RAY FERRIS ABOUT DR. COLBOURNE AND SHAKEN BABIES

Ray Ferris is a retired child-protection worker and the author of The Art of Child Protection, and an occasional contributor here. 

When I say that Dr. Colbourne is on the warpath again, most of you will not know what I mean. So let me explain about the shaken baby syndrome.

Doctors who believe in the shaken baby syndrome hypothesis claim that when three medical symptoms are present, they can only be explained by a shaken baby opinion.  They claim that when these injuries occur to an infant that they can tell the cause of injury. They claim, they could only happen because the baby has been shaken. Hence the acronym of SBS syndrome. The reason why such an allegation is especially damaging is that it is an automatic allegation that an injury has been deliberately inflicted and is thus criminal and proof that the parent is unfit. Well you can see for yourselves that if the hypothesis is incorrect, that it can result in horrible wrongs being done to parents and other caregivers.

REPORT OF THE HEARING RE: JOSIAH CUSTODY

Acknowledgement: Four individuals supplied me with accounts of Friday's court proceeding. Thank you.

Surrey Provincial Court Building Entrance

Preface: This was a hearing specific to Josiah Bayne, who is now several weeks old and who was removed from his parents' custody on the day of his birth February 10, 2011. His three siblings are the subject of a case that was decided on March 2, 2011 with an outcome that they remain in foster care for six months. The case files for all three Bayne children have been transferred from the Hope Team to the Guildford (Surrey) Team and Matthew Walker is now the primary caseworker with the Bayne family. On this day the court was to hear and make a ruling on MCFD's application for an Interim Custody Order for Josiah. Loren Humeny (Hope Office) has been the primary case worker for the past 3.5 years and he was present to give testimony. Paul Bayne whose failure to testify during the 2010 court case was noted by Judge Crabtree, did testify today, as did Zabeth. Doug Christie was present to represent the Bayne family.

For Love and For Justice / Part 111 / Zabeth and Paul Bayne

The Best that Jensen Can Do
Part Two of Two Parts

Following the Hoffman testimonies, Finn Jensen called upon his heavyweights for testimony, Adrienne Glen and Dr. Margaret Colbourne. They represent the concern that arose within the child protection unit of Vancouver Children’s Hospital when Bethany was admitted, examined, tested and treated. Each of these women was doing a specific job to the best of her ability and each I must assume fulfilled her role with integrity. Adrienne, an intake social worker at the hospital, visited and conversed with the Bayne family and medical professionals and wrote timely reports and in the process expressed her opinions, sometimes about the Baynes. Dr. Colbourne, very connected to the Shaken Baby Syndrome theory through involvement with an international SBS organization and committed to the understanding that the presence of the diagnostic triad of (1) retinal bleeding, (2) bleeding in the protective layer of the brain, and (3) brain swelling, is predictably indicative of SBS, made that SBS diagnosis with Bethany in 2007. The testimony of each woman in court affirmed her report from 2007 and each report potentially discredited Paul and Zabeth as normal, concerned and loving parents and implied their responsibility in harming their child and by which Finn Jensen hoped to convince the judge that MCFD has acted from the outset upon accurate and trustworthy data. The snag for Jensen is that Counsel Doug Christie was able to cross examine both witnesses and consequently weaken the import of their testimonies. Glen was compelled to admit that her recorded perceptions that the Baynes spent relatively little time with Bethany in hospital were inaccurate and that they had in fact spent many daily hours in hospital with Bethany. Colbourne’s qualifications as an expert were questioned with regard to an absence of biomechanical training needed to ascertain whether or not Bethany's injuries were accidental or non accidental. Theoretically, Colbourne's SBS diagnosis would benefit greatly from the next witness.

Now came Jensen’s super heavyweight Shaken Baby witness, Dr. Randall Alexander from Florida, who has testified in over 300 similar cases and who was here to assure the court that unquestionably, Bethany’s injuries were the result of shaking. His towering persona began to dissolve when he was forced to admit that he wrote his SBS report on Bethany months before seeing the actual film work on Bethany a day before entering the witness box. He had to admit that he had not read Bethany’s birth records, reports concerning Bethany from area hospitals, or any of the ten experts' reports on Bethany that countered his SBS claim. It was clear to the judge that Alexander’s report had been written with incomplete medical information. What kind of evidence is this?

Most recently Social Worker Loren Humeny testified and was cross examined for almost the equivalent of four days. Under cross-examination Humeny was asked whether the risk assessment was written when he was in an adversarial position with the Baynes, because the MCFD was already seeking a continuing care order on all three Bayne children which the parents opposed. He admitted that the risk assessment was highly subjective and primarily his opinion. Christie stated that it had a dearth of factual evidence. It essentially vilified the Baynes and on the one page customarily assigned to summarize strengths, Humeny noted no strengths for them as individuals, as a couple or as parents, saying he didn’t know them, yet admitted that he had spent many hours with them in meetings. The hundreds of letters of reference in support of the Baynes, he admitted he knew about but had not read. So perhaps he doesn’t know them. Judge Crabtree will have to settle for himself whether that constitutes evidence. And this thus far is the best that Jensen has been able to do with what he has. All of this exchange is in court transcripts.

What seemed so strong, so ominous, is paler now and fragile.

For Love and For Justice / Part 102 / Zabeth and Paul Bayne

MORE ON THE COLBOURNE TESTIMONY

(The first portion was written earlier today and near the bottom you see an urgent addition in yellow font added a little later. The first is positive, the second is a concern)

I return to recap the results of the testimony and cross examination of Dr. Margaret Colbourne. She was in the witness box Wednesday and Thursday. She is a pediatric emergency medicine physician at BC’s Children’s Hospital, Vancouver, BC, and a pediatrician with the Child Protection Service Unit of the hospital. She was a witness for the Ministry of Children and Family Development. It was her well intentioned diagnosis of shaken baby syndrome in connection with Baby B Bayne that initiated the October 2007 police action MCFD actions against the Baynes. It was her testimony of this diagnosis that was pivotal to the continued claim by MCFD that the Baynes are unfit parents. On Wednesday, when Judge Crabtree stepped from the bench and deliberated for one hour and returned to rule on the matter of whether Dr. Colbourne was qualified to testify that seven week old Baby Bayne's’s injuries were accidental or non accidental, and whether she was qualified to state categorically that Baby B'ss injuries had been sustained by being shaken by an adult, the earth stopped on its axis for a moment. Then it continued to turn while simultaneously the sun shone more brightly and the landscape became clearer for the Baynes. Finn Jensen and Dr. Colbourne were informed that Dr. Colbourne’s testimony concerning the nature of the injuries she observed on the day in October 2007 when she examined Baby B was admissible, but that Dr. Colbourne was not permitted to state her opinions about whether the injuries were non accidental or accidental nor was she permitted to state her belief that Baby B was a shaken baby.

Fundamentally, this is a ruling which speaks to the requisite expertise for distinguishing accidental injuries from injuries inflicted by someone, the latter leading possibly to criminal charges and other consequences such as removal of the children when the injury inducer is a parent. This ruling on this day is specific at the moment to this one case. In time it may serve as the precedent in British Columbia for subsequent cases in which assumptions of cause have been rendered or will be rendered by medical professionals who are unqualified precisely in the disciplines needed for making such critical diagnoses. It is a ruling that speaks to an understanding that certain types of injuries require particular professional credentials. This may become a standard by which to assess the reliability of an expert witness in such cases as shaken baby and other suspected abuse cases that could have differential diagnoses.

In all the incidents of life that are horrific and painful, the understandable instinctive response is to ask, ‘WHY?’ It is possible and even likely that Paul and Zabeth Bayne asked this simply question. But two years and three months have crawled by. During these past months they began to reflect more seriously on the grand scheme of things and the possibility that their agony might one day result in not only redemption for their family but also the restoration of other families where there have been mistaken diagnoses yet no legal recourse because of the strength of condemning testimonies by professionals.

The following is a quick addendum to the post above. It's important to supporters of the Baynes because it shows they need your support and prayers so much more. If you can be at one of the court days, your presence helps them and makes a point to the Court.

I now have had to hastily add this addendum to my previously more positive note about the testimony of Dr. Margaret Colbourne. Yesterday, Thursday, Finn Jensen cleverly began his examination of Dr. Colbourne this way. Since on Wednesday he had received the Judge’s ruling that he could not have Colbourne speak to the cause as accidental or non accidental, he asked for her opinion on what causes she could rule out for Bethany’s injuries. Despite Doug Christie’s objections she was permitted ultimately to narrow the causes until shaken baby was the only statement of cause left standing. (This, in spite of the previous day’s ruling.)

It was revealed during cross examination that Dr. Colbourne now views this injury as ‘blunt impact’ and shaking. She was reminded that she did not state this in her initial diagnosis. When asked at what time she arrived at this conclusion, she stated in the spring of 2008. Doug Christie suggested that this would have been following her receipt of the experts’ reports that had been supplied by the Baynes – reports which validated the history of events as the Baynes had described. Her response was that she had believed the ‘blunt impact’ component at the beginning but had omitted it in her initial report. (The point is that her exclusive shaken baby diagnosis was damning and did not allow for other causal possibilities.)

Dr. Colbourne disagreed that Zabeth witnessed the accident of Baden falling on Bethany. Colbourne testified that Zabeth told her Baden fell on Bethany but that Zabeth had not seen this happen. (That account of the event contradicts the doctors’ reports that preceded Colborne’s involvement – reports which make reference to a witnessed accidental fall of one child on the other.)

Dr. Colbourne also denied knowing that for three weeks prior to admission at Children’s Hospital, Bethany had severe vomiting. When Colbourne was shown an expert’s article which stated that a head injury accompanied by severe vomiting increases intracranial pressure and can cause supplementary bleeding and eye bleeds, Colbourne disagreed.

When Mr. Christie referenced numerous biomechanical papers to which she had access, articles on shaken baby and the physical impossibility for shaken baby to produce the symptoms under discussion, Dr. Colbourne disagreed. (She admitted that when reading the articles she did not comprehend them since biomechanics is not her specialty.)

The witness also disagreed with the published research papers by noted biomechanic and pathology experts which contend that a shaken infant will bear signs of a neck injury. She said that she could not state with assurance that she had ever observed a neck injury on any of the shaken infants she has diagnosed.

Today, Friday, Dr. Randell Alexander has been flown from Florida to give supporting testimony for Dr. Colbourne’s evidence. (His testimony in numerous other cases has assisted the successful prosecution of parents who are in prison today and their children adopted into new families and some parents have faced the death penalty.) More about him later.

For Love and For Justice / Part 101 / Zabeth and Paul Bayne

Reporting on February 3, 2010 in Chilliwack Court

YESTERDAY WAS HUGE
On Wednesday, Dr. Margaret Colbourne MD, FRCPC, was on the witness stand giving testimony in support of the Ministry of Children and Family Development as they seek to prevent the Baynes from ever having their children returned to them. Dr. Colbourne is a clinical assistant professor in the UBC Department of Pediatrics, a pediatric emergency medicine physician at BC’s Children’s Hospital, Vancouver, BC, and a pediatrician with the Child and Family Clinic (Child Protection Service Unit) at BC’s Children’s Hospital. When on October 18, 2007, seven week old baby Bayne was admitted to Children’s Hospital, her injuries were flagged as serious enough to be a potential abuse case. When Dr. Colbourne was called to examine the baby she concluded that this was a shaken infant. Understandably, that diagnosis led to the subsequent arrest of Paul and Zabeth, an RCMP charge of aggravated assault, an RCMP investigation and an RCMP dismissal of the charges yet the MCFD seizure nonetheless of all three of the Bayne children. Of course there were numerous factors that ultimately led to the MCFD grave action of removing the children yet Dr. Colbourne’s initial medical diagnosis was perilous for this family. MCFD has consistently refused to believe that the girl’s injuries were accidental. The Baynes have stated from the start that one child fell on the smaller one and that was the moment from which the infant’s observable medical issues began.

Lawyer Finn Jensen provided Dr. Colbourne’s CV and developed her credentials for the Judge. Her testimony has been considered critical to the MCFD presentation. Instead of allowing Jensen to proceed with her testimony and her medical opinion, quite unexpectedly, at least to MCFD I presume, Doug Christie, legal counsel for the Baynes, cross examined Dr. Colbourne’s qualifications as an expert in this area of testimony. Christie referenced the Goudge Inquiry and the Goldsmith Inquiry and other occasions where legal and medical controversy over shaken baby syndrome has been intense. Under cross examination Dr. Colbourne acknowledged this controversy between medical experts with regard to shaken baby. Mr. Christie submitted that she was not qualified to give an opinion as to the cause of the baby’s injuries because she was not a biomechanic expert which was a prerequisite for estimating the force needed to generate the injuries. Dr. Colbourne's answers to Mr. Christie's questions revealed that she had not examined the baby’s brother whom the Baynes said fell on their baby. She had not determined the boy’s head circumference, weight and other details or history from the Baynes that could have further informed her diagnosis. She also admitted that she had not conferred with any biomechanic about the girl’s injuries. Christie then submitted tests for reliability of expert witness testimony and noted that Dr. Colbourne did not meet those standards.

Mr. Jensen’s response to this submission concerning the credibility of her expertise prompted another rebuttal from Mr. Christie, at which time Judge Crabtree adjourned proceedings for almost one hour as he deliberated his decision. When he returned he ruled that Dr. Colbourne could testify to the injuries she observed on the baby but she could not provide an opinion of whether she felt this had been accidental or non-accidental. She would not be allowed to testify that it was her opinion that this was a shaken baby. She is back on the stand today.

Do I have to tell you how significant this ruling is? This is positively huge! This sets a precedent that will affect the rest of this case and other cases to come. More about this at another time.