J Neurosurg, July, 2003; 99:143-150.

***

The above article was originally posted at:

www.redflagsweekly.com/conferences/shaken_baby_index.html

Five easy steps to prevent inaccurate SBS diagnoses

To protect those wrongly accused I suggest the following principles be adopted:

1. Accept as true the history given by the parent. There is no logical reason to reject a history of an 'Apparent Life Threatening Event' or Illness following Immunization

2. A thorough investigation is needed to exclude a defect in Haemostasis

3. A thorough investigation of the Nutritional status of the infant is imperative. Determine the level of the Serum Albumin and Blood Urea Nitrogen and essential amino acids if necessary.

4. Liver Function Tests are needed to corroborate the tests for Haemostasis.

5. Test for deficiency of Vitamin C to exclude Infantile Scurvy.

In all sixteen cases in which Retinal and Subdural Haemorrhages occurred, with or without fractures that have been brought to my attention, one or other of the above conditions was present but wrongly interpreted or simply ignored.

The reluctance of the Medical Profession to acknowledge their part in the distress they have caused families by their spurious diagnosis of Shaken Baby Syndrome is what hampers research into the lesions found in these infants. It is regrettable and shameful that they have in some instances misled Judges and Juries.

Shaken Baby Syndrome should take its place alongside the Witches of Salem in the History of Jurisprudence. I'm sure the learned Professors would agree. But if not then perhaps they could document a SINGLE case of the so-called Shaken Baby Syndrome which did not follow Vaccination within 21 days and in which no Nutritional of Haematological defect was present.

~Michael Innis, MD