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

236 University of California, Davis [Vol. 50:205
this new subspecialty, in the words of Dr. Eli Newberger, a
pediatrician who founded the child protection team at Boston
Children’s Hospital in 1970, but now acts as an expert witness on
behalf of parents, “enormous and really unchecked power.” 135
Parents suspected of MCA describe themselves as placed in a
Kafkaesque situation. The fact that the child has a suspected or
confirmed alternative diagnosis from another doctor does not negate a
diagnosis of MCA. 136 Neither does the fact that some other doctor
ordered the medical care deemed abusive, documented the medical
reasons for it, or even still believes that the medical treatment that the
child received was appropriate. 137 Instead, such doctors are deemed the
unwitting dupes of the parent’s deception. 138 Martin Guggenheim, a law
professor at New York University, likens the situation of parents
charged with MCA to that of women accused of witchcraft by “experts”
in the seventeenth century: “If the expert declares that you’re a witch,
how in the world can you begin to prove that you’re not?” 139 The
comparison to witchcraft may be particularly apt given the MCA
literature’s description of the considerable powers that MCA mothers
have to bend doctors to their will, 140 as well as the fact that it is almost
universally women who are accused of masterminding MCA. 141
135 Swidey & Wen, Medical Collision, supra note 2 (“Newberger said he’s seen a
tendency for state child-welfare agencies to be ‘overly credulous to hospitals’ and for
some child protection teams to show a ‘reflexive willingness to label and to punish,’
especially educated mothers who are perceived as being too pushy.”)
136 For examples of cases in which MCA charges were brought despite a child
having a suspected or confirmed diagnoses from another doctor, see, e.g., Eichner,
supra note 1 (Hilliard case); Swidey & Wen, supra note 11 (Pelletier case); Swidey,
supra note 16 (quoting attorney for parents who argued at MCA hearing: “What we
have is an argument within the medical community about whether infection can cause
behavioral disorders and mental health issues . . . And Boston Children’s Hospital is
going to work that out on the backs of parents in your courtroom.”).
137 See sources cited supra note 136.
138 See, e.g., Illinois Department of Children and Family, Procedures, May 3, 2012,
App. L, at 6 (“The existence of one or more physicians who may actively support the
suspected parent or who hold a unique medical theory about the child’s condition that
does not coincide with other physicians treating the family should not be reason to
suspend investigative activities or determine there is no merit to suspicions of [MCA].
In many situations, parents who practice this form of abuse are effective at securing
allies or finding doctors vulnerable to their deceptions or willing to entertain
improbable theories rather than accepting the possibility of intentional deception.”).
139 Telephone interview with Martin Guggenheim, Fiorello LaGuardia Professor of
Law, NYU School of Law (July 24, 2014).
140 See. e.g., MICH. TASK FORCE REP., supra note 31, at 5 (“In many cases, parents
who engage in this form of abuse are effective at rallying allies or locating one or more
providers who are vulnerable to their deceptions rather than accepting the possibility