The death of a child – relying on medical data has controversies

The death of a child is devastating at the best of times. When the child dies in unexplained or suspicious circumstances, it tends to create a volatile mix of emotions ranging from sadness through to anger. The community questions what went wrong. How could this be allowed to happen? What might have prevented this? But surely, the big question is who is to blame.

For child protection workers, there is a more complex question – are there other children who might be at risk? If so, what needs to be done to protect them? CPS must consider this question quickly while the investigation is underway around the death of the child.

A core issue that must be resolved is whether or not the death was accidental or non-accidental. If the latter, how did the child die? This may well determine case planning for other children. If the cause of death is non-accidental, then what is the risk for other children?

Medical data becomes essential to resolving the puzzle. Of course, police also want the answers. Diagnostic conclusions are needed. What if that data is questionable? We have seen this issue in Canada with a number of cases in Ontario where autopsy reports proved inaccurate. Several people were incarcerated based on these results. The criminal convictions were overturned.

This led to the Goudge report in Ontario which was released in 2008. He refers to the basis of the concern with autopsy reports by summarizing a review of the work of one pathologist. On p.7, Goudge states:

"1 In all but one of the 45 cases examined, the reviewers agreed that Dr. Smith had conducted the important examinations that were indicated.
2 In nine of the 45 cases, the reviewers did not agree with significant facts that appeared in either Dr. Smith’s report or his testimony.
3 In 20 of the 45 cases, the reviewers took issue with Dr. Smith’s opinion in either his report or his testimony, or both. In 12 of those 20 cases, there had been findings of guilt by the courts."

Goudge recognizes that there must be restored faith in the forensic pathology work and makes four cornerstone recommendations:

"1 legislative change that provides both proper recognition of the vital role foren- sic pathology plays in death investigation and the foundation for proper organization of a forensic pathology system;
2 a commitment to providing forensic pathology education, training, and certification in Canada and strengthening the relationship between service, teaching, and research;
3 a commitment to the recruitment and retention of qualified forensic patholo- gists; and
4 adequate, sustainable funding to grow the profession." (p.35)

It seems that Canada is not alone in facing a lack of confidence in the results of autopsies and their role in child abuse and death cases. These same issues are emerging as an area of significant concern in the United States. PBS Frontline has reviewed the issue in their program this week. You can view it at pbs.org

The report done by PBS, NPR and ProPublica notes:

Often, authorities had little to go on other than autopsy findings. Many of the doctors who conducted post-mortem examinations failed to consult specialists in childhood injuries or ailments, or to thoroughly review medical records that could have affected their conclusions. In several cases, forensic pathologists worked so closely with authorities, they effectively became agents of law enforcement, rather than objective arbiters of scientific evidence.

This appears to be a call for ensuring that the kinds of steps called for by Goudge should be applied in the United States as well. CPS should welcome such a step as it will create greater certainty from which to do case planning.

The report and allied material goes on to raise yet another major challenge for child protection. Can diagnostic conclusions made in autopsies or by other medical specialists be relied upon? They use the example of Shaken Baby Syndrome (SBS) that has been undergoing a serious reconsideration. The medical community may well be divided on it. Yet, those of us working within CPS systems need to be able to rely on these medical conclusions for effective case planning. Can the family be preserved or must the children be removed?

The ProPublica report suggests that SBS has perhaps too easily been seen as the cause of death in many cases where reviews of medical evidence says that the cause was something quite different. The reports suggests that SBS is not such a diagnosis that can be relied upon if the traditional triumvirate of symptoms is relied upon. They state:

"Under the theory, certain patterns of bleeding and swelling of the brain, and hemorrhages of the retinas came to be seen as conclusive evidence that a child had been assaulted with terrible force, even if there were no other signs of trauma.

But many experts now view the diagnosis with increasing skepticism. In Canada and Britain, large-scale official reviews have uncovered at least nine cases in which people may have been wrongly convicted based on the shaken-baby theory."

In child protection, it is vital that we are aware of these debates so that we can ask better questions of the various experts involved in a case. The implications are enormous. Thus, in SBS cases, we will need to ensure we ask careful questions about whether alternative explanations might exist for injuries incurred.