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2020 Legal Blog

Is Anybody Listening?

By Roxanne Avery

December, 2019

Doctors alleging child abuse based on questionable injuries has become a pervasive problem across this country.  We are proud our attorney Wade B. Smith was able to expose one of these cases to the Harris County Grand Jury and get a “No Bill,” determining the criminal charges alleged were not sufficiently supported by the evidence presented to warrant criminal prosecution.  Here’s what happened:

As the frantic parents rushed their 7-month-old baby to the hospital with seizure-like symptoms in December 2016, they wondered what could be wrong.   After a medical assessment, Emergency Room doctors released him and sent the family to a neurologist who ordered an EEG and an MRI.  Little did they know their lives were about to change.

After the MRI was completed nearly a month later, doctors told the parents to bring their son back to the hospital where they explained there were some subdural hematomas (brain bleeds) and asked if they knew what could have caused them.  The parents gave a couple of “normal” baby events such as rolling off the couch (before they realized he could do that) onto the carpeted floor while the dad went to get a change of clothes before a bath and their two-year-old son bumping heads with him when (the older son) threw a tantrum.  The “child abuse” pediatrician decided neither of those instances would cause the bleeding and made the bold statement the brain bleeds were due to “non-accidental trauma,” meaning they were intentionally inflicted, and the doctor further concluded “shaken baby syndrome” and abuse.

Stunned, the parents soon learned what that meant.  The hospital wouldn’t release their baby to them and Child Protective Services (CPS) was called in.  The caseworkers asked if there was a family member the baby and their other son could stay with, otherwise they would be placed with foster care. CPS approved the mom’s brother who was living in an apartment with his girlfriend, which placed a very unexpected burden of caring for two children under the age of two on them. “When you think about it, this decision was screwed up in its own right,” Wade B. Smith, attorney for the father said.

The situation was very difficult on everyone and became worse when the mom’s daughter from another marriage, who had nothing to do with any of this, was also removed from the home and sent to stay with her father as a result of the CPS intrusion.  “If you don’t have someone in the family willing and able to take the kids in a situation like this, they go to foster care and God knows what happens in foster care,” Wade said.

Willing to do whatever it took to get their children back, the parents did everything CPS required including extensive classes and counseling.  For the next year and a half, they went to CPS court on a regular basis and CPS checked on the kids at the apartment because the parents were not allowed unsupervised visitation.  “They would help fix dinner, get the boys to bed and anything else to help her brother take care of their kids,” Wade said.

The situation kept getting worse as the mom lost her job due to missing a lot of work because of the months of parenting classes and counseling required by CPS.  With the financial burden on the dad, he worked two jobs even though he lost his truck from flooding during Hurricane Harvey.  “In addition to everything with CPS, Harvey happened in the middle of it, which directly affected them as it did many Houstonians. They ended up moving from a house into a two-bedroom apartment,” Wade said.  “And they had to hire two lawyers – one for the mom and a different one for the dad, just to fight CPS.”

“They had some good lawyers fighting hard for them against CPS,” Wade said.  “People who don’t have good lawyers fighting for them can really be at a huge disadvantage.”

After extensively reviewing the baby’s medical records, defense lawyers against CPS discovered the same things Wade did and found he had a benign medical condition where his head was larger than normal for his age.  The condition is caused by several factors and disappears as a child grows out of infancy. “But the crucial thing to know,” Wade said, “is that studies have found infants with this condition are more susceptible to these brain bleeds from very minor head trauma, such as a bump to the head or a short fall; they can even occur spontaneously due to the increased fluid pressures with this condition.”

Norman Guthkelch, the pediatric neurosurgeon credited with first observing that shaking an infant could inflict brain bleeds, began speaking out in 2011 about his concerns regarding how the diagnosis is used. He worried it is too often applied by medical examiners and doctors without considering other possible causes for a child's death or injury.

Decades ago, Guthkelch was trying to solve a medical mystery: Babies, toddlers and other children were showing up at his hospital with bleeding on the surface of the brain yet there were no signs of the cause. These children came without broken bones, bruises or other signs of physical abuse.

“It’s the ‘shaken baby syndrome,’” Wade explained.  “The theory is that a baby gets shaken back and forth with such force that it causes brain bleeds.”   Shaken baby syndrome is often diagnosed when doctors find unexplained bleeding on the brain and two other symptoms: bleeding behind the retinas and brain swelling. This constellation of symptoms is referred to as "the triad."

In his research, Guthkelch said too many medical experts see that triad of symptoms and conclude a child has been shaken without considering other possibilities and didn’t think the famous triad can be so well-defined that a doctor could say nothing else caused it.

“The enlarged head syndrome was specifically noted in the baby’s medical chart in our case, which is a valid medical explanation that was just ignored,” Wade said.  “With evidence piling up in favor of the parents, CPS’s case began falling apart as a trial was scheduled. The judge ordered mediation before the trial, and at that point CPS relented and came to an agreement that would ultimately allow the children to return home.”

“One problem is that these ‘child abuse’ pediatricians are being allowed to speculate about what caused the injury in court,” Wade observed.  “Even medical examiners are not allowed to do that. For example, they could say a person’s death was caused by a bullet wound to the heart, but they can’t say whether the gunshot was intentional or accidental.”

The designation ‘child abuse pediatrician’ just emerged about a decade ago, which isn’t very long in terms of medical research and science. “It hasn’t been subjected to much validation or peer review relative to other areas, which is why we are seeing this prevalent problem occurring across the United States,” Wade said. 

As part of the mediated agreement, the boys stayed with their uncle for another six months before going back to living with their parents. With a sigh of relief, the family thought their nightmare was over. But it was really just beginning.

“Almost two years after the initial emergency room visit and months after the kids all returned home, things are getting back to normal,” Wade said.  “But then a law enforcement investigator decided to present the case to the District Attorney. Its’ presentment was based in large part on the doctors the investigator interviewed who said this must have been intentional because the only thing that would have caused the brain bleeds was rapid acceleration/deceleration of the head consistent with shaken baby syndrome.”

The DA’s office filed a felony complaint, alleging the dad was the person who’d caused the injuries. A warrant was issued for his arrest who went to Wade for help. “I heard what they were saying and talked with their previous lawyer from the CPS case and she was just appalled at what was happening,” Wade said.  “The more I looked, the more I had the same sense of indignation that a criminal case was ever accepted at intake by the DA’s office.  We quickly self-surrendered to the court to take care of the warrant, and then ensued the pretrial process and the stress of dealing with a potential criminal trial that carried a 5 to 99 year prison sentence if convicted.” 

Wade immediately began work on a Grand Jury packet to tell the client’s side of the story but first needed the CPS records from the DA’s office, which took over six months to obtain.  With over 2,500 pages, Wade reviewed the records and researched similar cases in medical journals and found two to include in the Grand Jury packet which were case studies of infants who presented with nearly the exact injuries as his case: 

  1. “The Significance of Macrocephaly or Enlarging Head Circumference in Infants with the Triad – Further Evidence of Mimics of Shaken Baby Syndrome” by David Miller, BS, Patrick Barnes, MD and Marvin Miller, MD
  1. “Subdural Hematomas in Infants with Benign Enlargement of the Subarachnoid Spaces are not Pathognomonic for Child Abuse,” by P.D. McNeely, J.D. Atkinson, G. Saigal, A.M. O’Gorman and J.P. Farmer

Ironically, in September 2019, NBC in partnership with the Houston Chronicle, published a series of investigative articles on this very subject, including one that donned the front page of the Chronicle, just days before our client’s case was presented to the Grand Jury. Wade added the article to the packet he sent to the Grand Jury.

“This was a very difficult case because as I read through the records and through those medical journals and the news articles and all the statements, there were times I had to step away because it was so frustrating. I felt the frustration our client and all of these parents I was reading about must have felt;  ‘IS ANYBODY LISTENING?’  For all of these parents it must have been like those cliché nightmares where you open your mouth to scream but nothing comes out. My hope was that the Grand Jury would finally hear us.”

Last week Wade received the news from the Grand Jury he’d been waiting for…the case was No-Billed. “I was ecstatic and couldn’t wait to tell the client,” Wade said. “The phone call to him was definitely an emotional one.” 

“I am just so relieved.  I feel like the weight of the world has been lifted off my shoulders,” our client said.  “I was overwhelmed with happiness and started crying on the phone when Wade told me the outcome. I’m very appreciative and overwhelmed with joy and just so happy.“


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