A Nuts and Bolts Approach to Litigating the Shaken Baby or Shaken Impact Syndrome

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A Nuts and Bolts Approach to Litigating the Shaken Baby or Shaken Impact Syndrome

MILITARY LAW REVIEW

Volume 188 Summer 2006

A NUTS AND BOLTS APPROACH TO LITIGATING THE SHAKEN BABY OR SHAKEN IMPACT SYNDROME

Lieutenant Colonel Matthew D. Ramsey*

"Did he fall, or has he suffered inflicted injury?" is a question faced frequently by clinicians caring for infants and toddlers with traumatic brain injury. Published court cases, with widely divergent medical opinions, illustrate the dilemma of distinguishing between inflicted and accidental causes, especially when there are no other signs of abuse but just an uncorroborated, alleged accident, often [a] fall. Although there has been resistance to diagnose abuse there may also be over enthusiasm to do so, although there is an increasingly prevalent opinion that short falls can never cause serious injury; this, too is still open to debate.1

I. Introduction

One of the most difficult cases for counsel to litigate is one involving an infant or toddler alleged to have died as a result of violent, non

accidental shaking or shaking in connection with some form of cranial impact. Often referred to as the "shaken baby syndrome"2 (SBS) or "shaken impact syndrome"3 (SIS), these cases not only contain the emotional turmoil of a dead child, but must also be tried using evidence that is highly dependent on complex circumstantial medical data. Interpretation of this highly complex data is typically dependent on expert testimony and is extremely vulnerable to subjective interpretations. Consequently, practitioners often find themselves easily overwhelmed and in a highly-charged atmosphere where emotions and the personal agendas of the purported experts can run roughshod over logic, science, and the law.4

The purpose of this article is to provide trial and defense counsel with a basic foundation for use when preparing to litigate a case where SBS or SIS is alleged. A comprehensive guide covering every conceivable nuance of a SBS/SIS case is beyond the scope of this article. Instead, this article will define SBS/SIS as it is most commonly regarded by the medical and legal community, outline the medical terminology and definitions common to such cases, provide a framework for requesting expert assistance and using and challenging expert testimony at trial, and conclude with a discussion of several of the current controversies surrounding SBS/SIS.

II. The Starting Point

A review of recent military cases involving SBS/SIS reveals that it is most often one of the parents or primary caretakers, typically the male parent or caretaker, that is suspected and charged with perpetrating the

alleged abuse.5 Regardless of the alleged perpetrator's gender, the relationship between a parent or caretaker and a child is private in nature.6 As a result, it is not uncommon for there to be no witnesses, other than the accused parent or caretaker, to the suspected abuse.7

Absent any eyewitnesses, practitioners rely heavily on medical evidence (e.g., medical reports, autopsy reports, etc.), medical expert assistance and medical expert testimony (e.g., forensic neuropathologist, etc.) to either prove or disprove that traumatic brain injury was caused by SBS/SIS.8 Therefore, the first step for any practitioner is to become intimately familiar with the medical terminology found in such evidence. To assist the reader, a non-exhaustive list of medical terms frequently used by the medical and legal community when addressing cranial injuries or SBS/SIS is found at Appendix A.

In addition to being intimately familiar with the medical terms associated with these types of cases, the following hypothetical may also help the practitioner understand the information presented in this article:

Hypothetical: A Soldier presents his near comatose infant child at the emergency room. A computer tomography scan reveals a large subacute subdural hematoma. The child is placed on a respirator but dies two weeks later. A subsequent autopsy reveals diffuse axonal injury. There is nothing in the autopsy to suggest that the child suffered any form of recent blunt force trauma (i.e., no current contusions or external bleeding).

The cause of death is cerebral edema. Because a subdural hematoma and diffuse axonal injury are found, the doctor concludes the infant was shaken to death. The father admits to briefly shaking the child one day prior to bringing him to the emergency room, but claims that he did not hit the child, nor did the child'...

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