Medical experts must step up if health justice is to enter the courtroom

Danyel Smith has served 21 years of a life sentence at Dooly Correctional Facility in Unadilla, Georgia, for the 2003 murder of his two-month-old son, Chandler. The sole evidence against him at trial was the testimony of three physicians who said that child abuse — in this case shaken baby syndrome — was the only explanation for his son’s symptoms. That testimony went unchallenged; no physician testified on Smith’s behalf.

Nearly two decades after Smith’s conviction, Dr. Saadi Ghatan, a professor of neurosurgery and pediatrics at Mount Sinai School of Medicine in New York and director of pediatric neurosurgery at Mount Sinai Hospital, reviewed Chandler’s neuroimaging and medical records in 2021 on behalf of the Southern Center for Human Rights, a legal nonprofit that represents Smith. Ghatan identified that Chandler’s death was the result of hypoxic-ischemic brain damage from respiratory arrest by a natural disease process, likely the result of a seizure, not shaken baby syndrome. Those findings led to the Georgia Supreme Court unanimously ruling in 2022 that a hearing should be held on Smith’s conviction. In April of this year, experts testified in a six-day hearing on whether the medical diagnosis used to convict Smith was valid. Still in prison, he awaits the judge’s decision from that hearing.

Few physicians enter the field of medicine with an interest in litigation. Many say they dread being called to testify in court. Yet doctors and other medical professionals play outsized roles in determining the outcome of cases in the criminal-legal and child welfare systems.

The opinion of a single expert witness for the prosecution about a contested medical diagnosis such as shaken baby syndrome can put an innocent person in prison or result in the removal of a child from the home.

It’s a common story: a parent or guardian brings their child to a hospital’s emergency department after the child experiences a fall, high fever, or seizure. When there is a suspicion of child abuse or neglect, the attending physician is mandated to report the case to the state’s child protective services (CPS). Once a report is filed, the diagnosis of child abuse is taken out of the medical setting and thrust into the courts for criminal investigation. For most doctors, this is where the story ends. For families accused of abuse, this is when the nightmare begins.

Despite physicians’ best intentions, diagnostic errors in emergency departments across the country are widespread.

When it comes to identifying child abuse, racial and socioeconomic biases are rampant. Black children are more likely to be identified as victims of abuse, and are more likely to receive a skeletal survey (a high-resolution bone scan used to identify fractures), compared to white children. Children with public health insurance were also more likely to be reported to child protective services compared to children with private insurance.

To make matters worse, the diagnostic criteria used to determine child abuse, including shaken baby syndrome, burn injuries, and broken bones have been called into question.

In the last four years, nine parents incarcerated for shaken baby syndrome have been exonerated and many more have had their convictions overturned.

There’s no question that child abuse happens far, far too often in the U.S., and that steps should be taken to protect children who have been abused. But it’s also important to ensure that medical misdiagnoses do not lead to wrongful convictions and family separation.

One of the only ways for parents to prove their innocence is through a medical expert witness who is willing to testify against a prosecution’s determination of child abuse. This isn’t contorting medical opinion for profit, but providing a public service to advance health justice, perhaps tipping the scales, which tend to favor the prosecution, and defend individuals who may be at the wrong end of a misdiagnosis that could separate a parent from their child.

But access to an expert witness is exceedingly hard to come by.

Prosecutors have the advantage of working with child abuse pediatricians — a specialty established in 2006 with these guidelines — whose job description involves testifying for the prosecution. The equivalent does not exist for the defense.

Although the U.S. criminal legal system provides lawyers to everyone accused of a crime, there is no guarantee that every accused person can afford a medical expert to provide a second opinion. And there is no official system to find physicians to testify as defense witnesses. (Note: The nonprofit Center for Integrity in Forensic Sciences helps lawyers nationwide in cases involving forensic science, and may be able to link medical professionals interested in testifying for the defense with lawyers who would value their help.)

Defendants who are left without access to second opinions are overwhelmingly people of color or poor. As Barry Scheck, the co-founder of the Innocence Project, said, “In medical child abuse cases, the absence of a defense medical expert is almost always the cause of wrongful convictions.”

To be sure, the medical system must remain highly sensitive to identifying child abuse. Before the 1960s, child abuse — then termed “battered-child syndrome” — was not considered to be a medical issue that should involve physicians. Instead, it was a private matter between parents and their children. The medical profession cannot revert to apathy. Doctors who identify child abuse can and do save lives.

But parents accused of abuse are entitled to a fair trial. If the prosecution puts an expert witness on the stand, the defense should do the same. But if physicians continue to shy away from the courtroom, they are allowing harm to happen. Only interventional cardiologists can insert a stent into a coronary artery and stop a heart attack. In a similar fashion, only a medical expert’s testimony can correct an injustice, particularly in cases where the science is not clear-cut but open to interpretation and debate.

Given the disproportionate impact of these accusations on Black and brown children and families, defending parents accused of abuse is a health and racial justice issue.

Physicians need to overcome their initial discomfort about testifying in court and recognize that an accusation of a crime is only one side of the story. Partnering with legal defense organizations can help correct the imbalance that exists in the current criminal justice system and prevent future injustice.

Without the pediatric neurosurgeon who testified, Smith would have languished in prison for life. There are hundreds, if not thousands, of people like Smith wrongly incarcerated in prisons across the country. They deserve justice.

Zoe Adams, M.D., is an internal medicine resident physician at Massachusetts General Hospital and a Public Voices Fellow through The OpEd Project. Asher Levinthal is a former supervising attorney at the Bronx Defenders, co-founder of Still She Rises, Tulsa, the first holistic defense office in the country dedicated to representing mothers, and director of the documentary “Shaken.”