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

250 University of California, Davis [Vol. 50:205
This type of diagnostic determination certainly occurs in the first
part of the MCA inquiry, when the physician uses the child’s signs and
symptoms to determine which, if any, genuine diseases or conditions
the child truly has. 201 Yet courts have also allowed MCA-charge
proponents to treat the third part of the inquiry — regarding whether
the parent should be held responsible for “instigating” the treatment
— as part of the diagnostic process, and therefore allowed testimony
on this issue based on the physician’s supposed diagnostic expertise. 202
In truth, however, this third inquiry requires a very different process
from the internal causation identified by the differential diagnostic
process because it focuses on factors external to the child. 203
Medical experts and courts differentiate between internal and
external explanations for causation by distinguishing between
inquiries involving “differential diagnosis” and “differential
etiology.” 204 As stated by Dr. Ronald Gots, both types of inquiries
etiology, accounts for 15 to 30 percent of cases of acute pharyngitis in children and 5
to 20 percent in adults.”). The diagnostic protocol then specifies which diagnostic
signs and symptoms, such as headache, fever, swollen glands, and which laboratory
tests, indicate the presence of the bacteria associated with strep, how strong these
indicators are, and how often these signs and symptoms are associated with false
positive or false negative diagnoses. Id.at 383-84.
201 See supra notes 197–98 and accompanying text.
202 See, e.g., Dep’t of Human Services v. N.B., 323 P.3d 479 (Or. App. 2014
(upholding finding of child abuse based on pediatrician’s expert testimony that he had
“diagnosed L as suffering from medical child abuse[,] . . . a diagnosis adopted
relatively recently by the American Academy of Pediatrics . . . . [The expert] had
previously diagnosed each of mother’s four older children with medical child abuse
. . . .”).
203 Indeed, in transitioning from MSBP to the concept of MCA, Dr. Jenny and Dr.
Roesler specifically sought to dismiss the idea that MCA depends on some underlying
medical or psychological condition to be diagnosed in the child, in the way that MSBP
was believed to have been a diagnosable psychological disorder in the parent. Instead,
they argued, doctors should give up the search for an internal condition, and simply
identify what happened to the child as child abuse. In response to the question of
whether the behavior at the root of the MCA diagnosis is really a syndrome, they
answered, “No. The behavior commonly called MSBP is a form of child abuse that
takes place in a medical setting. Child abuse is not an illness or a syndrome in the
traditional sense but an event that happens in the life of the child.” See, e.g., ROESLER
& JENNY, supra note 12, at 54.
204 See Bowers v. Norfolk S. Corp., 537 F. Supp. 2d 1343, 1360 (M.D. Ga. 2007),
aff’d, 300 F. App’x 700 (11th Cir. 2008) (“The distinction is more than semantic; it
involves an important difference.”); New Mexico v. Consaul, 332 P.3d 850, 863 (N.M.
2014) (Differential etiology is “a process that identifies a list of external agents . . .
that potentially caused the disease.”). Deborah Tuerkheimer’s Flawed Convictions
contains an excellent analysis of this distinction. See DEBORAH TUERKHEIMER, FLAWED
CONVICTIONS: “SHAKEN BABY SYNDROME” AND THE INERTIA OF INJUSTICE 75-82 (2014).