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June 18, 2015 Articles

Handling Child Abuse Cases Involving Violent Shaking and Abusive Head Trauma

By P. Leigh Bishop, William H. Branigan, John M. Leventhal, and Mark A. Mittler

Violent shaking and similar abuse, such as slamming, stomping, and punching a child's head, known collectively as abusive head trauma (AHT), kill or seriously injure hundreds of children in the United States every year. And—as is well settled in the scientific community—violent shaking alone can seriously injure or kill a child. There is also broad scientific consensus that the resulting injuries, known as shaken baby syndrome (SBS), are strong evidence of abuse. Therefore, it is important that, upon diagnosing children with head injury, the medical community work with law enforcement and social services to identify cases of abuse, protect the victims, and, when necessary, prosecute the offenders.

Most major children's hospitals in the United States have doctors from various disciplines who can diagnose and treat children with severe head trauma, and determine whether those children have been abused. After a hospital reports suspected child abuse to the authorities, law enforcement and social services must make their own determinations of whether abuse has occurred, whether to remove the child from his or her home, and whether to prosecute someone for child abuse. These decisions can destroy families and confine someone to prison, but are necessary to protect the lives of vulnerable children. Therefore, child abuse professionals must investigate these cases thoroughly to make informed and accurate findings. As discussed below, by consulting with treating physicians and by conducting a proper investigation, prosecutors, child welfare attorneys, police officers, and social workers can protect children while minimizing the possibility of wrongful convictions and wrongly broken homes.

AHT/SBS Diagnosis Is Well Established in the Scientific Community
The AHT/SBS diagnosis is well supported in the medical literature. Indeed, decades of studies support the conclusion that violent shaking can seriously injure or kill a child, that trained physicians can diagnose this abuse, and that, every year, hundreds of children suffer serious injuries from violent shaking. The American Academy of Pediatrics and other reviews have highlighted the key findings in children with abusive head trauma. See Cindy W. Christian et al., "Abusive Head Trauma in Infants and Children," 123 Pediatrics 1409 (2009); John M. Leventhal et al., "Diagnosing Abusive Head Trauma: The Challenges Faced by Clinicians," 44 (Supp. 4) Pediatric Radiology S537 (2014). Studies, including those from the Centers for Disease Control and Prevention (CDC), have examined the incidence of AHT/SBS. See Sharyn Parks et al., "Characteristics of Non-Fatal Abusive Head Trauma among Children in the USA, 2003–2008: Application of the CDC Operational Case Definition to National Hospital Inpatient Data," 18 Inj. Prevention 392 (2012). Other studies have focused on distinguishing abusive from accidental head injuries. See Mary E. Case, "Distinguishing Accidental from Inflicted Head Trauma at Autopsy," 44 (Supp. 4) Pediatric Radiology S632 (2014). And still others have described the confessions of adult perpetrators of AHT/SBS. See Dean Biron & Doug Shelton, "Perpetrator Accounts in Infant Abusive Head Trauma Brought About by a Shaking Event," 29 Child Abuse & Neglect 1347 (2005); Suzanne P. Starling et al., "Analysis of Perpetrator Admissions to Inflicted Traumatic Brain Injury in Children," 158 Archives Pediatrics & Adolescent Med. 454 (2004); Matthieu Vinchon et al., "Confessed Abuse versus Witnessed Accident in Infants: Comparison of Clinical, Radiological, and Ophthalmological Data in Corroborated Cases," 26 Child's Nervous Sys. 637 (2010).

In the United States, medical school curriculums include the problem of child abuse. In addition, most major medical centers in the United States have at least one pediatrician who is board certified in child abuse pediatrics and who has experience both in diagnosing AHT/SBS, and, as important, in excluding AHT/SBS in children with head injuries. Indeed, doctors in major medical centers are well trained in diagnosing AHT/SBS and in detecting other potential causes for the injuries and findings associated with AHT/SBS.

Medical science has demonstrated that violent shaking can cause a spectrum of injuries to a child's head, ranging from mild to fatal. These injuries include brain damage, subdural hemorrhage (bleeding between the brain and skull), retinal hemorrhage (bleeding inside the eye), and neck and spinal cord injury. See Gil Binenbaum & Brian J. Forbes, "The Eye in Child Abuse: Key Points on Retinal Hemorrhages and Abusive Head Trauma," 44 (Supp. 4) Pediatric Radiology S571 (2014); Mark P. Breazzano et al., "Clinicopathological Findings in Abusive Head Trauma: Analysis of 110 Infant Autopsy Eyes," 158 Am. J. Ophthalmology 1146 (2014); Alison Kemp et al., "Spinal Injuries in Abusive Head Trauma: Patterns and Recommendations," 44 (Supp. 4) Pediatric Radiology S604 (2014). In addition, these children often have bruises and fractures to other parts of their bodies. Ignasi Barber & Paul K. Kleinman, "Imaging of Skeletal Injuries Associated with Abusive Head Trauma," 44 (Supp. 4) Pediatric Radiology S613 (2014). And shaking alone, without impact, can cause death. James R. Gill et al., "Fatal Head Injury in Children Younger Than 2 Years in New York City and an Overview of the Shaken Baby Syndrome," 133 Archives Pathology & Laboratory Med. 619 (2009). Thus, there is broad scientific consensus that, when trained doctors diagnose these injuries in a child—and exclude other possible causes for the injuries—they can conclude to a reasonable degree of medical certainty that the child has been abused.

Child Abuse Doctors Can Diagnose Abuse in a Child with Severe Head Injury
Law enforcement officials and social workers charged with investigating a case of suspected AHT/SBS should consult with medical doctors, especially those who have treated the injured child, to determine whether abuse has occurred. Major children's hospitals often have child abuse pediatricians, pediatric neurosurgeons, pediatric neurologists, pediatric ophthalmologists, pediatric orthopedists, pediatric intensive care unit specialists, pediatric hematologists, and pediatric radiologists and neuroradiologists who evaluate and treat children with symptoms of head injury. Working together, these specialists are well positioned to diagnose abuse and exclude other causes for a child's head injuries.

Typically, working as a group, these medical specialists develop a working "differential diagnosis" to systematically and thoroughly consider all reasonable possibilities for the child's injuries. While certain findings—including subdural hemorrhage, retinal hemorrhage, and cerebral swelling—are strong evidence of inflicted head trauma in a child, other possibilities must be considered. Therefore, experienced doctors generally rule out accidents and medical causes such as bleeding disorders, metabolic problems, and infections.

In addition to medical tests, the treating doctors should review the injured child's medical history—including birth records and well child and illness visits—to understand the child's development and physical capabilities, to identify significant health problems, and to consider the possibility of a traumatic birth or other noninflicted trauma. Similarly, in cases where a child dies from head injuries, a thorough autopsy, including evaluation of the child's brain and eyes, is needed. M.G.F. Gilliland et al., "Guidelines for Postmortem Protocol for Ocular Investigation of Sudden Unexplained Infant Death and Suspected Physical Child Abuse," 28 Am. J. Forensic Med. & Pathology 323 (2007).

Physicians who care for children with head trauma can use their clinical experience to distinguish accidental from inflicted injury. These doctors frequently encounter injuries in children that are clearly accidental—for instance, where children have been hit by cars, have fallen off bicycles, or have been struck by baseballs. In these cases, they know the cause of injury, in part, because there is a witness. In other cases where an infant or young child has suffered a serious head injury, caregivers bring the child to the hospital without information about how the injury occurred or claim that an accident caused the injury. In these cases, pediatric specialists may use their experience to determine whether the caregiver's history can explain the child's injury. See Carole Jenny, "Alternate Theories of Causation in Abusive Head Trauma: What the Science Tells Us," 44 (Supp. 4) Pediatric Radiology S543 (2014).

For instance, a 10-month-old child might appear at the hospital with no external signs of trauma, but massive hemorrhage around the brain and in the eyes. Should a parent claim that the child fell from a standing position within a crib against the side rail and onto a mattress, pediatric specialists could evaluate whether this history was consistent with the injury.

Child Abuse Professionals Must Still Conduct Their Own Careful Investigation
Police officers, lawyers, and social workers assigned cases involving possible AHT/SBS must conduct their own careful and thorough investigations, even after treating physicians have determined that abuse has occurred. Investigators should approach cases of potential child abuse with an open mind, consider all relevant surrounding circumstances, and follow the evidence without bias toward any particular outcome. There are concrete steps, however, that an agency official or attorney can take to investigate suspected AHT/SBS fairly and accurately.

First, investigators must understand the child's condition and diagnosis and determine whether the child suffered abuse. Therefore, they should consult with the treating physicians about their diagnosis and discuss all of the issues noted above.

Second, investigators should collect the child's relevant medical records and review them with a reputable, practicing pediatric physician. A physician can translate confusing medical documents and explain how the documents might support or undermine a finding of abuse. For instance, a physician could tell from the records whether the child had a preexisting condition and whether that condition might have contributed to the child's injuries. And a physician could explain any tests that were performed and how those tests might eliminate different medical conditions as causes of the injury.

Third, after determining that the child has been abused, investigators must determine who committed the abuse. They should begin by finding who had access to the child when he or she suffered the injury, because, when inflicted head trauma causes death or serious injury, the child's deterioration is usually immediate and obvious. The symptoms of inflicted trauma include lethargy, limpness, difficulty breathing, seizures, unresponsiveness, coma, and death. Therefore, in these circumstances, the investigator should consider who was with the child when the symptoms manifested.

Law enforcement officials should develop a thorough and detailed timeline for at least 48 hours before the child's hospital admission. The timeline should include all of the child's regular activities such as eating, sleeping, and playing, and it should note who was with the child through this time period. Investigators should also document any "stressors" that might trigger a person to commit violence against a child. Many factors can stress a caregiver, including the victim child's inconsolable crying, general frustration, and fighting within the household.

Confessions and admissions also can prove the identity of the abuser. In some cases, the perpetrator will confess to shaking or otherwise abusing the child to the treating physicians at the hospital. In other cases, an abuser might confess to law enforcement or a social worker during an interview. As in every criminal case, the investigator must ensure that this confession is free and voluntary. In addition, investigators should get as much detail as possible about the abusive conduct without leading the suspect into particular answers.

The suspect's statements should be as detailed as possible. If the suspect is innocent, details might allow an exculpatory statement to be corroborated with further investigation. Details also can open further avenues of investigation. In addition, a detailed confession might explain a perpetrator's motive and how the abuse occurred. Indeed, when abusers confess, they might describe how—and with how much force—they abused the child and how the child reacted to the abuse. They might also explain why they abused the child.

In the absence of a full confession, a detailed statement can be useful in deciding whether to arrest and prosecute the suspect or remove a child from his or her home. A suspect might place himself or herself with the child, make demonstrably untrue statements, or offer other information that is inculpatory. For instance, a father's claim that "the baby rolled off the couch," where his child has suffered multiple rib fractures, a skull fracture, brain swelling, and bilateral retinal hemorrhages, might be demonstrably untrue and, depending on the circumstances, might be evidence of a guilty mind. In other cases, the investigator might corroborate the suspect's story and exclude him or her as the perpetrator.

Thus, while there is no single, precise formula for an accurate and thorough investigation, there are basic steps that every investigator should take. And by following these steps and working with medical doctors, child abuse professionals can be confident when deciding to prosecute an offender or remove a child from a home.

Be Prepared to Respond to Defenses, Including Flawed Diagnosis
Child abuse professionals, especially prosecutors and lawyers providing services to children, should be prepared to confront a variety of defenses in court, including claims that a child's injuries resulted from a disease or accident, and even claims that AHT/SBS is not a valid diagnosis. When faced with a claim that the treating physician overlooked a particular cause of injury, prosecutors and children's lawyers should consult medical professionals and review the relevant scientific literature.

Lawyers cannot evaluate scientific theories properly, but they can determine whether a particular theory might be valid in the context of their case. When considering an alternative theory of how a child was injured, lawyers should consult with physicians about whether that theory is generally accepted in the medical community. See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). Lawyers also should ask physicians whether they are aware of any scientific data in support of the theory and whether the theory has been published in peer-reviewed studies. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593–94 (1993).

While AHT/SBS is a well-settled diagnosis in the scientific community, it is frequently challenged in court. Typically, a defense attorney will claim that the injured child had a disease or disorder that mimics AHT/SBS or that the injury was caused by a fall or other accident. As discussed above, children's hospitals generally have doctors who already will have eliminated disease and accident as causes of injury. Therefore, a prosecutor or lawyer considering the interests of an abused child should consult the treating physicians about the defense claim. In some cases, however, they might find an expert in a particular disease to explain why it should—or should not—be ruled out as a cause of injury.

The injuries of AHT/SBS are strong evidence that a child has been severely abused, and there is broad scientific consensus supporting this conclusion. AHT/SBS investigations, however, are complicated and always should include a thorough medical examination by a diverse group of pediatric doctors. When police officers, social workers, and lawyers encounter these cases, they should carefully consider the medical diagnosis while conducting a thorough investigation of their own. If investigations are conducted carefully, public officials and attorneys can protect vulnerable children while minimizing the possibility of wrongful convictions.

Keywords: litigation, children's rights, shaken baby syndrome, abusive head trauma, child abuse

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P. Leigh Bishop, William H. Branigan, John M. Leventhal, and Mark A. Mittler – June 18, 2015