Should the Wrongfully Accused Receive Automatic Reimbursement for Incorrect SBS Diagnoses?

In a Seattle University Law Review article, law student Jay Simmons highlights the controversy behind shaken baby syndrome (SBS), how the diagnosis affects the accused, and why the wrongfully accused deserve to be compensated for their losses. See Jay Simmons, Note, Ironic Simplicity: Why Shaken Baby Syndrome Misdiagnoses Should Result in Automatic Reimbursement for the Wrongly Accused, 38 SEATTLE U. L. REV. 172 (2014).

SBS has become a controversial diagnosis. Some physicians question its basic assumption: that infants who suffer subdural hematoma, retinal hemorrhages, and cerebral edema—the so-called “triad” at the heart of the syndrome—must have been violently shaken. Simmons notes that both proponents and opponents of the diagnosis acknowledge that the diagnosis involves some degree of speculation; they differ in determining how large that speculation is.

In the article, Simmons details Felix v. Group Health, a case in Snohomish County, Washington. It began when a Seattle father accidently dropped his infant son while bathing him. After the child was brought to Seattle Children’s Hospital, the medical provider diagnosed him with SBS. This set off a tragic set of events for the Felix family: both parents underwent polygraph testing; Nathan Felix, the father, was arrested; both of the Felix children were placed in CPS custody and released only when Mr. Felix promised to not live in the family home; and Mr. Felix was prohibited from visiting the children for three months.

The Felixes had to pay $600 per month for the father to live outside the family home. He had to take a leave of absence from work. The family incurred childcare costs because Mr. Felix could not care for the children. The family spent $35,000 in attorney’s fees. Because of the financial strain, the family home went into foreclosure.

After the Felixes endured all this, CPS found the abuse allegations were unsubstantiated and closed the case.

Simmons advocates that the Felixes, and other families wrongfully accused of shaking a child, should be reimbursed by CPS, law enforcement, and medical providers for the financial costs of a wrongful SBS diagnosis. Currently, law enforcement officials and the State maintain qualified immunity in this area. Qualified immunity shields government officials from personal liability when an official violates law that is not clearly established and that would not be known to a reasonable person. Simmons proposes a $100,000 limit on reimbursement, to be exceeded only when one of the parties acts unethically or in bad faith.

This would encourage medical providers to be careful when considering an SBS diagnosis as well as reimbursing families who suffered both financially and emotionally from incorrect SBS diagnoses. The limit on reimbursement would limit the financial exposure of the State and medical providers whenever they act ethically and in good faith.