Wednesday, 28 December 2016

A disreputable forensic pathologist     Part 2                                                       

This article is a very informative piece on Shaken Baby Syndrome as to what it is and how it can kill a baby

This is the continuation of the story of Dr. Charles Smith. In Part 1, I wrote about his background including his multiple failures as a pathologist. In this article, I am writing about one of the families he destroyed because of one of his screw ups as a forensic pathologist.

Dinesh Kumar (an immigrant from India) was at home in Toronto with his wife and their two sons. At around midnight, their five weeks old baby boy, Gaurov woke up crying.  Dinesh fed him milk from a bottle, burped him and placed him back in his crib where he then fell asleep.  At 12:30 a.m., Gaurov woke up with a scream.  His father picked him up again and realized his young son was not breathing and was turning blue.  He told his wife something was wrong.  Dinesh gave Gaurov CPR including mouth to mouth.  Gaurov was still not breathing.  Dinesh called his brother-in-law to ask him what to do (Dinesh being a recent immigrant didn’t understand the 911 system).  His brother-in-law told him to call 911.  Although neither Dinesh nor his wife spoke English very well however, they both spoke to the emergency operator and soon after emergency personnel arrived at their home. Mrs. Kumar’s brother and sister-in-law also arrived.

The aunt was seen by emergency personnel to give Gaurov “three to four good hard shakes but not a violent shakes. Emergency personnel then took over and administered first aid to Gaurov.  He was taken to the Scarborough Centenary Hospital and his breathing was restored.  Dinesh explained to the physician as best he could what had happened.  Gaurov was diagnosed by Dr. Beaulieu as having suffered from “cardiorespiratory arrest secondary to a choking spell. A secondary diagnosis was also provided and determined as anemia of unknown etiology, possible central nervous system haemorrhage. There was no real possibility of the baby recovering.

Gaurov was transferred that same morning to the Toronto Hospital for Sick Children and put on life-support.  On Friday, March 20, 1992, the life support was removed and Gaurov died since there was no possibility that the stricken baby could ever recover.

Enter Dr. Charles Smith

On March 21, 1992, the day after Gaurov’s death, Dr. Charles Smith conducted the autopsy at the Hospital for Sick Children.  He found extensive haemorrhaging within the brain, behind both retinas and around the spinal cord.  It was his opinion that these critical medical abnormalities had all the earmarks of injuries sustained after an episode of Shaken Baby Syndrome. Dr. Smith solidified his opinion after conducting further tests, declaring that the injuries were definitely not accidental in nature and because of the absence of external trauma, (injuries) the injuries were seen were consistent with Shaken Baby Syndrome. Additionally he explained that the injuries were probably a result of continuous shaking as opposed to a single violent shake.

In his post-mortem report, Dr. Smith also noted an old chronic subdural (area inside the brain) hematoma (bleeding from a ruptured blood vessel) in the occipital lobe (located in the back of the skull), the tentorium cerebelli (an extension of the dura on which the lobes rest) and the cervical cord, which he wrote “may have been as old as five weeks i.e. as a result of birth trauma”.  Dr. Smith certified the cause of death as “Head Injury”. 

Dr. Dirk Huyer, a physician who was a member of the Suspected Child Abuse and Neglect Program (the SCAN unit) at the Hospital for Sick Children agreed with Dr. Smith’s conclusion.  Unfortunately, Dr. Huyer had no training in pathology so he was unqualified to agree with Dr. Smith’s prognosis which at best was an informed guess.

Dinesh later explained that after Gaurov’s death, he and his wife were very sad and devastated. He said he cooperated with police because he wanted to know why Gaurov died. He was shocked when he was arrested, and felt confused, frightened and ashamed before his family and the community.

On June 26, 1992, Dinesh was charged with second degree murder.  He was released on bail on July 10, 1992.  He was represented by Mr. David Gorrell and Mr. Dhaman Kissoon. In preparation for trial, the defence retained a hospital pathologist, Dr. Jay Naidoo of the Queensway General Hospital, to review Dr. Smith’s findings.  Alas, Dr. Naidoo had no training in forensic pathology.  He verbally advised Mr. Gorrell that he agreed completely with Dr. Smith’s conclusions of baby-shaking, and consequently he was not asked to provide a written report. Dr. Naidoo was also not qualified to agree with Dr. Smith’s prognosis.

 The first thing that comes to my mind is why these two lawyers didn’t use the services of qualified pathologists to dispute Dr. Smith’s prognosis rather than call upon two doctors that weren’t qualified to agree or dispute Smith’s prognosis.

Unexpectedly, the Crown offered to withdraw the second degree murder charge if there was a plea to criminal negligence causing death. Subsequently, on December 3, 1992, Dinesh entered a guilty plea before Justice Ormston J. of the Provincial Court (Criminal Division) on a new Information alleging Criminal Negligence Causing Death.  Justice Ormston accepted a joint submission on sentence and sentenced Dinesh to 90 days imprisonment to be served intermittently, (weekends) followed by two years’ probation. 

By 2005, the existence of serious and disturbing errors in several criminal investigations  into suspicious deaths involving children had been confirmed. While there appeared to be significant problems in the entire system, the majority of cases being re-investigated involved those for which Charles Smith, of the Hospital for Sick Children in Toronto, had provided his expert opinion.

In response to the very shockingly large number of wrongful convictions  (for murder, sexual assault, and infanticide, to name but a few), the provincial government directed that an inquiry be held to determine the state of the Forensic Pathology system in Ontario. The goal of this inquiry was to come up with suggestions to improve the system, which the province was capable of implementing, in order to ensure that these errors would not be repeated.

The Inquiry into Pediatric Forensic Pathology in Ontario, commonly known as the Goudge Inquiry, (headed by Justice Goudge) was created to address serious concerns over the way criminally suspicious deaths involving children are handled by the Province of Ontario in Canada. The inquiry was primarily created as a result of evidence that arose in regards to discredited pathologist Charles Smith’s many mistaken prognosis.

Explanation for the Guilty Plea

Mr. Gorrell testified at the Inquiry into Paediatric Forensic Pathology (the Goudge Inquiry), that Dinesh had maintained his innocence from the outset of his case, until the day he attended Mr. Gorrell’s office to provide him with written instructions to the contrary, and to accept the Crown’s offer. Mr. Gorrell prepared a plea “Direction for the appellant.” He believed that one of the main reasons Dinesh pleaded guilty may have been to ensure that his family could remain together, and to avoid losing custody of his surviving son forever.   He further noted that the appellant ran the risk of deportation had he been convicted of second degree murder or manslaughter and he so advised the appellant to settle for the lessor crime.

In my opinion, it is conceivable that had Dinesh been convicted of any of the more serious crimes, his fears may have actually occurred.

He was told that he would be deported if convicted of murder or manslaughter but assured that the police would not report his case to immigration if he accepted the plea. Dinesh later explained how the plea would alleviate many pressures for him and his family. At the time, his wife was recovering from surgery and could not cope alone with an infant and no income. The family was afraid of the murder charge, and his defence counsel told him there was no way to challenge the testimony of Dr. Smith. They wanted to put the charge behind them. So after much discussion with his family, Dinesh decided to plead guilty even though he maintained that he never harmed Gaurov in any way. Importantly, his probation order did not prevent him from seeing Saurob.

In 1991, his son Saurob also had an experience as an infant, similar to what happened to Gaurov, fainting suddenly and turning blue.  Three weeks after Saurob’s apprehension by the Children’s Aid Society, CAS authorities placed him in the care of Veena’s brother. Neither Dinesh nor his wife was allowed to be alone with Saurob. After Dinesh was released on bail, one of the conditions of his release was that there was to be no contact with Saurob except in the presence of a CAS supervisor. Saurob was returned to his mother following a family court proceeding on July 2, 1992.

This matter involving Dr. Smith came to light again during a review between 2005 and 2007 by the Office of the Chief Coroner of Ontario of criminally suspicious and homicide cases in which Dr. Charles Smith performed an autopsy or provided an opinion.  The results of the review were announced in April 2007, and this case was identified as one of twenty where the external reviewers had significant disagreements with Dr. Smith’s opinion.  The reviewer, Dr. Helen Whitwell, a forensic pathologist and neuropathologist from the United Kingdom, concluded in her Autopsy Report Review Form dated December 5, 2006, that while the opinion provided by Dr. Smith was in conformity with accepted opinion in 1992, it would not be the usual view of the UK forensic pathologists now[although it may well still prevail with the paediatricians.” 

The Chief Coroner’s review eventually led to the Inquiry into Paediatric Forensic Pathology conducted by Justice Goudge  The Inquiry retained Dr. Whitwell to provide a more detailed medico-legal report of Gaurov’s death, and testify before the inquiry.  Dr. Whitwell identified a number of issues of potential concern in this case, but did not provide a conclusion about the cause of death, recommending that this case be referred for review.  The issues she flagged as concerning were as follows:

First, the significance of the old subdural hemorrhage was likely an injury from birth, and the question of whether or not re-bleeding can occur, and, if so, how much force, if any, may be necessary to determine.

Second, the possibility that resuscitative shaking could have caused damage, particularly in the context of a chronic subdural hemorrhage.

Third, whether baby Gaurov even had the so-called triad of signs (subdural hemorrhage, retinal hemorrhage (in the eyes), hypoxic-ischemic encephalopathy (brain injury due to asphyxia. Birth asphyxia causes 840,000 or 23% of all neonatal deaths worldwide.

Following the Inquiry. Dinesh brought an application for an extension of time to appeal his conviction.  With the consent of the Crown, his application was granted. The case ended up in the Ontario Court of Appeal.

Crown Experts testifying after the Goudge Inquiry

The Crown retained two experts to explore the issues identified by Dr. Whitwell, and to reconsider the case in light of current medicine:  Dr. Michael Pollanen, the Chief Forensic Pathologist for Ontario, and Dr. William Halliday, a paediatric neuropathologist who currently works at the Hospital for Sick Children.

  In a lengthy report, Dr. Pollanen provided a helpful review of the diverse views concerning the validity of Shaken Baby Syndrome.  He said that there are a number of controversies surrounding Shaken Baby Syndrome.  Most prominent is the meaning that should be attached to the triad of symptoms considered to be indicative of SBS:  thin film subdural haemorrhage (SDH), widespread bilateral retinal haemorrhage (RH), and hypoxic ischemic encephalopathy (HIE). 

He said that in the early 1990’s, when the autopsy was conducted in the Kumar case, the findings were widely accepted to be diagnostic of non-accidental head injury.  In effect, the infant had been shaken to death with such force that any normal adult would realize that the infant would be seriously injured.   The current view of forensic pathologists, although not necessarily clinicians, is that the triad is at worst suspicious, but can no longer be considered absolute proof of traumatic head injury in the absence of other evidence.  There are some experts who hold the view that, in fact, there is no such thing as shaken baby syndrome since it is impossible to apply sufficient force to an infant by shaking without there being other injuries, such as trauma to the spine and neck areas.

Dr. Pollanen added that the role played by evidence of the triad and SBS in convictions of caregivers has been examined at length on two occasions by the England and Wales Court of Appeal, (Criminal Division) in R. v. Harris, [2005] and R. v. Henderson, [2010]. That court having heard extensive evidence from many of the leading experts noted the evolution of thinking about the triad and SBS.  In Henderson, the most recent case, the court made the important point that the courts cannot finally resolve a medical controversy: “the conclusion of any court as to the medical evidence, whether at first instance or on appeal, is dependent upon the evidence before that court.” unquote

The court of appeal stated “The comments of Dr. Pollanen were particularly apt in the Kumar case.  The issues of the triad and SBS were not fully argued before the court during the trial because the Crown conceded that the appeal must be allowed.  The fresh expert evidence, which we describe in greater detail below, provides a basis for finding that the conviction in this case was unsafe without having to resolve any controversy about SBS.

Dr. Pollanen had previously noted that Gaurov (the deceased baby) had no scalp injuries, no skull fracture, and no diffuse or traumatic axonal injury (forms of severe damage to nerve cells (axons) in the brain caused by force).  With respect to the triad, Dr. Pollanen further noted that in Gaurov’s case, retinal haemorrhages had not been observed when Gaurov’s eyes were first examined on arrival at the hospital. He hypothesized that the retinal haemorrhages developed later due to raised intracranial pressure from hypoxic-ischemic encephalopathy, rather than shaking.  He excluded resuscitative shaking (as may have been observed by the emergency personnel firefighters who first attended) as the cause of the injuries to the brain since the infant was already “dead” at the time of the shaking.

Dr. Pollanen concluded that he was unable to establish that Gaurov was killed by shaking, and that although there are medical findings that could be interpreted as evidence of shaking or head injury, those findings were not sufficiently determinative of that conclusion given the current state of medical and scientific literature. Dr. Pollanen also cautioned that the science of paediatric head injury is still evolving, and that his views as described in his report are based on past and current literature, and may well be assessed differently in the future.  Dr. Pollanen suggested that other experts should be consulted in other areas including neuropathology, child abuse paediatrics, neuroradiology, ophthalmology and biomechanics.

Dr. Halliday disagreed with Dr. Pollanen’s opinion that the retinal haemorrhages were likely not present on initial examination at the hospital.  He believed that they were there but not seen by the examiner.  Further, in his opinion, the likely birth-related old subdural haemorrhage “does not offer any particular insights” to the case.

Dr. Halliday wrote that the evidence would cause a physician to be “very suspicious” that the Kumar case represents a case of non-accidental head injury or abusive head trauma (modern terms for Shaken Baby Syndrome). He explained that today, the finding of the “triad” is considered to be suspicious, but not pathognomonic (necessarily characteristic) of abusive head injury. He also noted that the fact that his aunt shook Gaurov after he had collapsed added complexity to the case, since the autopsy would reflect that event as well.  Dr. Halliday concluded that, in the particular circumstances of the case, the cause of death is undetermined.

Following receipt of the Crown reports, Kumar retained three experts, Dr. Chris Van Ee, a biomechanical engineer from Michigan, Dr. Jan Leetsma, a neuropathologist from Chicago, and Dr. Waney Squier, a neuropathologist from Oxford. 

   Dr. Van Ee’s expertise did not enable him to provide an opinion as to the cause of death for Gaurov, but he was able to provide an opinion on whether shaking could have caused Gaurov’s head injuries. In his report, Dr. Van Ee explained that severe rotational acceleration/deceleration forces can cause subdural bleeding.  Dr. Van Ee reported that science does not support Shaken Baby Syndrome theories for two reasons: (a) shaking by a human cannot alone cause head injuries in a normal baby, (b) vigorous shaking of a baby would generally result in trauma to the spine and neck areas; injuries that have not been historically observed in suspected Shaken Baby Syndrome cases.
Dr. Van Ee noted that Gaurov did not have any notable chest or neck injuries. He concluded that in light of all the facts, in his opinion there was no bio-mechanical evidence that Gaurov’s injuries were caused by shaking.

In his report on Gaurov’s case, Dr. Leestma discussed his own research as well as that of others that has discredited the Shaken Baby Syndrome. He stated that based on today’s science, Shaken Baby Syndrome must remain an unproven hypothesis with no scientific, medical or legal significance.

Dr. Leestma reviewed the circumstances of Gaurov’s death and concluded that he likely died as a result of his birth injury (increased intracranial pressure caused by chronic subdural fluid collections with recent bleeding) and not from abusive head trauma whether with or without shaking. He noted that while nonaccidental injury cannot be excluded, there is no positive evidence for it. A defensible and logical conclusion is that the child died from natural disease processes and their complications.

In her report, Dr. Squier noted that Dr. Smith’s diagnosis seems to have been based on the triad of subdural haemorrhages, retinal haemorrhages and brain swelling.  Dr. Squier spent some time in her report reviewing the causes of the triad, both natural and non-accidental.  In her view, the presence of Gaurov’s old and chronic subdural haemorrhages was “very significant”.  She noted that birth-related subdural bleeding is common and that re-bleeding is commonly seen by microscopy in any baby with a chronic subdural membrane. This re-bleeding results from the vulnerability of the thin walled vessels in the membrane to leaking and bleeding, which may occur without trauma.
Dr. Squier concluded that the evidence indicates Gaurov developed a subdural haemorrhage at birth.  Neuropathological observations are those of fresh bleeding into an older, healing subdural membrane consistent in appearance with having originated at birth. The history suggested that the baby choked and may have aspirated vomit or milk. (went into the baby`s lungs)  Choking could have been initiated by a seizure or have been a spontaneous event in the baby compromised by the presence of a healing subdural membrane. She concluded that there were no features which indicate violence or inflicted injury on the baby.

As a result of these expert reports the Crown’s position was that the prosecution  could no longer establish a cause of death, let alone a homicidal cause of death.  Given that the Crown’s case relied entirely on medical evidence and Kumar had explained his guilty plea, the Crown conceded that the conviction was unreasonable and should be set aside and an acquittal entered.

Counsel for Kumar submited that the fresh evidence had explained the guilty plea and that Kumar should be permitted to withdraw the plea to avoid a miscarriage of justice.  The fresh evidence also established that the science concerning SBS and the triad has evolved to the point where the conviction, which was based solely on expert evidence, was unreasonable.  The lawyer for Kumar further and submitted that looking at the other circumstantial evidence, it was clear that Kumar did not cause the death of his child.

Based on the record presented in this case and given the concessions by Crown counsel, it is sufficient to say that the appellant’s conviction is unreasonable.  There is no circumstantial evidence to support a finding that the appellant was responsible for his child’s death and the medical evidence is inconclusive.  What evidence there is shows the appellant to have been a loving parent who pleaded guilty because of the enormous stress he was under at the time.  As appellant’s counsel put it in their factum, the pressure proved too much.  A portion of the appellant’s affidavit puts the matter well:

My family, including my wife, wanted me to accept the Crown’s offer.  My wife was still recovering from her surgery and could not cope alone with one infant and no income.  We all wanted to put my charge behind us.  We were all scared of the murder charge.  My lawyer told me that we did not have any way to challenge the testimony of Dr. Smith.  So I agreed, after much discussion with my family, to plead guilty as I did.  It was the hardest decision I ever had to make.  I do not want my guilty plea to ever be interpreted to mean that I did anything to harm Gaurov.  I did not.  My wife knows this too.

Appeal courts generally aren’t willing to consider reversing guilty pleas by defendants but in this case, the Court of Appeal was willing to do so. This is what the court said in accepting his appeal to reverse his guilty plea.

“Even though an appellant’s plea of guilty appears to meet all the traditional tests for a valid guilty plea, the court retains a discretion, to be exercised in the interests of justice, to receive fresh evidence to explain the circumstances that led to the guilty plea and that demonstrates a miscarriage of justice having occurred.  In our view, this is one of those cases.  The circumstances are compelling.  At the time he pleaded guilty, the appellant was facing a charge of second degree murder.  He was relatively new to Canada and was unfamiliar with the language and the legal system.  At the time of the infant’s death, his wife had just returned from hospital after major surgery for a brain tumour.  He was facing loss of his liberty for at least ten years, loss of custody of his remaining child and deportation.  Competent counsel had been unable to obtain opinion evidence to refute the opinion of the then leading expert in the province that the appellant had intentionally caused the death of his child.  Like in Hanemaayer, (a similar case) the appellant faced a terrible dilemma.  The justice system now held out a powerful inducement: a reduced charge, a much-reduced sentence (90 days instead of a minimum of ten years), all but the elimination of the possibility of deportation, and access to his surviving child.” unquote

The three-member panel of the Court of Appeal  after having studies all the reports said;  To hold the appellant `(Kumar) to his guilty plea in these circumstances and given the fresh expert evidence, would constitute a miscarriage of justice. Accordingly, the fresh evidence is admitted, the guilty plea is set aside, the conviction is quashed and an acquittal entered. 

In 2008, Mr. Justice Stephen Goudge concluded that Dr. Smith was an arrogant, unqualified pathologist whose biased, inconsistent and unprofessional testimony precipitated a string of wrongful murder charges and convictions against innocent people.

In his report, Judge Goudge also singled out the province of Ontario for blame, saying that top officials in the Office of the Chief Coroner developed a "symbiotic relationship" with Dr. Smith that led them to shield him for years from the scrutiny he so desperately required.

Judge Goudge recommended that Ontario look into providing swift redress for people who, "through no fault of their own ... suffered tragic and devastating consequences."

The Ontario government announced in August 2016 the long-awaited compensation for victims of the province's forensic pathology scandal. People who were charged or convicted in 19 cases based on erroneous evidence from disgraced pathologist Charles Smith are eligible for "recognition" payments of up to $250,000, Attorney General Chris Bentley announced.

Children who were removed from the homes of their accused parents will get up to $25,000. Family members affected by their relatives' involvement in the criminal justice system will receive up to $12,500. Legal costs may also be reimbursed.

Mr. Bentley said the compensation does not affect victims' rights to pursue civil claims. But if victims receive other government awards, the province will deduct the amount of their "recognition" payments.

Prior to the early 1970s, victims of wrongful convictions would receive nothing from the government in the form of restitution. In 1969, a task force was created in Ontario that was to advise the government if compensation should be given to persons wrongfully convicted of crimes they didn’t commit.

The task force comprised of three members of the Ontario legislature, three law professors, two judges of the criminal court, the chairman of the Ontario Law Reform Commission, the crown attorney for the city of Toronto, the first director of Ontario legal aid and four criminal lawyers, in which one later became the first Ombudsman for Ontario, the second one later became a member of the Supreme Court of Canada, another became the chief justice of Ontario and the fourth became a member of the federal court of appeal. What they lacked was a chairman. I was chosen to be their chairman of their task force.  

It took me several months in 1971 to prepare our findings and before I submitted it to the government, I was a guest speaker at a national crime conference held in Ottawa, Canada’s capital. The topic of my speech was Compensation for innocent people convicted of crimes. It took several years before compensation was awarded to innocent people who had been convicted of crimes they didn’t commit however when one of my members later became the Attorney General of Ontario, compensated to innocent people began. Soon awards were given to innocent people all over Canada. One man who spent 24 years in prison for a murder he didn’t commit was awarded ten million dollars tax free.

I hope you have enjoyed reading this article. 

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