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

254 University of California, Davis [Vol. 50:205
“cannot pass judgment on a witness’s truthfulness in the form of a
medical opinion.’” 215 Such diagnoses, in the words of the Supreme
Court of Oregon, cast a “misplaced aura of reliability or validity” on
the testimony. 216
Yet as MCA proponents explicitly and repeatedly acknowledge, in
most cases the medical child diagnosis turns on an assessment of the
parent’s credibility. 217 This is despite the fact that physicians have no
special expertise compared to courts in determining such matters; in
fact, the reverse is likely true given that assessing credibility is
something that judges do often in child abuse proceedings. Accepting
the expert’s opinion in these MCA cases, as in sexual abuse cases,
therefore presents too great a risk that the trier of fact will treat this
testimony as coming from “the only seemingly objective source,
offering it a much sought-after hook on which to hang its hat.” 218
This means that in cases in which child abuse through medical care
is alleged, doctors may certainly testify to the genuine medical
diagnoses that the child possesses and whether, given these diagnoses,
the treatment the child received was legitimate. Yet they may not
“diagnose” the child with MCA and, through this, assert that the
parent committed abuse. Simply because doctors have concocted a
new diagnosis that they claim allows them to point blame at the parent
does not mean that they may properly testify to it in court. As in cases
of sex abuse, the doctor is in no better position to determine whether
215 State v. Buchholtz, 841 N.W.2d 449, 459 (S.D. 2013) (citation omitted); see also
Tingle v. State, 536 So. 2d 202, 205 (Fla. 1988); Weatherford v. State, 561 So. 2d 629,
634 (Fla. Dist. Ct. App. 1990).
216 State v. Southard, 218 P.3d 104, 113 (Or. 2009); see also State v. Iban C., 881
A.2d 1005, 1017 (Conn. 2005) (holding sexual abuse diagnosis in the absence of
physical evidence “constituted inadmissible opinion evidence regarding the credibility
of the victim and was not helpful to the jury in deciding the issue”); Ramayo v. State
132 So. 3d 1224, 1228 (Fla. 2014) (explaining that expert testimony is improper “if
the juxtaposition of the questions propounded to the expert gives the jury the clear
impression that the expert believed that the child victim was telling the truth.”);
Geissler v. State, 90 So. 3d 941, 947 (Fla. Dist. Ct. App. 2012) (explaining that experts
may not “vouch for the truthfulness or credibility of a witness.”); State v. Beauvais,
354 P.3d 680, 690 (Or. 2015) (en banc) (concluding that a diagnosis of sexual abuse
is inadmissible despite some physical evidence “when that diagnosis otherwise rests
on what a jury reasonably could perceive to be a credibility-based evaluation”).
217 See 2013 AAP Report, supra note 29, at 593 (advising evaluator of MCA to
“assess the veracity of the claims made by the caregiver . . . for each symptom and
sign . . . [and]to consider whether the medical history provided by the caregiver
matches the history in the medical record and whether the diagnoses provided by the
caregiver match the diagnoses made by the physician”).
218 People v. Peterson, 450 N.W.2d 857, 868 (Mich. 1995).