Often when a child sustains a bone fracture, it distresses a parent: the parent sympathizes with the child and may feel guilt for failing in one every parent’s duties—protecting their children—even though we all know that a healthy childhood requires some risk-taking.
But sometimes doctors, and then police, look at the child’s parents in a different way. They look at them as guilty in the legal sense—guilty of child abuse. They think someone physically assaulted the child, breaking a bone.
Why Do Doctors Consider Some Fractures Suspicious for Child Abuse?
Doctors label a fracture as “non-accidental injury” because they think it would not have happened except in the course of child abuse.
For example, some fractures of the ends of the long bones of the arms and legs have an appearance in x-rays that cause physicians to call them “bucket-handle fractures.” Some physicians think these fractures result from twisting the limbs.
If the child is baby, the range of suspicious fractures is large because babies don’t run, jump, or climb trees. If a baby sustains trauma, it’s often due to their caregiver’s neglect or abuse.
Other Suspicious Injuries
When child abuse physicians find any injury they consider suspicious, they look for other injuries. If a caregiver has abused the child once, they may have done it more than once. Other injuries can help a prosecutor prove that the first injury was not accidental.
A basic step is to take a “skeletal survey” of the child, a set of x-rays covering the entire skeleton, in search of other fractures.
Bruises can also be suspicious injuries. Active children get lots of bruises, but when children fall, certain surfaces of the body rarely take any impact. For example, a bruise on the inside of the upper arm (the surface next to the torso) is suspicious.
The shape of a bruise can also suggest abuse. Some linear bruises, for example, suggest lashing with a cord.
Burns and Cuts
Like bruises, burns can have shapes that suggest they were inflicted intentionally. Cuts, like bruises, are expected in active children, but not in all areas of the body, and not in all shapes.
Injuries to other Children of Same Parent
The search for evidence of child abuse is not limited to a single child. Physicians may examine the child’s brothers and sisters to see if they have suspicious injuries, presumably inflicted by the same caregiver.
In one of our cases at the Marshall Defense Firm, both parents were suspected of causing fractures to their infant daughter. They had a two-year-old girl whose medical records suggested exemplary parenting with one exception: many months before the baby’s fractures were detected, the older sister had sustained a laceration around one of her toes. At the time, the sister’s pediatrician thought it was probably an accident that happened when a strand of the mother’s long hair had become wrapped around the toe in the course of care and then had been tightened during normal movements. Once the baby’s fractures were deemed suspicious, though, this cut was also deemed suspicious.
Siblings are involved in these cases in another way, too. If both parents are suspects, all their children—not just the one with the injury—may be taken and placed in foster care while the case is pending.
Who Gets Suspected of this Physical Child Abuse
Anyone who had private access to the child at the time of the injury can be suspected. Even a parent whose access was not private from the other parent can be suspected because one parent may want to cover up another’s abuse.
Determining Time of Injury
Determining when the supposed abuse occurred—and thus who is a suspect—is usually not easy. Fractures and bruises both change in appearance as they heal, but the rate of change varies a lot from one injury to another; no one can date injuries by their appearance with precision.
Age of Child
Often suspicious-fracture cases involve infants and toddlers. Since they are too young to talk much, they may not be able to tell a physician how they got hurt.
But children of any age can be deemed to have suspicious fractures. Even if the child reports being injured in an accident, physicians and police may conclude the child is lying to protect their parent.
How to Defend a Suspicious Fractures Case
Suspicious fractures cases don’t usually turn as much on expert medical testimony as do so-called “shaken baby” and “abusive head trauma” cases, but medical evidence is often very important in them. The defense usually needs to engage a physician to look at the case and offer an independent opinion. Finding a physician with the right expertise who is willing to testify for the defense is often difficult; other physicians often condemn a physician who is willing to do that.
If there doesn’t seem to be a simple explanation for the fractures, one needs to consider whether the bones may be unusually fragile. A metabolic condition such as osteogenesis imperfecta can cause that.
So can rickets, which results from extreme Vitamin D deficiency. Since most of us get most of our Vitamin D from the sun, the increased use of sunblock—to prevent skin cancer—has increased Vitamin D deficiency. In high latitudes, the sun isn’t up very long in winter and is never overhead in winter, so Vitamin D deficiency is particularly common in those places.
If the child in question is a baby, they may have suffered from the mother’s Vitamin D deficiency during pregnancy.
Expert Witnesses Needed to Defend
A radiologist is trained to interpret medical images: X-rays, CT scans, and MRIs. A radiologist can offer an expert opinion on both the extent and the cause of an injury seen in a medical image. Sometimes radiologists disagree on whether an x-ray shows a fracture.
Pathologists study body tissue to learn what caused an injury or illness. Their expertise is often useful to the defense.
Although pediatrics is concerned with all the health problems that afflict persons younger than 18, a pediatrician can have sufficient knowledge of bone medicine to provide valuable testimony.
Many prosecution medical experts have their primary training in pediatrics. They often also have training in “child abuse medicine”, practice at a children’s hospital, and work closely with state child protection agencies and prosecutors. Few of them would ever agree to testify for a defendant.
Doctors who practice in emergency rooms have expertise in traumatic injury and can assist the defense.
Biomechanics is the study of the mechanical laws relating to the movement or structure of living organisms. It is not a branch of medicine, and biomechanics experts are not physicians.
Biomechanics experts can explain whether a particular injury must have resulted from a particular mechanism of injury. This can be especially useful when the prosecution’s medical expert asserts that a particular kind of abusive act must have caused the injury.
Interrogation by Child Abuse Physicians and Police
It is almost never a good idea for a criminal suspect to agree to answer questions from police. A parent or other person suspected of injuring a child should contact an attorney before speaking with police.
Answering questions from a child abuse physician is also risky; some physicians are quick to construe innocuous statements as incriminating. For example, although every parent of a new-born has trouble getting enough sleep, and people short on sleep have more trouble controlling their emotional responses to frustrating situations, a parent’s statement acknowledging that can be portrayed as evidence that the parent lost control and assaulted their child.
The Predicament of the other Parent
Often one parent is suspected of assaulting the child and the other parent is under no suspicion. The unsuspected parent’s legal position can nonetheless be quite delicate.
If the unsuspected parent seems unwilling to believe that the suspected parent did abuse the child, Child Protective Services may deem him or her unprotective. In other words, CPS may decide the unsuspected parent cannot be trusted to protect the child from further abuse. CPS could therefore seek to put the child in foster care.
But if the unsuspected parent concludes incorrectly that the suspected parent did abuse the child, this can do great and lasting damage to the family as well as to the suspected parent.
Often the unsuspected parent would benefit from an attorney’s help in navigating through the situation. The two parents cannot use the same attorney because that attorney would have a conflict of interest. While it is often a financial burden for a family to engage even one attorney, early engagement of an attorney for the unsuspected parent can be relatively inexpensive and can save lots of heartache and money later.
What it’s Like to Have The Marshall Defense Firm in Your Corner
Respect and compassion are the foundation of our work. We take time to get to know you and your case. It’s where our fierce advocacy for you begins.
Then there’s our experience. For decades we have defended special-assault cases like suspicious fractures. From that and our on-going study of the law, medicine, and psychology involved in these cases, we have exceptional skill.
And we pool that skill. We work as a team. We know that no one lawyer, no matter how brilliant, will have all the good ideas for your case.
Our final ingredient is relentless investigation and preparation. When we step into court to defend you, we are ready to do it well.