Court Rejects “Default Diagnosis” Of Child Abuse

Everyone loves a medical mystery. Throw in the possibility of child abuse, and you have a perfect plot for an episode of “Law and Order – Special Victims Unit.” These elements are all present in yesterday’s decision from the Third Department in Matter of Julia Bb. v Diana Bb., 2007 NY Slip Op 04553 – a great read and a fascinating mystery. The case involved a proceeding pursuant to Social Services Law § 384-b to adjudicate a child to be a severely abused child. The facts are long and involved, but in essence they were as follows.

Within a month of the child’s (Julia) birth, her mother brought her to her pediatrician with concerns about some marks that appeared on her back and chest. The marks were small purple and blue dots, which the pediatrician described as little hemorrhages under the skin. The pediatrician was unable to make a diagnosis and referred the child to a hematologist for blood work. A provisional diagnosis of herrorrhagic vasculitis was made, which is an inflammation of the blood vessels. The child also had low levels of vitamin C, needed for blood coagulation. These small bruise-like discolorations would come and go in the months that followed.

In another visit to the pediatrician, the parents expressed concern that they heard a “crackling” noise from the child’s chest. X-rays were taken which initially revealed the possibility of a rib fracture. In another visit, the pediatrician observed a bruise on the child’s cheek. The pediatrician requested another X-ray but was informed by the radiologist that this was unnecessary as the crepitus from the child’s chest was probably the result of an overlapping of the 4th and 5th ribs. The child was referred for additional blood work. The hematologist discovered an additional bruise-like area behind her ear. He thus ordered a CT scan of the head. This revealed a superficial linear skull fracture. As a result the child was admitted to the hospital. At the hospital, a complete skeletal survey was performed which revealed fractures of the ribs, left forearm, and left tibia. At all times, the parents apparently remained very concerned about their child, and were cooperative with all doctors to perform all tests. While at the hospital, the child underwent genetic testing for a condition called Osteogenesis Imperfecta ,  commonly known as “brittle bone disease” (hereinafter OI). The cause of OI is a gene defect that affects how you make collagen, a protein that helps make bones strong. The geneticist who conducted the test ultimately concluded that the child did not have OI, but he noted that the child’s fractures and skin discolorations were consistent with OI. In addition, the OI genetic test only had an 85% certainty rate, meaning that there was still a 15% chance that the child had the condition.

As a result of the hospitalization, Child Protective Services (CPS) were notified and an investigation ensued. For 3 months, the child was seen daily either by her pediatrician, a nurse, or a case worker. During this time, the bruise-like skin conditions continued along with incidents of swelling and sweating. Also during this time, the child was referred to an orthopedic surgeon who concluded that there was child abuse occurring. CPS thus sought emergency removal of the child from the parents. The Family Court denied the application finding that the parents were doing all that was reasonable, and it was unpersuaded that the unexplained injuries were the result of any inappropriate conditions in the home. The parents were directed to  continue to cooperate with CPS, which they did.

The mystery thereafter deepened. By this time, the paternal grandmother had moved in with the parents who indicated that the purple like skin marks would come and go, and there were incidents of puffiness of the joints. The grandmother also gave indications that the parents were thrilled to have the child, were very concerned, and were caring towards the child. During this time, the child was also diagnosed with an ear infection and given an antibiotic. Minutes after being given the antibiotic, the child had difficulty breathing and was observed with a pick secretion around the mouth (consistent with the antibiotic) and coughed up a mucus plug. She was rushed to the hospital where she was diagnosed with pulmonary edema. The hospital observed some bruising around the child’s lips and gums. While acknowledging that this bruising could have been caused by the placement of an oxygen mask while in transport to the hospital, doctors at the hospital concluded that it was the result of a “smothering incident” and that the child was the victim of child abuse.

CPS again sought emergency removal of the child, which this time the Family Court granted. While the child was away from the parents in protective or foster care, the child continued to exhibit intermittent skin discolorations, as well as other unexplainable symptoms.

CPS then commenced a proceeding to terminate parental rights alleging abuse [the parents had two other children which CPS also sought to remove]. A lengthy fact-finding hearing ensued, after which the Family Court found that the parents severely abused the child. It thus terminated their parental rights. After the close of evidence the parents had moved to reopen the case to admit evidence from experts in OI, but the Family Court rejected this evidence.

In their review, the Third Department first noted that a finding of severe abuse must be established by “clear and convincing” evidence. It found that this standard had not been met. The Court first found that it was error not to admit the parents’ expert testimony on OI. The Court then noted that the record was replete with references to the parents’ efforts to obtain medical care for the child and attempts to unravel what they believed was a medical problem. The Court also noted that while the child displayed various injuries, none appeared to be life threatening or resulted in a protracted impairment of her health. The Court also took into consideration that there appeared to be no problems with the parents’ other two children. In fact, the Court noted that these other children seem to thrive in their parents’ care. Also, the child continued to exhibit the mysterious symptoms while in protective care.

The really interesting part of the case, however, was the Court’s findings with respect to the evidence presented by CPS. The doctors who testified on behalf of CPS essentially testified that they came to the conclusion that the child had been abuse because it was in essence a default diagnosis. For instance, the doctors testified that they took the “constellation of signs and symptoms” and attempted to “come up with one consistent explanation for what happened.” They testified that their job was to come up with a “unifying diagnosis to answer everything that’s happened.” Essentially these doctors came to the conclusion that nothing else fit all the events and the symptoms the child exhibited. The Court rejected this sort of conclusion by default analysis. The Court noted that there was the very real possibility that the child’s strange symptoms of bruise-like discolorations and fractures, and the supposed “smothering incident” were entirely unrelated. The Court also noted that CPS’s doctors were not experts in OI, and despite the fact that the genetic test for the OI condition was negative, there was still the possibility that the child had the condition because the OI test was not conclusive. The Court also weighed the rejected expect testimony on OI which was to the effect that there was a 10-15% chance that the child had a variant of the condition which could explain the negative test results. As mentioned, the Court also strongly took into consideration the parents’ apparent unwavering efforts to cooperate in all parts of the investigation and to consistently seek appropriate medical care for the child, in addition to the fact that there appeared to be no problems with the parents’ other children. Even when the Court reviewed the facts under the lower standard of preponderance of the evidence, it could not come to the conclusion that the child had been abused. Thus, the Third Department reversed, returned the child to her parents, and dismissed the proceeding.

So was there child abuse, or not? Did the child have OI, or some other strange undiagnosed condition? You decide. I encourage all to read the case in its entirety. It illustrates that neither the legal fact-finding process nor medical science have yet perfected their respective abilities to explain everything, and also illustrates that in some instances there may be a conflict between the two systems. Under such circumstances, I believe that it was wise for the Court to trust that the parents were indeed loving and caring parents and avoid separating the child from them.

Are the writers of “Law and Order – Special Victims Unit” out there?

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