THE PROBLEM OF UNEXPLAINED
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
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
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;
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
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
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
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.
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.