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Attorney Zachary Bravos Legal Overview on Shaken Baby

Attorney Zachary Bravos Legal Overview on Shaken Baby

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Published by: Alison Stevens on Mar 15, 2013
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That question is critically important tothose accused o shaking a child. Each year,many parents and child caregivers are ac-cused o child abuse as a result o shakenbaby syndrome. Two specic ndings,subdural hematoma (bleeding between thebrain and the skull) and bilateral retinalhemorrhaging (bleeding behind the eye),are considered classic signs o shaken babysyndrome.And in the classic case, the allegationo shaking is sustained solely by these twondings o internal bleeding. There are nolong-bone injuries, spiral ractures, skullractures, evidence o impact or blunt trau-ma, bruising, or other indications or evi-dence that abuse has occurred.Neglect and abuse proceedings andlengthy prison sentences oten result romprosecutions based on the shaken babysyndrome. These serious, lie-changingoutcomes or those accused demand that
Roger H. Kelly and Zachary M. Bravosocus their practice on issues involving science and the law. They have oces inWheaton and consult throughout the Unit-ed States. Mr. Bravos is legal editor o the journal 
Issues in Child Abuse Accusations
.
Recent research shows that factors other than abuse may be the causeof damage thought to result from shaking, these defense lawyers argue.
A Critical Look at the
Shaken Baby Syndrome
A
pproximately 1,400 infants and young children are reportedto suffer brain injury as a result of abuse each year in the U.S.
1
 Violent shaking is considered to be a leading cause of those injuries.
2
 The theory that violent shaking causes brain injuries in infants andyoung children is referred to as shaken baby syndrome. Is the theory valid?
By Roger H. Kelly and Zachary M. Bravos
__________1. Center or Disease Control:
Facts or Physicians,
http://www.cdc.gov/ncipc/tbi/Facts_or_Physicians_booklet.pd , p10.2. Center For Disease Control:
Preventing Inju-ries in America: Public Health in Action,
http://www.cdc.gov/ncipc/act_book/Preventing%20Injuries%20in%20America%20Public%20Health%20in%20Action-2006.pd , p 42.
1
 
the theory be scrutinized and its validitytested.Though shaken baby syndrome is stillembraced by the medical establishment,some orensic scientists sharply criticizethe theory as rooted in anecdote, badstudy, and speculation. Some biomechan-ical experts, pathophysiologists, physi-cians, medical specialists, and medicalresearchers have tested elements o thetheory and have established a growingbody o evidence challenging many o itsassumptions.This article briefy discusses this sci-entic evidence. But rst it looks at courtrulings that have critically examined theoundations o the shaken baby syn-drome.
Some courts questionthe syndrome
Recent challenges have been success-ul at the trial court level in
Frye
and
Daubert 
hearings.
3
In April 2006, aKentucky circuit court ruled that in theabsence o other evidence o abuse, thetheory o shaken baby syndrome couldnot be introduced.
4
The Wisconsin Ap-pellate Court recently acknowledged thecontroversy regarding the shaken babysyndrome theory by granting a new trialto a convicted babysitter who had beenimprisoned or over 10 years.
5
Overseas courts have also ruledagainst the admissibility o the theory. In2005, the court o appeals in the UnitedKingdom overturned two convictionsor murder and reduced the charges ona third, all o which were based upon thetheory o shaken baby syndrome.
6
In eachcase, there was no other evidence aboutwhat happened and no evidence o earlierill treatment. The court rejected the claimthat subdural hematoma and retinal hem-orrhaging automatically lead to a conclu-sion o unlawul killing or injury.Similarly, in late 2001, the supremecourt o the Australian Capital Terri-tory reviewed the science behind an ac-cusation o shaking based upon subduralhemorrhages and bilateral retinal bleed-ing in the absence o other injuries.
7
TheCrown’s theory was that the “constel-lation” o injuries was caused by shak-ing. Seven Crown experts testied, overobjection, in support o the theory. Nev-ertheless, the court ound “The evidencerevealed a paucity o empirical researchon potentially critical issues.”
8
The highcourt ruled as ollows:
I nd that the evidence was not admissibleto the eect that the injuries were causedin that manner [shaking], whether by theaccused or otherwise, or that they couldonly have been caused in that manner.The evidence suggests that such opinionswould not be based wholly or even sub-stantially on the expert’s specialized bodyo knowledge as a pediatrician but [ ] on acombination o speculation, inerence, anda process o reasoning beyond the relevanteld o expertise.
9
 
Empirical research is now being con-ducted that examines the basic hypothe-sis behind the theory thatshaking can and does causethe injuries observed.
History of the theory
In 1971, Dr. A. NormanGuthkelch suggested thatrepeated shaking couldcause subdural hematomaeven in the absence o evi-dence o external injury tothe head.
10
To support hissuggestion, Guthkelch re-erenced a series o 23 chil-dren o “proved or strongly suspectedparental assault.” He did not disclosehow these assault determinations weremade.O this group, ve children had sub-dural hematoma with no evidence o direct trauma to the head. Guthkelchtheorized that repeated shaking ratherthan direct impact was the cause o these hematomas. He compared suchshaking to two cases o adults sueringsubdural hematoma as a result o auto-mobile whiplash injury in rear-end col-lisions published by Dr. Ayub Ommayain 1968.
11
The shaken baby syndrome theorywas brought urther attention by Dr. John Caey in his 1972 article
On theTheory and Practice o Shaking Inants
12
 and his 1974 paper
The Whiplash Shak-en Inant Syndrome.
13
He drew upon theGuthkelch article, a
Newsweek
magazinearticle, and the work o Ommaya.However, in 2002 Ommaya ques-tioned the applicability o his researchto support the shaken baby syndrometheory, commenting as ollows:
[O]ur experimental results were reerencedas providing the experimental basis o the“shaken baby syndrome” (SBS) by Caey,Gulthkelch and others by analogy not re-alizing that the energy level o accelerationin our work related to speeds at motor ve-hicle crashes at 30 mph.
14
 
In suggesting that the associated nd-ings o subdural hematoma and retinalhemorrhages could be sucient diag-nostic criteria to determine abuse, Caeyacknowledged that the evidence support-ing his theory was contrary to medicalexpectations.
The most characteristic pattern o physi-cal ndings in the whiplashed inant is theabsence o external signs o trauma to thehead and the sot tissues o the ace andneck, and o the acial bones and calvaria,in the presence o massive traumatic in-tracranial and intraocular bleedings. Thisis an extraordinary diagnostic contradic-tion.
15
Recent challenges to thetheory have been successfulat the trial court level in
 Frye
 and
 Daubert 
hearings.
__________3. Florida (
 Johnson v Florida
, 933 So2d 568 (Fla2006); and
Florida v Sanidad 
, 00-524 CFFA (Cir CtFlager Cty 2006); Oklahoma (
Oklahoma v Watts
,CF-2001-43 (D Ct Woods Cty, Okla 2002)); Missouri(
Missouri v Hyatt 
, 06 M7-CR00016-02 (Cir Ct ShelbyCty, MO), Order dated November 6, 2007); Tennessee(
People v Maze
, M2000-02249-CCA-R3-CD (Tenn CtApp Davidson Cty Tenn 2002); and Ohio (
Ohio v Mills
,2006 CR 100315 (Ct Com Pleas, Tuscarawas Cty, Ohio2006)).4.
Commonwealth O Kentucky v Davis,
04 CR205. Trial Court Opinion April 17, 2006 (GreenupCircuit Court).http://www.aapsonline.org/sbs/daubert.pd .5.
State v Edmonds,
308 Wis 2d 374, 746 NW2d590 (2008).6.
Shaken baby convictions overturned,
http://www.guardian.co.uk/society/2005/jul/21/childrensservices.childprotection. 7.
The Queen v Stuart Lee
, SCC 69 o 2000 (SupCt Australian Capital Territory, Canberra), 2002 WL14350.8. Id at para. 46.9. Id at para. 52.10. A. N. Guthkelch,
Inantile Subdural Haematomaand its Relationship to Whiplash Injuries
, British Medi-cal Journal 2, 430-31 (1971).11. A. Ommaya, F. Faas, P. Yarnell,
Whiplash. Injuryand Brain Damage
, JAMA
 ,
204(4) 285–89 (1968).12. J. Caey,
On the Theory and Practice o Shaking Inants
, American Journal o the Disease o Children124, 161–69 (1972).13. J. Caey,
The Whiplash Shaken Baby Syndrome:Manual Shaking by the Extremities With Whiplash-Induced Intracranial and Intraocular Bleedings, Linked With Residual Permanent Brain Damage and Mental Retardation
, Pediatrics
 
54, 396–403 (1974).14. A. Ommaya, W. Goldsmith, L. Thibault,
Bio-mechanics and Neuropathology o Adult and Pedi-atric Head Injury,
British Journal o Neurosurgery,16(3):220-42 (2002).15. Carey,
The Whiplash Shaken Baby Syndrome
at403 (cited in note 11).
2
 
This “extraordinary diagnostic con-tradiction” remains unresolved. Indeed,the lack o external evidence o trauma isthe most troubling aspect o the shakenbaby syndrome theory because it raisesthe obvious question: can an inant beshaken with sucient orce to causebrain injury and leave no external evi-dence o trauma?Many articles and papers advancedin support o the shaken baby syndrometheory are based on anecdote and experi-ence. The quality o such papers and ar-ticles have been criticized in peer reviewsand subsequent articles.
16
Indeed, someresearch appears to reute basic princi-ples behind the theory. As a result, somescientists and medical practitioners nowquestion the very existence o shakenbaby syndrome.
Biomechanics
A demonstration o the orce claimedto cause shaken baby syndrome has apowerul eect. Imagine a ull-grownman shaking an inant back and orthwith all o his might and as rapidly ashe can. The head fops back and orthviolently as the arms, legs, and torso areshaken like a rag doll.The orce involved is such that anyreasonable person would expect injury. Itis extremely violent and clearly abusive.A deendant’s claim o innocence otenails in the ace o the expert testimonythat the only way subdural hematomaand retinal hemorrhages can be caused(other than some extremely rare geneticconditions) is through violent shaking.However, obvious questions arise.Why is there no evidence o externaltrauma? Why are there no grab marks onthe body? Why are there noinjuries to the inant neck,a structure that seems soweak and vulnerable? Thisis Caey’s “extraordinarydiagnostic contradiction.”Can an inant be shak-en so violently as to causethe shaken baby markerswithout any sign o exter-nal injury? The science o biomechanics, the applica-tion o mechanical princi-pals to living organisms,has studied this question.Experiments have calledinto question the shaken baby syndrometheory.In 1987 Ann-Christine Duhaime,et al
17
sought to quantiy the orces in-volved in manual shaking o an inant.Model dolls were constructed, tted withaccelerometers, and then shaken.The results demonstrated that shak-ing alone could only generate about 25percent o the angular acceleration need-ed to cause brain concussion and onlyabout 7 percent o the angular accelera-tion required to cause subdural hema-toma. The authors concluded that “theangular acceleration and velocity associ-ated with shaking occurs well below theinjury range.”
18
This result has since been replicated.In 2003, Prange, et al, used more real-istic baby models and obtained similarresults. Shaking, even with impact onoam, could not produce enough orceto cause brain injury, including subduralhematoma.
19
Even Dr. Ommaya, whose primatestudies were used by Caey and Guth-kelch, conrms that shaking alone pro-duces maximum angular acceleration“well below thresholds or cerebral con-cussion, SDH (subdural hematoma), sub-arachnoid haemorrhage, deep brain hae-morrhages and cortical contusions.”
20
 
Other causes of subduralhematoma
A variety o conditions known andunknown can cause subdural hemato-mas. For example, subdural hematomasare a known complication o childbirth.
21
 They can occur with no history o birthtrauma and have even been describedprenataly.
22
Hemorrhages have beenound in 70 percent o inants who diedrom non-traumatic causes, some withbleeding identical to cases presented asclassic “Shaken Baby Syndrome.”
23
In a recent survey o asymptomaticnewborns, 16 percent had subdural he-matomas. Fully 26 percent had someorm o intracranial bleed.
24
There isno suggestion that these children wereabused.Older inants with external hydro-cephalus commonly suer subduralhemorrhages.
25
Children with external
Discover 
looks at SBS
The lay science magazine
Discover 
took up the syndrome last December in itsarticle
Does the Shaken Baby Syndrome Really Exist? 
In addition to reviewingthe scientifc debate, it discusses a Rantoul case in which charges against a parentwere ultimately dropped and includes quotes rom Urbana lawyer and ISBAmember Kristen Fischer.The article is on the Web athttp://discovermagazine.com/2008/dec/02-does-shaken-baby-syndrome-really-exist.
Though shaken baby syndromeis still embraced by the medicalestablishment, some forensicscientists sharply criticize thetheory as rooted in anecdote,bad study, and speculation.
__________16. M. Donohoe,
Evidence-Based Medicine and Shaken Baby Syndrome Part I: Literature Review
,1966–1998, American Journal o Forensic Medicineand Pathology 24(3), 239–42 (2003).17. A. C. Duhaime, T. Gennarelli, L. Thibault, D.Bruce, S. Margulies, R. Wiser,
The Shaken Baby Syn-drome, A clinical, pathological, and biomechanical study
, Journal o Neurosurgery 66: 409–15 (1987).18. Id at 414.19. M. Prange, B. Coats, A. C. Duhaime, S. Margu-lies,
Anthropomorphic simulations o alls, shakes, and inficted impacts in inants
, Journal o Neurosurgery 99,143-50 (2003).20. A. Ommaya, W. Goldsmith, L. Thibault,
Biome-chanics and neuropathology o adult and pediatric head injury
, British Journal o Neurosurgery
 ,
16(3):220-42(2002).21. S. Chamnanvanakij, N. Rollins, J. Perlman,
Sub-dural Hematoma in Term Inants
, Pediatric Neurology26(4), 301–04 (2002).22. Id.23. J. Geddes, R. Taskert, A. Hackshaw, C. Nickols,G. Adams, H. Whitwell, I. Scheimberg,
Dural haemor-rhage in non-traumatic inant deaths: does it explain thebleeding in ‘shaken baby syndrome’?,
Neuropathologyand Applied Neurobiology 29, 14-22 (2003).24. C. Looney, et al,
Intracranial Hemorrhage in As-ymptomatic Neonates: Prevalence on MR Images and Relationship to Obstetric and Neonatal Risk Factors
,Radiology, 242(2) 535–41 (2007).25. P. McNeely, J. Atkinson, G. Saigal, A. O’Gorman, J. Farmer,
Subdural Hematomas in Inants with BenignEnlargement o the Subarachnoid Spaces Are Not Pathognomonic or Child Abuse
, American Journal o Neuroradiology
 ,
27:1725-28 (2006).
3

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