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

252 University of California, Davis [Vol. 50:205
2. “Diagnosing” the Parent as Abusive
MCA differs from other medical diagnoses not only because it
represents a conclusion regarding etiological rather than medical
cause, but also because this conclusion explicitly identifies the parent
as the perpetrator responsible for the child’s condition. 209 In other
contexts, courts have appropriately rejected attempts to use the
diagnostic process to cast blame on particular persons. Using a
diagnosis to identify a particular perpetrator, these courts have held,
exceeds a medical or psychological expert’s province, and in fact
encroaches on the province of the finder of fact. Courts should bar
MCA diagnoses for the same reasons.
For example, courts have rejected attempts by child abuse experts to
use their diagnoses of abuse to cast blame on a particular person in
cases of sexual abuse. In the words of one court, “it is the specific
identification of defendant as perpetrator which crosses over the line
into impermissible testimony.” 210 While an expert can appropriately
diagnose the child’s condition, these courts have announced,
determining who is responsible for the abuse is an issue within the
court’s province rather than an expert’s. 211 As the North Carolina
Court of Appeals put it, the expert “was in no better position than the
jury to determine whether defendant was the perpetrator.” 212
Furthermore, one court has already extended this rule to child
abuse proceedings in which MSBP is asserted. The Ohio Court of
Appeals reversed a mother’s conviction for poisoning her son, based
on medical experts’ testimony, not simply diagnosing the mother as
having MSBP, but also testifying that the diagnosis caused the mother
to administer the poison. In the court’s words:
209 See ROESLER & JENNY, supra note 12, at 43 (“Medical child abuse occurs when a
child receives unnecessary and harmful or potentially harmful medical care at the
instigation of a caretaker.”).
210 State v. Streater, 678 S.E.2d 367, 374 (N.C. Ct. App. 2009).
211 See, e.g., In re Rebecca, 643 N.E.2d 26, 35 (Mass. 1994) (“[Expert] testimony
identifying the persons who had abused the twins, and opining that their mother had
been present, amounted in essence to testimony that he believed the statements made
to him by the twins, and was equally inadmissible.”); State v. Alberico, 861 P.2d 192,
211 (N.M. 1993) (“Although a psychologist can independently evaluate the victim’s
allegations of sexual abuse by cross-checking her symptoms with those recognized in
DSM III–R, there appears to be no similar verification for identifying the alleged
abuser.”); State v. Bush, 595 S.E.2d 715, 719 (N.C. Ct. App. 2004) (“[T]he testimony
of Dr. Russo in this case was of greater prejudicial impact than that in Stancil, as she
concluded, based upon her credibility assessment of PB’s story, that it was defendant
who had sexually abused PB.”);
212 State v. Figured, 446 S.E.2d 838, 842 (N.C. Ct. App. 1994).