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
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.
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's head hit anything. The day the father shook the child is the same day he returned from being in the field for three weeks. Subsequent to the child's death, the child's sister admits that the week before she dropped the child in the porcelain bathtub while babysitting when "mommy was at work and daddy was in the field."
Should the government immediately file charges for unpremeditated murder or involuntary manslaughter against the Soldier in this case? The answer requires a close look at the available evidence.
Shaken Baby Syndrome/Shaken Impact Syndrome-What Is It?
Guard well your baby's precious head; Shake, jerk and slap it never; Lest you bruise his brain and twist his mind; Or whiplash him dead forever.9
Shaken Baby Syndrome/Shaken Impact Syndrome is generally defined as traumatic brain injury consisting of "a combination of subdural hematoma (brain hemorrhage), retinal hemorrhage, and diffuse axonal injury (diffuse injury of nerve cells in brain and/or spinal cord)"10
in infants and toddlers with little to no evidence of external cranial trauma, the effects of which cause death or significant physical injury.11
Referred to within the medical community as the "triad of diagnostic criteria,"12 medical practitioners who find at least two of these symptoms
often conclude that the child has suffered intentional abuse as opposed to some form of accidental injury.13
Shaken Baby Syndrome/Shaken Impact Syndrome-The Clash of the Experts
In recent years, the term battered baby has given way to the term shaken baby as a label for infants or young children who have apparently suffered inflicted injuries at the hands of parents, caregivers, or others. The assertion is broadly held by many physicians that the physical act of shaking an infant may, by itself, cause serious or fatal injuries but may be accompanied by impacts, referred to by some as the "shaken impact" syndrome . . . . Currently, there are wide differences of opinion regarding the supposed syndrome within the medical and legal communities.14
A. The Majority and Minority Views
There are generally two primary schools of thought concerning the degree and type of force needed to cause the above-mentioned injuries.15
The majority view believes shaking alone is sufficient to cause traumatic brain injury, whereas the minority view posits that shaking plus some form of cranial impact is required to cause traumatic brain injury.16
Military practitioners, however, should be aware that within the military justice system, the terms associated with each are sometimes used interchangeably despite their different implications.17 Such an
oversimplification or generalization of an otherwise complex syndrome ignores the critical nuances of each view-nuances that may well determine the guilt or innocence of an accused.
The Majority View-Shaking Alone
The majority view holds that most adults possess sufficient strength to shake an infant or toddler to the point of causing intracranial injuries that can ultimately cause death or grievous bodily harm without any form of cranial impact or blunt force trauma.18 This view first gained a foothold within the medical community in 1974 when Dr. John Caffey postulated the "whiplash shaken baby syndrome" theory, stating that shaking alone could produce the forces sufficient to cause both subdural hematomas and retinal hemorrhages in small children.19 Dr. Caffey then took his theory one step further and opined that finding a subdural hematoma and retinal hemorrhages in an infant with no external signs of cranial trauma was pathognomonic20 (i.e., absolutely and exclusively diagnostic) of child abuse.21
In order to support his theory, Dr. Caffey relied primarily on a 1968 biomechanical study conducted by Dr. Ayub Ommaya.22 In his study, Dr. Ommaya used primates strapped into a piston-activated rail chair to specifically simulate rear-end collision whiplash (i.e., no head impact)
injuries.23 Through this landmark study, Dr. Ommaya determined two things. First, he determined that when the primate's head was subjected to sufficient angular or rotational acceleration (e.g., whiplash) force, traumatic brain injury would occur regardless of whether or not skull impact occurred.24 Second, he determined that traumatic brain injury, subdural hematomas, or diffuse axonal injury did not occur until the primate experienced approximately 155 gs25 of acceleration force.26 In other words, Dr. Ommaya "demonstrated the concept of an injury threshold for neural tissue."27 In postulating his whiplash shaking theory, however, some experts argue that Dr. Caffey relied solely on Dr. Ommaya's finding that cranial injuries occurred without impact, while specifically ignoring the amount or degree of force Dr. Ommaya (i.e., 155 "g" forces) determined necessary to actually cause traumatic brain injury.28
For roughly the next fifteen years, Dr. Caffey's shaking-alone theory circulated through both the medical and legal communities and went virtually unchecked without the benefit of any significant peer review.29
As a result, Dr. Caffey's theory became firmly ingrained as an accepted medical syndrome.30
The Minority View-Shaking Plus Impact
It was not until approximately 1987 that the...