THE PROBLEM OF UNEXPLAINED FRACTURES

The surest way to get your child removed on an OTC (Order of Temporary Custody) is for a child to have an unexplained fracture.

In a recent case, the 18-month-old daughter of an exemplary upper-middle-class couple exhibited a problem with her leg. They took the child to their own pediatrician, who sent her for x-rays. The x-rays revealed a spiral fracture (please see the internet for details) of the humerus (long bone in the upper arm).

The pediatrician said that he was required to notify DCF. The parents had never heard of DCF, and acquiesced. The child was sent to Connecticut Children’s Medical Center in Hartford (CCMC, adjacent to Hartford Hospital). CCMC, along with Yale, is one of the two premier child-abuse diagnosing centers in the State.

The parents were grilled by CCMC doctors, DCF, and the police. When they could not provide a satisfactory explanation for the spiral fracture, DCF seized the child on a 96-hour-hold. It must be noted that spiral fractures are a common indicator of child abuse.

It made no difference that the couple had none of the other signs of being abusers. For example: no substance abuse; no domestic violence; no history of mental health problems; no criminal record; total cooperation with DCF, the police, and the hospital; an older child who was exemplary in all respects, and who spoke to DCF and provided no grounds for suspecting abuse; an excellent home; good references from neighbors and friends; good references from the older child’s teachers; good references from the pediatrician; etc.

At the court hearing, the Assistant Attorney General (AAG), representing DCF, told the Judge that there was case law mandating that any unexplained fracture should be an automatic removal of the child. That was a pure misstatement of the law (see In re Nicholas R., 92 Conn. App. 316 (2005)), and the Judge did not buy it. Apparently the AAG thought that our firm, as defense lawyers, would not actually bother to look up the case.

However, the AAG had an ace-in-the-hole. The examining CCMC child abuse pediatrician stated that the fracture was “suspicious of being inflicted”.

This is a very common diagnosis, and is usually enough to get the removal granted. At least, it was in the past. Hopefully, no longer.

What the pediatrician forgot to say was the following:

1. There are numerous causes of fractures in children, including but not limited to child abuse.

2. Other possible causes include: OI (osteogenesis imperfecta, commonly called “brittle bone disease”); preterm birth; rickets; osteomyelitis; copper deficiency; scurvy; vitamin A toxicity; vitamin D    deficiency; metabolic and kidney disease; leukemia; and others.

3. Checking out these other possible causes is called “differential diagnosis”, and in general that is a difficult and costly thing to do. There are DNA tests for OI, but OI caused by genetic abnormality will be detected in only 60% of mild cases.

4. A careful examination of other signs of abuse or neglect is important in suspected abuse. (For example, the signs as listed in the fifth paragraph of this article). That again is difficult; and doctors, even though advised by their own literature to do so, would prefer to not comment on these “non-medical” matters.

5. It is far easier to say “suspicious of being inflicted”, and let the parents prove otherwise. It is also safer for the pediatrician’s career.

The implications are clear. You do not want to lose your child because a doctor did not introduce the possibility of differential diagnosis, or left the other factors to social workers who have their own agenda.

It goes without saying that as soon as the parents heard “DCF” from their own pediatrician, they should have called a DCF defense lawyer immediately.

Fortunately, as of this writing, the child remains at home with her loving and caring parents. DCF is finally out of their lives. However, the parents went through months of agony, including Juvenile Court hearings, multiple attempts by the AAG to take their child through more OTC’s, home visits, reports of all their activities to DCF, etc. And I cannot imagine what their older child must have thought.

And most of it could have been avoided. The baby was, in fact, later diagnosed with Vitamin D deficiency. This was the likely the cause of the fractures.

It is appropriate to note that the police realized that there was nothing here, and never bothered the parents again. But DCF is not required to have real evidence in order to stay in parents’ lives.


Current Actions

Our office aggressively represents parents in cases problem of unexplained fractures. We want to ensure that children are properly tested by pediatricians for blood and bone diseases, that expert witnesses are available for parents if needed, and that courts are aware that we simply do not know all the reasons that a child may develop an unexplained fracture.

For those who ask if lawyers can have the audacity to advise pediatricians on medical matters, the answer is a resounding “Yes.” That is, yes we can, when the pediatrician’s actions or inactions may result in severe legal consequences for the family. It is similar to the reining-in of court-appointed clinical psychologists that we accomplished earlier. See Choosing A Lawyer: Guidelines, Item 9.

Our efforts have already borne fruit. In February, 2010, a baby had severe unexplained fractures. Again, the parents were an exemplary couple. The baby was taken, but this time, the pediatrician, aware of prior cases, actually performed diagnostic tests which proved that the baby was predisposed to bone diseases; in this case, osteogenesis imperfecta (OI). The child was returned to the grateful parents; this time with fortunately minimal disruption to their lives.

We have a long way to go, but we are getting there.

It is impossible to say how many parents have lost their children, simply because doctors failed to perform routine tests that would have been performed had the parents been persons of means.


WARNING TO PARENTS:

Do not be trapped by a quick diagnosis of “suspicious of being inflicted.”

Call a lawyer immediately.