Pediatricians can protect children by offering ethical expert testimony in court
Sandeep K.Narang, M.D., J.D., FAAP
Pediatricians and the Law
Child abuse cases are plagued with extraneous theories and hypotheses for how injuries
occurred. These explanations, such as rare diseases and improbable mechanisms, often
are accepted as more likely etiologies than abuse.
Following are but a few examples. Unfortunately, they are not uncommon.
In a suspected abusive head trauma case, a 4-month-old who died had subdural hemorrhages,
severe retinal hemorrhages with retinoschisis, diffuse swelling of the cervical spinal
cord and rib fractures in different stages of healing. A pediatrician testified for
the defense that coughing and/or choking could explain the child’s subdural and retinal
hemorrhages. The pediatrician testified that “micro-aspirations of formula” could
result in “laryngospasm and bronchospasm,” which “could result in sudden death.” The
pediatrician attributed the healing rib fracture to an uncomplicated cesarean section
delivery four months prior and the fresh rib fractures to the CPR preceding the child’s
death. The defendant was convicted of serious bodily injury to a child, but the jury
deadlocked on the capital murder charge, and a mistrial was declared on that charge.
In another suspected abusive head trauma case (a child dependency hearing), a 4-month-old
had acute and chronic subdural hemorrhages, retinal hemorrhages, diffuse cerebral
edema and an unexplained femur fracture at 1 month of age. A pediatric neuroradiologist
provided a sworn report to the court that the acute/chronic subdural hemorrhages and
diffuse cerebral edema were “post-vaccinal sequelae” in the setting of “vitamin D
or vitamin C deficiency.” He attributed the previous femur fracture to that “nutritional
deficiency” as well. Fortunately, the court took protective custody of all children
in the home.
In a suspected child physical abuse case of a 2-month-old with facial bruising, facial
burns, a healing femur fracture and healing rib fractures, a pediatric orthopedic
surgeon provided a sworn report to the court that the healing fractures were attributable
to “accident.” The orthopedic surgeon affirmed that the father’s “stretching out”
of the baby’s legs at 3 weeks of age was a plausible accidental mechanism for the
femur fracture, and the father’s history of “grabbing the child and pulling her out
of the chair quickly/forcibly” was a plausible accidental mechanism for the rib fractures.
Based on these affirmations, the prosecutor accepted a guilty plea of “reckless conduct
— great bodily harm” (a Class 4 felony), and the father was sentenced to 30 months’
We all understand the “why” and the “how” of these happenings: emotional bias forged
in relationships with caregivers, philosophical denialism of the entity of abuse,
political dissatisfaction and mistrust of child welfare systems, and plain old pecuniary
interests. The difficulty for decades has been the solution.
Although many solutions for ensuring sound and ethical expert testimony have been
offered — from regulation by state medical licensing boards to individual actions
for malpractice — the most effective course has been when physicians resolve to act
at both the individual and collective levels.
As U.S. Appellate Judge Richard Posner once stated, “It is no answer that judges can
be trusted to keep out such testimony. Judges are not experts in any field except
law. Much escapes us … when a member of a prestigious professional association makes
representations not on their face absurd … the judge may have no basis for questioning
A growing number of professional societies have implemented a variety of mechanisms
for assuring ethical expert testimony, including witness precertification programs,
voluntary affirmation statements and disciplinary sanctions. Although these tools
are available, it is up to physicians to act. Pediatricians should be mindful that
the quality of testimony provided in child abuse cases not only can negatively impact
child protection, but it can tarnish the reputation of all pediatricians.
The Academy recently revised its policy statement Expert Witness Participation in Civil and Criminal Proceedings, http://bit.ly/2kLeMwh.The following are key provisions of that statement as they pertain to child maltreatment
The member will take all necessary steps to provide expert work that is relevant,
reliable, honest, unbiased and based on sound scientific principles.
The member will provide conclusions that are objective, valid and well-supported by
his/her clinical experience and the best evidence-based medical literature, regardless
of whether it is to be used by the plaintiff/prosecutor or defendant.
The member will testify to matters only within his/her expertise and refrain from
testifying to matters outside his/her expertise.
Members should testify in cases of abuse and neglect, especially if they have special
knowledge and/or extensive experience in the field. General pediatricians testifying
in these cases may wish to consult with subspecialists in child-abuse pediatrics.
The member will submit his or her testimony to scrutiny, if requested, by professional
organizations, hospitals, peer-review bodies and state medical and/or licensing boards,
The member will engage in contractual agreements for expert testimony/consultation
that are structured in a way that promotes fairness, accuracy, completeness and objectivity.
Pediatricians acting as experts in child abuse cases serve an important role when
they provide scientifically sound and unbiased testimony.
Dr. Narang is a member of the AAP Committee on Medical Liability and Risk Management.