Dr. Smith's "Mistakes": The Timmins Case: Independent Reviewers for College Find A Litany Of Errors;

"THE FACT THAT DR. SMITH'S TESTIMONY WAS SOMETIMES WEAK, WHEN HE ADMITTED IGNORANCE IN AN AREA IN WHICH HE SHOULD HAVE HAD EXPERTISE, AND HIS TENDENCY TO DEFER READILY TO DEFENCE WITNESSES WITHOUT A CRITICAL EVALUATION OF THEIR OPINIONS - THE EXPERT PANEL DESCRIBED THIS AS WAFFLING";

FROM THE DECISION OF THE DISCIPLINE PANEL OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO IN THE TIMMINS CASE;

This Blog devoted a recent posting to an academic paper published in the Criminal Law Quarterly in which Dr. Charles Smith was criticized for giving opinions relating to biomechanics - an area beyond his expertise. (See previous posting: Lawyers warned" to guard against Dr. Smith's testimony back in 1993);

One of the three cases referred to - The Timmins case - involved a 12-year-old Timmins, Ontario girl who was charged with manslaughter after a 16-month-old child she was babysitting suffered injuries in her home and later died.

Smith concluded the youth had shaken the baby to death.

But nine experts described by Provincial Court Judge Patrick Dunn as "at the top of their fields" testified that death was caused by an accidental fall.

Dunn acquitted her;

The babysitter's family later filed a complaint with the Ontario College of Physicians and Surgeons alleging professional misconduct - and the College appointed an independent panel composed of two forensic pathologists and a paediatric pathologists to review the work.

The specific findings of fault directed against Smith by the panel are instructive because they paint a picture of Dr. Smith's approach to his work as far back as 1988.

The faults are listed in the College's decision on the complaint as follows - under the heading, "specifically the review panel commented on the following.":

0: The fact that complete radiographs were not taken during the exhumation autopsy;

0: Dr. Smith's failure to review or have a consultant radiologist review the x-rays.

0: Dr. Smith's failure to take vital steps, such as reviewing the medical records and obtaining a consultation when needed (mitigated by the fact that some of the information was not available to him.);

0:Dr. Smith's failure to document photographically the alleged cortical contusions;

O: Dr. Smith's failure to include a comment in his Report explaining why he concluded the injuries were consistent with shaking;

0: Dr. Smith's overinterpretation of some of the pathology findings (eg., petechial hemorrhages misinterpreted as contusions; Dr. Smith should have interpreted whether or not they were contusions);

0: Dr. Smith's "overly dogmatic" approach in court and his failure to state that (the deceased baby's) head injuries could have been caused by something other than shaking; (See previous posting (October: "Extremely Dogmatic" expert testimony played role in Mullins-Johnson case);

0: The fact that Dr. Smith's testimony was sometimes weak, when he admitted ignorance in an area in which he should have had expertise, and his tendency to defer readily to defence witnesses without a crucial evaluation of their opinions - the expert panel described this as waffling.

I feel the anger welling deeply within me when I think that a 12-year-old baby-sitter was charged with the horrific criminal offence of manslaughter as a result of Smith's shoddy, incomplete work, as pointed out by the independent reviewers.

Then I think about all of the times at the Toronto Star - where I worked for more than twenty-two years before recently retiring - when an editor would take a magnifying glass to my story to make sure that every fact had been pinned down and that no stones had been left uncovered.

Why wasn't anyone in the Chief Coroner's office going through the same process with Dr. Smith?

The findings of over-statements of pathology findings - and an overly dogmatic approach in court - are particularly disturbing because Smith's report followed him into the courtroom where he would appear to be the neutral, dispassionate, trustworthy and credible agent of the state.

The finding that Dr. Smith failed to state that the baby's head injuries could have been caused by something other than shaking - as did Judge Dunn - goes to his fundamental honesty and willingness to give a full picture to the court so that the trier of fact could arrive at a fair conclusion.

I am particularly fascinated by the way the College categorized a letter that Smith sent to a colleague conveying an unsubstantiated statement that, "there was ample evidence to support such a diagnosis (of child abuse)" as "at best carelessly worded."

"We are of the view that Dr. Smith must apply more stringent standards of accuracy to statements he makes in his professional capacity." the committee said.

Before reaching this conclusion, the College complaint committee noted that, "Judge Rorke, another professional, that there is ample clinical evidence when he does not know what it is." (See earler posting (October): "Dr. Charles Smith's "sins" as cataloghed in Superior Court);

This was a huge indictment of Smith - that the report he submitted to court and based his evidence on could not be trusted as based on a complete forensic investigation - and that he conveyed questionable information to his professional colleagues, which, no doubt, could influence their opinions on the case.

Especially since his official reports and his letters to his colleagues were signed by the pre-eminent Dr. Charles Randal Smith.

Harold Levy;