Legal Experts: Shaken Baby Diagnosis Leads to “Destruction of Families Beyond Anything Comparable in the Modern History of the American Justice System”

by Brian Shilhavy
Editor, Health Impact News

Attorneys Randy Papetti, Paige Kaneb and Lindsay Herf have just published an article in Santa Clara Law Review titled: OUTSIDE THE ECHO CHAMBER: A RESPONSE TO THE “CONSENSUS STATEMENT ON ABUSIVE HEAD TRAUMA IN INFANTS AND YOUNG CHILDREN.”

“Abusive Head Trauma” (AHT) is the newer term for what has been called “Shaken Baby Syndrome” (SBS).

In the medical field of pediatrics, Child Abuse Specialists have increasingly been used by Child Protective Social Services (CPS) across the country to take children away from their parents based primarily on the examination of x-rays.

The entire field of pediatric child abuse diagnoses has become very controversial, and all across the country parents and caregivers wrongly accused of child abuse by these pediatric Child Abuse Specialists are having their cases overturned, as the courts are recognizing the flaws in diagnosing SBS or AHT.

Basically, if a parent or caregiver has been convicted of child abuse based only on the testimony of one doctor, and that doctor being a “Child Abuse Specialist,” judges are ordering re-trials so that other doctors and science can be presented to refute SBS/AHT diagnoses.

As a result, many legal associations and publications have been training attorneys on how to fight false child abuse charges. The Innocence Project, for example, will take on SBS/AHT cases in all 50 states now, so prevalent is the problem of false convictions of child abuse.

The attorneys writing for the Santa Clara Law Review state:

Several serious and growing controversies surround a field of medicine known as child abuse pediatrics. One such controversy involves a diagnosis known as Shaken Baby Syndrome (SBS) or Abusive Head Trauma (AHT).

The diagnosis is based on specific internal findings in a baby or young child’s head and eyes, which, when present, supposedly indicate that the child was violently shaken or otherwise subjected to inflicted head trauma.

Within child abuse pediatrics, the diagnosis is endowed with a nearly iconic status and hailed as a critical discovery in our ability to identify abuse in very young children.

But outside of child abuse pediatrics, the SBS/AHT diagnosis is very controversial. In fact, the scientific, medical, and legal literature overflow with challenges to the diagnosis’ reliability. And these challenges are not at the margins.

Rather, the problems with the diagnosis may be so fundamental as to raise the specter of wrongful convictions and unfair destruction of families beyond anything comparable in the modern history of the American justice system. (Emphasis added.)

These attorneys are not alone in their view that the SBS/AHT diagnosis is destroying families in ways that are unprecedented in modern history.

Dr. David Ayoub, a radiologist who specializes in Infantile Rickets, a condition that can exhibit symptoms exactly like the ones used by Child Abuse Specialists to accuse parents of harming their child based only on x-ray, has testified in many of these cases, and he has told Health Impact News that he believes up to 50,000 wrongly-convicted parents or caregivers may currently be serving prison records for abuse they never caused, and in fact never happened because there are other medical explanations.

I get about 1 case per day request, and they are nearly 100% rickets cases. It is RARE that I get a normal bone referral, less than 1%.

I am sure I am consulted in less than 1% of all ongoing cases (regarding SBS charges of child abuse).

There are easily 2,000 cases per year of fractures in infants since the 1980s.

50,000 cases is a reasonable estimate.

The attorneys writing for the Santa Clara Law Review explain that SBS/AHT is NOT a true medical diagnosis, but a legal one.

One might assume that if the diagnosis is medically unsound, then physicians would abandon it.

But SBS/AHT is not a typical medical diagnosis.

It is a medical diagnosis in the sense that physicians make it based on certain physical findings. But its dominant function is forensic.

It is not a diagnosis made for treatment, but rather to identify abuse—specifically, that the child has been violently shaken or subjected to other severe “acceleration-deceleration” head trauma.

Given that the diagnosis serves principally legal functions, and given the split about the diagnosis within the scientific and medical communities, the primary forum at this point for resolving debates about the diagnosis’ reliability is, for better or worse, in the courts.

Losing in the courts, the medical system is trying to fight back

Child Abuse pediatrics is a huge business, however, and when partnered with local CPS social agencies who receive massive government funding for removing children from their parents, it is a system that will not go down without a fight, as the system literally employs hundreds of thousands of people, and brings in billions of dollars.

Attorneys Papetti, Kaneb and Herf expose just how they are attempting to deceive the courts.

Against this backdrop, several leading figures in child abuse pediatrics, joined by a law professor who advocates on SBS/AHT issues from a prosecutorial perspective, recently authored a document titled: “Consensus Statement on Abusive Head Trauma in Infants and Young Children” (hereinafter the “Statement”).

The Statement was published in an influential medical journal, Pediatric Radiology, and notes that it is “supported by” the Society for Pediatric Radiology (SPR), the American Academy of Pediatrics (AAP), and other pediatric medical organiza-tions.

But as made clear in the Statement and in papers published in conjunction with it, courts are the Statement’s primary intended audience.

The Statement is the latest in a series of statements, papers, and surveys produced by leading figures in child abuse pediatrics as part of a campaign to assure courts that the controversy enveloping SBS/AHT is without substance.

In reality, there is no consensus on SBS/AHT.

The Statement claims that consensus exists within the medical and scientific communities, but this is because the Statement labels those who question SBS/AHT as child abuse “denialists”—and, on that basis, dismisses their viewpoints as worthless.

Similarly, the substantive medical and scientific discussion in the Statement emphasizes literature and view-points from only one side of the debate, creating a misleading impression about the nature and depth of the controversy.

The lopsidedness is unsurprising given that the Statement’s fifteen authors (with at most one exception) do not include anyone who is not a well-known figure in child abuse pediatrics.

Accordingly, the most that can be said about the Statement is that it succinctly summarizes the consensus views of one side to the controversy.

Papetti, Kaneb and Herf then explain why a response to the medical system continuing to promote the failed science of SBS/AHT is needed, as these medical professionals desire to use their diagnoses to continue destroying families for profit, and to continue their careers.

This response to the Consensus Statement is necessary because the substantive concerns about SBS/AHT are not adequately presented in the Statement, rendering it misleading.

The concerns about SBS/AHT are not grounded in any denialism about child abuse, but rather concerns about SBS/AHT’s reliability, concerns grounded in the medical and scientific literature.

If one accepts that medical diagnoses used for forensic purposes must be scientifically reliable, then many SBS/AHT diagnoses do not belong in court.

The SBS/AHT diagnosis is premised on certain biome-chanical and pathophysiological assumptions and beliefs, nearly all of which have been shown to be unreliable. As accurately summarized in a leading forensic neuropathology treatise: “Virtually all the hallowed tenets of SBS have been challenged on the basis of scientific principles and been found wanting or wrong.”

Numerous studies and papers, including the only study undertaken by a scientific body, have demonstrated that the evidence base supposedly validating SBS/AHT is of very low quality and riddled with methodological flaws and biases.

A 2018 book written by one of the authors of this article examines the SBS/AHT controversy and finds the key SBS/AHT beliefs—beliefs which, again, have led to thousands of criminal convictions and family court determinations taking children from their parents—to be so unreliable that in most cases they should be excluded from the courtroom.

The answer to such criticisms—that courts should reject them because a consensus of child abuse specialists still believe SBS/AHT is reliable—is a response that, for the reasons set forth in this article, courts should evaluate with great caution. (Emphasis added.)

About the authors:

Randy Papetti – Partner, Lewis Roca Rothgerber Christie LLP. Author of the book, The Forensic Unreliability of Shaken Baby Syndrome

Paige Kaneb – Supervising Attorney, Associate Clinical Professor, Northern California Innocence Project at Santa Clara University.

Lindsay Herf – Executive Director, Arizona Justice Project.

Read the full article here.