More Doctors Questioning 'Shaken-Baby Syndrome'

For years, cases involving shaken-baby syndrome were often open-and-shut — with the last person to care for the child labeled the abuser. But Slate editor Emily Bazelon reports that a growing number of doctors say the syndrome could have alternate explanations.

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In 1993, forensic pathologist Robert Huntington testified that 7-month-old Natalie Beard showed the characteristic symptoms of a shaken-baby, and given the timing, her caregiver, Audrey Edmunds, had to be responsible for her death.

Ten years later, Huntington said in a retrial, he was no longer comfortable with that verdict, that other things could explain the subdural bleeding, retinal hemorrhaging and brain swelling, and that new research also throws doubt on the timing of the injury.

In last week's edition of The New York Times Magazine, senior Slate editor Emily Bazelon reported that shaken-baby cases may no longer be as clear cut as previously believed, and that a fierce debate is underway.

Pediatricians, health care workers, what do you do when you suspect shaken-baby syndrome? 800-989-8255. Email us, talk@npr.org. You could also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Emily Bazelon is senior editor at Slate, also a Truman Capote law and media fellow at Yale Law School, and joins us now from a studio in North Haven, Connecticut.

Nice to have you with us today.

Ms. EMILY BAZELON (Senior Editor, Slate): Thanks so much for having me.

CONAN: And the cases you talk about in your piece, these women who've been exonerated after serving time, what's changed in the way that we now understand shaken-baby syndrome?

Ms. BAZELON: One of the things that's changed, it relates to Robert Huntington's testimony as you were just talking about, and that is how definitive doctors can be about timing and injury. It used to be that the assumption was that every time you had evidence of the shaking - medical evidence - that you knew, you assumed that the baby would immediately stop breathing and go into a coma. And that meant that the last person taking care of the baby was necessarily the guilty party.

Now doctors acknowledged that there are some cases - and there's a debate about how rare this is - but that in at least a few cases it's possible for a child to remain conscious for some amount of time. Not to be totally normal, necessarily, but to be sleepy or fussy or not eating regularly, as opposed to immediately unconscious.

CONAN: And there's also - your article talks about that those three symptoms, subdural bleeding, retinal hemorrhaging, brain swelling - if those three were present even without bruises or broken bones or other injuries evident, doctors still said that used to be solid evidence of shaken baby.

Ms. BAZELON: Doctors used to say that that had to be shaking, that it was -there was only one explanation. And now we know - and again, there is a big debate about how rare this is. But now we know there are possible alternate causes of those symptoms. There are certain bleeding disorders that cause those symptoms. Some doctors, though not all - many dispute this - but some doctors think that it's possible for certain accidental falls to cause those symptoms.

And so this is really the debate. It is a debate about, in criminal court, where, if we're going to convict someone, then the standard is beyond a reasonable doubt, whether there's always that level of certainty in these criminal cases.

CONAN: Well, how many of these cases come up every year?

Ms. BAZELON: So there are between 12 and 14 hundred cases of children attributed to abusive head injury every year. And we're talking about a small subset of those cases in which they go to court - they are criminal charges -and the only medical evidence of abuse are these internal injuries that you described. And so no one - the numbers are a little fuzzy. But the best estimates I was getting were that there are between 100 and 150 cases a year in this category.

CONAN: And this case goes back to, I guess, the most famous shaken baby case, and that was - involved the English au pair Louise Woodward, who was put on trial - and I guess a celebrated trial - about 20 years ago.

Ms. BAZELON: That's right. This is 1998. Louise Woodward was a 19-year-old British au pair. She was taking care of a baby who collapsed in her care. This child wasn't - did not simply have internal bleeding and swelling. He also had a skull fracture. And one of the big debates at the trial was whether that skull fracture was old or whether it has been inflicted, you know, in the few hours before he died, when he was in Louise Woodward's care.

CONAN: And the verdict in that case was guilty. Yet Louise Woodward was, well, dismissed with time served.

Ms. BAZELON: That's right. The jury believed the prosecution's experts, who said essentially that the medical evidence meant that Woodward must have abused this child, given that she was his caregiver before his death. But the judge, without explaining why - trial judges don't have to necessarily give reasons -he reduced the charges to involuntary manslaughter and then let her go for time served.

CONAN: And the testimony in that case by Barry Scheck, who's since become better known as one of the principals in the Innocence Project, but his testimony seemed, you say, to lay the groundwork for doubts that have since sprung up.

Ms. BAZELON: Right. Well, Scheck was the lawyer in that case, and then there were a bunch of experts who were testifying on both sides, and Scheck's strategy in that case, to really bring in doctors who had an alternate explanation, at least for the timing of the baby's injuries - this was the first big courtroom battle over shaken baby syndrome.

CONAN: And given the doubts that had been thrown up, are the convictions that have occurred in other cases being reconsidered?

Ms. BAZELON: Right. Exactly. Then you have Audrey Edmunds' case. We were talking about her earlier. She was running a small little day care inside her house and a baby died in her care. When she went on trial in 1996, no one really questioned the evidence about the timing. And so since Audrey Edmunds had been the baby's caregiver and she had these - the baby had these injuries, Edmunds was convicted.

Then, a decade later, she was having a hearing about whether she would deserve a new trial or not. And Robert Huntington, the pathologist who had testified at the first trial, came back and said that he had personally observed a child with subdural and retinal bleeding who had been lucid for a period before collapsing, and that made him go back and look at the literature. And he no longer felt confident about timing that child's injuries.

And based on that, the Wisconsin Appeals Court said, you know, there's really fierce disagreement now among doctors about this aspect of this case, and as a result we are going to grant Audrey Edmunds a new trial. The prosecutors then decided to drop the charges against her, and she was released after serving nearly 12 years in prison.

CONAN: And does this suggest that someone else may have been responsible, at least in some cases, or that there are these other - well, in some cases, difficult births may have been responsible?

Ms. BAZELON: Well, the first possibility is certainly there. It is certainly possible that most of these children were, in fact, abused and what we just don't know with enough certainty is who did it. Then there are other cases in which it's possible that there are alternate explanations for these injuries that we don't fully understand now and that more research really needs to be done to figure out how probable that is or isn't.

CONAN: We're talking with Emily Bazelon, who wrote "Shaken-Baby Syndrome Faces New Questions in Courts" for last week's New York Times Magazine.

You can find a link to that article on our website. Go to npr.org. Click on TALK OF THE NATION. And you're listening to TALK OF THE NATION, which is coming to you from NPR News.

And let's get a caller on the line. This is Cynthia, Cynthia with us from Phoenix.

CYNTHIA (Caller): Yes. I would just like to thank Ms. Bazelon for her article and bringing this to the front of the public. I used to be an attorney. I'm actually no longer an attorney, but about 10 years ago I represented a woman who was charged with shaken baby. She was convicted on a second degree - excuse me, on a manslaughter. She had been tried, and prosecution wanted to go for, actually, a first degree murder on this charge. That - at the time England (technical difficulties)...

CONAN: We're having troubles. Cynthia, somebody is trying to dial on your phone.

CYNTHIA: Oh, dear.

CONAN: Yes. I think it's better now. They may have realized it.

CYNTHIA: All right. England, you know, 10 years ago was throwing out all of their cases in which parents had been relieved of their children - their children taken away, because of the medical evidence that was coming out on that side of the world. And I think it's fantastic that the American Medical Society is finally catching up with what science has been showing on there's like 2,000 articles written by medical professionals in other countries, in Sweden, in Germany, in Great Britain, that have always been saying this. It's -I just think it's wonderful that the American side is finally taking care of that.

CONAN: Cynthia, thanks very much for the call. Appreciate it.

CYNTHIA: Thank you.

CONAN: Let's see if we can go next to - this is Marilyn. And Marilyn is on the line from Vancouver in Canada.

Ms. MARILYN BARR (Executive Director, National Center on Shaken Baby Syndrome): Yes. I'm calling - I'm out of the country now, but I'm the executive director of the National Center on Shaken Baby Syndrome. I completely disagree with the last caller, that the mainstream scientists in other countries feel this way. And I think it's really important that the public knows that shaken baby syndrome is real and recognized public health problem.

We resented that the article indicated that there were all kinds of people sitting in prisons that had been wrongfully convicted, although we feel like everyone else, that we would not want anyone wrongfully convicted. But it's important to know that mainstream scientists, medical organizations like the American Academy of Pediatrics, Centers for Disease Control, National Association of Medical Examiners, the Academy of Ophthalmology, have all published statements and recognized shaken baby syndrome.

I also think it's important for the public to know that every day teams of physicians make very hard decisions in these cases to determine if this injured child is a result of abuse. Let me tell you who these teams are. They're the teams of pediatric radiologists, neurosurgeons and pediatricians who work at your local children's hospitals. These are the doctors that are - they're not in some child abuse clinic looking for some abuse. The doctors agonize over these decisions, to say it might be abuse. And they look at other possible explanations, including mimics. In many of these cases there's other signs of physical abuse, and medical examiners will tell you that when they're doing autopsies they find numerous broken bones and bruises over the body of a dead baby. But it's the head injury that kills the baby.

CONAN: Marilyn, we wanted to give Emily Bazelon a chance to respond.

Ms. BAZELON: Well, I think this is exactly the intention the intention(ph) here. And I'm so glad you called, because it is enormously important for doctors to investigate these kinds of symptoms. And you're right, much of the time there is other medical evidence of a history of abuse. I was trying to pinpoint a smaller number of cases in which there is no such other medical evidence and in which we may be possibly too ready to convict people. And it seems to me that those adults also have rights and a kind of, you know, an importance in this equation as well as all the children who - yes, it is true, doctors are trying so hard to protect in doing important work in trying to do that.

CONAN: And, Emily Bazelon, if I read your article correctly, you argued that about half the shaken baby cases, that only these internal injury symptoms exist, to suggest that it happened.

Ms. BAZELON: Well, that's in the - the cases that go - that are prosecuted. There are about 200 a year. And of those cases, between half and three quarters, according to the prosecutors I talked to, there is only medical evidence from the internal bleeding and the brain swelling as opposed to things like fractures and bruises, which obviously that's a whole different scenario for both doctors and for the legal system.

CONAN: But not to argue that there is no such as shaken baby syndrome, clearly...

Ms. BAZELON: Absolutely, no. That is not the point I want people to take from my piece.

CONAN: Marilyn?

Ms. BARR: Well, it was the point, Emily, that you gave of - the title of it was a flawed diagnosis, and so that certainly lends to the situation that there's this whole bulk of physicians and people who were incorrectly diagnosing this. And I just think that that impression is not only completely wrong but very, very dangerous. And as you know, you talk to many of the top people in world, actually, and they spend hours and hours being interviewed by you. But the representation in the article was more representative of the few, I'd say 10 or so, of the people - the witnesses that are testifying in these cases over and over again in every city...

CONAN: And Marilyn...

Ms. BARR: ...who are paid a high price to do so.

CONAN: And Marilyn, I don't want to break you off again, but we just have a very few seconds left. And I want to give Emily a chance to respond.

Ms. BAZELON: Well, it's true that some witnesses for the defense make money doing so. It is also true that some witnesses for the prosecution make money. And I think in the end this really has to be a debate that is about the science, what the research does and doesn't show, and what we could do to complete that picture.

CONAN: Marilyn, thanks very much for the call. We appreciate your time.

MARILYN: OK.

Ms. BARR: Emily Bazelon, thank you very much for being with us today.

Ms. BAZELON: Thanks so much for having me.

CONAN: Senior Slate editor Emily Bazelon joined us from a studio in North Haven, Connecticut. You can find a link to her New York Times Magazine piece at our website. Go to npr.org, click on TALK OF THE NATION.

Tomorrow - well, there'll be another program tomorrow. This is NPR News.

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