Saturday, July 9, 2011

When Babies Die

Louise Woodward

Kenneth M. O’Brien

There is nothing more tragic than the untimely death of an infant or toddler.

It is even more disturbing when such a tragedy occurs under circumstances that are open to question. Under such conditions it is natural for people to assume that there must be an explanation for what happened. Usually this translates into the belief that someone has to be at fault, someone has to be to blame for this tragedy. Such things don’t “just happen.”

It is at this point that emotions begin to outrun facts.

We have seen this phenomenon at its most extreme in the public outcry over the verdict in the Casey Anthony trial.

Society has become infected with a CSI mentality that feeds the belief in the virtual infallibility of forensic science and its practitioners.

Unfortunately, reality is not as clear cut as those dramatic moments when David Caruso cocks his head, slips his shades down his nose below eye level and flashes those steely blues at the checkmated perpetrator.

A yearlong investigation by the public interest journalist group Pro Publica titled “Post Mortem: Death Investigation in America”, highlights the variance between the fictional world of forensic detectives and the real world.

Despite the ubiquity of forensic pathologists in pop culture, the field has little appeal to most medical school graduates.

To become certified by the American Board of Pathology, doctors must receive an extra year of training in autopsies at a coroner's or medical examiner's office and pass a one-day exam. In addition, forensic pathologists are typically paid less than doctors in other specialties.

By most estimates the United States has only 400 to 500 full-time forensic pathologists. It's a tiny cadre of professionals for a country where roughly 2.5 million people die every year.

Partially because of the shortage of qualified practitioners, many of the nation's busiest coroner and medical examiner offices employ physicians who are not certified.

A survey of more than 60 of the nation's largest medical examiner and coroner offices by ProPublica, PBS "Frontline" and NPR found 105 doctors who have not passed the exam -- or more than 1 in 5 doctors on their full-time and part-time staffs.”

The situation becomes even murkier in the case of child deaths.

In a report on the PBS series “Frontline” that focused on the Pro Publica study as it related to child deaths, moderator A.C Thompson interviewed Dr. Jon Throgmarton, M.D., Chief Med. Examiner, Pinellas/Pasco Counties, FL

From the transcript of that program:

“[on camera] Let me know if these are nationally required.


A.C. THOMPSON: Are you required in child death cases to be a board-certified forensic pathologist in the U.S.?


A.C. THOMPSON: Are you required to have any peer review of child death cases?


A.C. THOMPSON: Are you required to review the medical records in child death cases before or after doing your autopsy?


A.C. THOMPSON: Are you required to consult with specialists in the field on difficult child death cases?


A.C. THOMPSON, Correspondent, ProPublica: [voice-over] After combing through court records, FRONTLINE, ProPublica and NPR found nearly two dozen cases in the U.S. and Canada in which people were prosecuted for killing children based on questionable autopsies and testimony. All of them were eventually cleared of wrongdoing.”

The Pro Publica study went into greater detail.

Even for the best educated and trained doctors, performing an autopsy on a baby or young child poses particular technical challenges. Their developing bodies function differently. It's why doctors who treat living children -- pediatricians -- receive different training than those who deal with adults.

"Adults are generally tougher and harder to kill then a small child. Particularly an infant," said Dr. Jon Thogmartin, chief medical examiner for Pasco and Pinellas counties in Florida, a jurisdiction that includes St. Petersburg. "So, you're looking for very subtle signs of trauma or pressure, or small amounts of bleeding that could potentially cause a kid severe illness or death."

When toddlers and infants die, autopsies frequently play a primary role in the police investigation. Adults often kill one another in public places where witnesses might catch glimpses of the violence. They tend to use guns or knives, weapons that leave obvious and distinct wounds. When adults kill children, they are more likely to use their hands and to commit their crimes out of view of anyone else.

"Often there are only two pieces of evidence," said Justice Stephen Goudge, a Canadian judge who conducted an extensive inquiry into Ontario's forensic pathology system . "The first: who had care of the infant in the hours leading up to the death, normally a parent or caretaker. And secondly, the forensic pathology, which attempts to give an opinion on what the cause of death was." If the autopsy findings are flawed, the judge said, "then the risk of a miscarriage of justice is high."

Thogmartin said the charged emotions inevitably triggered by a child's death add another layer of complexity. Forensic pathologists, in his view, can get "caught up in the anger, the emotion, the despair." Their mindset can become prosecutorial, Thogmartin said, until every child death is a "homicide until proven otherwise." When he took on his current job as chief medical examiner in 2000, he stressed the need for neutrality to his staff.

"As a forensic pathologist, I don't testify for the state. I don't testify for the defense. I testify for the decedent," he said. "They are not able to talk, so I try to talk for them."

Thogmartin overruled the autopsy conclusions in two child death cases handled by his predecessors that he said might have been colored by bias. In one case, a man was four years into a 10-year prison term for killing his infant son. In the other, a father was facing trial on murder charges for killing his 7-month-old daughter.

When Thogmartin sifted through the autopsy files and tissue samples, he was shocked: He saw no evidence of violence. In his opinion, the children had died of natural causes.

Both men were subsequently cleared by the courts, but even the one exonerated before standing trial suffered life changing consequences, Thogmartin said. "That unfortunate gentleman had his life turned upside down. ... His life was destroyed."

The implications of such shortcomings in the system are often compounded by the inexact and continually evolving nature of forensic science.

Almost as infamous and riveting to the public as the Casey Anthony trial is today was the 1997 trial of 19 year old English nanny Louise Woodward.

Again from the “Frontline” transcript,

A.C. THOMPSON: Pediatric radiologist Patrick Barnes was a key prosecution witness in the most famous shaken baby case of all, the trial of Louise Woodward. Woodward was a 19-year-old nanny charged in 1997 with shaking an 8-month-old baby to death, hitting his head and causing fatal bleeding. With Barnes's help, Woodward was found guilty of second-degree murder.

LOUISE WOODWARD: [in court] I didn't do anything!

A.C. THOMPSON: The case would be a turning point for Barnes.

Dr. PATRICK BARNES: I was really affected by all of that and began to question my role as a pediatric radiologist and a neuroradiologist as part of the child abuse team in these particular cases. Shaking was irrelevant in that case, in retrospect.

A.C. THOMPSON: But it was clear that something had happened to the child.

Dr. PATRICK BARNES: The child had an impact injury. You can't get a skull fracture from shaking. You can't get a wrist fracture from shaking.

A.C. THOMPSON: [on camera] But the prosecution's theory was this child was shaken.

Dr. PATRICK BARNES: That's correct. And at that time, that was my theory going into that case, based on my previous 20 years of experience in child abuse and accepting shaken baby syndrome.

A.C. THOMPSON: [voice-over] For decades, when Barnes and others saw bleeding in the eyes, and bleeding and swelling on the brain, they assumed it was shaken baby syndrome. Many doctors still stand by the diagnosis. But now, Barnes says, science is proving the old assumptions wrong.

Dr. PATRICK BARNES: When we started using more advanced imaging techniques such as MRI, we started realizing there were a number of medical conditions that can affect a baby's brain and look like the findings that we used to attribute to shaken baby syndrome or child abuse.

A.C. THOMPSON: [on camera] If you were called to testify in the Woodward case today, what would you say?

Dr. PATRICK BARNES: I would say that this is most likely a traumatic impact injury, that I would not be considering shaking, that this could be accidental, just as it could be non-accidental or abusive. And I would say that you cannot select out, accuse, indict or convict any particular caretaker based on the medical evidence that we have.”

Perhaps the lesson to be learned is the one we all know but to which we rarely adhere. That is the need to avoid a mob mentality fueled by emotion resulting in a rush to judgment. That is why we have a jury system, why they are insulated from the media and why they are guaranteed anonymity.

While we will never stop second guessing their decisions, and while they too will err, we should have more faith in the fact that they are bound in what they can judge based upon strict rules of evidence. Television actors are rarely constrained by such trivialities. Cable TV commentators are often even less strictured – after all, “If it bleeds, it leads.”

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