A friend or family member takes their baby to the hospital and the next thing you know they have been arrested.  If the baby died then the police file homicide charges.  If the baby lives then assault charges are filed and the baby is taken away from his parents.  It seems like there is nothing that can be done to derail this medical-legal freight train.   The criminal attorney has no idea about how to defend the bleeding in the baby’s head or the fractures that have been found on the x-rays and he is talking plea bargain.   The child protective services take the position that unless or until the other parent “acknowledges” the circumstances, they won’t get their child back.  What can you do?

If you are trying to help a friend or family member in that situation you must understand that there are certain presumptions at work in the medical and legal community. Most of the medical community and all of the law enforcement and child protective community has bought into the shaken baby syndrome hypothesis that in the absence of any external signs of trauma, the very presence of a subdural hematoma (or hemorrhage) gives rise to a presumption that the cause of the subdural bleeding is abuse. Then (according to the hypothesis) the burden shifts to the parents to provide an “explanation” for the injury.  If the parents (or caregivers) can provide no “explanation” then in their minds (and oftentimes in the mind of the court) the case for abuse has been proven.  Any fractures discovered in the ribs or extremities only confirm the diagnosis of abuse.   This entire scenario repeats itself multiple times each day in the United States.  (It also flagrantly violates the Constitution’s due process of law requirements in many ways but that is another discussion!)

The bottom line is that as long as the medical community, led by the child abuse “expert”, are the ones interpreting the medical records, it is a virtual certainty that the medical diagnosis and legal conclusion will be that the child was abused by his parent or caretaker.   It is the medical records and the interpretation of those records that will convict the parent or caretaker.  In order to defend your loved one you must get the medical records, and get all of the medical records, and then get a second opinion. Keep in mind that there is a lot of political pressure in the medical community to tow the shaken baby syndrome line and doctors are oftentimes reluctant to disagree with the child abuse “expert,” at least publically.  Don’t be surprised if you find that most doctors simply rubber stamp the opinion of the child abuse “expert” without really considering all of the potential alternative explanations for subdural hematoma’s or fractures.   So, where do you even start?

Start with the records and be persistent.  Get the prenatal records – all of them.  Find out how many prenatal visits were attended by mom and whether she took prenatal vitamins and had prenatal blood work performed.   Get the birth records – all of them.  Get the nurses notes and the actual charts with the handwritten notations.   Find out when contractions started, when the water broke, were there any complications, medications administered or notes about the baby’s condition after birth.  Was there any blood work done?  Get the pediatrician’s records – all of them.  Get the chart that shows the notes of any sick visits, the newborn visit, the one-month visit, two-month visit, etc. Was any blood work done?  When and which vaccinations were administered.  Were there any sick visits, emergency room visits or hospital admissions?  Get the records!  (If you are noticing a pattern, you should.)  Get the records of any hospital admission – get all of them.  Get the handwritten chart notes, any reports from the emergency room admission, reports of any treating or consulting physicians, get the social worker reports, get a list of every order written by a doctor, get all of the lab results, get the radiology reports and, this is absolutely critical, get the actual radiological studies (this means the actual film for x-rays or, as is more common now, the CDs containing the digital data of the x-rays, CTs and MRIs).

Be persistent and don’t accept anything less.  Somewhere in all of these records is the answer to the question of what happened to this child.  You will have no defense unless and until you find out what happened to this child (Forget the notion that a person is innocent until proven guilty, when it comes to allegations of child abuse it is guilty until proven innocent.)  Then you need a thoughtful attorney who is experienced in these types of cases and can assemble a medical team that can review these records and get to the bottom of what happened to this child or all of your efforts will be in vain.

Shaken baby syndrome (SBS) is the hypothesis proposed by medical doctors that an infant can be shaken hard enough to cause a bleed on the brain (a subdural hematoma or hemorrhage) without any external trauma or impact.   The problem with this hypothesis is that bioengineers could not confirm the hypothesis in the laboratory.   (When I was in college getting my undergraduate degree in mechanical engineering I was taught that the scientific method required the abandonment of a hypothesis that could not be confirmed experimentally.)  The fact that the shaken baby syndrome hypothesis could not be confirmed in the laboratory didn’t stop medical doctors from promoting the hypothesis as if it were fact.  When it became apparent that science didn’t support the SBS hypothesis, the medical doctors promoting it changed the terminology to shaken impact syndrome.  Despite the change in terminology, the medical profession has never abandoned the notion that even when there is absolutely impact or trauma, a brain bleed can be caused by shaking alone.  Because a growing minority of doctors has been challenging and dissenting from the shaken baby syndrome hypothesis, in 2009 the American Academy of Pediatrics recommended yet another change in terminology.  Now the American Academy of Pediatrics recommends the term Abusive Head Trauma to avoid identification of a mechanism of injury.  Whatever it is called, the hypothesis is flawed and creates a danger to innocent parents.  In fact, the American Academy of Pediatrics has taken the position that the mere presence of a subdural hematoma alone, without any other evidence of abuse, gives rise to a presumption that the cause of the subdural hematoma is non-accidental or inflicted trauma unless the parents can provide an accidental explanation or “history”.  This presumption based on a flawed hypothesis has almost universally been adopted by the child protective services community and law enforcement and has been the cause of many innocent parents, caregivers and boyfriends being arrested and/or having their children taken away.

County agencies often takes child(ren) away from parents and file a dependency petition to have the child(ren) declared dependent on the state. The county agency also files an indicated report of abuse with the ChildLine registry. The county agency also refers the case to the police and assault and child endangerment charges are filed, or if the child has died, murder or manslaughter charges. While there are certainly many cases of child abuse, I have found that in some cases, the county agency has taken children away from innocent parents and that the child abuse doctors and emergency room doctors are very quick to “suspect” child abuse and very slow to do what is necessary to perform a differential diagnosis and find the actual cause of the injuries, if they make any effort whatsoever. It is not uncommon for a parent to take their child to the hospital for vomiting or seizures and the next thing they know, their baby has been taken from them and a parent is arrested. Often times the injuries found are a subdural hematoma (also called a subdural hemorrhage) and some sort of fractures. The medical people almost always assume that these injuries are caused by child abuse even when there are no external signs of trauma like bruises or skin abrasions. They ask the parents if there was an accident that caused the injuries and when the parents have no accidental “explanation” the parents are presumed guilty of abuse. This is essentially how many shaken baby syndrome diagnoses are made. Sometimes it is referred to as shaken impact syndrome or some other variation like “non-accidental trauma” or the latest term “abusive head trauma” but it is almost always essentially the same. From that moment on, the parents cannot stop the momentum of the legal system which is taking away their child(ren) and arresting them. In my experience there are some cases where the doctors have made an incorrect diagnosis of abuse. This means two things; the first is that you do not know what is wrong with your child and the other is that innocent parents are losing custody of their children and are being accused of abuse or worse.

  • Mark Freeman is an attorney that got involved in defending those accused of shaking a child when a close friend was charged with child abuse for allegedly shaking his son.
  • After spending hundreds of hours investigating, reading medical journal articles and speaking with doctors from around the country about shaken baby syndrome, Mark confirmed with science what he knew in his heart, that his friend was innocent and that the doctors were wrong.
  • Since that first case, Mark has vigorously defended innocent parents of false charges of child abuse, regained custody of children for innocent parents and has defended innocent parents of criminal charges. Mark is now pursuing civil rights lawsuits in cases where false accusations of child abuse resulted in the violation of parents' civil rights.
  • Mark is licensed to practice law in Pennsylvania and New Jersey and consults with local attorneys in other states. Email Mark at mark@markdfreemanlaw.com or call Mark at: 1-800-580-0084