The Court of Appeal decisions and guidance on shaken baby syndrome (SBS) (1) reported by Claire Dyer (2) are disturbing. The Justices justification for the decisions and guidance indicates a basic misunderstanding of the nature of medicine and scientific evidence.
Lord Justice Moses criticism of Dr. Jan E. Leestma as fundamentally flawed is fundamentally flawed. Dr. Leestma wrote the original textbook of forensic neuropathology in 1986. The CRC Press published the second edition in 2009 (3). The new edition includes a unique chapter on injury biomechanics and more than one thousand references not included in the first edition. Most of the new references have been published during the past ten years. Dr. Leestma not only has a current understanding of the medical literature, he has published several articles in the peer-reviewed literature since 2000. The statement that he had not systematically reviewed the literature since the mid-1990s is baffling. How could he have written the new edition of his textbook without the required reading? Further, he had not only read Geddes I and II at the time they were published in 2001, he knows Geddes personally. Leestma is correct regarding APP-positivity in an anoxic background. The lack of an appropriate control group in most published studies, including Reichard, precludes verifiable statements regarding the significance of isolated brainstem axonal damage and its relationship to clinical signs and symptoms.
The Justices clearly do not understand the nature of an autopsy and a consultative practice in the USA. An autopsy is merely a technique to examine and remove organs from a body. The prosector documents his or her findings with a report, photographs, and microscopic slides. The documentation allows anyone, including the person who initially performed the autopsy, to review the findings months and occasionally years later. Studying these organs with an unaided eye and microscope does not require that one actually perform the autopsy. Dr. Leestma has personally examined over twenty thousand brains during his 45-plus year career. He does not need to perform another autopsy or personally examine another brain to make diagnoses based on the gross and microscopic findings. It is incorrect to state that his knowledge emerges from studies of the literature which excluded the important material contained in Geddes I and II and Reichard. Geddes herself will tell you that medical science simply does not know how to interpret isolated brainstem axonal damage in the face of hypoxic-ischemic injury.
Experience is valuable. However, a physician must differentiate experience (anecdote) from evidence. He or she must link experience to the scientific method. Eminence-based medicine is not evidence-based medicine, as emphasized by the US National Academy of Sciences report regarding scientific testimony in the Courts (4). Dr. Al-Sarrajs up-to- date experience may merely allow him to repeat an initial error with increasing confidence (5). His denigration of biomechanical studies is absurd. He may not understand injury biomechanics, but others do. The Justices note that the Court in the Cherry appeal described the science of biomechanics as complex, developing and (as yet) necessarily uncertain. The science may be complex and developing, but it is by no means uncertain. Biomechanics is the fundamental tool for injury evaluation. One learns biomechanics by studying biomechanics, not by performing autopsies. If Al-Sarraj and others doubt the biomechanical science behind our understanding of injury mechanism, they must be willing to use non- seatbelt and non-airbag-equipped vehicles, allow their children to ride unrestrained in the front seat of their automobile, play on swings over asphalt surfaces, and engage in contact sports and recreational activities without appropriate protective gear. The advances made through the science of biomechanics as it relates to our understanding of injury mechanism and prevention in these everyday activities is the same scientific, evidence-based approach used to evaluate pediatric brain injuries in cases of alleged abuse. The brain is not sensitive to the intent behind the injurious forces acting upon it. The same laws of physics apply to accidental and non-accidental injury, regardless of what Al-Sarraj and others might believe.
Whether a proposed expert is still in practice is unimportant. Consultation is the practice of medicine. Consultation involves the same skills as examining a living patient or performing an autopsy. Whether or not someone has recently seen a case in his own clinical practice is also immaterial. Leestma and others have not seen a case of shaken baby syndrome (SBS) in the last fifteen years for the simple reason that SBS does not exist, regardless of the experience of Al-Sarraj et al. There has never been a witnessed shaking in which a child suffered any injury. There is no scientifically acceptable evidence that shaking a child can cause subdural bleeding, retinal hemorrhage, or an encephalopathy. The only evidence is the confession literature. However, none of the published confession studies includes specific details of the confession, the circumstances under which it was obtained, and a correlation of the confession with the actual injuries (6-8). It is noteworthy in this regard that at least 20 percent of those found to be factually and indisputably innocent through the work of the Innocence Project had confessed to the crime in question (9). It may be possible to kill a young infant or neonate by shaking, but the mechanism of injury will be major structural neck damage, not cerebral damage or subdural bleeding. The author of two recent Law Review articles has called shaken baby syndrome the next innocence project (10-11). Changing the name from SBS to abusive head trauma, as recently adopted by the American Academy of Pediatrics (12), does not alter the issue.
Widely held but incorrect beliefs in medicine are not uncommon. For example, the established view until recently was that stress and too much acid caused chronic gastritis and peptic ulcers. Therapy followed belief, and included both medical and surgical intervention. Two future Nobel Prize winners used the scientific method (including application of Kochs postulates) to disprove the prevalent belief in 1982. The extent that a view is widely held is not a valid criterion to evaluate a medical opinion. What is relevant is application of the scientific method to assess the belief. The Courts must critically evaluate the reasoning process by which the experts connect data to their conclusions in order for courts to consistently and rationally resolve the disputes before them (13). The Courts must examine the steps used to go from A to B, not the experience or pedigree of the person giving the opinion. Lord Justice Moses, referring to defense witnesses, states, such experts are, usually, engaged only in reviewing the opinions of others. Nonsense. Case review is an intense, detailed, and thoughtful process. It is not a brief clinical encounter. When we review a potential infant injury, we examine the birth records, the well-baby records, all hospitalization records, the police reports and scene investigation data including photographs, and all autopsy findings (if a death occurred) including photographs and microscopic slides. The opinions of others is secondary. We defer to evidence, not opinion. The Justices sound reasons relating to his [Leestmas] experience in comparison with Dr. Al-Sarraj for rejecting what he told us are not sound at all.
The Justices would do well to remember William Harveys admonition almost 400 years ago: I tremble lest I have mankind at large for my enemies, so much doth wont and custom become a second nature. Doctrine, once sown, strikes deep its root, and respect for antiquity influences all men. Still, the die is cast, and my trust is in my love of truth, and the candour of cultivated minds. (William Harvey, On the motion of the heart and blood in animals, 1628.)
References:1. Dyer C. Court of Appeals issues guidance on shaken baby syndrome. BMJ 2010; 340:3318.
2. Royal Courts of Justice, Case No: 2007/6546/D4, available athttp://www.bailii.org/ew/cases/EWCA/Crim/2010/1269.html. Last accessed June 26, 2010.
3. Leestma JE. Forensic Neuropathology (Second Edition) CRC Press, Taylor and Francis Group, 2009.
4. Available at: http://www.nationalacademies.org/morenews/20090218.html. Last accessed June 26, 2010.
5. Wilkins B, Sunderland RS. Head injury abuse or accident? Arch Dis Child 1997;76:393-7.
6. Leestma JE. Case analysis of brain-injured admittedly shaken infants. Am J Forens Med Pathol 2005;26:199-212.
7. Leestma JE. SBS: Do confessions by alleged perpetrators validate the concept? J Am Phys Surg 2006;11:14-16.
8. Starling SP, Patel S, Burke BL, Sirotnak AP, Stronks S, Rosquist P. Analysis of perpetrator admissions to inflicted traumatic brain injuries in children. Arch Pediatr Adolesc Med 2004;158:454-8.
9. Available at: http://www.innocenceproject.org/index.php. Last accessed June 26, 2010.
10. Tuerkheimer D. The next innocence project: shaken baby syndrome and the criminal courts. Wash Law Rev 2009;87:1-58. Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1354659. Last accessed June 26, 2010.
11. Tuerkheimer D. Criminal justice at a cross roads: Science- dependant prosecution and the problem of epistemic contingency. Alabama Law Rev 2010 (in press). Available at:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1579394. Last accessed June 26, 2010.
12. Christian CW, Block R; Committee on Child Abuse and Neglect; American Academy of Pediatrics. Abusive head trauma in infants and children. Pediatrics 2009;123:1409-11.
13. Brock v. Merrell Dow Pharmaceuticals, Inc., 874 F 2nd 307 (5th Cir. 1989).
Signed:
John Plunkett, M.D. Forensic Pathologist. Welch, Minnesota USA
Patrick D. Barnes, M.D. Pediatric Neuroradiologist. Stanford, California USA
Thomas L Bohan, PhD, JD Physicist. Immediate Past President, American Academy of Forensic Sciences. Peaks Island, Maine USA
Harry J. Bonnell, M.D. Forensic Pathologist. San Diego, California USA
Thomas Carlstrom, M.D. Neurosurgeon. Des Moines, Iowa USA
James T. Eastman, M.D. Pathologist. Madison, Wisconsin USA
Steven Gabaeff, M.D. Clinical Forensic Medicine/Emergency Medicine. Sacramento, California USA
John G. Galaznik, M.D. Pediatrician. Northport, Alabama USA
Horace B. Gardner, M.D. Ophthalmologist. Manitou Springs, Colorado USA
Julie Mack, M.D. Radiologist. Hershey, Pennsylvania USA
Marvin E. Miller, M.D. Pediatric Geneticist. Dayton, Ohio USA
Janice Ophoven, M.D. Pediatric Forensic Pathologist. Woodbury, Minnesota USA
Peter J. Stephens, M.D. Forensic Pathologist. Burnsville, North Carolina USA
Shaku Teas, M.D. Forensic Pathologist. Chicago, Illinois USA
Kirk L. Thibault, PhD. Biomedical Engineer. Lester, Pennsylvania USA
Larry E. Thibault, Sc.D. Biomedical Engineer. Lester, Pennsylvania USA
Ronald H. Uscinski, M.D. Neurosurgeon. Washington, D.C. USA
Competing interests: Many but not all of us have consulted and testified for the defense in alleged infant injury cases.
Lord Justice Moses criticism of Dr. Jan E. Leestma as fundamentally flawed is fundamentally flawed. Dr. Leestma wrote the original textbook of forensic neuropathology in 1986. The CRC Press published the second edition in 2009 (3). The new edition includes a unique chapter on injury biomechanics and more than one thousand references not included in the first edition. Most of the new references have been published during the past ten years. Dr. Leestma not only has a current understanding of the medical literature, he has published several articles in the peer-reviewed literature since 2000. The statement that he had not systematically reviewed the literature since the mid-1990s is baffling. How could he have written the new edition of his textbook without the required reading? Further, he had not only read Geddes I and II at the time they were published in 2001, he knows Geddes personally. Leestma is correct regarding APP-positivity in an anoxic background. The lack of an appropriate control group in most published studies, including Reichard, precludes verifiable statements regarding the significance of isolated brainstem axonal damage and its relationship to clinical signs and symptoms.
The Justices clearly do not understand the nature of an autopsy and a consultative practice in the USA. An autopsy is merely a technique to examine and remove organs from a body. The prosector documents his or her findings with a report, photographs, and microscopic slides. The documentation allows anyone, including the person who initially performed the autopsy, to review the findings months and occasionally years later. Studying these organs with an unaided eye and microscope does not require that one actually perform the autopsy. Dr. Leestma has personally examined over twenty thousand brains during his 45-plus year career. He does not need to perform another autopsy or personally examine another brain to make diagnoses based on the gross and microscopic findings. It is incorrect to state that his knowledge emerges from studies of the literature which excluded the important material contained in Geddes I and II and Reichard. Geddes herself will tell you that medical science simply does not know how to interpret isolated brainstem axonal damage in the face of hypoxic-ischemic injury.
Experience is valuable. However, a physician must differentiate experience (anecdote) from evidence. He or she must link experience to the scientific method. Eminence-based medicine is not evidence-based medicine, as emphasized by the US National Academy of Sciences report regarding scientific testimony in the Courts (4). Dr. Al-Sarrajs up-to- date experience may merely allow him to repeat an initial error with increasing confidence (5). His denigration of biomechanical studies is absurd. He may not understand injury biomechanics, but others do. The Justices note that the Court in the Cherry appeal described the science of biomechanics as complex, developing and (as yet) necessarily uncertain. The science may be complex and developing, but it is by no means uncertain. Biomechanics is the fundamental tool for injury evaluation. One learns biomechanics by studying biomechanics, not by performing autopsies. If Al-Sarraj and others doubt the biomechanical science behind our understanding of injury mechanism, they must be willing to use non- seatbelt and non-airbag-equipped vehicles, allow their children to ride unrestrained in the front seat of their automobile, play on swings over asphalt surfaces, and engage in contact sports and recreational activities without appropriate protective gear. The advances made through the science of biomechanics as it relates to our understanding of injury mechanism and prevention in these everyday activities is the same scientific, evidence-based approach used to evaluate pediatric brain injuries in cases of alleged abuse. The brain is not sensitive to the intent behind the injurious forces acting upon it. The same laws of physics apply to accidental and non-accidental injury, regardless of what Al-Sarraj and others might believe.
Whether a proposed expert is still in practice is unimportant. Consultation is the practice of medicine. Consultation involves the same skills as examining a living patient or performing an autopsy. Whether or not someone has recently seen a case in his own clinical practice is also immaterial. Leestma and others have not seen a case of shaken baby syndrome (SBS) in the last fifteen years for the simple reason that SBS does not exist, regardless of the experience of Al-Sarraj et al. There has never been a witnessed shaking in which a child suffered any injury. There is no scientifically acceptable evidence that shaking a child can cause subdural bleeding, retinal hemorrhage, or an encephalopathy. The only evidence is the confession literature. However, none of the published confession studies includes specific details of the confession, the circumstances under which it was obtained, and a correlation of the confession with the actual injuries (6-8). It is noteworthy in this regard that at least 20 percent of those found to be factually and indisputably innocent through the work of the Innocence Project had confessed to the crime in question (9). It may be possible to kill a young infant or neonate by shaking, but the mechanism of injury will be major structural neck damage, not cerebral damage or subdural bleeding. The author of two recent Law Review articles has called shaken baby syndrome the next innocence project (10-11). Changing the name from SBS to abusive head trauma, as recently adopted by the American Academy of Pediatrics (12), does not alter the issue.
Widely held but incorrect beliefs in medicine are not uncommon. For example, the established view until recently was that stress and too much acid caused chronic gastritis and peptic ulcers. Therapy followed belief, and included both medical and surgical intervention. Two future Nobel Prize winners used the scientific method (including application of Kochs postulates) to disprove the prevalent belief in 1982. The extent that a view is widely held is not a valid criterion to evaluate a medical opinion. What is relevant is application of the scientific method to assess the belief. The Courts must critically evaluate the reasoning process by which the experts connect data to their conclusions in order for courts to consistently and rationally resolve the disputes before them (13). The Courts must examine the steps used to go from A to B, not the experience or pedigree of the person giving the opinion. Lord Justice Moses, referring to defense witnesses, states, such experts are, usually, engaged only in reviewing the opinions of others. Nonsense. Case review is an intense, detailed, and thoughtful process. It is not a brief clinical encounter. When we review a potential infant injury, we examine the birth records, the well-baby records, all hospitalization records, the police reports and scene investigation data including photographs, and all autopsy findings (if a death occurred) including photographs and microscopic slides. The opinions of others is secondary. We defer to evidence, not opinion. The Justices sound reasons relating to his [Leestmas] experience in comparison with Dr. Al-Sarraj for rejecting what he told us are not sound at all.
The Justices would do well to remember William Harveys admonition almost 400 years ago: I tremble lest I have mankind at large for my enemies, so much doth wont and custom become a second nature. Doctrine, once sown, strikes deep its root, and respect for antiquity influences all men. Still, the die is cast, and my trust is in my love of truth, and the candour of cultivated minds. (William Harvey, On the motion of the heart and blood in animals, 1628.)
References:1. Dyer C. Court of Appeals issues guidance on shaken baby syndrome. BMJ 2010; 340:3318.
2. Royal Courts of Justice, Case No: 2007/6546/D4, available athttp://www.bailii.org/ew/cases/EWCA/Crim/2010/1269.html. Last accessed June 26, 2010.
3. Leestma JE. Forensic Neuropathology (Second Edition) CRC Press, Taylor and Francis Group, 2009.
4. Available at: http://www.nationalacademies.org/morenews/20090218.html. Last accessed June 26, 2010.
5. Wilkins B, Sunderland RS. Head injury abuse or accident? Arch Dis Child 1997;76:393-7.
6. Leestma JE. Case analysis of brain-injured admittedly shaken infants. Am J Forens Med Pathol 2005;26:199-212.
7. Leestma JE. SBS: Do confessions by alleged perpetrators validate the concept? J Am Phys Surg 2006;11:14-16.
8. Starling SP, Patel S, Burke BL, Sirotnak AP, Stronks S, Rosquist P. Analysis of perpetrator admissions to inflicted traumatic brain injuries in children. Arch Pediatr Adolesc Med 2004;158:454-8.
9. Available at: http://www.innocenceproject.org/index.php. Last accessed June 26, 2010.
10. Tuerkheimer D. The next innocence project: shaken baby syndrome and the criminal courts. Wash Law Rev 2009;87:1-58. Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1354659. Last accessed June 26, 2010.
11. Tuerkheimer D. Criminal justice at a cross roads: Science- dependant prosecution and the problem of epistemic contingency. Alabama Law Rev 2010 (in press). Available at:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1579394. Last accessed June 26, 2010.
12. Christian CW, Block R; Committee on Child Abuse and Neglect; American Academy of Pediatrics. Abusive head trauma in infants and children. Pediatrics 2009;123:1409-11.
13. Brock v. Merrell Dow Pharmaceuticals, Inc., 874 F 2nd 307 (5th Cir. 1989).
Signed:
John Plunkett, M.D. Forensic Pathologist. Welch, Minnesota USA
Patrick D. Barnes, M.D. Pediatric Neuroradiologist. Stanford, California USA
Thomas L Bohan, PhD, JD Physicist. Immediate Past President, American Academy of Forensic Sciences. Peaks Island, Maine USA
Harry J. Bonnell, M.D. Forensic Pathologist. San Diego, California USA
Thomas Carlstrom, M.D. Neurosurgeon. Des Moines, Iowa USA
James T. Eastman, M.D. Pathologist. Madison, Wisconsin USA
Steven Gabaeff, M.D. Clinical Forensic Medicine/Emergency Medicine. Sacramento, California USA
John G. Galaznik, M.D. Pediatrician. Northport, Alabama USA
Horace B. Gardner, M.D. Ophthalmologist. Manitou Springs, Colorado USA
Julie Mack, M.D. Radiologist. Hershey, Pennsylvania USA
Marvin E. Miller, M.D. Pediatric Geneticist. Dayton, Ohio USA
Janice Ophoven, M.D. Pediatric Forensic Pathologist. Woodbury, Minnesota USA
Peter J. Stephens, M.D. Forensic Pathologist. Burnsville, North Carolina USA
Shaku Teas, M.D. Forensic Pathologist. Chicago, Illinois USA
Kirk L. Thibault, PhD. Biomedical Engineer. Lester, Pennsylvania USA
Larry E. Thibault, Sc.D. Biomedical Engineer. Lester, Pennsylvania USA
Ronald H. Uscinski, M.D. Neurosurgeon. Washington, D.C. USA
Competing interests: Many but not all of us have consulted and testified for the defense in alleged infant injury cases.