Bad Medicine Parents the State and the Charge of “Medical Child Abuse”

232 University of California, Davis [Vol. 50:205
Pediatricians who specialize in child abuse have been central to the
rise of these charges. Hospitals began to hire these specialists in the
1970s to detect child abuse, rather than to treat their own patients. 118
While they once focused on evaluating bruises and broken bones, they
have now installed themselves as central to the process of detecting
MCA. 119 One report from this group states that it is important
“[w]henever possible, [to] have a pediatrician with experience and
expertise in child abuse consult on the case, if not lead the team.” 120
This protocol inserts child abuse pediatricians into complicated
medical cases in which they sometimes assert the presence of MCA
over the objections of the child’s treating doctors — often experienced
rate of 8%.” Id. Mary Sheridan’s article, which used the same methods to update
Rosenberg’s findings, and calculated a 6% mortality rate, as the author herself notes, is
vulnerable to the same criticism. Sheridan supra, at 433 (noting that “some cases may
be duplicates”). Furthermore, the third case study, by McClure et al., does not focus
on MSBP behavior alone, but also on cases of non-accidental poisoning or suffocation.
McClure et al., supra note 113. Although the study finds significant overlap between
cases of MSBP behavior and cases of non-accidental poisoning and suffocation, it
notes some number of cases in which there is no overlap. Id. at 59. The authors
reports that eight children died in the course of the study, all from suffocation or
poisoning, but does not state which, if any, of these cases were deemed MSBP, rather
than suffocation or poisoning alone. Id. at 60. The result is that no death rates from
MSBP can be reliably calculated from these data. The study could perhaps more
plausibly be cited for the proposition that MSBP was not likely to be fatal in the
absence of the parent using suffocation or poisoning to induce illness.
Even if each of these studies did not possess these specific flaws, as both Loren
Pankratz and Eric Mart have convincingly shown, all existing studies on MSBP
mortality rates, including those cited in the AAP Report, share the same general
methodological flaws. First, the mortality rates were drawn from doctors’ reports or
case studies of MSBP, and were never independently confirmed to be MSBP. Given the
many cases of organic illnesses known to have been falsely diagnosed as MSBP during
this era, see supra notes 48–49 and accompanying text, this is not an insignificant
problem. Second, the published case studies, even assuming they truly involved MSBP
behavior, are likely the most serious of MSBP cases; the mortality rate of these cases
would not be representative of the mortality rate generally for MSBP behavior. See
MART, supra note 37, at 34; Pankratz, Separation Test, supra note 47, at 311-13.
118 The identification of child abuse as a subject for pediatric concern is often dated
back to the publication of two papers by C. Henry Kempe and his colleagues. See C.
Henry Kempe et al., The Battered Child Syndrome, 181 J. AM. MED. ASS’N 17 (1962); C.
Henry Kempe et al., Marginal Comment, Unusual Manifestations of the Battered Child
Syndrome, 129 J. AM. MED. ASS’N 1265 (1975); see also Steven C. Gabaeff, Exploring the
Controversy in Child Abuse Pediatrics and False Accusations of Abuse, 18 LEGAL MED. 90
(2016) (describing the coalescing of this group of physicians). Child-abuse pediatrics
has only been a board-certified subspecialty since 2009.
119 2007 AAP Report, supra note 54, at 1029.
120 Id.