Goudge Inquiry: Dr. Smith's "mistakes": Part One; Is today's apology too Little, Too Late?

"SMITH SAID HE FINDS IT IRONIC THAT WHILE HE IS BEING PILLORIED AT HOME, "HERE AT THE AMERICAN ACADEMY OF FORENSIC SCIENCES PEOPLE ARE COMING UP TO ME GETTING MY OPINION ON CASES BECAUSE THEY VIEW ME AS ONE OF THE WORLD'S EXPERTS.""

DR. CHARLES SMITH, AS QUOTED IN THE TORONTO STAR: 26 FEBRUARY, 2001;

Dr. Charles Smith's lawyer read an apology from his client into the Inquiry record earlier today.

Commission Counsel Linda Rothstein told Commissioner Stephen Goudge that lawyer Niels Ortved wished to put the apology on the record today because Dr. Smith is not scheduled to enter the witness box until late January.

“As this inquiry commences and before any testimony is heard, Dr. Smith wishes to publicly acknowledge to the commission that in the 20 years that he performed autopsies at the direction of the Office of the Chief Coroner of Ontario, he made a number of mistakes for which he is truly sorry," Ortved began.

“Dr. Smith sincerely regrets these mistakes and apologizes to all who may have been affected by his errors," he continued. "Dr. Smith wishes to emphasize that any such mistakes were made honestly and without any intention to harm or obstruct the pediatric death investigations in which he was involved.”“

At all times, Dr. Smith endeavoured to use whatever knowledge and expertise he possessed to render accurate pathologic opinions. In retrospect, he understands that in some 20 cases which form the basis of this inquiry, his work, while to the best of his ability at the time, was simply not good enough in certain circumstances."

In the six years this bloggist has worked on the Smith story this is the first time I have heard any apology to the people affected by his opinions - either directly from Dr. Smith or on his behalf.

The closest I got to probing Dr. Smith's views on some of the complaints brought against him was in a story published in the Toronto Star under the heading, "An expert under the microscope; Doctor's controversial trial testimony is being reviewed."

Here is the story verbatim as it ran on Feb. 26, 2001;

"A prominent Toronto pathologist whose professional conduct is being reviewed by the chief coroner's office is also the subject of two complaints to the Ontario College of Physicians and Surgeons, The Star has learned.

The first complaint was brought in 1992 by a father whose daughter, 12 years old at the time, was charged with manslaughter in connection with the death of a child she was babysitting, on the basis of Dr. Charles Smith's opinion.

The second was brought in 1999 by the father of a 22-year-old single mother who lost custody of her unborn baby to the Children's Aid Society after Smith concluded the earlier death of an 11-month-old son, believed to be a case of sudden infant
death syndrome, was not accidental.

Both complaints are before the college.

Charles Smith is the controversial Hospital for Sick Children pathologist who recently asked the coroner's office to conduct an independent review of his work after his opinions came under heavy assault in two Ontario murder cases last month.

In one, prosecutors withdrew a murder charge against Louise Reynolds in Kingston after Smith reversed his earlier opinion that Reynolds had stabbed her 7-year-old daughter to death.

Several other pathologists concluded that the girl had been killed by a neighbourhood dog.

Reynolds spent about two years behind bars, followed by 18 months in a halfway house under strict conditions, and was cut off from all contact with her other children before the charge was withdrawn.

In the other, a second-degree murder charge against (a woman) was stayed by prosecutors just before a jury trial was about to begin.

Although (the woman) maintained that her 3-year-old stepson suffered a fatal injury when he banged his head on a marble coffee table, Smith concluded, contrary to other pathologists called to testify as experts, the death was not accidental.

Smith acknowledges the existence of the two complaints before the college but said he believes they are unfounded because the issues involve matters of "interpretation of a series of findings" rather than "professional competence."

He told The Star, in a telephone interview from Seattle where he was attending a conference of the American Academy of Forensic Sciences, that the cases involve "differences of opinion" in cases involving experts assisting opposing sides of a case.

"In my personal view this is an area which is not something which falls within fundamental areas of medical practice," he said.

The 1992 complaint was filed with the college, the self-regulatory body of the medical profession in Ontario, by the father of a 12-year-old Timmins girl who can only be identified as "S" under the Young Offenders Act.

"S" was charged with manslaughter after a 16-month-old child she was babysitting suffered head injuries at her home and died at the Hospital for Sick Children on July 28, 1988.

While prosecutors alleged that "S" had shaken the child to death, the defence argued that the child had tripped and fallen head-first down some stairs.

Provincial Court Judge Patrick Dunn acquitted "S" after a trial that took 30 court days spread over 1 1/2 years.

Nine experts, including medical scientists and clinicians, described by Dunn as "at the top of their fields," testified for the defence that the death was caused by an accidental fall.

"But I am not the only person who believed (her)," Dunn ruled. "The community believed her, too, until the crown's shaking theory surfaced."

Although Smith testified that the child's injuries were only consistent with shaking, Dunn had reservations about the manner in which Smith arrived at his opinion.

"It would behoove Dr. Smith, in making such an important decision as a diagnosis of shaking that would lead to a manslaughter charge, to show he seriously considered
possibilities other than shaking," he said.

Dunn said all of the defence experts agreed that a baby could suffer serious or fatal injuries from a household fall, and that child abuse might not be the only explanation.

The father launched his complaint in March, 1992, saying Smith's opinion was formulated on "misapprehensions, false assumptions, errors and incomplete evidence."

The hearing of the complaint was delayed several years when the coroner took the position that the college did not have jurisdiction to discipline pathologists who conduct autopsies for his office.

The province's Health Professions Appeal and Review Board rejected the coroner's arguments and sent the complaint back to the college a year ago.

The second complaint arose in Sudbury where, on Nov. 30, 1995, then 22-year-old Lianne Thibeault's 11-month-old son Nicholas stopped breathing after bumping his head under a table.

Nicholas was pronounced dead at hospital.

Although a Sudbury coroner classified the death as sudden and unexplainable -- and somewhat consistent with sudden infant death syndrome -- Smith, after reviewing the initial autopsy report, decided the death was not accidental and had the body
exhumed for a second autopsy.

Acting on Smith's opinion, Children's Aid Society officials moved to seize a then-unborn baby daughter from Thibeault.

Thibeault was unable to recover the child for about a month after it was born on June 27, 1998.

Her name was not removed from the provincial child abuse registry until last March.

The baby was ultimately returned to her after an independent forensic pathologist from Missouri -- an expert in child abuse-related deaths -- disagreed with Smith's opinion.

In his complaint to the college filed in November, 1999, Maurice Gagnon, Thibeault's father, alleged that "Dr. Smith was reckless and irresponsible in perpetuating the most serious of accusations based on 'multiple-choice' causes of death that were medically and scientifically unsustainable."

Thibeault was never charged criminally in relation to her son's death.

In addition to the coroner's review of at least two of his cases, and the two complaints before the college, the pathologist also faces a review of a fifth case.

Earlier this month, a prosecutor asked for the adjournment of the preliminary hearing of a couple charged with murdering their 3-month-old child so the evidence he was about to give could be independently reviewed.

The court adjourned the hearing until November.

But Smith warned that the college will get "snowed in" with complaints if it intervenes in the many civil or criminal cases involving medical issues.

"Any physician who testifies in court, and acts in good faith in doing so, is confronted with the possibility that because there are people who have differing opinions they could be dragged before the college," he said.

"The difficulty is that is going to paralyze the system."

Smith said interpretation was particularly involved in the "S" case, which he called one of the first baby-shaking cases that went to trial in Ontario "because our knowledge of shaking-baby syndrome was much more incomplete than it was now."

Smith said he finds it ironic that while he is being pilloried at home, "here at the American Academy of Forensic Sciences people are coming up to me getting my opinion on cases because they view me as one of the world's experts."

Meanwhile, the Association In Defence of the Wrongly Convicted wants to assist in the coroner's review.

Lawyer James Lockyer, a director, says that as a result of Smith's evidence in the Reynolds case, "there is now good reason to be concerned about the validity of his evidence in other cases."

Smith has voluntarily withdrawn from performing autopsies for the coroner's office pending the coroner's review. He remains on the staff of the Hospital for Sick Children where he has been employed for the past 20 years."

Do I, the bloggist, think that Dr. Smith's apology - entered into the court record by his lawyer on the opening day of a public inquiry - is genuine?

For whatever it is worth, I would like to think so because I tend to be a person who gives other people the benefit of the doubt.

But I suspect that people like Louise Reynolds, "S,", Lianne Thibeault, and the many others who were so horribly affected by Dr. Smith's opinions, may be wondering why they never received an apology directly from his own lips some time during the many years before this Inquiry was called.

Harold Levy;