When “I don’t know” makes you a liar, revisited

On the second day of client Stephanie Spurgeon’s hearing, we are reaching into our archives to a blog post that attorney Josh Tepfer wrote last year on a central issue in Stephanie’s case: shaken baby syndrome. Josh represents Stephanie, along with lawyers from the Innocence Project of Florida and the Wisconsin Innocence Project, who is fighting for a new trial for her wrongful conviction of the 2008 death of an infant who attended her in-home daycare. Her team of lawyers will be presenting evidence from scientific experts from around the country.  Stay tuned.

When a baby unexpectedly dies, people want an explanation. And when they look for an explanation, they turn to the omniscient doctor. Because doctors are smart—they went to school for a long time and understand really complicated things that make our non-doctor brains hurt.

But you know what might be the right answer when a baby unexpectedly dies: I have no idea. Or maybe: I have my theories, but they are just that—theories. Or: It could be abuse, or maybe an accident, or maybe a disease, or maybe something else.

When those are the right answer though, that doesn’t feel good. Because a baby died—and we want answers. And doctors should know the answers. Because doctors are smart.

Enter: Shaken Baby Syndrome (SBS).

SBS is a form of what doctors called Abusive Head Trauma (ABT). The theory arises from the claim that ABT causes a unique “triad” of symptoms, including cerebral edema (swelling of the brain), subdural hematoma (bleeding in the brain), and retinal hemorrhages (abnormal bleeding in the retina, or eyes). The additional claim is that when the subdural hematoma is “acute,” the medical community can conclude, with a reasonable degree of scientific certainty, when the abuse was inflicted. That is, there is a time stamp (or at least a range of time) on the abuse, and the doctors can reasonably conclude that whatever adult was caring for that child at the time inflicted the abuse.

ABT can, and is … diagnosed even when there are absolutely no external or structural injuries to the child. That is, no broken bones, no abrasions or contusions to the skin – not even a scratch… . [C]onvictions can occur where there are no eyewitnesses or additional testimony substantiating the abuse.

A growing contingent of doctors, however, have challenged the notion of SBS. This includes long-time proponents of the diagnosis who have reconsidered, including the pioneering doctor credited with pioneering the SBS diagnosis in 1971—Dr. Norman Guthkelch. These doctors question both the idea that accidents or disease cannot cause this triad of symptoms, but also, more fundamentally, whether shaking alone even can. It is not a denial of the existence of child abuse—nor is it a recommendation or a suggestion that it is a good idea to shake a baby. Ultimately, it is a conclusion by these doctors that they don’t know what happened—maybe the baby was abused, or maybe it fell, or maybe it had a disease or metabolic disorder, or maybe it had a bad reaction to a vaccine, or maybe it is something else altogether.

Dr. Wayne Squier was on one the doctors. She was willing to go on the record, repeatedly, to say I haven’t a clue why this baby died. For that, she lost her medical license.

Facing a British panel that consisted of a retired psychiatrist, a retired Royal Air Force wing commander, and a retired police officer, Dr. Squier was adjudicated a bad and dishonest doctor:

[T]he Medical Practitioners Tribunal Service (MPTS) in Britain has declared pediatric neuropathologist Waney Squier guilty of practicing outside her area of expertise, ignoring the opinions of her peers, and bringing the reputation of the medical profession into disrepute with her testimony and written opinions in a series of shaken baby cases she helped defend between 2007 and 2010.

This panel of non-medical experts found that any sanction short of loss of license was inadequate, because of Dr. Squier’s “repeated dishonesty” brought “the reputation [of] the profession into disrepute.”

A cadre of people continue to defend Dr. Squier, including human rights lawyer Clive Stafford Smith. Smith compared the findings of the British panel to the trials of Galileo—who had the temerity to question whether the Bible was based on faith and morals, rather than science.

Count me with the Dr. Squier defenders. Count me with them not because I have any better clue than any of you who is right in this medical debate. I’m just a run-of-the-mill lawyer. Count me with Dr. Squier’s defenders because I’ll stand by anyone who is willing to challenge conventional wisdom. And I’ll stand by anyone willing to say “I don’t know.”