SHAKEN BABY SYNDROME OR MEDICAL NEGLIGENCE?

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SHAKEN BABY SYNDROME OR MEDICAL NEGLIGENCE?

 

By Maureen Hickman

Managing Legal Clerk, Carters Law Firm, Sydney, Australia

e-mail: acii

Address: PO Box W261, Warringah Mall, Brookvale. NSW 2100, Australia

Telephone: 61 2 9907 1687

Facsimile: 61 2 9907 1657

 

Is it Shaken Baby Syndrome or the negligence of medical personnel for failing to

carry out extensive medical investigation, following injury or death of a child

diagnosed with sub-dural and retinal haemorrhages? That is the crucial question.

 

The worrisome aspect of the diagnosis of SBS by coroners, forensic pathologists

and other medical specialists is that they focus their entire attention on this

one medical hypothesis and ignore many other idiopathic causes (including

vaccination) of death/injury. Following any medical observation of co-existing

sub-dural and retinal haemorrhages in a baby the conclusion is that these

haemorrhages are distinctly characteristic of SBS. In other words, where the

facts fit the theory, accept them without any further medical investigation into

the cause.

 

Unfortunately, the medical professionals acting on behalf of the accused are

brought into the matter some time after the cremation or burial of a child or

sometimes the child is in other care, if injured. Because they have no access

after death/injury, it is impossible to request further specific analysis of

certain organs, blood testing, radiology screening etc., or to demonstrate that

other explanations may exist for the death/injury.

 

The Brain Journal of Neurology,1 in an introduction, says ‘The neuropathology of

inflicted head injury, whether adult assault or non-accidental injury (NAI) in

children, has not been fully studied.’ Until such studies are carried out and

published, the current medical opinion on the link between subdural and retinal

haemorrhages and SBS cannot be substantiated. If no medical literature is

available defining the affects of alleged ‘shaking,’ why are medical

practitioners and police personnel so determined to ignore other reasons for

death/injury?

 

In a recent SBS case in Western Australia,2 where a father was accused of the

murder of his son, Cameron Court, Scott J found the father ‘not guilty’. In the

judgment dated 3rd June, 2003, Scott J said:

 

‘I was not satisfied beyond reasonable doubt that the accused caused the death

of the deceased in the manner alleged by the Crown.

 

 

I also took into account the principle of law that I could only draw an

inference against the accused if it was the only rational inference that was

available on the evidence. That rule was of importance in determining whether

the Crown had proved beyond reasonable doubt the necessary intent for the

offence of murder. It was also important because this was a circumstantial

evidence case relying upon conclusions said to be available from medical

findings.

 

 

I was unable to conclude beyond reasonable doubt that the death of the deceased

was caused by the deceased being shaken by the accused in the manner alleged by

the prosecution. The evidence, which I have reviewed extensively in these

reasons, gave rise to considerable doubt as to whether shaking was the cause of

the death of the deceased. It was not necessary to consider the intent of the

accused further.

 

For these reasons I acquitted the accused of both murder and manslaughter.’

 

Application for Leave to Appeal was made on 23rd June, 2003 but this Application

has not yet been heard before the court and therefore it is not known at this

time whether an appeal will take place. The particulars of the appeal by the

prosecutors are as follows:-

 

‘(a) The expert medical opinion was that the child had died from a brain injury

due to trauma;

(b) The Respondent’s explanation did not account for the constellation of

injuries found on the deceased;

© The constellation of injuries found on the deceased was consistent only with

the Baby-Shaking Syndrome. The baby died as a result of being subjected to

acceleration/deceleration forces combined with rotational effect.’

 

 

In another SBS Australian case3 heard in 1998, a father was found ‘not guilty’

of manslaughter of his daughter, Rikki-Lee Walters. In the judgment dated 24th

March, 1998, Black A.J. said:

 

‘In my view, this is a case of circumstantial evidence and, accordingly, in

order to convict the accused I have to be satisfied not only that the

circumstances are consistent with the accused having committed the crime but

also that the facts are such as to be inconsistent with any other rational

conclusion. Before drawing an inference on the accused’s guilt from

circumstantial evidence, it is essential for me to be sure that there are no

other circumstances which would weaken or destroy the inference.

 

" Applying the above principles to the present case it means that in order to

convict the accused I would have to be satisfied first of all that the subdural

haemorrhage found in Rikki-Lee was caused by the accused violently shaking

Rikki-Lee in a way that a reasonable person in his position would have realised

that by doing so Rikki-Lee was being exposed to an appreciable or significant

risk of serious injury and that no other reasonably possible explanation for her

death exists. That would involve amongst other things my finding beyond a

reasonable doubt that the possibilities put forward by Dr. Kalokerinos and/or

Dr. Donohoe were not reasonable.

 

‘I did not form the view that either of those doctors was putting forward a

fanciful untenable proposition. Perhaps putting the burden the correct way I am

not satisfied that their evidence should be rejected as unreliable nor amI

satisfied that their propositions are unreasonable.’

 

Following the death/injury of a child and the subsequent police accusation of

SBS by a parent/carer, any severe adverse effect of vaccination is one medical

investigation that is not carried out by the prosecution medical team. If you

meticulously peruse past medical/hospital documentation of these children as

well as a health chronology prepared by parents since the birth of the child, a

high percentage have had serious adverse reactions to vaccines administered

prior to their death/injury. These vaccine adverse events, even though the

mechanism is sometimes uncertain, cannot be categorically denied as untenable by

the elected judges and juries who hand down decisions affecting the life and

freedom of others.

 

In the Walters case, vaccination was put forward as a possible case of death.

Dr. Kalokerinos in his evidence said ‘a possible cause of Rikki-Lee’s death

[was] of ‘Scurvy haemorrhages precipitated by Pertussis Vaccine’.

 

The fact that Rikki Lee had a bad reaction to vaccination was noted on the

Report of Death to the Coroner, dated 23 April, 1998: ‘The deceased received

two-monthly injections on Wednesday 19.4.98 at her three-monthly period because

she had been sick. The deceased then suffered a bad reaction to the injections,

however the mother did not return her to the Doctor – Signed by Police

Constable.’

 

It is noted that the medical practitioner said in a statement to police that at

the time of vaccination: ‘I cannot recall this consultation, however it is my

usual practice to OBSERVE the child and ask general questions as to the child’s

health. If the child had been obviously unwell with fever, the vaccination would

not have been ordered. Further, the child did not appear to have any physical

injuries or (to be) suffering from neglect and if the child had been I am aware

of the guidelines in relation to me contacting the Department of Community

Services. The child received vaccinations from nursing staff as this is usually

the normal practice at the centre.’

 

We know that the child was ill because both parents have alluded to this fact

when giving police statements. Did the medical practitioner give adequate

information to the parents on the risks and benefits of vaccination so an

informed decision could be made? The father alleged that the medical

practitioner in a consultation lasting 3 — 4 minutes: did not take any notes of

the consultation; did not examine the child for contraindications to the

administration of a vaccine; did not question the parents on the health of the

child and did not explain the risks and benefits of vaccination.

 

If the medical practitioner did not recall the consultation, how could he

remember whether there were any physical injuries or whether the child was

suffering from neglect? Remember, the doctor took no notes according to the

parents. The doctor made the statement: ‘If the child had been obviously unwell

with fever, the vaccination would not have been ordered’. We know, however, that

the doctor admitted only OBSERVING the child so how could he make a diagnosis of

whether the child had any contraindications for the administration of the six

vaccines?

 

In the medical diagnosis of subdural and retinal haemorrhages in any case of

death/injury of a child, police and investigators adopt the view that the

individual caring for the child at the time of the occurrence is the person

guilty of SBS. This causes distress and despair for the accused and their

family, if they are not guilty of any offence.

 

Law firms acting on behalf of accused individuals require medical professionals

who are not obedient or compliant to prevailing standards of the medical

rhetoric and investigation of SBS and who will look into all other possible

causes, including vaccination, of death/injury. It is therefore very important

for the worldwide networking of law firms and helpful medical professionals in

SBS cases.

 

Brain, A Journal of Neurology, Vol. 124, No. 7, 1290-1298, July, 2001.

The Queen —v- Craig Douglas Court — No. 28 of 2002, in the Supreme Court of

Western Australia, at Perth, Heard 19-23, 26, 28 & 29 May, 2003.

Regina —v- Scott Warren Walters — No. 70031 of 1996, in the Supreme Court

ofof New South Wales Criminal Division, judgment 24th March, 2998.

 

 

 

 

 

 

 

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