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Court of Appeal issues guidance on shaken baby syndrome

BMJ 2010; 340 doi: https://doi.org/10.1136/bmj.c3318 (Published 21 June 2010) Cite this as: BMJ 2010;340:c3318

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Guidance for shaken baby syndrome testimony

The Court of Appeal decisions and guidance on shaken baby syndrome
(SBS) (1) reported by Claire Dyer (2) are disturbing. The Justices’
justification for the decisions and guidance indicates a basic
misunderstanding of the nature of medicine and scientific evidence.

Lord Justice Moses’ criticism of Dr. Jan E. Leestma as “fundamentally
flawed” is fundamentally flawed. Dr. Leestma wrote the original textbook
of forensic neuropathology in 1986. The CRC Press published the second
edition in 2009 (3). The new edition includes a unique chapter on injury
biomechanics and more than one thousand references not included in the
first edition. Most of the new references have been published during the
past ten years. Dr. Leestma not only has a current understanding of the
medical literature, he has published several articles in the peer-reviewed
literature since 2000. The statement that he had “not systematically
reviewed the literature since the mid-1990s” is baffling. How could he
have written the new edition of his textbook without the required reading?
Further, he had not only read “Geddes I and II” at the time they were
published in 2001, he knows Geddes personally. Leestma is correct
regarding APP-positivity in an anoxic background. The lack of an
appropriate control group in most published studies, including Reichard,
precludes verifiable statements regarding the significance of isolated
brainstem axonal damage and its relationship to clinical signs and
symptoms.

The Justices clearly do not understand the nature of an autopsy and a
consultative practice in the USA. An autopsy is merely a technique to
examine and remove organs from a body. The prosector documents his or her
findings with a report, photographs, and microscopic slides. The
documentation allows anyone, including the person who initially performed
the autopsy, to review the findings months and occasionally years later.
Studying these organs with an unaided eye and microscope does not require
that one actually perform the autopsy. Dr. Leestma has personally
examined over twenty thousand brains during his 45-plus year career. He
does not need to perform another autopsy or personally examine another
brain to make diagnoses based on the gross and microscopic findings. It
is incorrect to state that his knowledge emerges “from studies of the
literature which excluded the important material contained in Geddes I and
II and Reichard”. Geddes herself will tell you that medical science
simply does not know how to interpret isolated brainstem axonal damage in
the face of hypoxic-ischemic injury.

Experience is valuable. However, a physician must differentiate
experience (anecdote) from evidence. He or she must link experience to
the scientific method. Eminence-based medicine is not evidence-based
medicine, as emphasized by the US National Academy of Sciences report
regarding scientific testimony in the Courts (4). Dr. Al-Sarraj’s “up-to-
date experience” may merely allow him to repeat an initial error with
increasing confidence (5). His denigration of biomechanical studies is
absurd. He may not understand injury biomechanics, but others do. The
Justices note that the Court in the Cherry appeal described the science of
biomechanics as “complex, developing and (as yet) necessarily uncertain”.
The science may be complex and developing, but it is by no means
uncertain. Biomechanics is the fundamental tool for injury evaluation.
One learns biomechanics by studying biomechanics, not by performing
autopsies. If Al-Sarraj and others doubt the biomechanical science behind
our understanding of injury mechanism, they must be willing to use non-
seatbelt and non-airbag-equipped vehicles, allow their children to ride
unrestrained in the front seat of their automobile, play on swings over
asphalt surfaces, and engage in contact sports and recreational activities
without appropriate protective gear. The advances made through the
science of biomechanics as it relates to our understanding of injury
mechanism and prevention in these everyday activities is the same
scientific, evidence-based approach used to evaluate pediatric brain
injuries in cases of alleged abuse. The brain is not sensitive to the
intent behind the injurious forces acting upon it. The same laws of
physics apply to accidental and non-accidental injury, regardless of what
Al-Sarraj and others might believe.

Whether a proposed expert is still in practice is unimportant.
Consultation is the practice of medicine. Consultation involves the same
skills as examining a living patient or performing an autopsy. Whether or
not someone has recently seen a case in his own clinical practice is also
immaterial. Leestma and others have not seen a case of shaken baby
syndrome (SBS) in the last fifteen years for the simple reason that SBS
does not exist, regardless of the “experience” of Al-Sarraj et al. There
has never been a witnessed shaking in which a child suffered any injury.
There is no scientifically acceptable evidence that shaking a child can
cause subdural bleeding, retinal hemorrhage, or an encephalopathy. The
only evidence is the “confession” literature. However, none of the
published “confession” studies includes specific details of the
“confession”, the circumstances under which it was obtained, and a
correlation of the “confession” with the actual injuries (6-8). It is
noteworthy in this regard that at least 20 percent of those found to be
factually and indisputably innocent through the work of the Innocence
Project had “confessed” to the crime in question (9). It may be possible
to kill a young infant or neonate by shaking, but the mechanism of injury
will be major structural neck damage, not cerebral damage or subdural
bleeding. The author of two recent Law Review articles has called shaken
baby syndrome “the next innocence project” (10-11). Changing the name
from “SBS” to “abusive head trauma”, as recently adopted by the American
Academy of Pediatrics (12), does not alter the issue.

Widely held but incorrect beliefs in medicine are not uncommon. For
example, the established view until recently was that stress and too much
acid caused chronic gastritis and peptic ulcers. Therapy followed belief,
and included both medical and surgical intervention. Two future Nobel
Prize winners used the scientific method (including application of Koch’s
postulates) to disprove the prevalent belief in 1982. The extent that a
view is “widely held” is not a valid criterion to evaluate a medical
opinion. What is relevant is application of the scientific method to
assess the belief. The Courts must “critically evaluate the reasoning
process by which the experts connect data to their conclusions in order
for courts to consistently and rationally resolve the disputes before
them” (13). The Courts must examine the steps used to go from A to B, not
the experience or pedigree of the person giving the opinion. Lord Justice
Moses, referring to defense witnesses, states, “such experts are, usually,
engaged only in reviewing the opinions of others”. Nonsense. Case review
is an intense, detailed, and thoughtful process. It is not a brief
clinical encounter. When we review a potential infant injury, we examine
the birth records, the well-baby records, all hospitalization records, the
police reports and scene investigation data including photographs, and all
autopsy findings (if a death occurred) including photographs and
microscopic slides. The “opinions of others” is secondary. We defer to
evidence, not opinion. The Justices’ “sound reasons relating to his
[Leestma’s] experience in comparison with Dr. Al-Sarraj for rejecting what
he told us” are not sound at all.

The Justices would do well to remember William Harvey’s admonition
almost 400 years ago: “I tremble lest I have mankind at large for my
enemies, so much doth wont and custom become a second nature. Doctrine,
once sown, strikes deep its root, and respect for antiquity influences all
men. Still, the die is cast, and my trust is in my love of truth, and the
candour of cultivated minds.” (William Harvey, On the motion of the heart
and blood in animals, 1628.)

References:

1. Dyer C. Court of Appeals issues guidance on shaken baby syndrome.
BMJ 2010; 340:3318.

2. Royal Courts of Justice, Case No: 2007/6546/D4, available at
www.bailii.org/ew/cases/EWCA/Crim/2010/1269.html. Last accessed June 26,
2010.

3. Leestma JE. Forensic Neuropathology (Second Edition) CRC Press,
Taylor and Francis Group, 2009.

4. Available at:
http://www.nationalacademies.org/morenews/20090218.html. Last accessed
June 26, 2010.

5. Wilkins B, Sunderland RS. Head injury – abuse or accident? Arch
Dis Child 1997;76:393-7.

6. Leestma JE. Case analysis of brain-injured admittedly shaken
infants. Am J Forens Med Pathol 2005;26:199-212.

7. Leestma JE. SBS: Do confessions by alleged perpetrators validate
the concept? J Am Phys Surg 2006;11:14-16.

8. Starling SP, Patel S, Burke BL, Sirotnak AP, Stronks S, Rosquist
P. Analysis of perpetrator admissions to inflicted traumatic brain
injuries in children. Arch Pediatr Adolesc Med 2004;158:454-8.

9. Available at: http://www.innocenceproject.org/index.php. Last
accessed June 26, 2010.

10. Tuerkheimer D. The next innocence project: shaken baby syndrome
and the criminal courts. Wash Law Rev 2009;87:1-58. Available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1354659. Last accessed
June 26, 2010.

11. Tuerkheimer D. Criminal justice at a cross roads: Science-
dependant prosecution and the problem of epistemic contingency. Alabama
Law Rev 2010 (in press). Available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1579394. Last accessed
June 26, 2010.

12. Christian CW, Block R; Committee on Child Abuse and Neglect;
American Academy of Pediatrics. Abusive head trauma in infants and
children. Pediatrics 2009;123:1409-11.

13. Brock v. Merrell Dow Pharmaceuticals, Inc., 874 F 2nd 307 (5th
Cir. 1989).

John Plunkett, M.D.
Forensic Pathologist.
Welch, Minnesota USA

Patrick D. Barnes, M.D.
Pediatric Neuroradiologist.
Stanford, California USA

Thomas L Bohan, PhD, JD
Physicist.
Immediate Past President,
American Academy of Forensic Sciences.
Peaks Island, Maine USA

Harry J. Bonnell, M.D.
Forensic Pathologist.
San Diego, California USA

Thomas Carlstrom, M.D.
Neurosurgeon.
Des Moines, Iowa USA

James T. Eastman, M.D.
Pathologist.
Madison, Wisconsin USA

Steven Gabaeff, M.D.
Clinical Forensic Medicine/Emergency Medicine.
Sacramento, California USA

John G. Galaznik, M.D.
Pediatrician.
Northport, Alabama USA

Horace B. Gardner, M.D.
Ophthalmologist.
Manitou Springs, Colorado USA

Julie Mack, M.D.
Radiologist.
Hershey, Pennsylvania USA

Marvin E. Miller, M.D.
Pediatric Geneticist.
Dayton, Ohio USA

Janice Ophoven, M.D.
Pediatric Forensic Pathologist.
Woodbury, Minnesota USA

Peter J. Stephens, M.D.
Forensic Pathologist.
Burnsville, North Carolina USA

Shaku Teas, M.D.
Forensic Pathologist.
Chicago, Illinois USA

Kirk L. Thibault, PhD.
Biomedical Engineer.
Lester, Pennsylvania USA

Larry E. Thibault, Sc.D.
Biomedical Engineer.
Lester, Pennsylvania USA

Ronald H. Uscinski, M.D.
Neurosurgeon.
Washington, D.C. USA

Competing interests:
Many but not all of us have consulted and testified for the defense in alleged infant injury cases.

Competing interests: No competing interests

28 June 2010
John Plunkett
Forensic Pathologist
Welch, Minnesota 55089 (USA)