Ironic Simplicity: Why Shaken Baby Syndrome Misdiagnoses Should Result in Automatic Reimbursement for the Wrongly Accused
| Publication year | 2014 |
I. INTRODUCTION
Shaken baby syndrome (SBS) gained notoriety in the United States during the mid-1990s due to the Louise Woodward trial. Ms. Woodward, a British au pair residing in Boston, began working for the Eappen family in November 1996, caring for eight-month-old Matthew and his broth-er.(fn1) On the afternoon of February 4, 1997, Ms. Woodward allegedly shook Matthew, causing him to have severe head injuries that led to his death on February 9, 1997.(fn2) A jury convicted Ms. Woodward of second-degree murder, which the judge reduced to involuntary manslaughter.(fn3) The judge imposed a 279 day sentence-the time Ms. Woodward served while incarcerated awaiting trial.(fn4) The Woodward trial burst SBS onto the national headlines, lighting the fuse for future debates regarding a controversial diagnosis.
SBS has been diagnosed for approximately fifty years, gaining its first proponents, C. Henry Kempe, in 1962,(fn5) followed by John Caffey.(fn6) As it evolved, the basic tenet became that an infant or toddler is violently shaken, causing the child's head to forcefully snap back-and-forth, re-sulting in a "triad" of symptoms many medical providers consider path-ognomonic of SBS: retinal hemorrhaging (bleeding of the inside surface of the back of the eye), subarachnoid or subdural hemorrhaging (bleeding between the membranes surrounding the brain), and cerebral edema (brain swelling).(fn7) The medical community generally accepted SBS diag-noses for roughly twenty years, from approximately the early-1980s to the late-1990s/early-2000s, substantially aided by improved imaging techniques that provided more accurate radiographic imaging.(fn8)
The common SBS event begins with a medical provider evaluating a sick or injured child, finding a subdural hematoma, then either consulting his or her peers or making the diagnosis independently. The provider then contacts law enforcement, child protective services (CPS),(fn9) or both, to report the child abuse findings. Then law enforcement or CPS takes custody of the child, who, if alive, frequently remains hospitalized due to the severity of the injuries. Finally, the last caregiver, almost always a parent or daycare provider, is questioned by the medical provider(s), law enforcement, and CPS, who begin their criminal and custody investiga-tions.(fn10)
Ironically, while the Woodward trial unquestionably raised child abuse and SBS awareness, it arguably spawned a louder voice to SBS's detractors. The primary medical and biomechanical criticism of SBS is that the fundamental components of the triad, identified as a "constella-tion of symptoms," which individually would not substantiate an SBS diagnosis, has not been validated.(fn11) Furthermore, there are other triad causes besides shaking.(fn12) Simple Google searches identify SBS propo-nents and opponents,(fn13) including a number of very sad, tragic examples of the consequences of SBS diagnoses and misdiagnoses. The factions within the SBS field appear very rigid, and many of the same names are repeatedly noted as proponents and opponents.
Another prominent criticism is that the medical providers diagnos-ing SBS occupy multiple roles-they diagnose SBS, they play a law en-forcement role because an SBS diagnosis substantially suffices as a law enforcement investigation, and they function as prosecutorial fact and expert witness. This undoubtedly puts pressure on medical providers to diagnose SBS correctly because the diagnosis identifies a child as being abused, which initiates criminal and custodial investigations. An SBS diagnosis commences a conflicted relationship between medical providers, law enforcement, and CPS personnel, and the child's parent(s), who are frequently accused of shaking.
Culturally, we want medical providers to diagnose abuse where they genuinely believe it exists. However, when abuse did not occur and families endure the gamut of criminal and CPS investigations and legal proceedings, likely spending substantial sums of money defending themselves and being separated from their families, those wrongfully accused deserve recourse. Unfortunately, recourse seems extremely unlikely, par-ticularly in civil suits against medical providers, law enforcement, or CPS personnel.
SBS's shortcomings include the debatable science behind SBS the-ory and diagnosis-the questioning of which has grown more vocifer-ous-and the arguably biased, discriminatory treatment of the accused. Professor Deborah Tuerkheimer notes that the evolving SBS skepticism and contentious debate has resulted in "chaos" in many SBS adjudica-tions and within the medical and biomechanical fields, with the same SBS proponents and opponents continually crusading for and clashing over their beliefs.(fn14) The issues surrounding the medical and biomechani-cal components of SBS diagnoses have been repeatedly examined and discussed, and are not the focus of this Note. This Note recounts those issues primarily to evidence the substantial tension surrounding SBS in the context of misdiagnoses and the treatment of the accused parties.
The solution proposed here is to remove the qualified immunity clause in each state's reporter statute and provide automatic reimburse-ment for economic damages incurred if any investigation is deemed "un-founded" (meaning the CPS investigation concluded there was no evi-dence substantiating child abuse). Each state has a reporter statute, which requires medical providers to report child abuse, and these statutes pro-vide qualified immunity if the reporter acted in "good faith."(fn15) If the medical provider, law enforcement, or CPS personnel acted in good faith, they would not face civil liability and the damages would be strict-ly limited to reimbursement for economic damages. However, I also propose that if there is evidence any medical provider, law enforcement, or CPS personnel acted in bad faith or engaged in ethically suspect behav-ior, any wrongly accused party may pursue non-economic damages. If there is evidence of manipulation or intentional nondisclosure of medical evidence, or unethical or other forms of unscrupulous treatment of the accused, the strict economic damages cap should be voidable and the medical providers, law enforcement, and CPS personnel would become exposed to non-economic damages claims. This should be determined on a case-by-case basis.
Theoretically, an economic damages cap is beneficial because it holds medical providers accountable and promotes thorough investiga-tion of a child's injuries before diagnosing SBS, while also ensuring law enforcement and CPS personnel conduct objective investigations. The cap would also provide those professionals some security regarding their financial liability in the event of an incorrect diagnosis or an unfounded investigation, presuming they are not acting in bad faith or unethically. Additionally, eliminating qualified immunity and incorporating automatic reimbursement for unfounded diagnoses would provide financial relief to those wrongly accused of shaking, but it would also limit their recovery to economic costs associated with post-SBS diagnosis expenditures, such as additional housing and daycare costs, lost wages, and legal costs and fees. Finally, the voidable nature of the cap would provide additional compensation for those wrongly accused who endured unfair or unethical treatment from medical providers, law enforcement, and CPS personnel.
Part II of this Note tracks the relevant history of SBS, specifically noting its initial and inherent biomechanical and medical developments. Part III discusses the inherent tension between parents' fundamental right to the care and custody of their children and a state's interest in protect-ing children it believes were abused. Part IV details the multiple, argua-bly conflicting, roles physicians occupy in SBS proceedings, and Part V relays two anecdotes of failed SBS diagnoses and their disastrous conse-quences on two families. Part VI discusses the voidable economic dam-ages caps and why they would provide a suitable balance between com-peting interests, and Part VII provides a brief conclusion.
II. SBS DIAGNOSIS HISTORY
A central premise of SBS is that infants have weak, unstable necks and oversized heads;(fn16) the parent or care provider becomes frustrated with the child's behavior, grabs the infant by the torso or shoulders, then repeatedly shakes the child back and forth causing the child's head to violently bob, experiencing acceleration-deceleration forces as the child's chin or occipital bone strikes its torso.(fn17) The theoretically violent acceleration-deceleration forces result in the eye and brain symptoms identified as the "triad."(fn18) The bleeding and swelling damages brain tis-sue, and increased pressure due to the blood displacement and tissue swelling may intensify, potentially leading to brain damage and death.(fn19)
The development and eventual evolution of SBS began in the early 1960s and is often attributed to C. Henry Kempe's article,
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