Dutch nurse jailed for seven murders has conviction quashedBMJ 2010; 340 doi: http://dx.doi.org/10.1136/bmj.c2100 (Published 16 April 2010) Cite this as: BMJ 2010;340:c2100
In one of the worst miscarriages of justice in Dutch history, the nurse Lucia de Berk has had her conviction on seven charges of murder and three of attempted murder of babies and elderly people in her care quashed.
Ms de Berk, 48, who spent six years of a life sentence in jail for her alleged crimes, always denied the charges. Last week the chairman of the public prosecution service, Harm Brouwer, personally apologised and acknowledged her innocence.
The case has parallels with that of Sally Clark, the mother convicted in the United Kingdom of murdering her two children. In that case the expert witness Roy Meadow declared that the chances of Mrs Clark’s babies having both died as a result of cot deaths was 73 million to one.
In the case of Ms de Berk the court was told by an expert witness that more children had died on her shifts than seemed possible by chance. He put the odds of it occurring by chance at one in 342 million, a figure that had a powerful effect on the court.
On Wednesday 14 April a court in Arnhem concluded that on the basis of expert reports it “cannot be maintained that a baby’s death in 2001 was the result of a crime . . . even less likely is that the death can be attributed to the suspect’s intention.” The decision followed a review of toxicology and pathology evidence that cast doubt on whether the babies died of poisoning rather than natural causes.
The court also said that there was “completely insufficient” reason to think that the death of an elderly patient in 1997 was due to “anything other than natural causes.” Of the other deaths the criminal investigation had produced “no facts or circumstances to suggest that their causes were unnatural or criminal.”
In 2001 police were called to investigate the death of a 5 month old baby with heart defects at the Juliana Children’s Hospital in the Hague. They found what they believed to be a pattern of unexplained deaths in three hospitals where Ms de Berk worked between 1997 and 2001. In every case she had been responsible for the patient’s care or was the last person present before they died or became ill. She was charged with administering lethal doses of drugs. But there were no witnesses, and her defence team argued that her presence was due to her concern for her patients (BMJ 2003;326:680, doi:10.1136/bmj.326.7391.680/b).
In 2003 she was convicted on charges of murder and attempted murder. The claim made at her trial about the astronomically high odds against her being present at or around the time of death occurring by chance was challenged by mathematicians writing in Nature who believed it could be just one in 48 or less (Nature 2007;445:254-5, doi:10.1038/445254a).
When the appeal court judges dismissed her appeal in 2004, however, they said that they did not take into account the statistical claim. Adding a further three charges of murder to the original four of murder and three of attempted murder, they said they made their decision because there was “concrete proof” that two babies were poisoned by digoxin.
Campaigners for her freedom approached the national committee that evaluates closed criminal cases. It advised reviewing the evidence because of differences of opinion over whether it could be scientifically established that a patient had died from digoxin poisoning. In 2008 the Supreme Court ordered that the case should be reheard, and Ms de Berk was freed in 2008 pending a final decision.
The Arnhem court then ordered further investigations into the toxicology and pathology evidence. Three experts, including Jan Meulenbelt, head of the National Poisonings Information Centre, concluded that there was nothing to suggest that the two “proved” deaths could be ascribed explicitly to treatment. Because the other convictions—where the deaths were simply “unexplained”—were linked to the poisoning cases, they too were now questioned.
Last month the solicitor general, Jan Willem Rijkers, announced that the public prosecution service was dropping all charges because the key evidence against the nurse was now in doubt.
A campaigner for Ms de Berk’s release, the former nursing home doctor Metta de Noo, has argued that the lesson that should be learnt from the case is that doctors should be more available to provide independent evidence in criminal cases concerning medical issues.
She said in the Dutch Medical Association’s journal, Medisch Contact, “Lawyers think black and white: someone has done it or not. Doctors must, in their work, keep options open. They are sceptics.”
Cite this as: BMJ 2010;340:c2100