William A. Cox, M.D., FCAP Forensic Pathologist/Neuropathologist
October 18, 2017
At this point in my career I have practiced Forensic Pathology for 43 years and Neuropathology for 41 years. Some of the most contentious cases I have had to deal with are those involving the death of a child in which non-accidental injury, child abuse, is believed to be the under lying causation of death. The determination of the cause of death in a child requires the forensic pathologist performing the postmortem examination to have a thorough understanding of the investigatorial information surrounding the circumstances, which led to the child’s death, as well as their past and present medical records. It is also essential the forensic pathologist approaches the clinical history, medical records and the findings of a very thorough autopsy in an unbiased and objective manner, free from all prejudice, and exercising eminent fairness in evaluating all facts of the case. It is equally important the forensic pathologist consider all literature related to the issues deemed responsible for the child’s death and not just the child abuse literature. It is important in the evaluation of alleged cases of child abuse that there be consideration of the non-CAC (child abuse community) peer- reviewed literature that challenges, if not refutes many of the unproven CAC teachings. Consensus statements from the American Academy of Pediatrics and the Society for Pediatric Radiology in-of-themselves do not create or validate science.
Typically, the forensic pathologist assessment of the circumstances leading to the child’s death, the medical records and their interpretation of the autopsy findings and correlation with the investigatorial information are in concert with law enforcement personnel and the members of the child abuse response teams interpretation. However, there are occasions in which the forensic pathologist interpretations of the findings of the autopsy and their correlation with investigatorial information and medical record differ from either that of investigating law enforcement agency and or the child abuse advocates/child abuse response team’s interpretation. Typically, the foundation of this difference is in the objectivity in the interpretation of the circumstances leading to the child’s death and or the findings of the autopsy.
It is a fundamental axiom in forensic pathology, if you approach an alleged child abuse case, believing you have a case of child abuse, your autopsy findings usually confirm your preconceived thoughts on the case. Your eyes are merely a vehicle for attempting to see that which is around you, what you actually see is in part determined by your cerebral cortex. Although, the medical centers devoted to the care of children are typically exemplary, this does not necessarily translate into objectivity in assessing injuries to a child and or the role of the caregiver played in those injuries.
PRAGMATIC ISSUES IN THE PRACTICE OF FORENSIC PATHOLOGY AND CHILD ABUSE
Let me give you some actual cases in which either I or other forensic pathologist have been involved in and what our experiences have been with child abuse advocates/child abuse response team members. We will begin with subtle, but yet significant assertions by child abuse advocates/child abuse response team members (CAA/ CART). In a recent trial a CAA/CART member testified that when she spoke to the caregiver he appeared nervous and fidgeted. It was the manner in which she testified, which conveyed to the jury that in her mind the caregiver was guilty of child abuse. Because a caregiver appears nervous and fidgets, does not mean they are guilty of child abuse. What it does mean is the caregiver is nervous and fidgets, which represents an observation only. It is information that should be assimilated and added to the data base of the case. The true interpretation of the caregiver being nervous and fidgeting will become evident with an objective assessment of all the evidence, related to the case. What you typically will find, if you withhold immediate judgement, and allow the facts of the case to evolve, including not only investigatorial information, but also the results of the autopsy, with research of the literature as to the findings in the case, what occurred to the child will become evident for all to see.
A CAA/CART member noted a bruise on the external ear of an infant. The interpretation was that such a bruise was highly specific for child abuse and so stated in the medical record. What is of interest, the infant was seen at another medical center before being referred to the university center and despite being examined by multiple pediatricians at both centers no one else saw the bruise. The parents of the infant had not noted the bruise nor had the paramedics of the transport teams. What is disconcerting, the statement that a bruise of the external ear is highly specific for child abuse has no basis in scientific fact. The literature clearly shows that infants can develop bruising from mechanisms other than non-accidental trauma including infants under 6 months of age.
In another case, while the caregivers of an allegedly abuse infant were being interviewed over the phone, the CAA/CART member noted that when she would ask the mother a question, not uncommonly the mother was interrupted and often contradicted by the father. It was the CAA/CART member’s interpretation that this type of communication dynamic was worrisome for domestic violence and not only stated so in the record, but requested the parents be investigated for domestic violence. This statement was made despite the fact there was no objective evidence of domestic violence in the family as determined by interviews with family members, colleagues, and friends, nor was there ever a complaint filed of such with a law enforcement agency. Placing such an interpretation in the record with no supportive objective evidence is at the least irresponsible professionally.
A forensic pathologist was asked to review the testimony of a nurse CAA in which in one case she testified that in her review of the literature, the failure of the anus to wink when the buttocks were spread, which she identified as a “relaxation response,” was a good indicator for buggery. In another case she testified that labial adhesions were a strong sign of abuse. What is disturbing, is at the time of this nurse CAA’s testimony, the actual referred to medical literature indicated both claims were not true. It was the forensic pathologist opinion, at the least, this nurse CAA’s testimony was a manifestation of ignorance from someone who should have known better, or at the worst criminal perjury. It was also the forensic pathologist position, that this nurse CAA’s testimony resulted in one wrongful, and one dubious, conviction. Tragically, due to this nurse CAA’s testimony both men were given prison sentences.
In another case, a man served 11 years in prison because of testimony of a pediatric resident. At trial, the testimony given by the pediatric resident included an opening of the hymen of 1 cm was excessively large for a six year old girl (it’s just within 2 SD), that scarring could be produced by rubbing, that a child who easily accepts an examiner’s digital anal penetration had probably been abused, and that skin tags on the anus suggested sexual abuse. Indeed the child had a groin rash, which was thought by another expert to be an example of dermatitis and not scarring on the perineum. Since the girl had been receiving suppositories, this explained why she permitted anal digital penetration more easily than other children. These accusations came after the accused had found his wife in bed with another man.
What is of interest, despite respected contradictory information in the medical literature. In each of the above cases, the prosecution used the above CAA’s and pediatric resident’s testimony to prosecute, knowing of the contradictory information, to prosecute, what everyone would regard as innocent human beings.
It is important to keep in mind the job of a prosecutor or attorney general is to prosecute, it does not necessarily mean the person being prosecuted committed the crime. To underscore this point, a few years ago, a detective was prosecuted for allegedly killing his wife. Part of the evidence the prosecution used was bite mark testimony by a local dentist, who had retired from the practice of dentistry to become a truck drive because it was more lucrative. This same dentist, although a good general dentist, was not recognized either within the county, state or country as a bit mark expert. However, despite this dentist’s known professional experience, the prosecutor chose to use his testimony at the time of trial, even though he was not a recognized bite mark expert. The reason the prosecution used his testimony was after they had presented the bite mark evidence to a nationally known expert on the interpretation of the bite marks, who informed them, the evidence they had was inconclusive and he could not identify the person being accused as the person who inflicted the bite mark.
The position of the above prosecutors and attorney generals can be summarized by the position of another attorney general, who on learning from a medical examiner their interpretation of a death by a gunshot wound was an accident stated the following, “I cannot prosecute this case the way I want to with a manner of death of “Accident.”
This statement by the attorney general was made despite the fact the assistant AG was informed the detective who investigated the case had reached the conclusion as had the other forensic pathologist in the State Medical Examiner’s Office. The assistant AG then informed the medical examiner she intended to go back to the office and advise every one on the medical examiner’s failure to cooperate. Subsequently, the Attorney General wrote a letter to the State Police and Police Department of the town in which the medical examiner lived, that he was to be watched.
It is not just prosecutors or attorney generals who have used, at the least questionable ethical and professional tactics to coerce or influence the forensic pathologist in their assessment of a child abuse case, so have CAA/CART members. For example, in a recent trial the prosecution asked to speak to the forensic pathologist for the defense before they went on the stand, so that they would have some idea as to their interpretation of the evidence. While speaking to the prosecutors, their CAA/CART expert came into the room as the prosecutor interviewed the defense’s expert. As the defense’s forensic pathologist began to explain their interpretation of the evidence, they were interrupted by the prosecution’s CAA/CART expert. This interruption was such, that as the defense’s expert was expressing a sentence, they were interrupted. It finally reached a point in which the defense’s expert turned and asked the prosecution’s CAA/CART expert to please extend to them the professional courtesy to at least allow them to complete a sentence before interrupting. In concert with the prosecution’s CAA/CART experts interruptions, the prosecutor would simultaneously ask the defense’s expert to repeat what they had just stated, stating he did not understand what the forensic pathologist had just said. In light of the well orchestrated interaction between the prosecutor and his CAA/CART expert, this technique was not new to them. It is something they had done before. Clearly, this was an effort by both the prosecutor, as well as their CAA/CART expert, to get the defense’s expert to make a misstatement, which the prosecutor would make certain the jury knew, by pointing out this misstatement under cross examination of the defense’s expert. He then would underscore this misstatement by putting his CAA/CART expert back on the stand to testify to the misstatement thus, undermining the defense’s expert’s testimony.
In addition to being subjected to ad hominem attacks (ad hominem is where an argument is rebutted by attacking the character, motive, or other attributes of the person making the counter argument), some physicians whose opinions run contrary to those of the CAC have had their ability to practice medicine challenged and even revoked.
There are other mechanisms CAA/CART members have used to try an influence the decision making process of the forensic pathologist. For example, a newly arrived medical examiner, who was regarded has having considerable experience, having been involved in several thousand cases, received a visit from a physician who had lived in the community for many years. The physician had been sent by the CAA/CART members of the Children’s Hospital. The physician had a message to deliver to the medical examiner, “They are going to have their monthly meeting on child abuse and you are expected to be there.”
On occasion the forensic pathologist/medical examiner must also deal with the lack of intellectual integrity by some of the physicians who work at Children’s Hospitals. As an example, after a child had died from alleged child abuse, the neuroradiologist at the Children’s Hospital interpreted the CT scan of the child’s brain as showing evidence of a subdural hematoma. However, when the forensic pathologist who did the autopsy, who was also a neuropathologist, examined the brain there was no evidence of a subdural or epidural hemorrhage. Both at the time of the autopsy, as well as at the time of brain cutting after the brain had been fixed in formaldehyde for two weeks, medical students and residents were present. When the forensic pathologist/ neuropathologist presented their findings at the monthly child abuse conference at the Children’s Hospital, the neuroradiologist refuse to admit that he had made an error and insisted the forensic pathologist/neuropathologist missed the subdural both at the time of the autopsy and brain cutting. It would appear the Children’s Hospital Neuroradiologist was unaware of an article written by Hillman et al., in which they stated most of what constitutes modern radiological imaging practice I base upon habit, anecdotes, and scientific writings that are too often fraught with biases. They further stated there is a general lack of awareness among radiologists about insubstantiality of many aspects of the foundations of radiology practice combined with a lack of sophistication in critical examination of radiological pronouncements.
This phenomenon of denial, or admitting an error has been committed, is not uncommon by physicians, but it is also not uncommon among other professionals. This unfortunate, but not uncommon phenomenon of physicians refusing to admit an error has occurred can lead to confrontations. This phenomenon also underscores the importance of the medical examiner/coroner decisions being independent of those of Children’s Hospitals and Hospitals. This is not to say the medical examiner/coroner should not attend conferences at Children’s Hospitals or University Centers. It does say that they do so in such a fashion that all participants understand their decisions are independent of the institutions, and thus, the potential for conflicts are going to be there.
It should always be remembered, whereas the medical examiner/coroner serve the interest of society, an employee of a hospital serves not only their interest but also the interest of the hospital and their colleagues. This position was underscored by a well known pathologist, who advised a forensic pathologist of the Coroner’s Office, “I am a Company Man.” This same pathologist on learning the Coroner’s Office had taken jurisdiction in a patient who had died at his hospital, cautioned a forensic pathologist of the Coroner’s Office, should their conclusions be adverse to the hospital they were going to come after them hard.
Questionable professional ethic can also occur at Medical Examiner’s Office’s and or Coroner’s Offices, when some of their decisions come under scrutiny. A few years ago a trial involving the death of an infant less than one month of age took place. The forensic pathologist who performed the autopsy not only had less than one year of experience as a forensic pathologist, but this was his first case involving an infant in this age group. He had determined the infant died from blunt force trauma to the head. His interpretation of the child’s subgaleal hemorrhage and intracranial pathology was sharply questioned by a prominent forensic neuropathologist, as well as several well known forensic pathologists. Unfortunately, the father of the child was convicted. The case was appealed. During the appeal process another forensic pathologist who also was a neuropathologist with many years of experience was asked to review the case. As part of their review, the forensic pathologist/neuropathologist asked to review the original microscopic slides. They were given permission to review the microscopic slides by the Coroner’s Office, however, they had to come to the Coroner’s office to review them. As the forensic pathologist/neuropathologist was reviewing the microscopic slides at the Coroner’s Office, the forensic pathologist who had done the autopsy came into the room and sat in a chair staring at the forensic pathologist/ neuropathologist the entire time they were reviewing the microscopic slides.
INVESTIGATION INTO QUESTIONABLE MEDICAL TESTIMONY THAT HAS LED TO FALSE CONVICTIONS OF CHILD ABUSE
Justice Goudge of Canada led an investigation into biased medical testimonies that had led to false convictions of child abuse. The Judge took issue with the use of questionable, unscientific expressions commonly used by CAA/CART members such as “highly probably,” “highly suspicious,” and “most likely,” pointing out such statements are subjective, speculative terms. For the child abuse community, unexplained injuries often become a default diagnosis of child abuse. The Judge went on to say, the usage of a default diagnosis is unscientific and does not represent the evidence-based scientific approach. It lacks facts to prove causality, and instead, simply infers causality. It lacks transparency, which prevents independent reviewability for those outside of the child abuse community. A default diagnosis can be produced from confirmation bias. Biased studies should be kept from medical journals as well as courtroom. Consensus does not create science, nor does the ex-cathedra imprimatur of an established medical society. Science is not created by the decisions made in courts of law, either. Peer review of CAA/CART members opinions cannot be restricted to like-minded reviewers, but must include objective scientific thought that is contrary to the opinions of CAA/CART members for their expressed, alleged, scientific opinions to have merit.
In part, what prompted Justice Goudge of Canada to conduct an investigation into the testimony of CAA/CART members was the unsubstantiated and biased opinions of a pediatric pathologist who gave testimony that contributed to false convictions of numerous individuals accused of child abuse. As Justice Goudge stated, “the rarity of a given injury in non-abuse conditions cannot be used to proclaim that a particular injury was probably caused by child abuse.” In respect to expert opinions, he emphasized the following:
- Experts must form clinical opinions objectively and independently.
- Expert opinions (including case reviews) must consider all available and relevant information. Data cannot be “cherry-picked” to support preconceived opinions.
- Experts’ evidence must be impartial and should not be developed to favor the side that has instructed the expert.
- The expert should ensure that any contradictory evidence they identify is accounted for and commented upon in their final opinion, which they must be prepared to adjust in light of new information.
Justice Goudge went on to state, the concept “the best interest of the child” must not influence the forensic pediatric (CAA/CART members) opinion; specifically, the opinion must reflect only the objective clinical assessment, and it is inappropriate for any evaluating physicians to allow their subjective opinions to be influenced by what they consider to be the child’s best interest.
Justice Goudge had several recommendations for forensic pediatricians, which included:
- A report should not conclude with a diagnosis of abuse on the basis of no adequateexplanation for the injury being provided by the infant’s caretake. This statement by Justice Goudge was based on the pediatric pathologist that in part prompted the inquiry who stated, “in the absence of a credible explanation, in my opinion, the postmortem findings are regarded as non-accidental injury.” Further exploration of the pediatric pathologist opinions proved that they were unaware of or simply ignored credible explanations. An example of either being unaware or simply ignoring other credible explanations by CAA/CART members is their evaluation of children’s unexplained head injuries or bone fractures. Often in their evaluations of such injuries, they consider only the child abuse literature and simply ignore the forensic neuropathology, bone science and biomechanics literature. Consensus within the child abuse literature is not in-of-itself science, most especially when it ignores contrary opinions in the literature of other disciplines.
- The term “consistent with” should not be used. Justice Goudge found this term to be ambiguous and was inappropriately used to suggest a link between clinical findings and possible causes of those findings. “Consistent with” effectively means “could be,” which is no more useful than “may or may not be.” The basis of the opinion should be explicitly and objectively cited. The expert’s level of confidence is perhaps less important than the reasoning behind his or her opinion. Reasoning can be evaluated, debated, and challenged; confidence cannot be.
The Baroness Helena Kennedy’s statement before the Royal College of Pathologists and the Royal College of Paediatrics underscored Justice Goudge’s thoughts with the following statement: “A doctor can be convinced, based on his or her experience, that a defendant is guilty — but unless there is compelling evidence supported scientifically, he or she should not express that view in criminal proceedings,” which sets the standard for an expert opinion in the British Courts. When Baroness Helena Kennedy used the term “compelling evidence supported scientifically,” she did not mean alleged scientific opinion expressed just in the child abuse literature, she meant the relative scientific opinions that go to that issue in the respected scientific literature at large.
What is especially disconcerting is that despite the findings of Justice Goudge’s investigation into the problematic statements made by a formally prominent pediatric pathologist who had put forth unscientific biases as medical facts and had caused significant harm to many innocent parents and caretakers, as well as Baroness Helena Kennedy’s statements before the Royal College of Pathologist and the Royal College of Paediatrics, child abuse pediatricians, such as Servaes suggest that the courts should only hear CAC concepts and that evidence and testimony contrary to CAC concepts should be limited. Servaes implies in an article published in Pediatric Radiology that CAC concepts are the only correct position, since they are backed by the American Academy of Pediatrics, the Society for Pediatric Radiology, and similar societies overseas; however, as stated before, science is not a popularity contest and consensus does not create or validate science. Some pediatric abuse physicians, such as Dr. Strouse, have challenged the United States Supreme Court because it has accepted what the CAC would regard as “denialist” science, which is contrary to the CAC’s position. Fortunately, more courts are recognizing the existence of competing science, despite the statements of Dr. Servaes and Dr. Strouse.
It has been suggested to the CAC that they put forth their concepts as to all aspects of what in their mind constitutes child abuse to the National Academy of Sciences for an independent review by the scientist that are members of the academy. It has been several years since that challenge has been put forth to the CAC. To this date, the CAC has chosen not to accept that challenge.
CAC must understand, it is in the best interest of the child, the caregivers, and the credibility of the CAC, that determinations of alleged child abuse should be subjected to multidisciplinary objective scientific peer-review, which in their evaluation may express opinions contrary to those of the CAC, and not just peer review by like-minded reviewers. This of course assumes that the CAC is desirous of the unvarnished truth. Objective peer-reviewed scientific information must be considered, especially when it contradicts what at best would be regarded as speculative opinions.
The purpose of this paper is not to resolve the conflict between the concepts pronounced by the CAC, many of which are challenged by the scientific community at large, and the scientific community, as much as it is to raise an awareness of the appearance of the lack of intellectual integrity within the CAC.
The question remains, is there a lack of intellectual integrity within the CAC?