Presumptions

Shaken Baby Presumptions

The thought of an adult physically abusing a child stirs up strong emotions in most people.  We all have an innate sense of right and wrong and when a person who should protect a child, like a parent or a caregiver, actually inflicts a life threatening injury on a young and innocent child we are outraged and demand justice.  We as a society find child abuse to be very offensive and rightly so.  There are situations where children have injuries that appear to be inflicted, such as a subdural hematoma and maybe retinal hemorrhages or brain swelling or even bone fractures, but the parents or caretakers say nothing traumatic happened to the child.  Frequently in those situations, a child abuse “expert” doctor is consulted and makes a “diagnosis” that the only possible explanation for injuries sustained by a child is child abuse.  We all think that prior to a doctor making a diagnosis of child abuse the doctor has ruled out every other possible cause of the clinical findings.  We expect that laboratory studies have been completed and doctors have conferred with one another and discussed all of the other possibilities and reluctantly come to the conclusion that this is a case of abuse.  We expect that the scope of the medical investigation into all of the possible medical explanations for the injury to be comprehensive before a diagnosis of abuse is made.

What you may not know is that there are pediatricians who are considered child abuse experts who do not believe that they have to do much in the way of ruling out other causes.  At least one of these doctors has expressed the idea that there is no other explanation for the triad of conditions, the subdural hematoma, retinal hemorrhages and fractures or bruises other than what is often referred to as shaken baby syndrome.  These doctors dismiss birth trauma, metabolic and other medical disorders like inadequate amounts of vitamin D that can cause the injuries as rare or uncommon without doing any real investigation.  They ignore the evidence of the re-emergence of rickets and a virtual epidemic of inadequate vitamin D levels in the general population which includes children and pregnant mothers.  The practice in many children’s hospitals is for the doctors to run a few diagnostic tests like calcium levels and coagulation studies to rule out some possible explanations and then the child abuse pediatrician declares that the parents have failed to “explain” the injury and therefore they “diagnosis” child abuse.

If you think this is an exaggeration, consider this statement made by the American Academy of Pediatrics Committee on Child Abuse and Neglect in 2001, “Although physical abuse in the past has been a diagnosis of exclusion, data regarding the nature and frequency of head trauma consistently support the need for a presumption of child abuse when a child younger than 1 year has suffered an intracranial injury.”

Presumptions are powerful and have important and significant legal ramifications.  We all learned in our high school civics classes that our Federal and State Constitutions declare that a person is entitled to the presumption of innocence and the government must carry the burden of proof when an accusation of abuse or murder is made against a parent or caregiver.  However, in some cases when a child abuse pediatrician gets involved in a case they may do some minimal testing for other explanations and when those come up negative they then declare that in the absence of an accidental “explanation” of the injury from the parents, the medical presumption is made that the child was abused.  Once this presumption is made, the doctor then shifts the burden of proof to the parent to explain the injury as an accidental event.

If the parent cannot provide an accidental explanation for the injury, then an additional presumption is made.  The second presumption made is that the parent or caregiver who was last with the child inflicted the injury on the child.  We all assume the doctor has done a complete investigation into ALL possible medical explanations other than abuse.  However, this is often not the case because the child abuse pediatrician has followed the American Academy of Pediatrics endorsed policy of making the presumption of child abuse.

This would not be a problem except for the fact that in many cases, this MEDICAL presumption of abuse is then adopted as a LEGAL presumption by the child protective services, the police and sometimes even by the courts.  Once that legal presumption is made, the child protective services, police and even the court all say that if the child abuse doctor says its abuse, its abuse until the parents prove otherwise.  And that is how children are taken away from parents and parents or caregivers are arrested without a complete and thorough investigation into the multitude of possible medical causes injuries that appear to be inflicted.

It is a virtual certainty that if you take a child to the emergency room and the child has a brain bleed with no accidental “explanation” from the parents, child abuse is the immediate presumptive diagnosis long before whatever testing should be done to rule out other causes is complete, if that testing is done at all.  Once that happens the child abuse charge gathers momentum so quickly that children are taken away from parents and people are arrested and it seems almost impossible to stop the momentum.  It is a rare child protective services agency or prosecutor’s office that will insist that a comprehensive medical workup addressing all possible other explanations be completed prior to moving forward with taking a baby away or arresting a parent.  It is critical that anyone who is being accused of child abuse assault or murder in such circumstances find an attorney who is already well versed in the medical and legal issues presented in an alleged shaken baby case.

  • 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