Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right

Keith A. Findley

University of Wisconsin Law School

Patrick David Barnes

Stanford University - School of Medicine

David A. Moran

University of Michigan at Ann Arbor - The University of Michigan Law School

Waney Squier

John Radcliffe Hospital

April 30, 2012

Houston Journal of Health Law and Policy, Forthcoming
Univ. of Wisconsin Legal Studies Research Paper No. 1195

Abstract:     
In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly with the anatomy and physiology of the infant brain, that there are many natural and accidental causes for these findings, and that the onset of symptoms does not reliably indicate timing. In the last issue of this journal, Dr. Sandeep Narang marshaled the arguments and evidence that he believes support the diagnostic specificity of the medical signs that are used to diagnose SBS/AHT. Dr. Narang does not dispute the alternative diagnoses but nonetheless argues that, in the absence of a proven alternative, the SBS/AHT hypothesis is sufficiently reliable to support criminal convictions. The cited studies do not, however, support this position since they assume the validity of the hypothesis without examining it and classify cases accordingly, often without considering alternative diagnoses. To address this problem, Dr. Narang argues that, in diagnosing SBS/AHT, we should rely on the judgment of child abuse pediatricians and other clinicians who endorse the hypothesis. Reliance on groups that endorse a particular hypothesis is, however, antithetical to evidence-based medicine and Daubert, which require an objective assessment of the scientific evidence. In the past decades, thousands of parents and caretakers have been accused "and many convicted" of abusing children based on a hypothesis that is not scientifically supported. While we must do everything in our power to protect children, we must refrain from invoking abuse as a default diagnosis for medical findings that are complex, poorly understood and have a wide range of causes, some doubtlessly yet unknown. To this end, we are calling for collaboration between the medical and legal communities for the sole purpose of "getting it right."

Number of Pages in PDF File: 80
Keywords: SBS, Shaken Baby Syndrome, AHT, Abusive Head Trauma, Daubert, innocence, wrongful conviction, medical evidence
Accepted Paper Series Download This Paper

Date posted: April 30, 2012  

Suggested Citation

Findley, Keith A., Barnes, Patrick David, Moran, David A. and Squier, Waney, Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right (April 30, 2012). Houston Journal of Health Law and Policy, Forthcoming; Univ. of Wisconsin Legal Studies Research Paper No. 1195. Available at SSRN: http://ssrn.com/abstract=2048374

Contact Information

Keith A. Findley (Contact Author) University of Wisconsin Law School ( email ) 975 Bascom Mall Madison, WI 53706 United States 608-262-4763 (Phone) 608-263-3380 (Fax) HOME PAGE: http://www.law.wisc.edu/facstaff/biog.php?iID=269
Patrick David Barnes Stanford University - School of Medicine ( email ) Stanford, CA 94305 United States
David A. Moran University of Michigan at Ann Arbor - The University of Michigan Law School ( email ) 625 South State Street Ann Arbor, MI 48109-1215 United States
Waney Squier John Radcliffe Hospital ( email ) Oxford, Oxfordshire, England United Kingdom

Baby soaps and shampoos trigger positive marijuana tests

By Maia Szalavitz | Time.com – 22 hrs ago




Commonly used baby soaps and shampoos, including products from Johnson & Johnson, Aveeno and CVS, can trigger a positive result on newborns' marijuana screening tests, according to a recent study. A minute amount of the cleansing products in a urine sample — just 0.1 milliliters or less — was found to cause a positive result.

Researchers at the University of North Carolina, Chapel Hill, began studying the issue after an unusually high number of newborns in their nursery began testing positive for marijuana exposure. Newborn screening for marijuana at hospitals, particularly among babies of women who are considered at high risk of drug use, is not uncommon: at U.N.C. Chapel Hill, 10% to 40% of newborns are tested.

Positive results can precipitate an investigation by child welfare authorities. "We really did this to help protect families from being falsely accused," study co-author Dr. Carl Seashore, a pediatrician in the U.N.C. Chapel Hill newborn nursery, told My Health News Daily.

(LIST: 10 reasons to revisit marijuana policy now)

Soaps that were specifically associated with false-positive marijuana test results include Johnson & Johnson’s Bedtime Bath, CVS Night-Time Baby Bath, Aveeno Baby Soothing Relief Creamy Wash and Aveeno Baby Wash & Shampoo.

Other products, such as Johnson’s Head-to-Toe Baby Wash, CVS Baby Wash, Baby Magic and even standard hospital gel hand soap, also indicated the presence of marijuana metabolites when tested, but not at sufficient levels to qualify as a positive result according to the hospital lab's standards.

The problem is almost certainly not limited to these products, however. Researchers also tested ingredients used widely in soaps and shampoos, including polyquaternium-11 and cocamidopropyl betaine, which both elicited positive marijuana test results. So far, there is no explanation as to why the chemicals interfere with the test's function, but importantly, they aren't intoxicating; they don't cause symptoms of marijuana exposure in children. The researchers think minute amounts of the substances were simply washing off the babies' skin into their urine samples and confounding the screens.

While more sophisticated and expensive testing can easily distinguish between true and false positive results, most hospitals don't use such tests because of the time and costs involved. And positive tests found at the hospital aren't typically sent to outside labs for confirmation, which makes false positive results — and possible investigations afterward — all the more troubling.

Indeed, why hospitals test infants for marijuana exposure in the first place is not entirely clear. Twelve U.S. states designate prenatal exposure to any illegal drug as child abuse; however, there is no scientific evidence that connects marijuana-smoking by a parent with abuse.

(MORE: Viewpoint: Smoke a joint, lose your child?)

The question is not whether it's acceptable for expectant mothers to use illegal drugs. No child-health expert would characterize recreational drug use during pregnancy as a good idea. But it's not at all clear that the benefits, if any, of newborn marijuana screening — particularly given how selectively the tests are administered — justify the potential harm it can cause to families.

“If the issue is that the mother broke the law and therefore the child should be removed, we might want to consider going after mothers who exceed the speed limit while driving," says Carl Hart, an associate professor of psychology at Columbia University and author of a leading text on drug effects. "Of course, this is ridiculous.” (Full disclosure: Hart and I are currently collaborating on a book project.)

To remove children from their home at birth because of a positive marijuana test is immediately and inexorably harmful, says Richard Wexler, executive director of the National Coalition for Child Protection Reform. "Even when the test is accurate, there is no evidence that smoking pot endangers children," he says, adding, "There is overwhelming evidence that needless foster care endangers children.”

Wexler explains that the odds of abuse and neglect are higher in foster care than they would be at home for the babies. “These infants are being taken from homes where there is no evidence of abuse, and placed in a situation where the odds of abuse are at least 1 in 4,” he says. "The odds of this kind of separation doing emotional damage are nearly 100%. Children risk enormous emotional trauma when they are torn from their mothers during a crucial period for infant-parent bonding.”

One study of infants who were exposed to cocaine in the womb found that their physical growth and development increased when they remained with their biological mothers, compared with being removed from the home because of maternal drug use. “For the foster children, being taken from their mothers was more toxic than the cocaine,” Wexler says.

(PHOTOS: A giant marijuana plantation discovered in Mexico)

The effects of prenatal drug exposure can vary widely. Maternal cocaine use during pregnancy has been linked with subtle developmental problems in children. But despite the popularized notion of permanently disabled "crack babies," the research shows that the harms of cocaine use in pregnancy are on par with those associated with smoking cigarettes. Both can increase the risk of preterm birth and stillbirth. Neither is as dangerous as alcohol, which can cause irreversible intellectual disability.

The evidence on marijuana is inconclusive: Some studies link marijuana use in pregnancy with reduced fetal growth and behavioral problems, but other research has found no effect. Again, the science shows no damage that approaches the harm linked with alcohol or cigarettes.

Although marijuana exposure has not been associated definitively with child harm, testing for it and placing children in foster care unnecessarily has been. Worse, the risks of custody loss are not applied equally to all women.

Determining whether a mother is considered at high risk for drug use — and warrants newborn testing — is ostensibly based on objective factors like whether she failed to obtain prenatal care or has acknowledged being a drug user. But in reality, characteristics like race often dictate which women are singled out for testing: a 2007 study found that babies born to black mothers were 50% more likely to be tested than white infants, even though rates of drug use and odds of positive results didn't vary by race.

If you now consider the additional risks of false-positive results due to bath soaps, it’s hard to make the case for continued newborn marijuana testing — especially if the ultimate goal is to help children thrive.

MORE: Can addictive behaviors be predicted in preschool?

Maia Szalavitz is a health writer for TIME.com. Find her on Twitter at @maiasz. You can also continue the discussion on TIME Healthland's Facebook page and on Twitter at @TIMEHealthland.


http://news.yahoo.com/baby-soaps-and-shampoos-trigger-positive-marijuana-tests.html 

Attorney files $4.75 million lawsuit against state on behalf of 11-year-old boy whose Lane County foster parents broke his bones, burned him

 By Aimee Green, The Oregonian 

An attorney representing an 11-year-old boy whose Lane County adoptive parents were sent to prison for horrific abuse that hospitalized him for a month is suing the Oregon Department of Human Services for $4.75 million. 

Portland attorney David Paul filed the suit Friday in Multnomah County Circuit Court on behalf of the boy, identified by his initials, R.H. According to the suit and investigative reports, the boy suffered a broken pelvis and ribs, was burned badly on his foot and chest, force-fed infant formula, required to sleep in a bathtub and thrown repeatedly in a creek and hosed down. The boy also was forced to stand outside while the other children in the home ate meals — including Thanksgiving and Christmas dinners — or snacked on popcorn and soda during “family nights.” 

Alona and Rodger Hartwig had six biological children and four foster children. Some were abused, but Paul said they saved the worst of their abuse for the boy. 

 “Nobody was treated like this one kid,” Paul said. “They just heaped it on him.” 

DHS certified the Hartwigs as foster parents in 2003. From 2003 to 2009, DHS received at least nine reports of child abuse or neglect in the Hartwig home, but child-protective workers failed to step in to protect the boy or other children, the suit alleges. For example, in 2004, DHS received a report of a 3-year-old foster child who was losing weight, had a black eye, scrapes and sores all over his body, shoes that were too small and blood blisters on his feet.

R.H. moved in the following year -- in 2005 -- and eventually was adopted by the Hartwigs, with DHS's approval. 

The boys suffering came to light in 2010, after someone called the Lane County Sheriff’s Office, and deputies discovered the boy with broken bones and a bad infection from untreated burns. He ended up spending a month at Doernbecher Children’s Hospital in Portland. 

In a DHS review into what went wrong, DHS acknowledged that repeated reports of possible abuse or neglect at the Hartwig home weren't adequately investigated or considered as child-welfare workers re-certified the Hartwigs as foster parents and allowed them to adopt. The review suggested ways to prevent such abuse.

In an email Monday, DHS spokesman Gene Evans said protecting children is his department's highest priority.

"Any abuse or neglect of a child in foster care is unacceptable," Evans wrote. 

Evans said DHS has improved its screening and investigation of reports of abuse and neglect. It also has instituted "more comprehensive background checks of foster parents before they are ever certified to care for a child." DHS officials note that the reported number of children who are abused or neglected while in foster care has been declining, dropping from one in 100 in 2007, to one in 200 in 2010, the latest figures available.

R.H., who is now 11, is still in the foster-care system. The suit describes his physical and psychological injuries as "permanent and progressive." The suit seeks $250,000 for medical bills and counseling, $1.5 million for loss of earning capacity over his lifetime and $3 million for pain and suffering. The boy is "severely traumatized" and unable to form close relationships, the suit states.

The suit doesn't seek compensation from the Hartwigs, who likely have little means to pay. Alona Hartwig, 48, pleaded guilty to first-degree assault and criminal mistreatment, and is serving a nearly 11-year prison term. Rodger Eugene Hartwig Jr., 53, pleaded guilty to second-degree assault and was sentenced to nearly six years in prison.

http://www.oregonlive.com/pacific-northwest-news/index.ssf/2012/06/attorney_files_475_million_law.html

Charges against former Foster Parent of the Year hiked to five

BY KEVIN MARTIN ,CALGARY SUN

FIRST POSTED: SATURDAY, JUNE 16, 2012 03:17 PM MDT | UPDATED: SATURDAY, JUNE 16, 2012 03:20 PM MDT

Former Foster Parent of the Year Gary Prokopishin will face two extra accusers when he stands trial for molesting boys under his care, his lawyer said Friday.

Defence counsel Ian McKay told court the Crown has directly indicted his client on two additional charges of sexual contact with minors, bringing the total allegations against him to five. As a result, McKay told Justice Earl Wilson, he and Crown prosecutor Gord Haight will need an eight-day hearing instead of six.

McKay set Prokop-ishin’s new trial to commence March 4 before a Court of Queen’s Bench judge sitting without a jury.

Outside court, McKay said the additional allegations involve complainants who came forward earlier, but could not be subpoenaed for Prokopishin’s preliminary hearing.

“They were on the original (charging) information, but they couldn’t get them served for the preliminary,” the lawyer said.

Prokopishin, 53, was ordered to stand trial on three charges of sexual contact with a minor by a person in authority following a preliminary inquiry in October 2010.

He had faced 13 charges involving six different boys, but 10 of those were dismissed by a provincial court judge who found there was no evidence to support them.

Prokopishin was initially arrested in February 2010 and charged with luring a child via a data device, three counts of obtaining or attempting to obtain sex from a person under 18, and sexual contact with a youth by a person in authority. Police alleged at the time money was offered in exchange for sexual acts.

kevin.martin@sunmedia.ca

Woman battles CPS to get her kids back

by Carey Peña

Bio | Email | Follow: @careypenatv

azfamily.com

Posted on June 13, 2012 at 10:37 AM

Updated Wednesday, Jun 13 at 12:25 PM

PHOENIX -- Rachel Sparks says her son was snatched right from her arms. And she claims that the state of Arizona is to blame.

Sparks says Child Protective Services unfairly took her son and refused to give him back.

The single mom had some medical problems. She tells 3TV that she was taking Cymbalta as prescribed for pain when her doctor quadrupled the dose, which sent her into a deep depression. That’s why CPS initially took her son.

“I was in the hospital getting treatment because of the Cymbalta at the time CPS took my kids,” Sparks said.

But after that she says that she did everything the state asked her to do in order to get the kids back.

Internal CPS documents, obtained by 3TV, show the goal was to stabilize her health and get her medication balanced out.

She did that as documented in the CPS reports.

Still, a caseworker showed up again to take her youngest son, Zachary, who is autistic.

There was concern that she couldn’t take care of all of his special needs.

“They just took him – just took him away and that was very hard,” Sparks says through tears. “it was traumatic.”

Attorney Lynda Vescio took Sparks’ case pro bono.  

We asked Vescio why CPS would be motivated to remove the children if there truly was no danger.

“I think at the time they came in, they had a basis based on the fact that she had been overmedicated by her doctor,” Vescio said.

But it was what happened next that Vescio believes was way out of line.

Despite doing what CPS asked her to do, Sparks could not get her son back – as months turned into years.

“Nobody ever told me what I had done wrong,” Sparks says. “It was a medical problem with Cymbalta. I have never been charged with anything. Never was.”

According to court documents, Zachary was desperate to move back with his mom and was becoming suicidal as he was moved from place to place.

“They tried to place this child with every person but her,” Vescio said, “despite the fact that we found out they had a report from a year and a half ago stating the child should be returned to mom but they never disclosed it."

The report was written by the team of specialists assigned to Sparks' case; the people who are supposed to figure out if she is a fit and stable parent.

The report reads, in part, “There are no risk factors at this time as client has met her goals above and beyond showing strength and stability in safe parenting.”

3TV wanted to know why – given this report which recommends Zachary be returned to his mom – did it take another year and a half and a court order?

We asked Vescio if she is alleging CPS withheld evidence.

“Whether it didn’t happen because it got overlooked through negligence or whether it was intentionally withheld, I don’t know,” she said.

The caseworker signed the report but never turned it over to Vescio or the court.

3TV reached out to CPS to get the caseworker’s side of the story, but CPS told us they cannot comment on camera.

Department of Economic Security spokeswoman Tasya Peterson sent the following statement:

“In cases like this, DES is accountable through the Juvenile Court process to disclose information by statute and to ensure child safety.”

For Sparks, it has been a long and painful journey.

“It’s scary – I’m still scared," she said. "Not that I’ve done anything wrong but that this can happen to regular people.”

Still Sparks says she’s a survivor -- and so are her kids.

“My kids are my life,” she tells us. “They are the reason I am living.”

Charges dropped in toddler assault case

By Nicole Montesano
Of the News-Register 

Charges against a McMinnville man accused of fracturing a toddler's skull were dropped on Thursday, after a grand jury declined to indict him.

Nicholas Ryan Bates, 25, had been charged in May with third-degree assault and first-degree criminal mistreatment, after his girlfriend's 2-year-old son was found to have suffered a fractured skull and collarbone.

Grand jury proceedings are secret by law; not even the defendant is allowed to be present. During the proceedings, the jury receives evidence favorable to the prosecution; no defense is presented. It then determines whether it believes that the evidence, if unexplained or contradicted at trial, would support a conviction. If so, it determines which charges are supported.

Defendants are informed of the outcome at a court hearing, when they are either formally advised of the charges against them, or the charges are officially dismissed.

Prosecutor May Chou said, that "at this point, I do not expect to" file any additional charges in the case. She declined further comment.

The case came to light in mid-May, when the toddler's mother, 22-year-old Felicia Megan Manley, took him to the hospital emergency room.

According to the Yamhill County Sheriff's Office, she told investigators that she and the child had been at Bates' home when she stepped outside to smoke a cigarette, and returned inside, to find the child had a small amount of blood on his mouth, as if he had bitten his tongue. The next day, the toddler was unresponsive and acted as if his arm hurt, so she took him to the hospital, where doctors discovered the injuries, and notified police. She told investigators she did not know how the toddler had been injured.

Bates said that he is no longer with Manley.

He said he does not know how or when the child was injured.

"We were not being good parents, that's all I can say. ... We were just having a bonfire, everyone was drinking, no one was paying attention."

The situation continues to be a painful one, he said, because he feels his reputation has been permanently damaged.

"I wish there was any way to fix that, but the damage has already been done. I don't know if anybody is ever going to believe me," he said. "I'm not a child beater. ... I'm just pretty upset about the whole situation."

http://newsregister.com/article?articleTitle=charges-dropped-in-toddler-assault-case--1339857429--3759--news

DHS sued for $1 million after Portland foster father molested girl

Published: Tuesday, June 12, 2012, 4:42 PM     Updated: Tuesday, June 12, 2012, 5:14 PM

 By Aimee Green, The Oregonian 
Follow

An attorney has filed a $1 million lawsuit against the Oregon Department of Human Services on behalf of an 8-year-old girl who was molested by her North Portland foster dad.

The suit, filed in Multnomah County Circuit Court on Monday, faults DHS for failing to adequately respond to reports that something was wrong in the home.

According to the lawsuit and Josh Lamborn, the Portland attorney who represents the girl:

The girl and her younger brother were placed in the home in August 2009, after their mother was locked up in jail. In October 2009, the girl, then 6, told her biological father that foster father Leslie Boyd Hayden had rubbed her back and stomach. Her dad told her caseworker, who told Hayden to stop the massages.

"Hayden says it's no big deal, and they (DHS workers) drop it," Lamborn said.

Ten days later, the biological father complained to the caseworker that his son told him he was bleeding from the penis. The caseworker interviewed the children and Hayden's wife later that day. The children were allowed to stay in the Hayden home.

Four days after that, the caseworker learned from a non-profit worker that the girl had said her foster dad had touched her inappropriately. The caseworker responded by saying "he had already addressed that issue and it would no longer be an issue," according to the suit.

About a month after that, the girl told her biological father that Hayden, then 70, had kissed her on the mouth and molested her with his hands. The biological father called police, who started an investigation and notified DHS. Child-protective workers removed the children from the home that day.

Lamborn said the father turned to police because he'd "lost faith in the caseworker because he'd told him twice before that something was wrong" and nothing happened.

In an email earlier this week about abuse by foster parents, DHS spokesman Gene Evans said DHS has improved its screening and investigation of reports of abuse and neglect. It also has instituted "more comprehensive background checks of foster parents before they are ever certified to care for a child."

DHS officials note that the reported number of children who are abused or neglected while in foster care has been declining, dropping from one in 100 in 2007, to one in 200 in 2010, the latest figures available.

After a trial, Hayden was found guilty of two counts of first-degree sexual abuse. He was sentenced in 2011 to more than 12 years in prison.

The suit seeks $1 million in non-economic damages for the girl's physical injuries and "permanent psychological damage." The suit also seeks $55,000 for past and future counseling and "psychiatric and psychological medical treatment."

The children are now living with their father.

-- Aimee Green;