There have been numerous advances in medical science in the last decade or so surrounding Shaken Baby Syndrome. See People v. Bailey, 144 A.D.3d 1562, 41 N.Y.S.3d 625 (4th Dept 2016). This article sets forth a “gameplan” for attorneys who defend against such actions in NY Family Court child welfare cases.
First, be sure to interview your client fully, asking questions just as:
• How long has the child been in his/her care?
• Was anyone else caring for the child in the previous 3 months?
• What symptoms did the child have?
If the child is not lethargic, be suspicious the child is suffering from SBS, which usually entails moderate/severe neurological trauma. Get the names of all facilities which treated child in (at least) the last 3 months, as well as names of all medical professionals who examined the child.
Review all pertinent caselaw in the area of SBS, as well as res ipsa cases. See, e.g., Matter of Marquis W., 269 A.D.2d 400, 702 N.Y.S.2d 870 2/7/00 (2d Dept); Matter of Sem J.B., NYLJ, 11/13/97 (Queens Fam. Ct., J. Friedman); see also Matter of Philip M., 82 NY2d 238, 604 NYS2d 40 (1993); Matter of Zachary MM, 276 A.D.2d 876, 714 N.Y.S.2d 557 (3rd Dept.); Matter of Jose Luis T., 81 AD3d 406 (1st Dept. 2011).
Read books written about Shaken Baby Syndrome - e.g., “Silenced Angels: The Medical, Legal & Social Aspects of Shaken Baby Syndrome,” “Shaken Baby Syndrome: A Multidisciplinary Approach,” and “Flawed Convictions: Shaken Baby Syndrome & the Inertia of Justice.”
Additionally, review the medical literature on the subject. The website “PubMed” and the National Child Abuse Defense & Resource Center are good resources.
Obtain Dorland’s Illustrated Medical Dictionary – familiarize yourself with the definitions of basic medical terms including those the medical records which you don’t know (it includes a pronunciation feature).
Consider getting a medical expert for the defense team. The expert may give you his/her take on SBS & the medical records and may assess the diagnosis- and may serve as a defense witness.
Demand the entire child welfare caserecord (see 22 N.Y.C.R.R. Part 428). Scour the caserecord for inconsistent statements by any testifying witness. It’s amazing how many statements are contained in the complete caserecord that never come into play at trial. Why? If CPS interviews a witness (especially a doctor) not called at trial, your antenna should go up. Ask why s/he isn’t on their witness list. Interview them yourself. If they refuse to speak, subpoena them for a deposition.
Consider subpoenas for medical records - don’t necessarily rely on what CPS is able to get; nor should you rely on what the reporting hospital says is the “Complete” medical record. While generally reports generated by the different departments within a hospital should find their way into the main medical file for a patient, sometimes they do not. Also, sometimes handwritten notes do not make it into the medical file.
There is no real need to file a motion to compel discovery. CPLR §3126 sanctions are highly unlikely to be granted in a child protective case. If CPS doesn’t produce the full caserecord, just send them a letter itemizing their production with the assumption you have everything. At trial, if they haven’t produced everything, make your preclusion motion.
Consider a motion in limine – i.e., seeking a pre-trial ruling on the admissibility of certain evidence. Many medical records cite to “tests” which were performed on the child but the actual test results are not contained in the medical records. Oftentimes one cannot determine from the medical records who performed the particular test, or the lab tech’s qualifications to perform the test, or indeed, whether the equipment was functioning properly at the time the test was performed. If this information cannot be gleaned from the medical record, then the argument is that the Judge will have to assume that the lab tech was not some college intern, but was actually qualified to perform the test, and that, for instance, the MRI machine wasn’t malfunctioning or in need of repair at the time the test was performed. Some Judges have granted this motion, others have not. But the point is – you plant the seed in their mind as to certain weaknesses found in the medical records. Having the Judge thinking the way you want him/her to think is nice. Furthermore, it also sets up a good argument on summation that the Judge should put little or no weight on test results in which the Judge has to assume critical elements of information supporting their validity.
The basic rule of cross-examining any witness should be applied to the medical expert. Lead the witness through your knowledge of SBS in general, based upon your research & consultation with your expert (e.g., “You would agree with me that . . .”). Also, set them up with questions such as “You would agree with me that a doctor should never render a definitive diagnosis without reviewing the full & complete medical records, right?” or “You would agree with me that, before rendering a definitive diagnosis, a doctor should take a thorough history of the patient?” or “& the reason you perform a full & complete history, and review the full & complete medical records, is because your diagnosis would be less valid if you did not, correct?”
Bottom line: control the witness – don’t let him/her control you. Always ask closed questions, don’t let the witness for DSS/CPS ramble on – interrupt them, if necessary (e.g., “thank you, doctor, but that wasn’t my question” or “thank you, doctor, I’ll accept the no”). Move to strike any testimony which doesn’t answer your question (i.e., when & if the doctor rambles).
In sum, if you are afraid to “take on” the doctor, do another area of law; it may take a full day or two to bring yourself up to speed regarding the medical literature, but it’s worth it for your cross, and it’s worth it for your client’s case.