Child Abuse or Misdiagnosis? Lawyer Wins Acquittal By Raising Alternate Cause For What Looked Like Shaken Baby Syndrome---The New Jersey Law Journal

October 26, 1998

By Henry Gottlieb Joseph Krakora,

a New Jersey lawyer with a knack for winning acquittals for seemingly guilty clients, is one of the first lawyers in the nation to successfully raise the defense that a DPT vaccination was responsible for what looked to prosecutors like shaken baby syndrome. Krakora triumphed for William Carey of Whitehouse, who was tried for endangering a child’s welfare in particular, causing brain damage to his 5 month old son Ryan by shaking him violently. Now three, Ryan is severely developmentally delayed and it’s too early to determine how well he will function. No one saw Carey shake the infant, and there was no testimony that he was anything but a model father. But the prosecution presented medical evidence that shaking was the injury’s only possible cause for the injuries. Most damaging to the defense was evidence that Ryan suffered retinal bleeding, which occurs in 90 percent of shaken baby cases, but rarely otherwise. Krakora, a former assistant deputy public defender now in private practice, countered with the theory that Ryan’s injuries were caused by a pre existing medical condition that wasn’t discovered until the child had an adverse reaction to a vaccination against diphtheria, pertussis and tetanus. The defense worked. On Sept. 29, a Hunterdon County jury found Carey not guilty, putting Krakora in the company of a small group of lawyers in Oklahoma, Minnesota and New York who have used DPT shot evidence to undermine shaken baby prosecutions. Their results have intensified the debate over the reliability of shaken baby syndrome diagnoses as evidence in criminal cases. "This was one of the first cases of its type, and I don’t know of any on the appellate level," says Rob Parrish, chief child abuse counsel in the Utah Attorney General’s Office and one of the organizers of last month’s Second National Conference on Shaken Baby Syndrome, in Salt Lake City. The meeting attracted hundreds of doctors, lawyers and child welfare experts. One of the attendees, pediatric surgeon Anthony Shaw of Pasadena, Calif., who has written about shaken baby syndrome and DPT shots, says the evidence against Carey seemed to point to the syndrome, "but I think they had a good defense lawyer." A RECORD OF RAISING EYEBROWS Before becoming of counsel in 1996 to Schenck, Price, Smith & King of Morristown, Krakora had a series of eyebrow raising victories as an assistant deputy public defender in Essex County. In 1989, he convinced a jury that a man who shot his sleeping son at point blank range was acting in self defense; in 1992, he won an acquittal even on misconduct charges by arguing entrapment on behalf of a state trooper who admitted participating in a drug deal. In 1995, his cross examination of the prosecution’s chief witnesses was credited by jurors as the crucial element of his win for a murder suspect who risked a trial only because the prosecutor wouldn’t let him plead guilty and go to jail for 30 years. In the Carey case, though, the prosecution’s evidence made a harder target: competent doctors and a compelling body of medical research. "In terms of the type of evidence that we had to deal with, this was more like a medical malpractice case than a criminal trial," Krakora says.

On March 22, 1996, Carey was at home, off duty from his job as an officer in the Union County Police Department, when he called 911 to summon an emergency medical team. His son, for whom he was caring while his wife was at work, had suffered a violent seizure, Carey told the ambulance crew. The boy was taken to Hunterdon Medical Center in Flemington and later to Robert Wood Johnson University Hospital in New Brunswick. Three pieces of information that emerged during the crew’s response later became relevant. First, Carey was asked whether he had shaken the baby. He said no. Second, Carey told them that Ryan had received a DPT shot earlier in the day. Third, one of the workers found Carey’s behavior suspicious. Unlike most parents who refuse to let a sick child out of their sight, Carey refused to go to the hospital with Ryan. Instead, while the team took Ryan to the hospital, Carey waited at home until his wife arrived from work, and then they went to the hospital together. Notes by the crew and one of the first doctors who examined Ryan mentioned Carey’s reference to the DPT shot, but within a couple of days, a sinister consensus emerged among doctors who examined the child and gave him a dozen tests from a culture of his blood to a magnetic resonance image of his brain. Robert Wood Johnson doctors Elaine Donoghue, an expert on the symptoms of physical abuse, and Mark Engel, a pediatric ophthalmologist, concluded that Ryan was suffering from shaken baby syndrome. BRAIN AND RETINA DAMAGE Shaken baby syndrome is an umbrella term for the symptoms that occur when an infant is held firmly by the rib cage and shaken back and forth. Babies have more fluid between their brain and skull than do adults or older children, so the violent shaking causes the brain to move at a slower rate than the skull itself and the brain hits against the skull. Similarly, the child’s retinas are damaged by the bumping of the eyes in their sockets. Shaking a baby can cause rib injuries, brain damage and death. Even absent an eyewitness to the abuse, there have been diagnoses and criminal charges based on testing that showed bleeding in the brain and eyes. The most famous conviction was last year, against Louise Woodward, the English nanny accused of shaking an 8 month old Boston boy. That child died, and Ryan Carey didn’t, but Carey had the bleeding and neurological damage associated with classic shaken baby syndrome, the prosecution alleged. Under direct examination by Assistant Prosecutor Marcia Crowe, doctors Donoghue and Engel testified at Carey’s trial that they considered other possibilities. But as Donoghue put it, Ryan’s injuries were "all consistent with shaken baby syndrome" and she believed in her diagnosis "to a reasonable degree of medical certainty." And there was no dispute that Carey had been Ryan’s only care giver on the day he suffered the brain damage. LINK BETWEEN SYNDROME AND SHOT A family court judge certainly believed the medical testimony. In 1996, acting on an application by the Division of Youth and Family Services, Hunterdon County Superior Court Judge Edmund Bernhard transferred custody of Ryan to a relative of the Careys and ruled that Ryan could never be alone with his parents, even his mother, Helen, who insisted her husband was innocent. From the start, Krakora’s defense focused on the DPT shot, which had been administered earlier in the day of Ryan’s seizure. For years, medical experts have been observing a relationship between shaken baby syndrome and DPT vaccinations, but it has been a perverse link. As millions of parents know, DPT shots can cause fever and pain so severe that children will wail for hours the kind of crying that can drive a frustrated parent to shake a baby. Pediatric surgeon Shaw says doctors who administer DPT shots should give explicit warnings to parents not to let reactions to DPT shots lead them to abusive behavior. But Donoghue and University of Utah doctor Marion Walker, another prosecution expert in the Carey trial, testified that there is an overwhelming consensus among doctors in the field that although a DPT shot can cause fevers, which can lead to seizures, there is no causal link between DPT shots and the bleeding symptoms associated with shaken babies. PLANTING DOUBT Krakora’s defense was more subtle than a direct assertion that the bleeding and neurological injuries were caused by the DPT shot. He argued that Ryan suffered from a previous neurological condition that mimicked shaken baby syndrome, which was discovered and misdiagnosed as shaken baby syndrome after Ryan’s adverse reaction to the DPT shot. Ryan’s medical history was Krakora’s best ammunition in instilling a sense of reasonable doubt in the shaken baby syndrome diagnosis. First, at birth, Ryan had respiratory problems attributable to his delivery by Caesarean section, and he was given oxygen. Second, from the time of his birth, the ratio of Ryan’s head size to body size was so high, it was "off the charts" in terms of what is considered normal. The Careys and their pediatrician, Durga Gaviola of South Plainfield, had discussed the possibility of a CAT scan to determine whether the head size was caused by an abnormality, but the scan was never performed, Gaviola testified. Third, at the age of 2 months, Ryan had been hospitalized for three days because of uncontrollable, projectile vomiting. Gaviola testified for the prosecution that none of Ryan’s previous problems indicated he had a neurological problem that could have caused bleeding in the brain. But during cross examination of Gaviola, questioning of his own expert witness on DPT vaccines, Mark Geier, and in his openings and summations, Krakora trumpeted the notion that all the problems should have been a tipoff that Ryan should not have been given the DPT shot. Doctors are almost universally insistent on administering such shots, particularly because pertussis, better known as whooping cough, is usually fatal. But there are side effects to the vaccination, and Shaw says doctors are cautious about giving DPT shots to children with some conditions, particularly children who are subject to seizures. Krakora presented evidence that Ryan’s medical history particularly his head size and his hospitalization for projectile vomiting 3 months before his seizure made him a bad candidate for the DPT shot. And the evidence of cranial bleeding that looked like shaken baby syndrome symptoms could have been caused by a number of other causes, such as pressure on the brain. After the acquittal, Krakora said his largest fear was the damage done to his case by pediatric ophthalmologist Engel. There was no strong medical evidence on the defense side to refute the tests that showed retinal bleeding, that most conclusive evidence of shaken baby syndrome. "I was surprised that the prosecutor didn’t make more of that testimony in her summation," Krakora says. Crowe declines to comment. For Carey, the acquittal is worth more than vindication. He has regained custody of Ryan and he has been reinstated, with more than a $100,000 in back pay, as a Union County police officer. An open question is whether a malpractice action could be brought. Given Krakora’s victory on the theory that a pre existing condition, exacerbated by the DPT shot, could have been diagnosed if a CAT scan had been ordered, doctors could be a target of such a suit. But so could Ryan’s father. After all, there was plenty of evidence and the standards of proof are a lot easier in a civil trial that Ryan suffered from shaken baby syndrome at the hands of his father. Krakora declines to comment on the possibility of future litigation.