Academic journal article
By Seeley, Matthew B.
Brigham Young University Law Review , Vol. 2011, No. 6
Imagine that you are a young parent taking your four-month-old son to a routine checkup. During the examination, the pediatrician notices a bruise on his right leg. Her visage subtly changes as she closely examines the bruise. She informs you that she has reason to believe that your baby may have been physically abused and that you will have to immediately take him to the hospital for further testing. You are a bit insulted that the doctors would even think it was possible that you would hurt your baby, but you are confident that carefully researched, scientific tests that will be conducted at the hospital will quickly dispel this misunderstanding.
You wring your hands as you wait for the result of the x-ray at the hospital. A doctor then approaches you and says that your baby has a large number of fractures in his legs and his ribs. Before you can ask, the doctor explains that these types of fractures in a baby of this age suggest, with near certainty, child abuse. He asks you how these fractures occurred. You are so aghast and surprised at the situation that you stutter as you say that you don't know. You suggest that he must have some type of condition that makes his bones break very easily. This suggestion is met with dismissive incredulity. No, the doctor explains. The x-rays didn't show any signs of such a condition. These types of fractures indicate that your baby has been abused. A child protection agent says that your baby will have to be taken into protective custody. Your baby will be placed with foster parents. You and your spouse will soon be charged with felony assault. You and your spouse will be labeled child abusers by incredulous authorities who simply shake their heads when you insist that your child's fractures must have been caused by a medical condition. In short, your life will be turned upside down.
How likely is this scenario? Prevalent beliefs in the medical and legal communities about unexplained infantile fractures actually make this type of scenario more likely to occur than is necessary in order to protect children who are legitimately abused. The scenario you have just read is actually not hypothetical; it describes a case that occurred several years ago.1 Fortunately, this case eventually had a happy ending because a simple, commonly available bone-density test was performed. The test demonstrated that the child had abnormally low bone density of unknown origin that predisposed him to fractures.2
Such tests, however, are seldom administered in alleged child abuse cases involving unexplained fractures.3 Many expert medical witnesses and prosecutors believe that child abuse can be diagnosed using only ordinary x-rays.4 This perception fails to account for the serious inaccuracy of ordinary x-rays for measuring bone density5 and collagen integrity.6 It also fails to incorporate a modern understanding of many conditions that can cause bone fragility in infants - an understanding that has evolved substantially since the publication of the sixty-five-year-old study that first suggested that unexplained infantile fractures indicated child abuse with near certainty. 7
This Comment highlights the problems inherent in making a diagnosis of child abuse based solely on findings of unexplained fractures in x-rays and ultimately proposes a solution to the problem that will help protect innocent children and caretakers alike: a statute requiring that bone-density tests be performed when the prosecution wishes to use unexplained infantile fractures as evidence of child abuse.
This Comment proceeds as follows. Part II discusses the problem of child abuse and the strategies used to combat it, as well as the reasons why more effective strategies are often not possible. It then discusses how unavoidable weaknesses in these strategies led to a widespread misappraisal of the degree of certainty with which abuse could be inferred in cases where infants have a set of symptoms once thought to be pathognomonic8 for abusive shaking. …