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Q & A: A Prominent Advocate Presses for Better Investigations of Child Deaths

Dr. Carole Jenny argues for putting federal resources toward tracking pediatric maltreatment and for medical societies to crackdown on irresponsible testimony by forensic experts.

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Dr. Carole Jenny testifies before the House Ways and Means Committee on July 12, 2011. (Photo courtesy of the House Ways and Means Committee)

ProPublica, in collaboration with Frontline and NPR, recently published "The Hardest Cases," a report about how medical examiners and coroners have mishandled child death investigations. In some cases, their errors helped put innocent people behind bars.

Recently, we interviewed Dr. Carole Jenny, a pediatrician at Hasbro Children's Hospital and a leading figure at the National Center on Shaken Baby Syndrome. She is a high-profile advocate for putting more resources toward investigating suspect child deaths.

According to the National Child Abuse and Neglect Data System, there were 1,700 child maltreatment deaths last year. Yet, according to the FBI, there were 500 child homicides. Why is there such a big discrepancy?

The FBI data comes from medical examiners and state health departments. The NCANS [data] is from child protection agencies. Child death review team data is yet another source. Different agencies have different ways of collecting data. I don't think any of them are all that good. The techniques people use to obtain that data are very, very different from jurisdiction to jurisdiction.

Last week you told the House Ways and Means Committee that progress has been made in tracking pediatric maltreatment, and now the field needs federal money. Could you elaborate on what you meant?

There is now a board-certified sub-specialty called child abuse pediatrics. Physicians who are already board-certified pediatricians take three extra years of training, learning about all aspects of child maltreatment. Most of the folks who go through this—there's 187 in the U.S.—will work at children's hospitals, doing child protection full time. Here we have three physicians and three fellows in training who do child abuse cases. We keep very busy. It's not cheap.

ProPublica's partner NPR recently reported on how scientists are rethinking Shaken Baby Syndrome. Years ago you credited Dr. Norman Guthkelch, the pediatric neurosurgeon, for first observing the condition in children in a 1971 paper for the British Medical Journal. What's your reaction to his recent statements that doctors are over-diagnosing SBS?

I've talked with him. He has the same position as many of us. We do know that kids' heads don't spontaneously explode. But sometimes we don't know if [they've] been shaken, hit or both. The Shaken Baby Syndrome diagnosis presumes a mechanism—major traumatic injury to the head that has absolutely no accidental explanation. Sometimes it's obviously [that]. Sometimes it's not.

Medical examiner Dr. Jon Thogmartin, another expert we interviewed in The Child Cases, says that when a child dies, people presume it's murder. A prosecutorial mindset sets in. Do you agree?

No, that's not true. When a child collapses unexpectedly, child protective services and law enforcement do get involved. Somebody has to do a scene investigation, and it's not going to be the doctors. I'm not going to go to the house to look for toxins or poisons. No one presumes that child injury is abuse. Abuse is a diagnosis we make after we rule out a long, extensive list of physical and accidental ideologies that would explain the degree and severity of the injuries we see.

You testify in child abuse criminal cases monthly and in cases involving child death four or five times a year. Are you more concerned about innocent parents and caregivers being convicted or guilty ones walking free?

Obviously both are not good outcomes. When people who've hurt children aren't held accountable, it puts other children at risk. No one would advocate putting innocent parents in jail. That's why the quality of scientific practice has to be very high.

We work with the medical examiners in Rhode Island, who are board-certified forensic pathologists. None [of the 3] are board-certified in pediatric pathology. It's not a very well-developed field. In general, many jurisdictions underfund it. There's not a lot of people that go into the specialty [of forensic pathology]. It doesn't make a lot of money. It's not like being a plastic surgeon or dermatologist.

Is the "CSI effect" an issue with juries? Will they only convict if they believe the medical science is foolproof, or are they hungry to convict regardless?

I'm not so sure the two poles are opposite. I haven't seen the "CSI-effect." Juries take the material they get and deal with it the best they can.

Instead of arguing these issues in the lab, [doctors] are confronted with an adversarial justice system. We shouldn't do research in the courtroom. We should do research in the lab and at the bedside.

Is there a problem with the standards for those who testify as experts?

People are for sale. Obviously not all. Some who testify are extremely ethical and professionally responsible.

There's no quality control. Some of the experts who give the most outrageous testimony are in very high demand. They are making very large amounts of money.

It's an area where there seems to be no downside to irresponsible expert witness testimony. Most of the folks who do it are retired, doing it as a hobby. State medical societies won't take it on for fear of liability or litigation. State medical boards in most states don't consider expert testimony to be "the practice of medicine," so they don't take it on. And most prosecutors are very hesitant to charge anyone with perjury because this is, in fact, their opinion. If you have an opinion, it may be false. But it's not necessarily a lie.

Is there a solution to this?

I think the medical societies should take a more proactive stance. In the OBGYN societies, they've taken on the issue of malpractice testimony—people going around the country, providing false testimony, causing ethical, competent doctors to be sued.

I know the American Academy of Pediatrics won't touch this. It has lots of missions to promote child health. If they had to tie up millions in child lawsuits, it would decrease their resources for other core missions.

The American Academy of Emergency Medicine has taken an interesting [stance] on this. If their members feel that other members have testified irresponsibly, they will put the transcripts online so that others can read it and comment. It's kind of like a public shaming.

Why did Hasbro Children's Hospital start its Child Protection Program?

It started in 1996, in response to an incident that happened years before. A baby was brutally abused and seen at three different health care institutions. The abuse wasn't recognized. The child went on to be permanently and seriously disabled with a devastating brain injury. A task force formed to look at why this happened. They [concluded] that there was no physician in Rhode Island who had expertise in child abuse. They raised money to endow the first chair in child abuse pediatrics in the country. They went out looking for someone to take it. They ended up recruiting me. In the first year we saw 79 kids. Now we see 1,800 plus per year. If you build it, they will come.

Correction (July 18): This post originally said the American College of Emergency Physicians had posted transcripts of what some of its members see as irresponsible court testimony. It is actually the American Academy of Emergency Medicine that has done this.

Louise B. Andrew MD JD FACEP

July 18, 2011, 12:59 p.m.

The American Academy of Pediatrics does indeed have a very strong policy on expert witness testimony.  Many other specialty societies do likewise, including notably the American Association of Neurological Surgeons and the American College of Emergency Physicians.  How vigorously medical societies can enforce their policies depends entirely on their willingness and ability to defend suits against them, brought by expert witnesses accused of testifying unethically. 

Almost every state medical board could discipline a physician who testifies unethically, either because he/she is “holding self out as a physician” (which is defined as the practice of medicine in most states), or because s/he is exhibiting unprofessional conduct when lying on the witness stand.  However, medical boards are constantly under pressure by Public Citizen and other lawyer run advocacy groups to discipline physicians regarding their provision of medical care, and have no time to devote to this issue (or money to defend against suits brought against them by expert witnesses accused of testifying unethically).  Thus it is challenges from within the legal system itself which discourages effective control of unethical medical expert witness testimony in the courts.

John R Hain, M.D.

July 18, 2011, 2:51 p.m.

If juries were composed of experienced professional jurors having certifiable expertise in the issues being presented as evidence, instead of impressionable citizens selected at random or, even worse, for their lack of knowledge, then judicial verdicts could actually be based on the true strength of th evidence instead of which side is more persuasive or manipulative (i.e. has the most $).

George C. Sievers

July 19, 2011, 5:24 a.m.

Plato might agree with you, Dr. Hain, but, fortunately, the Constitution does not.

There is a huge problem using state child protective service statistics.  They are over inflated.  Through CAPTA which began to give financial incentives to states to adopt children out foster;  this has created a corrupt system where states are financially encouraged to break up families and adopt children out to non family members.  So to justify the increasing adoptions, an “epidemic” of child abuse has been substantiated by the states.  I was one of those people.

So before you start calling me a “child abuser”.  Understand that not only did I get my name cleared in an administrative hearing- but that the Commonwealth of Kentucky admitted to violating many of its due process rules including failing to notify me that I was a “substantiated” child abuser.  Instead, they destroyed all hard copy of my files.

To explain the discrepancy between the numbers is to understand that the states are falsifying and inflating their data.

Let me throw another number at you;  the FBI recognizes that 70% of the child trafficking children- are foster children.  Do you we think that foster care is actually working in the US?  Perhaps in an ironic sense it is working, for the pedophiles and the criminals.

James B Storer

July 25, 2011, 8:49 a.m.

Re:  comments by Dr Hain and George Sievers (19 Jul 2011).  The “jury” is very much a part of any debate concerning child death prosecutions.  Dr Hain’s “IF” suggestion that juries composed of certified experts can better handle the evidence is not constitutionally feasible, as indicated by George Siever’s comment.  The suggestion was an “if” statement and Dr Hains is, I am sure, aware the pitfalls of ‘permanent,’ (professional juries).  As our nation is set up and operates, cadres of professional juries would become greatly corrupted in short order.  Many judges advocate such a system, but they, to, must know they are scoffing the constitutional mandate and intent of jury by “peers.”
  All that said, I believe (and I am a complete layman not professionally associated with the justice system) that the present archaic circus of seating a jury by the adversarial method is antiquated and the final selected jury is anything but a selection of peers.  In other words, half the jury is effectively satisfactory to the defense and the other half to the judge and prosecution.  It is not, absolutely not, an objective cross section of the citizenry.  The selection must, however, eliminate those who are mentally or emotionally incompetent to serve this important function, but otherwise should be objectively chosen without fitting the process to the advantage of achieving undue advantage by either lawyer during the upcoming trial.
  Achieving just verdicts in many cases of child neglect, abuse, and murder is an incredibly agonizing affair, both to the accused (and family), the victims family, and the public at large.  The objective and duty of the court, of course, is to eliminate excess emotions, pre-conceived opinion, etc, and to carefully certify the acceptability of material evidence, or “expert” opinion.  In my opinion, trained professionals such as lawyers, judges, doctors etc. are often, even usually, no more immune to emotional bias than are ordinary citizens such as myself, thus hampering adherence to their training in logical and reasoned thought in such cases.    Skartishu   Granby, MO

Darrell Powell

Aug. 2, 2011, 2:55 p.m.

Canada, moreover British Columbia, has been negliant in protection of children, Approximately 4000 are ‘wards of the state’, and with the child labour act desimated by the incumbent conservative provincial govt approx. 6yrs ago there has been a demonstrative rise in child injury, disability and mortality by the age of labour entry lowered to age 12. The Workers compensation scheme, have been cited in the Legislature of incomplete / erronious statistics. These 4000 , are in a perilous direct conflict when disablled or killed in the workplace as their rights are held by the state. Adoptee’s , and others cannot defend or define their rights as children - or as an adult, when employed as with no other protections than labour code, and Woorkers Compensation act. (2) Reasearch Ethics & Expert Witness: The same endemic disparites as cited in this arctical is well represented here in Canada, and Australia, and other Commonwealth countries. Namelly, that in the area of health & disability , social policy the academics , researchers [ “experts”] have become “ringers” and used to design policies , or ‘construct’ their findings and opinions to suit political agenda. The most active area , with the use of “ringers” is around health/mental health, and moreover “disability mangament”; in Canada driven by co-option and convergence to “construct” this “evidence based” agenda, which is to say ...‘what ever they say it is’, which is comenurate with political agenda, driven by business interests, and governance absent of the poltical , moral will to protect individuals, veterans, workers, elderly and children who may come to need social supports aand health care to recover; to benefit from their Constitutional rights [ Sec. 7,15 of Charter]; the right to mental phyiscal well being.
At present researchers , from the insurance sectorand those willing to do the bidding get the pay. A great deal of these preditor “experts” are from the USA, Insurance sector and are here to jocky for position or assist , sometimes hird by Provincila and Federal Governments themselves Their is Government sanction abuse of pre-existing conditons here in Canada, andthe health & disability management seemly “prime for take over” by the business Insurance sector.
In this are , children are the most vulnerable with Canada now officially havinng uncontrolled child labour [ B.C.]
As an international advocate, I can readily concure with the observations on child protection, and research ehtics as described, and provide evidence to two Senate Committees on these subjects and participated in an Australian Senate Committee as well where the paradigm, and “cuase of the causes” are the same , with these silos actually connected in politicaly driven research / expertieism, and actors most prominant in all our countries connected., with a global objective to create the same standards and policies for the same purpose , driven by the same agenda - cuasing the same harm to the most vulnerable in their wake.

Darrell Powell
National/Int. Advocate
Human Rights
Health & Disability
Canada

This article is part of an ongoing investigation:
Post Mortem

Post Mortem: Death Investigation in America

A year-long investigation into the nation’s 2,300 coroner and medical examiner offices uncovered a deeply dysfunctional system that quite literally buries its mistakes.

The Story So Far

In TV crime dramas and detective novels, every suspicious death is investigated by a highly trained medical professional, equipped with sophisticated 21st century technology.

The reality in America’s morgues is quite different. ProPublica, in collaboration with PBS “Frontline”  and NPR, took an in-depth look at the nation’s 2,300 coroner and medical examiner offices and found a deeply dysfunctional system that quite literally buries its mistakes.

More »

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