Clash of the medical experts: Abusive Head Trauma. Copyright Notice

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1 Clash of the medical experts: Abusive Head Trauma Karen Farst, MD UAMS, Dept of Pediatrics Arkansas Children s Hospital Justin Fitzsimmons, JD Search.org Copyright Notice This presentation contains the creative works of others which are being used by permission, license, or under a claim of fair use (17 U.S.C. 107). This presentation was prepared under the fair use guidelines for multi-media presentations and further use or distribution of it is not permitted. 1

2 Agenda Abusive Head Trauma Dealing with Defense Expert Examples of dealing with the Defense Expert s CV and report Shaken Baby Syndrome (SBS) Other terminology: Abusive Head Trauma (AbHT) Non-accidental Head Trauma (NAT) Inflicted Traumatic Brain Injury (itbi) 2

3 Abusive Head Trauma Common presenting histories: Nothing Trouble breathing after eating Choked on feed then shook to help Short fall Sibling plays too rough Bouncing on knee, burping too hard. Timing of injury by clinical course Serious head injuries show some degree of symptoms following event. Mild Severe Lucid interval not the same thing as asymptomatic in an infant. 3

4 Doctors, Lawyers and Court Hard to do research to prove forces required to cause injury in child abuse Large literature base and clinical experience on what types of injuries occur in minor vs. major trauma MVA s, Falls Also literature on confessed/witnessed events of children injured by shaking/abuse Arguments against abusive head trauma 1. Biomechanical studies show shaking cannot be cause of head injury unless neck is injured as well. 2. Short falls are ignored as a cause of major head trauma. 3. Findings attributed to injury by shaking are all actually just caused by lack of oxygen (hypoxia) and brain swelling (increased intracranial pressure). 4. No support in EBM literature that SBS exists. Doctors that deal with child abuse are so jaded from seeing abuse cases that they don t look for other causes. 4

5 1-Neck must be injured if child shaken hard enough to cause head injury Bandak, Shaken Baby Syndrome: A biomechanical analysis of injury mechanisms. Forensic Science Int l 2005;151. Forces need to cause head injury exceed point of neck failure so if no neck injury, could not be shaking as cause of injury. BUT Marguiles S, et al. Letter to the Editor (response to Bandak s article). Forensic Science Int l 2006;164 When accurately calculated, the range of neck forces is considerably lower and includes values that are far below the thresh-hold for injury. 2-Short falls result in same findings attributed to injury by shaking Plunkett J. Am J Forens Med Pathol, 2001 Consumer Product Safety Commission Review 75, 000 cases of playground equipment injury No children < 1 year of age Complex/Complicated falls 18 deaths, 12 / 18 cases were witnessed None had formal eye exams for RH Conclusions **Short falls can result in death **Findings attributed to so called SBS common (?!?!) in children who have suffered short falls 5

6 Annual risk of death resulting from short falls among young children: less than 1 in 1 million. Chadwick DL, Bertocci G, Castillo E, Frasier L, Guenther E, Hansen K, Herman B, Krous HF. Pediatrics Jun;121(6): OBJECTIVE: The objective of the work was to develop an estimate of the risk of death resulting from short falls of <1.5 m in vertical height, affecting infants and young children between birth and age 5 years. METHODS: Review included 5 book chapters, 2 medical society statements, 7 major literature reviews, 3 public injury databases, and 177 peer-reviewed, published articles indexed in the National Library of Medicine. FINDINGS: The best current estimate of the mortality rate for short falls affecting infants and young children is <0.48 deaths per 1 million young children per year. 3-Hypoxia and resultant increased intracranial pressure (ICP) cause brain (SDH) and retinal (RH) bleeding attributed to shaking injuries Unified Theory by Geddes (UK Pathologist) She has since retracted her theory under oath in the UK, but it is still referenced as valid in US and abroad "I think we might not have the theory quite right. Section 57, p14 of Court of Appeals (UK) decision issued 7/21/2005 6

7 Conditions associated with hypoxia and brain swelling without trauma do not result in findings characteristic of abusive head trauma CPR Seizure (without trauma) does not result in widespread RH Increased Intracranial Pressure Shunt failures (no trauma) had no RH 4- attempts to formally rank the available medical scientific evidence by internationally accepted methods, to determine the degree of confidence that can be held on various claims about the condition termed shaken baby syndrome (SBS). 7

8 And it continues.. Gabaeff S. Challenging the connection between SDH, RH and SBS. West J of Emerg Med, May Donohoe graded the quality of the child abuse literature from and found significant weaknesses. Ref # 1 = Donohoe Ref #10 = Bandak (no reference to the erratum) Opposing Experts Does the expert provide clinical care for actual patients as part of their duties? Pediatrics? Infants? Everything that is published is not necessarily of the same quality. 8

9 Daubert Review by Narang (MD/JD) Part 1 and 2 Narang. A Daubert analysis of abusive head trauma/shaken baby syndrome. Houston Journal of Health Law and Policy vol 11 issue 3. ng.pdf Narang. A Daubert analysis of abusive head trauma/shaken baby syndrome. Part 2: An examination of differential diagnosis. Houston Journal of Health Law and Policy. Volume 13 issue 2 (pending publication). https://www.law.uh.edu/hjhlp/ Review articles 1. Abusive head trauma: past, present, and future. Authors: S. Narang and J. Clarke Journal of Child Neurology Dec;29(12): Abusive head trauma in infants and children. Authors: C. Christian, R. Block and Committee on Child Abuse and Neglect of American Academy of Pediatrics. Pediatrics May;123(5): Retinal hemorrhages in abusive head trauma. Author: A. Levin. Pediatrics Nov;126(5):

10 Resources National District Attorney s Association Prosecution Assistance: NDAA publication National Center on Shaken Baby Syndrome Free Download July,

11 Be Prepared for Defense Expert Get their opinion early Discoverable Discuss with your expert Can you defeat/deflect some of report in direct examination Preparation: Prepare to defend your expert Review/look-up their history Interview the defense expert Prior testimony: prosecution or defense How many times? 11

12 Getting Ready for Cross-Examination Three Stages of Effective Cross-Examination Pre-Trial Preparing for Cross Moment of truth... Communication Review Your Case: Strengths Weaknesses Follow-up Meet with experts, and witness whose testimony is going to be impacted by the defense expert Call the expert and see if he/she will talk to you 12

13 Review Your Case: What issues to front? Can you set traps? Anticipating defenses Once Defense Expert Disclosed: Review Expert s CV Review Expert s Opinion Are they qualified to be an expert? Are they qualified to give opinion on subject? 13

14 Reviewing Expert Opinion What is it? What did they review? What basis? What assumptions? What is factually incorrect? What is correct? Don t assume that every expert is giving an opinion that is not based in fact or true Now, decide Can and will this witness help the case? Will this witness hurt the case? Will this witness say anything that is not true? 14

15 The goal of cross examination is not to prevail over the witness, but to prevail over the case NDAA: 15

16 Internet Communication With Your Experts: Investigators/Agents Doctors Nurses EMTs 16

17 Motions in Limine Motion to Strike Motion to Bar Motion to Limit testimony Motion for Clarification Motion to discover literature they are going to use Expertise Conclusion Basis of conclusion/what did you review? Sources of facts Age of information Credentials Experience Training Concessions Dissecting Expert s Report Basis for Opinion Possibility v. Reality Testing Areas of Cross 17

18 Areas of Cross: Bias Fees: Breakdown of fees Number of times testifying Hours worked on case Hours spent testifying Ego A cause Concessions Look for areas favorable to your case theory Have expert repeat those things in your favor Look for additional concessions What must the witness admit or agree to? Keep your focus on the trial 18

19 Areas of Concession New facts Different facts Changing facts Deleting Facts Mistakes Alternatives If the expert is attacking something as having been done wrong, what was done right? 19

20 Are there facts in your case that the expert didn t take into account in rendering his/her opinion? Do these new facts change their opinion? Review Injuries Make them concede all of them are present. Make them concede that one 20

21 Is the expert using facts that minimize the defendant s behavior and ignoring those that point to guilt? Different outcome? Alternatives What would change their opinion? Credibility Look for reasons for the jury to disregard the expert witness Why they won t like Why they won t believe 21

22 Vantage Point Expert s perception of the facts Where did they get their facts? Is their perception obscured? Do they have all the facts? Do the refuse to look at all the facts? Do they have their mind made up? What makes a good cross? Short, concise leading questions Shoot for one-word answers Leave no wiggle room Don t let the witness put words in your mouth You decide the terms to use Don t let them change the words 22

23 Approach Point Cross-Examination Effective way of cross-examination Focuses on the periphery of the ultimate questions Never asks THE question Saves the answer to THE question for argument Closing argument provides the answers Ending Your Cross: End on a strong point 23

24 How do you work with you Physician/Prosecutor preparing for the case 24

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