Analyzing and Preparing Cases Involving Medically-Based Allegations of Child Abuse

1. Analyzing and Preparing Cases Involving Medically-Based Allegations of Child Abuse Bruce Boyer, JD Diana Rugh Johnson, JD, CWLS Melissa Staas, JD

2. Getting It Right • Physical abuse cases are among our most serious • Removal of a child to foster care is sometimes necessary, but always traumatic • Reunification after an adjudication of physical abuse can be very difficult to achieve

3. Case Analysis • No up-front funds • Attorney needs to know how to go over his/her own case • Attorney needs to read the medical records • Attorney needs to understand the medical facts on which the diagnosis was based • Attorney needs to decide if experts need to be consulted

4. Investigative Time Frame • The hours leading up to the diagnosis are NOT the most important. • Obtain the child’s entire medical record leading up to the injury in question • Prenatal clinic • Birth hospital • Pediatrician • Previous injuries • Previous hospitalizations • Urgent care facilities

5. Gathering Medical Records • Obtain all medical records related to the injury in question • Medical Records Department • Radiology Department • Pathology Department • Emergency Department • Emergency Transport (ambulance, life flight)

6. Investigative Time Frame • Obtain all medical records created after the diagnosis of the injury in question • Continued hospitalization • Subsequent hospitalization • Follow-up radiology • Therapies

7. Learn the Terminology

8. Know the Parts

9. Know the Directional Words

10. Build a Reference Library

11. Utilize on-line resources

12. Communicate with others who are doing this work • http://www.ga-innocenceproject.org/SBSSeminarMaterials-10.12.11.htm

13. Don’t be Intimidated by the Medical Records • Often, the medical facts on which the case turns are written in plain English • Identify potential problems and inconsistencies before trial • Child abuse consultation report contains a compilation of information gathered from other sources and other specialists • Review the reports of each specialist

14. Example: • Child Abuse Consult: “CT scan shows likely subdural hematoma.” • Radiology Report: “Hyperdense material along posterior falx is nonspecific but may represent a small amount of extraaxial blood products. Recommend repeat imaging in 24-48 hours.” • Radiology Report: Follow-up of previous hyperdensity along posterior falxcerebri. Again demonstrated as a thin area of high density. No significant interval change, with stable thin hyperdensity along the posterior falx, representing either dural thickening or possibly a tiny amount of subdural blood.

15. Example: “5 day old neonate who was apparently well upon discharge except for having some fussiness with diaper changes that the parents attributed to his recent circumcision, found to have R thigh swelling after dad noticed baby was not moving his one leg when he played with his feet. On x-ray, baby has an oblique, displaced mid-shaft femur fracture with significant swelling. The history of this neonate not being irritable with diaper changes is not consistent with the fracture being present at that point in time…This injury needs to be considered non-accidental in nature, as there is not an accidental mechanism to account for the injury.”

16. Don’t forget the basics of lawyering • Investigate the family • Scene investigation • Detailed interview of parents • Criminal history • Social services history • What kind of parents are they? • Interview family members • Interview neighbors & friends • Interview the pediatrician

17. Case #1Scene Investigation

18. Case #2Interviewing Family

20. Case #3Reviewing Post-Injury Records 2/17/10

21. CPC report: 3 new rib fxs since discharge • 3/1/10 CHEST XRAY • There is a healed posterior L 7th rib fx once again identified • There is also a slightly bulbous medial aspect of theL 9th posterior rib • Minimally displaced healing rib fxs of theR 5th, 6th, and 7th posterior ribs

22. 3/1/10

23. 3/8/10 CHEST XRAY • There are healing rib fxs noted bilaterally • TheL posterior 7th ribfracture is an old one which was reported previously • The R-sided fractures are most conspicuous at the posterior aspect of the5th through 7th ribs • Note is made that there also appear to be possible fxs on the anterior aspect of the R 7th through 9thribs

24. 3/8/10

25. 3/11/10 CHEST XRAY • Healing rib fxs of the L 5th, 7th, and 9thandR 5th, 6th, and 7th ribsdemonstrate continued callous formation

26. 3/11/10

27. 3/23/10 SKELETAL SURVEY • Multiple bilateral healing and healed rib fxs are seen • TheL 5th, 6th, and9thribs posteriorly show callus formation • There is a contour irregularity of the 7th rib medially on the L, which may represent an old, healed fx • On the R, there are healing fxs of the 5th, 6th, and 7th posterior ribs • There are also healing fxs seen at the anterior tips of the8th and 9th ribs, which are more clearly seen on today’s study and were not present on 3/1/10 • A small area of periosteal new bone formation is also seen on theL 5th rib, separate from the healing fx, that was not present previously and could represent a new healing fx

28. 3/23/10

29. At Trial • Make an opening statement • Introduce your theory of the case • Give the judge a road map to the verdict you want • Know the medical records and the timeline of the case like the back of your hand • Prepare exhibits • X-rays make great Power Point slides • If dates are important, use a calendar

30. Example: • Wrist fracture

31. Example:

32. Example:

33. Head Injuries Exploring Potential Differential Diagnoses, and Consulting the Relevant Sub-specialists

34. Subdural Hematoma • Treated immediately as a case suspicious for abuse • Child abuse pediatricians may conclude “likely abuse” (i.e., “shaken baby syndrome” or “abusive head trauma”) based solely on the existence of a subdural hematoma • However, subspecialists agree that an isolated subdural hematoma is NOT pathognomonic (i.e., diagnostic) for non-accidental trauma

35. Subdural Hematoma • For the moment – let’s remove retinal hemorrhages from the equation • Isolated subdural hematoma could be due to: • birth trauma, • pre-existing medical condition, • short-distance fall, or • some combination of the above

36. Benign External Hydrocephalus • Diagnosed via macrocephaly (head circumference exceeding 90th percentile) and radiological findings of enlarged extra-axial/subarachnoid spaces • Pediatric neurosurgeons and pediatric neurologists agree: INFANTS WITH BEH ARE SUSCEPTIBLE TO SUBDURAL HEMATOMAS FROM MINOR TRAUMA, OR EVEN SPONTANEOUS BLEEDS

37. 2 Examples of Peer-Reviewed, Evidence-Based Studies • Papasian & Frim, A Theoretical Model of Benign External Hydrocephalus that Predicts a Predisposition Towards Extra-Axial Hemorrhage After Minor Head Trauma, Pediatric Neurosurgery, 2000 • McNeely et al., Subdural Hematomas in Infants with Benign Enlargement of the Subarachnoid Spaces Are Not Pathognomonic for Child Abuse, AmericaN Journal of Neuroradiology, 2006

38. How Do We Know that BEH May Be at Play? • May have been missed or overlooked by the child abuse/child protection pediatrician • Investigate: • Pediatric records for increasing head circumference • Radiological findings and impressions • Speak with the pediatric neurosurgeon/neurologist

39. Translating the Radiological Jargon These all mean the same thing: • Benign enlargement of the subarachnoid space (BESS) • Extra axial spaces of infancy • Benign enlargements of the extra-axial spaces • Benign subdural collections of infancy • Prominence of bilateral frontal extra-axial spaces • Benign extra cerebral fluid collections • Benign subdural effusions of infancy

40. Significance of the Presence of BEH • It is a pre-existing medical condition that predisposes infants to intracranial bleeding from minor trauma, or even spontaneously • Enlargement of the cerebrospinal fluid spaces causes stretching of the bridging veins in the subdural space, making them more vulnerable • Subdural collections associated with BEH mimics chronic subdural hematomas due to non-accidental trauma

41. But What About Retinal Hemorrhages? Non-accidental trauma is still not necessarily the most likely explanation, particularly when there has been: • Incidental detection of subdural hematomas and retinal hemorrhaging • Minimal or complete absence of symptoms • Absence of structural damage to the brain

42. Wading through the murky waters of retinal hemorrhages • Conflicting views regarding causation, generally, and as to the role of morphology and location • Vigorous forces ≠ violent/abusive forces • Need for photos and/or diagrams

43. What do the neurosurgeons say about RHs? In various specific cases, treating pediatric neurosurgeons have opined and/or testified that the RH in that specific case were consistent with: • Intracranial pressure • Blood travelling up the optic nerve • Birth trauma

44. Other explanations for subdural hematomas • Other medical conditions (blood disorders) • Short-distance falls without pre-existing conditions

45. Skull Fractures Important to rule out a mis-reading of the suture lines, which are prominent in infants