1. Analyzing and Preparing Cases Involving Medically-Based Allegations of Child Abuse Bruce Boyer, JD Diana Rugh Johnson, JD, CWLS Melissa Staas, JD

2. Getting It Right Physical abuse cases are among our most serious Removal of a child to foster care is sometimes necessary, but always traumatic Reunification after an adjudication of physical abuse can be very difficult to achieve

3. Case Analysis No up-front funds Attorney needs to know how to go over his/her own case Attorney needs to read the medical records Attorney needs to understand the medical facts on which the diagnosis was based Attorney needs to decide if experts need to be consulted

4. Investigative Time Frame The hours leading up to the diagnosis are NOT the most important. Obtain the child’s entire medical record leading up to the injury in question – Prenatal clinic – Birth hospital – Pediatrician – Previous injuries – Previous hospitalizations – Urgent care facilities

5. Gathering Medical Records Obtain all medical records related to the injury in question – Medical Records Department – Radiology Department – Pathology Department – Emergency Department – Emergency Transport (ambulance, life flight)

6. Investigative Time Frame Obtain all medical records created after the diagnosis of the injury in question – Continued hospitalization – Subsequent hospitalization – Follow-up radiology – Therapies

7. Learn the Terminology

8. Know the Parts

9. Know the Directional Words

10. Build a Reference Library

11. Utilize on-line resources

12. Communicate with others who are doing this work http://www.ga-innocenceproject.org/SBSSeminarMaterials-10.12.11.htm

13. Don’t be Intimidated by the Medical Records Often, the medical facts on which the case turns are written in plain English – Identify potential problems and inconsistencies before trial – Child abuse consultation report contains a compilation of information gathered from other sources and other specialists – Review the reports of each specialist

14. Example: Child Abuse Consult: “CT scan shows likely subdural hematoma.” Radiology Report: “Hyperdense material along posterior falx is nonspecific but may represent a small amount of extraaxial blood products. Recommend repeat imaging in 24-48 hours.” Radiology Report: Follow-up of previous hyperdensity along posterior falx cerebri. Again demonstrated as a thin area of high density. No significant interval change, with stable thin hyperdensity along the posterior falx, representing either dural thickening or possibly a tiny amount of subdural blood.

15. Example: “5 day old neonate who was apparently well upon discharge except for having some fussiness with diaper changes that the parents attributed to his recent circumcision, found to have R thigh swelling after dad noticed baby was not moving his one leg when he played with his feet. On x-ray, baby has an oblique, displaced mid-shaft femur fracture with significant swelling. The history of this neonate not being irritable with diaper changes is not consistent with the fracture being present at that point in time…This injury needs to be considered non-accidental in nature, as there is not an accidental mechanism to account for the injury.”

16. Don’t forget the basics of lawyering Investigate the family – Scene investigation – Detailed interview of parents – Criminal history – Social services history – What kind of parents are they? – Interview family members – Interview neighbors & friends – Interview the pediatrician

17. Case #1 Scene Investigation

18. Case #2 Interviewing Family

20. 2/17/10 Case #3 Reviewing Post-Injury Records

21. CPC report: 3 new rib fxs since discharge – 3/1/10 CHEST XRAY There is a healed posterior L 7 th rib fx once again identified There is also a slightly bulbous medial aspect of the L 9 th posterior rib Minimally displaced healing rib fxs of the R 5 th, 6 th, and 7 th posterior ribs

22. 3/1/10

23. – 3/8/10 CHEST XRAY There are healing rib fxs noted bilaterally The L posterior 7 th rib fracture is an old one which was reported previously The R-sided fractures are most conspicuous at the posterior aspect of the 5 th through 7 th ribs Note is made that there also appear to be possible fxs on the anterior aspect of the R 7 th through 9 th ribs

24. 3/8/10

25. – 3/11/10 CHEST XRAY Healing rib fxs of the L 5 th, 7 th, and 9 th and R 5 th, 6 th, and 7 th ribs demonstrate continued callous formation

26. 3/11/10

27. – 3/23/10 SKELETAL SURVEY Multiple bilateral healing and healed rib fxs are seen The L 5 th, 6 th, and 9 th ribs posteriorly show callus formation There is a contour irregularity of the 7th rib medially on the L, which may represent an old, healed fx On the R, there are healing fxs of the 5 th, 6 th, and 7 th posterior ribs There are also healing fxs seen at the anterior tips of the 8 th and 9 th ribs, which are more clearly seen on today’s study and were not present on 3/1/10 A small area of periosteal new bone formation is also seen on the L 5 th rib, separate from the healing fx, that was not present previously and could represent a new healing fx

28. 3/23/10

29. At Trial Make an opening statement – Introduce your theory of the case – Give the judge a road map to the verdict you want Know the medical records and the timeline of the case like the back of your hand Prepare exhibits – X-rays make great Power Point slides – If dates are important, use a calendar

30. Example: Wrist fracture

31. DATETIME.pdf PAGEMED RECORDS PAGE LOCATIONDESCRIPTION 2/8/10185417288 17368 16536 16616 NO BRUISES 2/8/10230017292 17373 16540 16621 NO BRUISES 2/9/1000231816817416Right side of neckNo description 2/9/1023301816817416Right side of neckNo description 2/10/10002317751 17807 16999 17055 Right side of neckNo description 2/10/10012117756 17814 17004 17062 NO BRUISES 2/11/10015317772 17833 17020 17081 Groin, neck, chestPurple 2/11/10091817784 17848 17032 17096 Groin, neck, chestPurple 2/11/10122417789 17854 17037 17102 Groin, neck, chestPurple 2/12/10221218183 18212 17431 17460 No description 2/13/10212518192 18223 17440 17471 Left handPurple 2/14/10082718196 18227 17444 17475 Left handPurple 2/14/10213518202 18235 17450 17483 Left handPurple 2/15/10082118472 18505 17720 17753 Left handPurple 2/15/10194918477 18510 17725 17758 Right armBlack 2/15/10221118481 18515 17729 17763 Right armPurple Example:

32. February 2010 MondayTuesdayWednesdayThursdayFridaySaturdaySunday 1 No bruises noted in chart 2 No bruises noted in chart 3 No bruises noted in chart 4 No bruises noted in chart 5 No bruises noted in chart 6 No bruises noted in chart 7 No bruises noted in chart 8 No bruises noted in chart 9 Right side of neck No description 10 Right side of neck No description 11 Groin, neck, chest Purple 12 No location given No description 13 Left hand Purple 14 Left hand Purple 15 Left hand Right arm Black & purple 16 No data 17 No data 18 No data 19 No bruises noted in chart 20 No data 21 No data 22 HOME 23 HOME 24 HOME 25 HOME 26 HOME 27 HOME 28 HOME Example:

33. Head Injuries Exploring Potential Differential Diagnoses, and Consulting the Relevant Sub-specialists

34. Subdural Hematoma Treated immediately as a case suspicious for abuse Child abuse pediatricians may conclude “likely abuse” (i.e., “shaken baby syndrome” or “abusive head trauma”) based solely on the existence of a subdural hematoma However, subspecialists agree that an isolated subdural hematoma is NOT pathognomonic (i.e., diagnostic) for non-accidental trauma

35. Subdural Hematoma For the moment – let’s remove retinal hemorrhages from the equation Isolated subdural hematoma could be due to: – birth trauma, – pre-existing medical condition, – short-distance fall, or – some combination of the above

36. Benign External Hydrocephalus Diagnosed via macrocephaly (head circumference exceeding 90 th percentile) and radiological findings of enlarged extra- axial/subarachnoid spaces Pediatric neurosurgeons and pediatric neurologists agree: INFANTS WITH BEH ARE SUSCEPTIBLE TO SUBDURAL HEMATOMAS FROM MINOR TRAUMA, OR EVEN SPONTANEOUS BLEEDS

37. 2 Examples of Peer-Reviewed, Evidence-Based Studies Papasian & Frim, A Theoretical Model of Benign External Hydrocephalus that Predicts a Predisposition Towards Extra-Axial Hemorrhage After Minor Head Trauma, Pediatric Neurosurgery, 2000 McNeely et al., Subdural Hematomas in Infants with Benign Enlargement of the Subarachnoid Spaces Are Not Pathognomonic for Child Abuse, AmericaN Journal of Neuroradiology, 2006

38. How Do We Know that BEH May Be at Play? May have been missed or overlooked by the child abuse/child protection pediatrician Investigate: – Pediatric records for increasing head circumference – Radiological findings and impressions – Speak with the pediatric neurosurgeon/neurologist

39. Translating the Radiological Jargon These all mean the same thing: Benign enlargement of the subarachnoid space (BESS) Extra axial spaces of infancy Benign enlargements of the extra-axial spaces Benign subdural collections of infancy Prominence of bilateral frontal extra-axial spaces Benign extra cerebral fluid collections Benign subdural effusions of infancy

40. Significance of the Presence of BEH It is a pre-existing medical condition that predisposes infants to intracranial bleeding from minor trauma, or even spontaneously Enlargement of the cerebrospinal fluid spaces causes stretching of the bridging veins in the subdural space, making them more vulnerable Subdural collections associated with BEH mimics chronic subdural hematomas due to non-accidental trauma

41. But What About Retinal Hemorrhages? Non-accidental trauma is still not necessarily the most likely explanation, particularly when there has been: Incidental detection of subdural hematomas and retinal hemorrhaging Minimal or complete absence of symptoms Absence of structural damage to the brain

42. Wading through the murky waters of retinal hemorrhages Conflicting views regarding causation, generally, and as to the role of morphology and location Vigorous forces ≠ violent/abusive forces Need for photos and/or diagrams

43. What do the neurosurgeons say about RHs? In various specific cases, treating pediatric neurosurgeons have opined and/or testified that the RH in that specific case were consistent with: Intracranial pressure Blood travelling up the optic nerve Birth trauma

44. Other explanations for subdural hematomas Other medical conditions (blood disorders) Short-distance falls without pre-existing conditions

45. Skull Fractures Important to rule out a mis-reading of the suture lines, which are prominent in infants