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Ii matter ofgravity law review on sbs

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  • 1. A Matter of Gravity E L A I N E W H I T F I E L D S H A R P , TLC ‘98 A Matter of Gravity 1” is Part II of a three-part series. In Part I, “The Elephant on the Moon,2” we saw that in the world of science, if one sets out to prove a hypothesis, one risks proving a fallacy and creating pseudo science rather than reliable science. The syndrome called “shaken baby syndrome” or “SBS” is based on faulty assump- tions that, in the past half century, many set out to prove, but few set out to test. While shaking may cause injury to a child’s brain stem, cranio-cervical junction and upper cervical cord, it has now been falsified as a mechanism of causing intracra- nial bleeding above the convexities of the brain and to other areas of the brain. In Part II, we look at another area of pediatric head injury—short falls—and we ask the question: Can they kill? Or, are the stories of short falls nothing more than tall tales woven by the guilty to obscure their evil acts of abuse? And, what of stories of children who fall and seem fine, only to fail and die later? Can some children experience a lucid interval with few or no symptoms after a traumatic brain injury (TBI) caused by a short fall or an alleged act of lethal shaking? These are forensic issues of “mechanism of injury”—how much gravity on the head is too much?—and “timing of injury”—can there be a delay between TBI and death? These are questions that defendants charged with child abuse by blunt impact and/or shaking must be able to answer. If they do not, twelve angry people, bent on avenging the death of an innocent, surely will. NOT SO TALL A STORYShe was the only one who saw what happened to two-year-old Andy that day. So, even though Billy Jo wasjust six years old at the time, it made sense to put her on as the first witness for the defense. She walked tothe stand, carrying a pillow to boost her up to the microphone so the jurors could hear her small voice inthe cavernous, New Deal courtroom. Here is what she said: I was visiting my older sister [Sally]…and I asked if [my cousin] Andy and I could go out to play for awhile, and we played [in the back yard]…of Sally’s house…Then Andy found a hole in the fence and then he went over in the neighbor’s yard and I followed him …He got on the neighbor’s steps and I got on…and I tried grabbing him…and I grabbed him around the waist but he pulled away and he fell down the [concrete] steps. His legs sort of hit mine and we went doing somersaults down and I ended up on top of him and he was holding his hand over his head sort of like this and then I ran in the house and got [my sister]…He was…still laying there, starting to cry.As Billy Jo finished her story, she proudly displayed the battle scar on her knee that she got falling downthe steps with Andy that day. Andy did not survive to tell the story. He died four days later, suffering thecomplications of the intracranial injuries he sustained in the fall.When Andy stopped breathing and turned blue days after his tumble down the concrete steps, he was in T H E W A R R I O R • W i n t e r 2 0 0 4 27
  • 2. A MATTER OF GRAVITYthe sole care of his mother’s boyfriend, same as those described in so-called accepted by health care providers.Steve. It didn’t take long for the doctors at “shaken-baby-syndrome” (SBS) cases: Since most falls of over 10 feet usu-the local hospital to accuse Steve of Subdural hematomas,3 subarachnoid ally require that the fall occur out-killing Andy by violently shaking and hemorrhages,4 retinal hemorrhages,5 doors (from a window, balcony, orslamming his head down with force brain edema6 and diffuse axonal injury.7 other such location), caretakers mayequivalent to a two-story drop, head first The diagnosis of pure shaking (without not wish to risk the possibility that aonto concrete. The nature of the injuries impact) is often made because there are history could be proven false by ahad to be intentional and could not have no bumps or bruises on the head. neighbor or passerby. It is also verybeen accidental, they reasoned. And, However, bangs to the head on some sur- possible that many lay persons believeclaimed the doctors, Andy’s injuries had faces do not always leave a mark.8 that short falls may be fatal for chil-been “inflicted” just minutes before Steve The fact is that claims by the State’s dren and are surprised to encounterran into the emergency room (ER) with “experts” that they can pinpoint the time skepticism. The best explanation of thethe limp and lifeless toddler in his arms. of injury to minutes or hours and, by findings for the…children who die[] isThey as much as said, “Steve did it.” doing so, identify the culprit, are scientif- that the history was falsified. ically unreliable. (Emphasis added.)The two main pillars of the State’s foren-sic case—mechanism of injury and tim- As with most suspect “science,” the prob- The mere existence of the injury is com-ing of injury—had been formed by the lem in the area of pediatric head injury monly used to infer the element of inten-treating physicians even before the police causation and timing of injury is one of tionally-inflicted injury through the usewere called. These were the twin pillars focus. Many physicians were taught in of massive force. One court outlined theupon which the State would build its case medical school and in practice to believe danger of this type of faulty reasoningagainst Steve for felony murder. If con- that children with SDH’s, SAH’s, RH’s with the following syllogism:victed, he would spend 25 years to life in and/or cerebral injury (such as DAI) have 1. Some children who suffer subduralprison. been either violently shaken and/or hematomas are children who have slammed down with massive force. been subjected to trauma or forceOnly Billy Jo knew the real story. Accounts of accidental short falls related such as that sustained by a fall from FAULTY FOUNDATIONS by frantic parents and caretakers in ER’s a multistory building or being unre- are ruled out in the differential diagnosis strained in a high-speed automobileThe same pillars of the State’s forensic as “inconsistent” with the “evidence,” accident.case against Steve are typically employed that is, as mere tall stories to cover up 2. This child sustained a subduralin most cases of alleged shaken-baby- their crimes. Pediatrician David hematoma;impact syndrome. But they have no solid, Chadwick, M.D. wrote in 1991 in The 3. Therefore, this child was subjected toscientific foundation. Journal of Trauma: trauma or force equal to or exceedingThe fact is that short falls do kill. In children whose injuries are inflict- that caused by a fall from a multisto-Frequently, the injuries caused by short ed, parents typically invent accident ry building or being unrestrained in afalls involving impact to the head are the histories which they hope will be high-speed automobile accident.9 Infant Skull Showing "A-shaped" Lamdoidal Suture. A child who falls and hits his or her head on the occiput, i.e., the back of the head, where the plates of the skull have not fused at the "A-shaped" lamdoidal sutures, is at much greater risk for injury. The skull is weak here and so the brain is more vulnerable to injury. Think of it like this: The ice on a lake is weakest at the points where the cracks converge. Blows to the back of an infants head may be lethal because the material properties are different.28 T H E W A R R I O R • W i n t e r 2 0 0 4
  • 3. A MATTER OF GRAVITYThe error of the syllogism is that just table. Of the 161 children who fell from From that fact that he had not been ablebecause some children suffer TBI by short heights in the home, two fractured to find many severe injuries in his study,falling from buildings or from car acci- their skulls. According to Helfer, none of he concluded that such examples aredents does not prove that all children the three children with skull fractures sus- “rare” and/or a parental cover up, writing,who suffer TBI have fallen from a build- tained serious head injury. “From this study we must conclude thating or have been in a car accident or have severe head injury and CNS damage or Among many design and interpretationbeen subjected to equivalent forces. injury of any type are extremely rare flaws in Helfer’s study, the claim that “no when children, aged five years or less, fall THE BIRTH OF THE BEAST serious head injury” resulted was made out of bed.” for children injured from 1969 to 1975,We join this sorry tale of accusing parents a time when testing for the sequelae of Even if one accepts Helfer’s flawed analy-of falsifying stories about short falls caus- traumatic brain injury (TBI), such as sis, “rare” does not rule out the possibili-ing injury to their children in 1977, the neuropsychological tests, was less devel- ty that serious and fatal head injuries mayyear when Ray E. Helfer, M.D., a physi- oped and much less available than it is be caused by a short fall. There are sever-cian from Michigan State University today. In other words, there is nothing in al examples in the clinical literature where(MSU) looked through old medical the study to convince the reader that a children who fell from short heights suf-records and reported incidents where TBI associated with the skull fracture fered fatal head injury. (More on thischildren fell out of beds and from coun- was, in fact, reliably ruled out. later.)ters. Earlier, physicians who claimed SBSwas the real mechanism of SDH’s, SAH’s, There is also no mention of follow up The main forensic flaw in Helfer’s studyDAI and RH’s, had warned was that it made no attemptthat tales of short falls were to account for the biome-to be rejected. As child chanics of the falls.abuse accusations gathered Biomechanics is the sciencemomentum and as more of how injury to human tis-parents professed their inno- sue occurs. Then, as today,cence, Helfer and his col- no medical school curriculaleagues were determined to required medical students toprove that injuries from study the field of biome-short falls do not cause chanics, that is, the science ofsevere head injuries. He injury causation. Despite thiswrote in Pediatrics: void in training, pediatri- Occasionally, a child who cians and forensic patholo- is reported to have fallen gists frequently testify as out of bed presents with a “experts” about the degree of Pediatric vs. Adult Developmental Differences in the Skull force necessary to cause skull fracture, cerebral To understand the causes of pediatric head injury, we must understand edema, retinal hemor- injury. not only issues of force (F=Ma), but also the material properties of the rhage, subdural hematoma, skull and brain. Most pediatricians and foren- and/or epidural hemor- sic pathologists are, in fact, rhage. These severe injuries unable to scientifically define are discrepant with the history; it is MRI scans or EEG’s to rule out TBI and, the degree of force needed to cause a spe- often the discrepancy that indicates instead, only a vague reference to “physi- cific injury. According to the principle of child abuse.” (Emphasis added.) cians records.” One of the hallmarks of Newtonian physics, force is the productAt the outset, Helfer had fallen into the peer review literature in medicine and sci- of mass (size and weight of the object)trap of confirmation bias, one of the hall- ence is that the reader (i.e., the peer) has and acceleration (the change in speed ofmarks of unreliable “science.” He reliable data to enable her to form an the object). Force is expressed as “F=ma.”assumed that skull fractures, cerebral independent judgment about the validity Irving Root, M.D., was a forensic pathol-edema, RH’s, SDH’s, and/or epidural of the author’s conclusions. Even without ogist who critically questioned thehemorrhages “indicate[] child abuse.” more data, Helfer’s conclusions are not reliable for, as any lawyer representing assumptions of doctors like Helfer thatWith faulty hypothesis in hand, Helfer traumatically-brain-injured clients short falls could not generate sufficientstudied the reports of 246 children aged knows, lack of gross neurological deficit force to cause serious head injures to chil-six-months to five years old who had fall- does not mean that the person has not dren. He tried to introduce some com-en out of a bed, a crib or from an exam- sustained a TBI. It is only when a child mon sense to the debate by applyingining table in the hospital, and from beds grows that the sequelae of a TBI may F=ma to free-falls.and couches at home. All were falls of 36 become obvious. Root calculated the terminal (impact)inches or less. Of the 85 incidents report-ed in hospitals, one child fractured his Another flaw in the Helfer study was that velocities starting from heights ranging from two feet up to 30 feet, and wrote:skull when he fell from an examining it was based on inductive reasoning. T H E W A R R I O R • W i n t e r 2 0 0 4 29
  • 4. A MATTER OF GRAVITY “To put this in common perspective, ure rates to stress and strain, torque and anatomy was/were impacted? the average adult will walk at a sus- torsion just like any other material on the • Where and how was the force deliv- tained speed of 2.5–4 mph and will face of the earth. Poet Thomas Lynch, ered and distributed? Over what area be able to run a short sprint at top who is also a funeral director in Michigan and time is the energy impacted? speed of [about] 9–12 mph. (World who has seen his fair share of dead chil- • Was all the force taken up at once? class sprinters achieve a 100 yd dash dren, reminds us, “God lives by The Laws in 10 [seconds] and attain a speed of of Nature and obeys its statutes, however • Did the body roll and dissipate the 22 mph.)…. To put this further in brutal. Kids die of gravity and force? perspective, assume yourself to be an physics…”11 • Did the child slide down with fric- average adult and imagine running, tion, for example, on the edge or side at your top speed, headlong of a bed or a chair? (This would into a brick wall. It does not ROOT’S CHART slow the free fall and lessen the take a great deal of imagina- energy of impact.) tion to grasp the magnitude • Was the child sitting of the impact.” up or standing when the fall began, adding distance fromRoot’s chart shows that in a the head to the floor?free fall of only three feet, onewould hit the ground at 9.4 • Was there some initialmph. (Please see Root’s Chart, at impelled added energy, i.e.,right.) some rocking motion or an attempt to catch the balance ALL SHORT FALLS and, possibly, throw oneself ARE NOT EQUAL further off?The drop height of the fall The location of the impact todoes not, alone, determine the the head is, depending on thepotential for injury. Some peo- age of the child and contactple do fall great distances and surface, even more importantsurvive while others fall short than the impact velocity,distances and die. This is whether by accident or intent.where it becomes critical to A child, whose sutures betweenidentify and understand the skull plates have not fused, is atbiomechanics of the fall. much greater risk for brain injury from a short fall or otherUnfortunately, while biome- impact. If the skull changeschanics has been used in solv- shape on impact, the braining many medical problems, it deforms, tearing bridging veinshas been largely ignored in and other vessels and irrepara-documenting the forces and bly ripping neurons and axonscauses of pediatric head trau- apart. The risk of serious injuryma. Biomechanics is the sci- *Based on the basic formula, V =2GS, where in free fall 2 is further increased for a baby ifence by which the pumping capacities, V=velocity, G=32ft/s2, and S=distance the trauma is at the back of thestrength and motion of the head (i.e., the “occiput”) whereheart is measured to better Consider what would happen to you if you ran head first into a the three plates of the skull con-design prosthetic heart valves. It brick wall. Short distance falls do kill, depending on the material verge in the A-shaped lamdoidalis the science of measuring properties of the skull and brain, the contact surface and the suture. Think of it this way: thestress and strain on cartilage to mechanics of the fall. ice on a lake is weakest at abetter design prosthetic carti- point where the cracks are con-lage, tendon and bone. Heart-assist So let us learn to ask the questions that verging (Please see graphic on page 28,devices, heart-lung and dialysis machines, are critical to the science of pediatric head showing the “A-shaped” lamdoidal suture atand prosthetic limbs all owe their func- injury causation. Once again, Root lends the back of the infant skull).tion to the science of biomechanics. a hand in the Department of CommonUniversity of California bioengineer Y.C. Sense. The contact surface also makes a differ-Fung wrote, “biology can no more be ence to the potential for head injury from • Was the fall a free fall?understood without biomechanics than a short fall. Concrete is a lot less forgiving • What was the actual distance of the than a gym mat.an airplane can without aerodynamics.” 10 fall? (Note that this is only one of theLiving systems have mechanical proper- questions to ask.) In the case of Billy Jo and Andy fallingties. They have tolerance criteria and fail- • Which specific part/parts of the down the steps, Billy Jo had taken the two-year-old down with her when she30 T H E W A R R I O R • W i n t e r 2 0 0 4
  • 5. A MATTER OF GRAVITYlost her balance, fell and, landing on top caused by short distance and long dis- dren brought to The Children’s Traumaof him, increased the force (by increasing tance falls contain almost no analysis of Center between August 1984 to Marchthe weight) with which the toddler’s head fall mechanics or of the material proper- 1988. It was a retrospective study, that is,hit the ground. One of the pediatricians ties of the pediatric skull and brain. What one that looks back in time and selects itscalled by the State to testify that Andy’s an object is made of determines how it participants. Retrospective studies,head injury was not an accident, was responds to stresses and strains caused by despite best human efforts, are subject toasked on cross examination: impact. Without this scientific informa- selection bias. Chadwick decided at the Q: Doctor, you didn’t investigate in tion, all of the fall studies are fallible. outset that children whose caregivers detail the biomechanics of the fall, What can be said that is helpful is, that claimed they sustained serious head did you? because there are clinical examples in the injury from short falls, were not telling A: I didn’t find it necessary. medical literature where children fell the truth. This is called “confirmation short distances and died from serious bias.” While some of the 317 children inWhat is not appreciated or understood by head injuries or from untreated complica- Chadwick’s study may have been victimsthe pediatrician “expert” is equated with tions of relatively minor head injuries, no of abuse because they had multiple“not necessary.” injuries, some simplyUnderstanding pediatric had head injuries. Ofhead injury causation is these, Chadwick wroteconfounded by conflicting in The Journal ofreports in the clinical Trauma:medical literature. Theconflicting cases can only “Inflicted injury isbe reconciled by under- often diagnosedstanding the necessity of when the clinicianthe biomechanical analysis can state with a highof falls. Few physicians do. level of certainty thatEven fewer try. the single injury seen in a child could notAlmost completely lacking possibly have beenis any evidence-based produced by themedicine applying biome- event described bychanics to the area of pedi- the caretaker.”atric head injury. This is soeven though now, unlike ******in the days of Helfer’sstudy, we possess the tech- “For the most partnology to conduct such this discrimination isstudies. That technology, Modeling Head Injury based upon thecalled “finite element Biomechanicians who are experts in human injury causation usually attend the physician’s clinicalanalysis,” involves the use first two years of medical school to study subjects such as human anatomy and experience of chil-of a computer into which physiology. They are able to combine this knowledge with geometry, mathematics dren’s injurabilitydata about the material and physics to create models of the human head on computers. [sic] and the limitedproperties of the infant empirical studies12 inskull and underlying brain the literature.”can be loaded. The models can then be This pediatrician, with no training inmanipulated with known degrees of force physician can reliably rule out a short fall biomechanics of pediatric head injuryto determine the potential for injury. as the cause. causation, then proclaimed that the care-Arguments are often made that finite ele- Even so, the problem for the defense is givers of seven of the children in his studyment analysis has no biofidelity to the often that long falls or maximum impacts who died from falls had “falsified” thehuman body. In fact, it is accurate; so known to cause fatal head injury are “histor[ies].”much so that it is used by automobile invariably used to infer the level of forcemanufacturers to test the design of vehi- “inflicted” on a child. The level of force is In making this judgment, Chadwickcles and their contents to manufacture then used to prove the element of intent relied on two studies. In one study, chil-safer vehicles and, thus, avoid large prod- to injure and to rebut a defense of dren who fell 30 feet and more sustaineducts-liability judgments. fatal head injuries. In another study, the accident. lowest fall was from 15 feet. This was the THE LONG AND SHORT OF IT MAXIMUM HEIGHTS lowest fall that caused life-threateningMAXIMUM VS. MINIMUM FALLS In 1991, David Chadwick, M.D., a pedi- injury and death, Chadwick claimed. He atrician practicing at Children’s Hospital, is not alone. It is from this type of study,Most studies of pediatric head injury San Diego, Calif., studied falls of all chil- in which it is claimed that only falls from T H E W A R R I O R • W i n t e r 2 0 0 4 31
  • 6. A MATTER OF GRAVITYgreat heights can cause catastrophic and shaken-baby-impact syndrome. The baby the subdural hematoma, have beenfatal head injury, that many physicians had SDH’s, RH’s, SAH’s, a skull fracture things like a fall from a multipleconclude that massive impact velocities— and scalp bruises. After several interviews, story building. Being in a high speedequivalent to a drop of two, three or four including one in which Martinez was motor vehicle accident either as astories head first onto concrete—are encouraged to confess by detectives who pedestrian hit by a high speed motorrequired to cause such injuries. had been told by the doctors that the vehicle or, for example, an unre- injury happened that day, the defendant strained passenger in a high speedIt doesn’t take a brain surgeon or a physi- claimed he had grown frustrated and motor vehicle accident, so those arecist to figure out that falls from great shaken the baby, accidentally banging her the kinds of witnessed injuries thatheights cause serious head injury. These head on the crib. The degree of intent, can lead to a similar sort of injury.documented falls and the injuries sus-tained by the children provide us with a i.e., whether Martinez acted “knowingly,” Martinez was convicted of first degree,reference point of known maximum “recklessly” or was “criminally negligent,” knowing murder of a child by a person inheights. It is common sense that falls was an issue the State tried to resolve by a position of trust. Reversing andfrom maximum heights cause serious quantifying the level of force. remanding, the Colorado Court ofinjury. But it takes a biomechanician to The State’s “expert” pediatrician on head Appeals agreed with Martinez that it wasfigure out what is the minimum impact injury causation, testified: unfairly prejudicial for the State to infervelocity required to cause serious head the minimum amount of force needed toinjury to children. In talking about how much force cause the baby’s injuries from maximum- that it requires to cause this kind of force accident scenarios. The court wrote:To date, no one has answered the ques- injury, we can’t take babies and shaketion of what is the minimum impact them and do that for the obvious It is one thing clearly to state that avelocity it takes to cause skull fracture reason, so what we have had to do is certain quantum of force is necessary toand/or brain injury in a child who is one take—there have been multiple produce a subdural hematoma; it ismonth old, two months old, three studies of series of witnessed falls or quite another to use examples of obvi-months old, and so on. The research has witnessed accidents where babies ously extreme forces and violence thatnot been done. One biomechanician have had similar kinds of injuries. have been demonstrated to havereceived a grant in 1996 from the U.S. Okay? And in those studies, babies caused subdural hematomas and thenDepartment of Health and Human who had similar kinds of injuries, suggest that they constitute the mini-Services to study the issue mum force necessary tousing finite element analysis, cause such an injury inbut lost the funding before any particular case. Inthe project was completed. our view, reasonable infer-His idea was to determine the ences as to the underlyingmaterial properties of the issue cannot be drawninfant skull and the infant from that testimony.brain and, applying different (Emphasis added.)impact velocities, determine The Colorado Supremethe minimum impact veloci- Court ultimately reversedties that would cause injury. the panel’s decision onDespite the fact that we still other grounds, anddo not have vital information remanded.13about the minimum forces Impact Modeling of the Infant Head MINIMUM HEIGHTSneeded to cause serious and Using a method called "finite element analysis," biomechanicians can pre-fatal head injury in babies dict the deformation in mock pediatric brain tissue that is caused by a Japanese neurosurgeonand toddlers, “experts” for maximum "load" of 5000 Newtons, that is, about 1,100 pounds. This is Nobuhiko Aoki presented athe State are allowed to testi- equivalent to the force generated in a drop of about 13 feet in a one study in 1984 in thefy about the injuries in cases month old infant. Looking at the series from top left to right, then bottom Journal of Neurosurgery inof children who fall from left to right, early in the impact sequence, that is, at time "0.5 millisec- which 26 children betweengreat heights, as though falls onds" (ms, one one-thousandth of a second), one can see that there is four to eleven months oldfrom great heights are almost no local deformation of the brain tissue. From 1.0 ms to 5.0 ms, developed subduralrequired to cause such the wave of energy from the impact moves through the brain tissue caus- hematomas and retinalinjuries. This happened in ing deformation in a larger area with each passing millisecond. This hemorrhages from shortPeople v Martinez, 51 P.3d results in tissue "stretch" at sites distant from the site of impact. Graphic: falls onto various types of1046 (2001). Martinez was "Pediatric Head Injuries: The Influence of Brain and Skull Mechanical contact surfaces. (One childcharged with murder of his Properties," Thibault, K., PhD, 1997. was slapped.) Two of thegirlfriend’s four-month-old (For assistance in elaborating on this graphic, thanks is due to Robert children who fell short dis-daughter, whom the physi- Cargill II, PhD, managing engineer in injury biomechanics at Exponent tances died.cians diagnosed as a victim of Failure Analysis, Philadelphia.)32 T H E W A R R I O R • W i n t e r 2 0 0 4
  • 7. A MATTER OF GRAVITYIn 1989, J.R. Hall, M.D., reviewed files front, right side of her head, finally land- Some of the sequelae of TBI include lossof the Cook County [Illinois] Medical ing on her shoulder. Afterwards, she got of consciousness, history of behaviorExaminer’s office during 1983-86 for up and walked and talked, but started change, seizures, vomiting (especiallycases related to childhood falls. Eighteen vomiting and went into a stupor five projectile), depressed mental status, irri-of 44 children who died had only minutes later. This toddler had scalp tability, bulging fontanel, focal neurolog-“minor” falls which happened either damage, SDH’s and bilateral retinal hem- ic findings, such as, pupils dilated andwhile they were running or from falls orrhages. She died a few days later of the eyes not following, or loss of vital signs.from furniture (less than three feet). secondary effects of the primary impact.These 18 all died from head injuries, It is chilling to realize that this tragedy Symptoms of a TBI may be caused by analone, without any other fall injuries. might have been compounded. Without expanding SDH pressing on the brain. AOne child in this group was dead on the videotape, grandma would probably SDH may expand slowly, depending onarrival (DOA) at the ER. She was an now be behind bars. how many of the bridging veins are torneight-month-old girl who fell off a couch in the fall, or may stop bleeding and startonto a hard wood floor. Her autopsy That short falls do kill is beyond dispute. to resolve, until some event, such as arevealed a large, acute subdural The literature proves it. Such cases exist, new and even inconsequential traumahematoma. Investigations of the 18 cases even though we don’t fully understand causes it to bleed again. The issue ofruled out abuse as the cause of the why. However, to look at clinical case rebleeds is controversial, but it is onlyinjuries. Indeed, two of the minor falls series studies to answer the question of through the rebleeding of a chronic SDHoccurred while the children were under what forces are involved in causing injury that a person exhibits symptoms of amedical investigation. Hall wrote: without a scientific frame of reference, is SDH. Rebleeds have been described in“‘Minor falls’ can be lethal, especially in a like staring at a few pieces of the jigsaw the neurosurgical literature for more thantoddler, and must be evaluated.” puzzle and never having enough to com- a century. They can occur from new trau- plete the entire picture. ma or, seemingly, spontaneously. TheyIn 1996, neurosurgeon Anne-Christine occur when children, who have acuteDuhaime, M.D. wrote about the cases of One way to complete the picture is for federal and state governments and private SDH’s, continue to rebleed while they arefour children who sustained unilateral in the hospital under the care of dedicat-SDHs after three of the children were wit- foundations to fund evidence-based- medicine research in the science of pedi- ed doctors and nurses. While we don’tnessed to have fallen short heights in the atric head injury causation. The tolerance know all the answers to the questionshome, and one where the child had fallen and failure rates of human tissue can be about why rebleeds happen, we knowfrom a window. What we are told in the measured, especially as the practice of they do.article is that the SDHs resolved. But,there was no mention of follow up evalu- anatomical giving is growing. Data from These symptoms of the cascading, sec-ation as to whether the children in the tests on this tissue, as well as data already ondary effects of initial head trauma,study suffered permanent brain damage. collected, can be programmed into a such as edema or subdural re-bleeding, computer and, using geometry, physics are well recognized symptoms of a TBI inIn 2001, John Plunkett, M.D., reviewed and mathematics, tested at various18 short-distance, accidental falls by chil- the ER, so much so that ER doctors give anatomical sites with a range of impact parents a head injury check sheet. Thesedren. The falls were from two to ten feet. velocities. But, so long as millions of dol-Twelve of these were witnessed by people sheets, developed in part by various brain lars each year are pumped only into pro- injury associations, warn that if thesewho were not the caretakers so, arguably, grams to recognize and prevent the dubi-their accounts were independent. symptoms develop after the child has ous shaken baby syndrome, the criticalThirteen of the children had subdural been sent home, parents should immedi- questions will go unanswered and falsehematomas. Four of the six children for ately bring the child back to the ER. accusations will abound. Not even grand-whom ophthalmology exams were docu- ma is safe unless, of course, she has a Despite this standard of care in clinicalmented in the medical record had bilater- videotape. practice, once in the witness box as anal retinal hemorrhages. All of the children “expert” for the State, many physiciansdied. (Subdural hematomas and bilateral TIMING OF INJURIES testify that there are no delayed symp-retinal hemorrhages are said by many TELL-TALE SIGNS AND toms or lucid intervals after TBI, or atphysicians to be caused by shaking.) least, “not in this case.” Why? Because the SYMPTOMS OF OLDER INJURIESIn one tragic case related by Plunkett, a prosecution needs to squeeze clinical real- State “experts” frequently testify about ity out of the picture in order to create agrandmother was videotaping her 23- the timing of the injury in order to assist legal fiction. It needs to fix the time of themonth-old granddaughter clambering on the government in pinning the “crime” injury and, in so doing, identify the peri-a jungle gym. When the toddler got to on the accused. But brain injury and its od of exclusive access providing thethe top, she was standing 28 inches above sequelae are complex. All is not what it opportunity of the accused to inflict thethe ground. Suddenly, she lost her bal- seems. injury. Therefore, the State’s expertsance and plummeted onto the concretegarage floor, covered by a one-inch plush A parent or caregiver inexperienced and argue, the onset of symptoms after thecarpet remnant. Hands outstretched, the unknowledgeable about the sequelae of a abuse was “immediate” or “followedtoddler struck the carpet, then hit the TBI may think a child is fine after a fall . closely.” T H E W A R R I O R • W i n t e r 2 0 0 4 33
  • 8. A MATTER OF GRAVITYIt’s important, therefore, to fully docu- from injury to the onset of severe interested in hearing what did not hap-ment, through interviewing all those who symptoms is longer. pen. They want to hear what did happen.had contact with the child following an How did the baby or toddler die? The Gilliland’s work confirms that brainaccidental fall, what the child’s behavior defense needs to appreciate that there is a injury is complex and that we are still inwas after the fall. functional presumption of guilt at work, an unfathomable, black hole when it and needs to prepare to carry the burdenBut, sometimes, children are asympto- comes to understanding its intricacies. of proof as to how the child died. This ismatic after a head injury, as shown in a Ayub K. Ommaya, M.D. wrote about a no time to be silent. For the accused,study published in 1999 in Pediatrics by syndrome he called, “Talk, Detoriate and investigating alternative theories of causa-Boston-based doctors David S. Greenes, Die” (TADD). Ommaya studied adult tion can mean the difference between lifeM.D., and Sara A. Schutzman, M.D. In victims of TBI and noted that some of and death. This is precisely what it meantthat study, of 608 children brought to them were talking and walking right after in the case of Tamara Sawyer (the lastone local ER for head injury, 30 children the event, but later deteriorated and died. name is her real name).were found to have intracranial injuries.Of those, 16 were active and alert, show- Experts for the State sometimes claim Tamara’s story begins one muggy morn-ing no symptoms of what was happening that the TADD syndrome does not occur ing in northern Florida. Baby Thomas’inside their heads. Only CT scans and/or in children. At least one study falsifies parents have arrived at Tamara’s house toX-rays diagnosed the injuries. that claim. R.P. Humphreys, M.D., drop him off, as usual, at 6 a.m. They described four cases in which children entrust their six-month-old son toIn 1999, a proponent of shaking as a who had been in car accidents or who Tamara, a sister in the evangelical congre-mechanism of injury published an article had fallen each had a lucid interval. gation to which they all belong. “Sisterin the Journal of Forensic Sciences in which Deterioration ranged from 30 to 50 Tamara” cares for Thomas for just a fewshe reported that some of the 76 infants hours. dollars a week. She believes this is a wayshe studied—whom she believed were of loving her neighbors by helping themvictims of shaking, blunt trauma, or While the reason for and extent of the to work and to survive. They are newboth—had a lucid and symptom-free delay may lie in the nature of the primary immigrants from Nigeria.interval after being lethally shaken or oth- injury, in genetic and age-related factors,erwise head injured. delayed symptoms are not unusual On this morning, there is nothing because the secondary effects of an initial unusual about the routine: Tamara takesMary G. F. Gilliland, M.D. examined blow to the head are not unusual. the sleepy baby from his mother’s armsfive so-called pure shaking cases, i.e., in and lays down with him and her ownwhich no impact was proved, and found A blow to the head may cause a SDH that toddler to nap on a futon mattress on thethat four of them resulted in severe symp- does not clot. It may cause damage to floor.toms in less than 24 hours, but one child neurons and axons that, in turn, leak(20%) did not have severe symptoms for fluid from their damaged cell walls caus- Her peaceful slumber is broken by the24-48 hours. Gilliland also reported that ing edema. There are many secondary sound of baby Thomas gasping forin 39 blunt trauma cases resulting in sequelae of a bump on the head and breath. She reaches for him, picks him updeath, six did not develop severe symp- often, if unchecked and untreated, they and peers at his face. His eyes, like atoms for 24-48 hours, three for 48-72 are lethal. doll’s, are rolling back in his head. White.hours, and three did not develop severe No pupils. Arms and legs stiffening Edema is believed to be a particularlysymptoms for more than 72 hours. Even straight out. Palms up. He turns blue. He dangerous foe of head injured children.in fatal cases labeled as “combined” shak- does not seem to hear Tamara’s voice. In 1984, Netherlands physician J.W.ing and blunt trauma, eight of 32 chil- Snoek, M.D., described the cases of 42 Tamara tries to revive him and, gentlydren did not develop severe symptoms for children who, following seemingly trivial shaking him, she whispers “Wake up24-48 hours, and one did not develop trauma, developed neurological signs Thomas, Thomas, Thomas…wakesevere symptoms for more than 72 hours. after a lucid or symptom-free period. He up…” He is gasping for breath and isThe article concludes: believed that because the brain of a child turning bluer. Tamara, now frantic, calls Enough variability in the interval (defined as 0 - 18 years) is different from 911. between injury and the time of an adult’s brain, it is exquisitely suscepti- The ER doctor at the local children’s hos- severe symptoms or presentation for ble to slowly developing and, sometimes, pital diagnoses Thomas with subdural medical care in fatally injured chil- lethal edema. He termed it “malignant hematomas, i.e., bleeding beneath the dren exists to warrant circumspec- cerebral edema,” an awful process with dural covering of the brain, retinal hem- tion in describing such an interval which neurosurgeons are all too familiar orrhages, i.e., bleeding in and between for investigators or triers of fact. Our and of which they are all fearful. the retinal layers behind the eyes. He data indicate that the interval is brief “WHAT” VERSUS learned in medical school that when a (less than 24 hours) in almost 3/4 of child has subdural hematomas and retinal cases of head injury, especially in “WHO” DUNNIT hemorrhages, this means that the child shaking injuries. However, in more When the State points the accusing finger was violently shaken or slammed. than 1/4 of the cases, the interval of child abuse, jurors are not merely Recently, the American Academy of34 T H E W A R R I O R • W i n t e r 2 0 0 4
  • 9. A MATTER OF GRAVITYPediatrics issued a position statement premature children are at much greater detected the microscopic evidence ofthat, if the caretaker does not have a plau- risk for birth injury than are full term older injury in Thomas’ brain. Thesible explanation for these injuries, it babies. The ventricles are involved in the defense gave Tamara currency with whichmeans the child is a victim of “shaken manufacture, circulation and reabsorp- to negotiate in what had previously beenbaby syndrome.” This doctor, like so tion of cerebral spinal fluid (CSF), a a game in which she had no power.many others, is unaware that the scientif- water-like fluid that bathes the brain in The case of Tamara Sawyer and the caseic foundation for the syndrome has been nutrients. where Andy and Billy Jo tumbled downinvalidated by two experiments using a The forensic neuropathologist found that the steps have much in common. In eachmodel baby. He does not know that this small filters in the ventricles were clogged case, forensic neuropathology was criti-invalidation has been corroborated by with calcium, which is part of the scar tis- cal. In Tamara’s case, the issue was injurystudies from other disciplines such as sue after injury. The result was that to the cisterns. In other cases, one mayneuropathology and forensic pathology. Thomas’ brain had become hydrocephal- find healing cells at the site of a subduralHe may not know about the clinical cases ic, meaning that it had become enlarged hematoma or in retinal hemorrhages.where children fell short distances and because it contained too much of the These are forensic gifts because theydied. He may not know that no one watery CSF. The response of bone to refute the State’s oft-chanted mantra thatknows the minimum impact velocity it strain and pressure is to remodel. This is the injury was inflicted minutes or hourstakes to injure an infant of Thomas’ age similar to Wolff ’s law, i.e., that the body before the child was brought to the ER.and sex. And, he may not know…. well, lays down bone tissue where it is needed Billy Jo’s testimony about the fall and theyou can now fill in the blank. and does not put it down where it is not. defense position that this fall—four daysThe ER doctor diagnoses the time of the In Thomas’ case, a juvenile osteologist earlier—caused Andy’s fatal head injuries,injury. He says it was “inflicted” just min- opined that his body removed the mem- including SDH’s, was corroborated byutes before Tamara called 911, when branous bone from his skull and did not the forensic neuropathology: At the siteThomas was in her sole, physical custody. lay down any new bone tissue. It was not of the SDH’s, there were healing cells thatIn his role as a mandated reporter of sus- “needed” and it was in the way of his were four to five days old.pected child abuse – and as one who may expanding brain. His skull became thin-be criminally prosecuted for failing to ner and thinner to allow his brain more PRINCE LLEWELYN’S LAMENTreport—the ER doctor notifies the police and more room to expand. Thomas’ skull Things are not always as they seem. Inand the local department of social sevices. was so thin that, by the time he stopped the rush to judgment, false accusations flyThe police arrive to question Tamara, but breathing in Tamara’s arms he was, literal- fast and furious. Such accusations basedthe ER doctor has already informed them ly, playing life without a helmet, his thin on faulty assumptions can, as in thethat she is a child killer. skull obscured by a mop of springy hair. Welsh folklore tale of Prince Llewelyn In 1999, Oregon neurosurgeon Joseph (Loo-ell-in) and his dog Gelert, causeTamara soon faces prosecution and the H. Piatt, Jr., wrote that in cases of hydro- heartbreak, incarceration and even death.death penalty. There is evidence of blunt cephalus, babies “are exceptionally sus- As the story goes, Prince Llewelynimpact, and the other injuries, such as ceptible to subdural hemorrhage after returned after a hunt to his castle inretinal hemorrhages, had to be caused by what would be otherwise inconsequential Beddgelert, Caenarvonshire, to find hisviolent shaking, the State claims. trauma.” Hydrocephalus and SDH’s dog Gelert’s jaws dripping with blood.But, at autopsy, the top of Thomas’ skull cause intracranial pressure (ICP) to rise. His son had been left in Gelert’s care butwas as thin as a plastic milk jug. This Increased ICP is one cause of retinal the baby was not to be found. In his dis-could be seen in the photographs that hemorrhaging. tress, Llewelyn slew the faithful hound. Itshowed a translucent calvarium sitting on was only later that Llewelyn found his Even though there was a forensicallythe autopsy table after it had been son, close to the body of a wolf, which solid, alternative theory of causation, theremoved so the medical examiner could the hound had killed.14 risks of trying the case were too great notremove the brain. The lights of the autop- to take the plea offered by the State after And, so it goes when a child is injuredsy room shone right through it. In his it learned, in part through a Frye motion, and dies: We look to place blame.rush to judgment, this curious detail of the defense. Tamara was an African Someone must pay. But blame withoutseems to have escaped the medical exam- American. She was overweight. She was reliable science to support it is unjust.iner’s eyes. poor. She was female. There was a dead Accusing a parent or babysitter of killingOne had to ask: Why was Thomas’ skull baby and the State was pointing its finger a child by slamming the child’s head withwas so thin? It took a Chicago-based at her. The plea was three years, with massive force and of doing it within aforensic neuropathologist, Jan E. credit for time served. (This, in contrast specific time frame, may be to slay theLeestma, M.D. to answer the question. to the risk of death.) She took it. Tamara faithful hound.Thomas suffered from birth injury to cis- had given birth to her fourth child in pre-terns—known as the “ventricles”—deep trial custody. She had four children wait- POST SCRIPTwithin his brain. Thomas had been five ing for her on the outside. Tamara is No vocabulary of thanks and praiseweeks premature. It is well known by alive, and today she is free thanks, in part, includes words sufficient for what I, andobstetricians and biomechanicians that to a forensic neuropathologist who the accused, owe to death penalty special- T H E W A R R I O R • W i n t e r 2 0 0 4 35
  • 10. A MATTER OF GRAVITY 4 Subarachnoid hemorrhage (SAH): Bleeding beneath the arachnoid meningeal layer covering the brain. In this article, the use of the term SAH refers to bleeding over the convexities of the brain, only, and not to bleeding beneath the arach- noid layer around the brain stem and upper cervical cord. (Please see previous endnote.) 5 Retinal hemorrhage (RH): Bleeding behind and between one or more of the retinal layers around the eye. 6 Brain edema: Swelling of the brain due to leakage of water from dead The Lament of Prince Llewelyn (Loo-ell-lyn) or injured brain cells. Things are not always what they seem. Prince Llewelyn slayed his hound Gelert when he rushed to the judgment that the dog had 7 Diffuse axonal injury(DAI): Injury killed his son, the baby prince. Later, Llewelyn discovered the to the axons and neurons of the truth, but it was too late. brain on a global or diffuse scale, as opposed to localized injury. In this article, the use of the term DAIist Ed Stafman of Tallahassee, Florida, (1993), (2) General Elec. v Joiner, 522 refers to microscopic brain celland criminal defense lawyer Warner U.S. 136 (1997) and (3) Kumho Tire Co. injury in all parts of the brain,Eisenbise of Wichita, Kansas to whom I v Carmichael, 119 S. Ct 1167 (1999). except the brain stem, the cranio-was co-counsel in the specific cases (All of these cases are now embodied in FRE cervical junction (where the brainincluded in this article. Thanks is due to 702.) Some states have adopted Daubert stem joins the upper cervical cord)neuropathologist Jan Leestma, M.D., for and its progeny. Others are still using Frye v and the upper cervical cord. DAI inhelpful discussions and to neurosurgeon United States, 54 App. D.C. 46 (1923), or these latter areas may indicate thatRonald H. Uscinski, M.D., who invited a combination of Frye and Daubert. someone shook the baby.me into the OR to see both chronic and Part III will include examples of how to 8 The topic of the potential injury toacute SDH’s to help me understand how challenge mechanism of injury, timing of the infant brain on blunt impactrebleeds occur. injury, misapplication of science to a case, was discussed in Part I, “The and expert qualifications. Elephant on the Moon.” (Please seeNEXT ISSUE endnote 2.) ENDNOTESShaking a baby cannot cause many of the 9 People v Martinez, 51 P3d 1046injuries that the State’s experts claim. Short (2001) (R’hrg den. 2002) (cert. 1 This is part of a book by Elainefalls can be fatal, and the signs and symp- granted, 2002); People v Martinez, Whitfield Sharp. Copyright bytoms of TBI after a short fall can mimic Elaine Whitfield Sharp, October 74 P.3d 316 (2003) (R’hrg den.those of so-called SBS. The mechanism of 2003. Permission to publish given 2003).injury proffered by the State is frequently to The Warrior. 10 Fung, Y.C., Biomechanics:unreliable. Mechanical Properties of Living 2 Part I may be obtained by orderingThere are documented cases of lucid inter- a back issue of The Warrior, or may Tissues, Ch. 1, p 1 (Springer, 2d ed,vals or delayed symptoms after TBI. The be accessed in PDF by logging on 1993).timing of the injury proffered by the State is to www.sharplaw.biz. 11 Lynch, T, The Undertaking: Lifefrequently unreliable. Studies from the Dismal Trade, pp 3 Subdural Hematoma (SDH):Sometimes, an expert has improperly Bleeding beneath the dural cov- 45-46 (Penguin, 1997).applied good science to a case. ering of the brain. In this article, 12 There are no “empirical studies in SDH refers to bleeding beneath theFaced with the State’s “expert” testimony dura over the convexities of the the literature” that are scientificallyand depending on strategic considerations, brain. It does not refer to bleeding reliable.the defense may want to consider filing a beneath the dura around the brain 13 Martinez, supra.motion in limine to exclude unreliable sci- stem or upper cervical cord. Suchence. Three cases give some guidance: (1) injury may indicate that a child was 14 Dictionary of Phrase and FableDaubert v Merrill Dow, 509 US 579 injured by shaking. (Wordsworth 1996).36 T H E W A R R I O R • W i n t e r 2 0 0 4

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