Melissa-Staas

Attorney Melissa Staas from The Family Defense Center

Health Impact News Editor Comments

Incidences of innocent parents being accused of medical abuse from “abusive head trauma” (AHT), formerly known as shaken baby syndrome (SBS), are being reported more and more in the media these days. We have reported several of these stories here at MedicalKidnap.com, where babies are removed from the custody of their parents based on the testimony of a doctor. In some cases, the parents are going to jail over these accusations.

The increase in parents being accused of AHT seems to parallel a new Child Abuse Specialist certification with the American Academy of Pediatrics in 2010. This has created a whole new class of pediatricians whose sole purpose is to determine if a child’s injuries show parental or care giver abuse. Rather than the family pediatrician, who has regular contact with the family, making a determination if childhood injuries are indicative of abuse, now a “specialist” is called in who often has little or no contact with the family, and makes a determination of “abuse” simply on medical tests.

One has to wonder if more children need to be determined to be “abused” in order to justify the employment of this new class of pediatric “Child Abuse Specialists”?

American Bar Association Publishes Child’s Rights Litigation Article on Shaken Baby Syndrome

Earlier this month (June 2015), the American Bar Association published an article in their Children’s Rights Litigation section documenting the growing problem of innocent parents losing their children to Child Protection Services based on the testimony of these new pediatric Child Abuse Specialists.

Attorney Melissa Staas from The Family Defense Center in Chicago wrote the article:

Litigating Shaken Baby Syndrome Allegations in the Child Welfare Context

Here are some excerpts:

The past 10 years have brought to bear a new perspective to what child and family advocates had been taught about shaken baby syndrome (SBS), recently relabeled abusive head trauma (AHT). Throughout the 1980s and 1990s, highly publicized criminal trials and ubiquitous public health campaigns warned of the dangers of violently shaking an infant. While there is value in educating the public that shaking an infant can lead to serious injury, just because violent shaking can result in injury does not mean that the opposite is true: that when you find an injury, you can conclude that violent shaking is the cause.

Nonetheless, in the wake of the heightened public awareness, a medicolegal paradigm developed that adopted this assumption of abusive causation whenever certain medical findings are present (i.e., subdural hematoma, retinal hemorrhages, and brain swelling, either separately or in some combination). Applying this framework, some physicians began diagnosing the presence of SBS/AHT—and, thereby, making a legal conclusion that abuse had occurred—even in the absence of any other injuries, any external signs of abuse or maltreatment, or any other direct evidence (e.g., a witness to the violence being alleged) or circumstantial evidence (e.g., history of violence) supporting the accusation of abuse.

The spring issue of Children’s Rights Litigation included an article by Katherine Judson, an attorney and clinical instructor with the Wisconsin Innocence Project at the University of Wisconsin Law School, who serves as the national coordinator of legal work exonerating persons who have been wrongly accused of SBS/AHT in the criminal system. Judson’s article, “What Child Welfare Attorneys Need to Know about Shaken Baby Syndrome,” provides an introduction to the shortcomings of the medicolegal SBS/AHT paradigm and outlines why an immediate presumption of abuse based solely on the presence of a subdural hematoma, retinal hemorrhaging, and/or brain swelling must be closely scrutinized due to the existence of countless nonabuse explanations for those same findings, including accidental trauma and natural disease processes. This caution regarding an SBS/AHT determination has become well-pronounced in the criminal justice system, where attorneys practicing innocence work have devoted time, attention, and care to objectively evaluating the validity of criminal convictions based on an SBS/AHT accusation.

For many families whose lives are torn apart and irreparably harmed due to a poorly supported claim of SBS/AHT, the criminal system is never involved. In many cases, law enforcement and prosecutors decline to file criminal charges because there is insufficient evidence. Nonetheless, due to the uniqueness of the child welfare system—which, as is discussed more fully below, is predicated on a lower burden of proof and does not necessarily require the state to prove who caused the claimed abuse—the family can still be subjected to a child protection case. A child protection case involves an investigation conducted by case workers who may be trained to simply adopt the conclusions of the child abuse pediatrician, who will make a determination as to registering a substantiated claim of abuse against the accused person in the child abuse registry. Commonly in cases where SBS/AHT is being alleged, the child welfare investigations will result in the removal of the accused person’s children from their care, with a dependency court action initiated following that removal. These state actions result in prolonged, excruciating, and expensive legal proceedings, during which time the accused persons must endure the unrelenting accusation that they have viciously harmed a child in their care, often their own child.

In 2010, the American Academy of Pediatrics certified a new subspecialty in child abuse pediatrics, which requires a fellowship with a teaching hospital’s child protection unit and a separate board exam. While initially envisioned as providing increased public health support for child abuse assessment models, this new subspecialty has generated questions regarding the investigatory or prosecutorial role assumed by child abuse pediatricians in many jurisdictions; the qualifications of child abuse pediatricians to be rendering opinions in highly specialized fields of medicine such as forensic pathology, neurosurgery, radiology, retinal surgery, and orthopedics; and the nature of “child abuse” as a medical diagnosis given the legal conclusions embedded within such an opinion. See George J. Barry & Diane L. Redleaf, Medical Ethics Concerns in Physical Child Abuse Investigations: A Critical Perspective (2014).

Child protection investigators are explicitly trained by their agencies to defer to the opinions of the child abuse pediatricians rather than sort out competing opinions of various specialists. Complicating matters is the reluctance of other treating subspecialists to vocalize any disagreement they may have with a child abuse pediatrician’s opinions, due either to an aversion to getting involved in controversial legal proceedings or to a presumption that the child abuse pediatrician is conducting a thorough differential diagnosis based on information not available to the subspecialist. Most concerning, however, is the readiness of judges in dependency courts to defer to whichever doctor has been denominated as the “child abuse expert” even when that doctor’s expertise as to the medical conditions at issue is objectively less than the expertise of testifying subspecialists.

Take, for example, the case of In re Yohan K., 993 N.E.2d 877 (Ill. App. Ct. 2013):

Read the full article at apps.americanbar.org

Family stories on MedicalKidnap.com where babies are abducted by CPS due to a doctor’s diagnosis of abuse:

Baby Found with Broken Bones – Parents Assumed Guilty of Abuse and Lose Custody

Maryland Father Accused of Abuse over Broken Bones – Both Children Removed from Home of Loving Parents

Oklahoma Takes 3 Children Away from Parents When One is Found with Possible Brittle Bone Disease

Medical Kidnapping in Maine: Child with Ehlers-Danlos Syndrome & Sister Seized – Grandfather Commits Suicide

 Another Medical Kidnap in Illinois: Infant Twins Seized from Parents over Medical Dispute

 

 

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