Misdiagnosis as a Form of Medical Abuse. Cronkright Law.

Misdiagnosis as a Form of Medical Abuse

October 10, 2017

Recently I heard a nationally prominent medical doctor who helps parents defend against false allegations make a simple and yet profound statement:  A misdiagnosis of child abuse is the ultimate form of child abuse.  It is always amazing how many times a local court, prosecuting attorneys, attorney guardian ad litems and even parent attorneys accept what child abuse doctors say as the gospel truth.  There are probably a number of reasons for this, but all are bad for families.

The basic concept is that a doctor can determine motive, intent and even a particular action by examining an injury.  It is a bit like Sherlock Holmes telling you where you have recently traveled.  Unfortunately, forensic medical doctors are not Sherlock Holmes.  Instead, they employ the power of circular reasoning and they do it so often and so well that what they say is widely accepted in court.  Yet doctors are supposed to be men and women of science.  The general concept is to use the available medical observations of a patient, combined with available medical history and then consider the options based upon known medical science to come up with a differential diagnosis and eventually a diagnosis.  (A differential diagnosis is simply a list of possible explanations for a medical finding.)

Forensic doctors (doctors who testify in court) are always eager to have their opinions accepted by judges and juries.  When they want to testify about their opinion that an injury was caused by parental abuse, they call it a “diagnosis” which suggests that it has the same reliability as any other diagnosis.  For example, we confirm cancer by finding cancer cells.  We do that with relative certainty because they can be seen under a microscope and we know what cancer cells look like because a substantial body of scientific cancer research has occurred.  However, the “diagnosis” of child abuse is something entirely different.

The “diagnosis” of child abuse is mostly the product of many court cases.  Forensic doctors such as child abuse pediatricians have extensive training on how to form and present opinions that will hold up in court.  If doctors lose a case in court, they learn their lesson and change what they do and how they do it.  It is also true that there are networks of child abuse “specialists” who regularly hold seminars and teleconferences to share their courtroom experiences and figure out how to counter the efforts of defense attorneys.  The result is that a “diagnosis” of child abuse is often built around the combined courtroom experiences of many doctors. In Michigan, the workup for vitamin D deficiency, vitamin K deficiency, Rickets, Osteogenesis Imperfecta and Cervical Spine injuries all became standard practice in response to challenges to unscientific opinions from the defense bar.

Now, in the world of child abuse pediatricians, we have responsive forensic medicine being practiced.  In other words, doctors continually adjust what they do to survive challenges from defense attorneys to their courtroom testimony.  And yet the medicine has not dramatically improved as a result.  Doctors continue to misdiagnose abuse.

When a doctor misdiagnoses abuse, we call that malpractice.  The result of that malpractice is that families are ripped apart, parental rights are terminated, children are removed from their homes and parents are even sent to prison.  This causes irreparable harm to many Michigan families.  I have had personal conversations with forensic doctors about the harm that they cause to children when they get it wrong.  And they do get it wrong.  But I rarely find a doctor who is even open minded on the subject.

Families with a sick or injured child are under immense stress already.  When a forensic doctor enters the hospital scene everything changes.  Those children who have the misfortune of having a zealous forensic doctor accuse their parents of abuse will likely suffer the consequences of that misdiagnosis for years to come.  The reality in Michigan courts is that every day forensic doctors go into court and present their opinions as if they were fact and find very little resistance to their testimony.   We need to change that.  Perhaps we could start by understanding that a misdiagnosis of abuse is, in and of itself, child abuse.