Thursday, January 31, 2008

Part Two: Practice What You Preach, Dr. Smith: The Unedited Speech;





“I am granted by you an audience; for this, I am honoured."

Over the next minutes, I will discuss how to get into trouble, how to handle trouble to avoid court, what to do before you go to court, and how to communicate both verbally and non-verbally in court.

While this information is directed at the courtroom experience, I should also tell you that I am an examiner for the Royal College of Physicians. And many of the techniques used in court will also save your neck when you are sitting your Royal College oral examinations.

You will remember this advice when you're involved in:
1. Being sued
All too often, the first warning that legal action is being undertaken, is the arrival of a Notice of Writ. Most legal actions are not unexpected. For anesthesiologists (and indeed many others), the unexpected legal action often comes in the form of a shotgun lawsuit which implicates all the physicians involved with a patient. I am not going to direct attention about specific problems or legal risks related to vour specialty - you know them better than I. But as a pediatric pathologist who gets involved in the determination of cases of birth asphyxia, I note that, according to lawyers retained by the CMPA (Canadian Medical Protection Association), one of the recurring problems is that of resuscitation of the asphyxiated newborn. The plan is simple: if a parent has an asphyxiated baby, then it is either the 'fault' of the obstetrician who delivered the baby or the anesthesiologist who attended the resuscitation. So if you are in community practice, be very familiar with the resuscitation of the flat newborn, and remember to document your involvement carefully. Being involved in the litigation process is very unpleasant. It is painful to remember the event which led to the suit. It is painful to discuss it. .It is painful to write it down. And it is even more painful to recall it in detail, in an adversarial environment. Because it can be expensive to launch a lawsuit and pay for a lawyer to retain expert witnesses, there are two other avenues which people (or their lawyers) are using to obtain information of value in a lawsuit ...

2. Complaints to the College of Physicians and Surgeons of Ontario The first is a complaint to the CPSO. It doesn't cost much to launch a complaint against you (a 42 cent stamp will suffice). And the College will require a written response from you, and other supporting documentation, all of which is shared with the complainant

3. A Coroner's Inquest;
If there has been a lethal outcome to a medical act, then the family can push for an inquest. Remember that an inquest jury cannot apportion blame or determine negligence. Nevertheless, the inquest has been used as a place where a complainant’s lawyer can go fishing for culpatory information. Therefore, when you are invited to an inquest, you should consider your role carefully, and if in doubt, contact the CMPA prior to discussing the case with others.

4. Real things
Real criminal things don't often involve members of your specialty, except in situations where you are involved in the resuscitation of an injured person. (If you're involved in real criminal things, you shouldn't be sitting here, you
should be out hiring a good lawyer.)

All of these court actions are stressful. And many people will tell you that they can be as stressful as sitting your oral examinations for the Royal College. There is one fundamental difference: in a Royal College exam, the examiners all want you to pass, but in court, at least one of the people examining you wants you to fail!

Remember that in these situations, you may not simply be trying to convince a lawyer or a judge. There are juries. White juries are common in medical malpractice lawsuits in the US, that has not been the Canadian experience; However, the first one did occur several years ago in Canada (on an orthopedic case dealing with a complication. of a plaster cast, here in Toronto). Following the instruction of the former Chief Justice Dickenson, that negligence must not be assessed just because a defendant has enough money to compensate a person who has been injured, but must be assessed based on blame. Many expect juries to become more commonplace, as lawyers worktowards getting larger settlements.

Being a litigang (sic)t;
Being sued is a painful experience that you will remember for the rest of your life. Being a litigang (sic) causes you to remember that painful episode, and none of us like doing that. Furthermore, you must remember it in detail, and you end up recalling it in agonizing detail in an adversarial environment. It is important that, when you are in trouble, you relinquish the 'take control' attitude that you were taught, and seek help.

When you're in trouble:
1. Don't fix it yourself. You've lost objectivity
The Upper Canada Law Society encounters a phenomenon which is well known to the Canadian Medical Protective Association. It is very common for young practitioners, when they are getting into a sticky situation, to rely solely on their own abilities to dig them out. And that does not work. A person is too dose to the problem to have an objective perspective, and thus is not in the best position to solve a problem. It is in this stage, that people start to falsify records. Don't. Furthermore, it is at this stage that a cover-up may begin. And when it involves a patient, attempting a cover-up may serve to make the situation worse: instead of proper patient management being instituted or a healing process beginning, the cover-up may allow a problem to worsen.

2. Remember you are not invincible
Somehow, the professions teach us that we are to be infallible. And when we fall, we don't know how to land without getting hurt.

3. Confess your sins early. Shift the burden.
Talk to an elder: The .gray-haired elder will have a reasoned, rational perspective. (And part of their reason for having gray hair, is that they have gone through the same baptism of fire.) As well, the grey-haired elder will be able to assess whether the patient needs medical help (i.e., that the underlying
disease or its complications are not being ignored).

4. Write a narrative.
It is no fun to relive a difficult situation, but it is important to document it.
A contemporaneous analysis is very important. In that analysis, don't re-invent the story. Simply record what happened. Because the law recognizes the privileges of the solicitor -client relationship, a narrative can be used to protect you only, and not to hurt you, if you protect it from prying eyes. You do this be heading it, "For advice of counsel only". Your verbal recollection of events in the past is of little value, should someone else have a written account of what happened, even if that written account if wrong. For that reason, a contemporaneous account is important. One Toronto judge put it in a nutshell, "I am less interested in the truth, than in the proof." If you have not carefully recorded what you have done, you cannot prove that your independent, verbal recollections are true.

5. Don't cover up. Remember what it did to Watergate

Cardinal rule to staying out of trouble: Write down what you do. Whenever you are involved in any situation that could possibly spark the interest of a lawyer, write it down. Either write a narrative, explanatory note in the chart, or dictate a note. Whatever you do, write it down. I cannot emphasize this enough ... writing down what has happened will never get you in trouble, but failing to record it, is a certain way to end up in a difficult situation. You might think that a complete anesthetic record is all you need to protect yourself, and in theory it should be. But the dynamics of what happens in the OR or in the PAR is beyond the structure or the morphology of the anesthetic record. To make it worse, some lawyers have a certain impression about anesthesiologists. Such lawyers think that the squiggles that are put in an anesthetic record might represent fabrications which were minutes, or hours, or even days later. Don't give them any reason to question your actions or record. . . . . .

What does this mean? simple: when there is a death during or immediately after a medical act in which you are involved; write it down; Record it in words, not just in squiggles. Why bother? . It is a bother. But you must understand a fundamental
difference between the medical profession and the legal profession. In medicine, we (usually) work in a collegial atmosphere in which the care of the patient is the ultimate end: And that atmosphere is characterized by a sense of trust along with abundant, open communication., Your word is truth. With lawyers,. it is not so. Lawyers, especially The Lawyer Who Doesn't Like You (TLWDLY) 'work in an adversarial. atmosphere. A sense of trust along with abundant, open communication are unknown to our legal friends. And thus, everything must be written down. The rule is simple: if it is not written down, then it didn't happen.

. .
What does it mean to be an expert?
The most important part of your evidence is the fact that you are a trained expert. You must communicate in such away that the jury is :convinced of your professional status. They need to know that you are: current (i.e., knowledgeable), credible, competent, capable. As soon as you are sworn as a witness, the lawyer who presents you will attempt to have you recognized as an expert witness. Here's why:.

What it means to be an expert:
1. Fact us. Opinion;
The trier of fact (the judge or jury) has to base a decision on fact. However, the understanding or interpretation of fact may be beyond the ability of a lay person, if that fact is of complex technical, scientific or medical nature. Therefore, the law recognizes that a judge or jury can be helped by a person who can interpret facts to them. Thus, your role as an expert witness allows you to make statements of fact and interpretation (or opinion ). It is a significant responsibility, and must not be taken lightly.

2. Not necessarily the leading expert
Being an expert does not mean that you have to be the nation's top dog in a certain area of medicine. If you are a GP, you could be an expert in general practice. If you are an anesthesiologist working in a small city, you can be an expert in the practice of anesthesiology in a community setting. This touches on the issue of practice standards ... In Canada, we use the norm of what another practitioner would do in that setting, whereas in the US, there is a push for universal standards.) I live on a farm, and the farmers who live around me are not the kind of people who understand the swirl and intrigue of courtroom activities. A farmer on a tractor is the farthest thing from an expert witness. Let me tell you about a farmer ... A short while ago, there was a tomato farmer who lost a pile of money when he found himself the target of fraud.: And when it came time for court, his simple, homespun, way of talking wasn't going to go very far in the adversarial, pressure :cooker of the courtroom. But the lawyer who introduced him did a fabulous thing. He started asking him about tomatoes. This chap answered questions for almost half an hour about different kinds of tomatoes, how to grow them and how to harvest them. By. the time the introductory questions were over, this man had a phenomenal level of
credibility with everyone in the courtroom, because they knew that he was good at what he did. . . . , Within the framework of humility, allow the judge (and jury) to see that you are an expert at what you do, and they will listen you.

3. Ethics of this position
You must show that you are ethical. It is only ethics that bind what you do to what you say. Don't ever get to the place where you have to say "I'm the expert. Trust me." The judge and jury won't.

How to be the best expert witness: Be an outstanding teacher; Your role is that of a teacher. The judge wants to learn from you, and the jury wants to learn from you. For a moment, think about the things that you remember in the best teacher you ever had ... You must be an informed, innovative, and entertaining (but not funny). The jury wants information. Teach them, but' don't talk down to them. remember, the legal process treats them like children,. and they are the fall guys for society. Be nice to them by being the best teacher possible. To be credible, the jury must understand what you are saying. If they cannot understand you, they will question your credibility. Hence - Remember the KISS principle. One sign of a good teacher is the ability to take a complex matter and reduce it to simple form. Before going before others, prepare in your mind how you are going to communicate your concepts, and if need be, choose carefully the analogies which you might use. Remember that part of the stimulation of teaching is the ability to field questions from students. How well a teacher answers questions, is the mark of a good teacher. The courtroom is no different. Being a good witness means taking the questions asked of you, and turning them into teaching opportunities.

Before entering court:
I. Prepare your CV
It is imperative that you have prepared a complete and up-to-date CV. You should have provided it to your lawyer beforehand, to ensure that they will bring out the aspects of' your work which are of relevance. Be prepared to be asked some embarrassing questions about your CV, especially y if there appear to be any gaps in time. Do not over inflate your achievements. Start your listing with your econdary education (college or university). Skip high school. Remember to include your teaching activities. For reasons. that I don't understand, judges and juries are. impressed by people who teach others, especially in the professions. Make certain that you are familiar with your publications; and that you know what you have previously written or said as it. relates to the matter at hand. For example, I written a handout for a pathology workshop at the annual meeting' of 'the Canadian Association, pf Pathologists. There were 25 people in the workshop, which was held in Winnipeg. Like all handouts, it was simply an adjunct to a lecture.. Two years later, I was cross-examined on the, document in a courtroom in Timmins. How a lawyer ever got a copy of the 'handout was beyond me. Even worse, he quoted the statements out of context, to show that I was contradicting myself.

2. Know your material
Know your stuff cold (but don't have memorized things such that you recite them word-for-word). If you need support documentation, bring it along with you. It is only a wimp that says, '1 forgot to being my notes."

3. Visual aids.
One of the truisms is, a poor witness with good visual aids is much better than a good witness without. Courtroom psychologists tell US that the order of importance of data given by a jury is: visual (55%), verbal (35%) and vocal (i.e., the tonal qualities) (10%). There are some exceptions, and there are some times that a simple sentence has tremendous impact. Let me give you some examples: The building is on fire." '1 love you!' ' I am pregnant."

CMPA List of how to answer a question: Here is a listing of a litany of five things that the lawyers from McCarthy Tetrault (good people who work for the CMPA) tell their unfortunate clients: 1. Listen to the question If you don't understand the question, ask for it to be reworded. If you get the same wording a second time, tell that the lawyer. Remember that a long question is often an indicator that the lawyer who is asking it, is either in trouble of isn't very good. And if you might have a bit of trouble understanding a long question, the judge/jury will have even more. So get it restated. Ask for it to be simplified.

2. Clarify the assumptions: Before you answer a hypothetical question, make sure you understand all the assumptions that are being made. . . lawyers like to ask hypothetical questions. On television, you will see politicians responding to. journalists by saying, "That’s a hypothetical question." And then the politician doesn't answer it. But in court, when a lawyer asks you a hypothetical you have to answer it. (And what really gets me, is that lots of politicians are lawyers, and' they know that if they were anyone else, they would have to answer the hypothetical!)

3. Answer only that question: (This is especially important in sitting your Royal College examinations. Failure to observe this rule, will get you in trouble faster than you can imagine, as the examiners are looking for areas of weakness.) Most questions can be answered by "Yes/No/I don't know ..." If you must answer a difficult question from opposing counsel in a way that you don't like, you should say something like: "Yes, but let me explain." That sends a signal to the judge (and your lawyer) that if the opposing counsel won't let you answer, then they should return to it.

4. Do not volunteer; Remember that the more you talk, and especially if you start to wander off topic, the more ammunition you are giving to the lawyer who doesn't like you (TLWDLY).

5. Do not speculate; Want to get in trouble fast? Try volunteering this: "Perhaps if I had done such-and-such, the patient wouldn't have suffered any complications."

My list: I would extend the CMPA list of 5 commandments that must never be broken, with five more:

6. Do not answer too quickly: Don't interrupt when the lawyer is asking the question. Listen to it. Then take a breath. If need be, take a moment to think through your answer. If it takes 25 or 30 seconds, don't worry. It allows you to compose a solid answer that will help your position. (This is also invaluable advice for residents sitting Royal College orals.)

7. Do not joke: Lawyers have a sense of humour which is quite different from ours. They don't understand our jokes. Worse, judges are supposed to be impartial, and they ren't supposed to laugh, as it might suggest that they agree with you. If you joke, be prepared to hear Queen Victoria say, We are not amused."

8. Do not answer if told not to; If someone tells you not to speak, then don't. It is either to keep you out of trouble, or to avoid a mistrial.

9. Be silent when counsel are in dialogue It's courteous. And it will give you an idea of what is important.

10. If you make a mistake, correct it quickly: People do make wrong statements by accident, especially in the pressure of the courtroom. If you are talking away, and realize that something you said a few minutes ago was wrong, then correct it immediately. It will show that you are anxious to be as accurate as possible.

Non-verbal things:
You must also pay careful attention to how you communicate non-verbally.
Here are some rules:
1. Dress code: What would anesthesiologists know about dress codes? You people wear
baggy green pajamas all day long! Don't sneer- this is important. Have you read Tom Peters, who has authored 'In Search of Excellence and 'A Passion for Excellence'? He talks about a major American airline which had a credibility problem. In the face of
decreasing passenger miles, they undertook a rider survey. And they found that the passengers didn't think they did a good job on their aircraft. Why? Easy- there were coffee stains on the seat back trays. And any airline that leaves coffee stains on the trays, can't be doing a very good job maintaining their aircraft or running an airline. If you are a doctor, then the public regards you as a 'suit”. Wear one. Your dress code should be appropriate to the community in which you find yourself. Don't show up wearing a yellow checkered suit that looks like it was made from left-over seat cover material off the Dodge Omni assembly line. Look like a doctor, not a used car salesman. Dress very conservatively. I remember a judge who referred to a police officer from the homicide squad as "the man whose suit jacket was unbuttoned when he walked into my court". After I heard that, I began buttoning my jacket. Think about the recent Jeffrey Dahmer trial from Milwaukee. He is the guy who had an unusual way of inviting people for dinner. By anyone's estimate, Dahmer must have been nuts. But the attorney, who prosecuted Dahmer brought in a forensic psychiatrist named Dietz whose job it was to convince the jury that he, was quite sane. And he succeeded. Dietz had instant credibility with the jury because even before he opened his mouth; they noticed that he had short hair and he dressed: in a normal manner (something very foreign in the field of psychiatry.). Avoid wearing-any lapel pin or symbol that represents your favourite political party, religious group, or whatever. Remember that on the CBC National news, the announcer is allowed to wear a poppy for Remembrance Day, but nothing at other times. You might be a right-winger who thinks that the NDP is the worst thing to hit Ontario since Prohibition was proclaimed in May of 1909, but don't wear the lapel pin which' you got when you joined Preston Manning's Reform Party. Remember that some. lawyers: who have been NDP party members are now judges. Jewelry must also be conservative. If you are a man wearing thick gold bracelet, you are sending a message that you are. loaded, and you must have deep pockets capable of big malpractice payouts. Here are the two rules about earrings:
1. You must wear an even number, and
2. Earrings are permissible oily if you happen to have an even number of X
chromosomes. . .

2. Attitude: humility vs. arrogance: The Bible teaches the importance of humility. Nowhere is it more important than in the courtroom. If you begin in humility, you will likely end in success. If you begin in arrogance, you will end in embarrassment. Most surgeons are just plain arrogant Neurosurgeons are different- they are exceedingly arrogant. The most belligerent are the orthopods, who want a good fight ("How could that jerk refer to my care of him? Boy, I'll clobber him in court!"). Don't be belligerent. Physicians are different from surgeons, inasmuch as physicians are more humble. (Except when it comes to courtroom attitude, the lawyers for CMPA, tell me that anesthesiologists are more like surgeons than physicians.)

3. Stifle nervous behaviour: Avoid distracting mannerisms. Don't keep playing with your glasses, or scratching yourself. The judge or jury will begin watching what you do, and ignore what you say. I have a problem, and it's my pocketknife. I always carry one, and I play with it whenever I get bored. It has gotten my in trouble in court, when I have taken it out of my pocket and began opening it up.

4. Use impartial body language. Look at the lawyers: If you walk into a courtroom when a physician is testifying, it is usually a breeze to figure out which lawyer is questioning him- the lawyer who is on his side, or TLWDLY. It is in body language. We look at people who we like, and most of us don't look at the person who is asking us the tough questions. Remember what it was like when your parent was questioning you on something you did (or didn't)? You couldn't bring yourself to look at them, could you? The same happens in a courtroom. It is very hard, to look at the person who is asking tough questions, or is trying to sue, you. .But you can send a clear message to the jury that you are in control, if you are careful. Look the lawyer in the eye. . . Don't cross your arms. . . Don't grit your teeth. ',
Don't put your hands near your mouth: it suggests that you are uncertain or. you are lying. If you have a problem, stick your hands down. and hold to something. You can stick them in your pocket, but 'only if your pockets are empty. If .. there is change or car keys in your pockets, you will start playing with it, and then you will signal your uncertainty. I have known solid, macho physicians break down in tears at an inquest, And even if it was not their reputation on the line. Don't break down. If you feel it coming, turn to the judge and say, ''I need a recess now."
Another important part of body language is your decision to sit or stand. If you can stand, do so. You have a more commanding presence (if only because you are above the lawyers). But realize that standing requires you to stifle all nervous behaviour.

5. Look at the jury. Make eye contact with each one: The jury are the important decision-makers, and don't want to be left out. You need to build rapport with them, and you don't do that unless early on in the game, you are able to establish one-on-one eye contact with each person. You can look at the lawyers when they are asking you a question, but be sure that you look at the jury when you are answering a question. Besides, watching them tells you if you are getting the message across. If, while you are speaking and watching them, and they are watching the flies on the ceiling, you have a problem.

Non-verbal things: Remember that some degree of stage fright is OK" With experience, you will develop your own confident but relaxed style

In addition to the 10 techniques (or commandments) about how to answer
questions, here is another list of 10 commandments for courtroom survival that
I have drawn up:

Once you start talking: I. Tell the truth; Whatever you do, don't lie. Trying to remember a fabricated, complicated lie, is in impossible task. Even is you are a convincing liar and you can keep your story straight (which I cannot- even my 6 year old son knows when I try to lie to him), don't lie. Someone will find you out. Especially TLWDLY, because he/she is trained to look out for liars. The first and greatest commandment is the one which, when broken, will . have you banished to the outermost places for the rest of your days. You see, the people who are judging what you say must listen to all that you say. And if they think that you have willfully testified to any material fact, then everything you say can be disregarded. Where will you get caught shading the truth? ' There are lots of places, but a common place is in failing to order a certain test or do a specific examination. Don't shade the truth. If you didn't do a certain test, say so, and say why you didn't Explain why it was not necessary to order it;

2. If you have changed story, admit-it quickly: What about when your story changes? This is not just lying, but it also includes the situation when you make a different interpretation of 'facts: Let me give you an example. I was involved in a court case in which I had to estimate the time of death, In spite of what you see in the movies, there is no way the pathologist can determine when a person a died, unless the pathologist did the killing (which does happen in Michigan!) At the preliminary hearing, I estimated the time of death using one set of criteria. In Supreme Court, I used a different (and equally useless) method of estimating the time of death. And the results were different. .(Actually, I used three different methods, and they were all lousy.) But I didn't explain what I had done. And so, the defense lawyer used my inconsistency to prove that I was a liar and he suggested to the jury that I changed my story at the request of the police. Corollary: if you have changed your story, then get your lawyer (not the other side) to bring it out. That way you can anticipate and defuse the crisis.And then there are those who think that' if you must lie, lie big. A big lie is easier to believe than a small lie. I did an autopsy on a boy who was-left in the woods and froze to death. His body was rock hard when I did the autopsy. The defense brought in a pathologist from the United States who testified that the boy was likely alive when I did the autopsy. That sounded like a wild story, but the jury believed it!

3. Remember the limits of your expertise: If you start wandering outside the bounds of your expertise, you can get in trouble. TLWDLY might sarcastically ask, 'What else are you an expert in, doctor?" Or TLWDLY might trip you up of a point of fact, and show that you are no expert in this peripheral area, and thus you are not much of an expert in any area. Stick to what you know, and answer peripheral questions only very carefully.

4. Don't be an advocate: Don't get into an argument Don't fence. Watch your tone of voice. .. It is important when speaking not to use a monotone, but to vary the pitch of your voice. But that does not allow you to use a volume or tone that borders on the combative or argumentative. You are not being paid to be an advocate. Lawyers think they make the best advocates, and even when we physicians realize that lawyers aren't very good at being an advocate, remember that the judge is a lawyer. In fact, many opposing. lawyers will try to get into an argument, 'as that is the way of discrediting your 'seemingly impartial nature, and, provides the opportunity for you to make a mistake by letting a remark or piece of information slip out. Don't get into an argument. The quintessence of a good expert witness is a person who provides information in such a way that the jury cannot determine from his/her body language and tone of voice, whether he is being paid by the prosecution or the defense. Here is what to do when you start to get angry. Don't argue. Instead, ask for a bathroom break

5. Watch your language: You are supposed to be a gentleman or a gentlewoman. Make your language match your role. There is absolutely no place in a courtroom for vulgar or profane language. (Nor, for that matter is there any place for such language.) Utter no blasphemy. Do not respond to a difficult question by swearing. For when you invoke the name of your Heavenly Father, the judge and jury. that no mortal man can extract you from the position you have gotten yourself in. Don't make sexist remarks or use sexist language. You might think that it's OK to be a male chauvinist pig. (In fact, I fear that you are probably looking at one, right now.) But there are increasing numbers of women who are wearing judge’s robes, and the trend will continue.

6. Be courteous to all"Be a gentleman or a gentlewoman. Be courteous to all, especially the judge.

7, Make the patient a real person: It is easy to keep referring to a person as 'the patient'. Don't do it. Use the person's name ('Mr. Jones'), rather then referring to them as 'the patient'. Make sure you don't use the term 'it' when referring to a person. It is easy to refer to an infant or a child as 'it'. That hurts your credibility. Remember their sex and refer to them either by 'he' or 'she', or better yet, remember their name. It shows that you are a caring physician..

8. Use statistics carefully. You're making it easier for the other side, Judges and juries know that statisticians are simply big liars with a veneer of espectability. Use statistics carefully, because they can be used against you.

9. Don't use killer words - "I think" "I believe" I guess": These words suggest uncertainty. Don't use them. Stronger phrases are i t is my opinion that or "It is my conclusion that". Notice that the list of killer words does not include, "I don't know." If you don't use it too often, it is not a killer. In court or in the Royal College examinations.
. .
10. Acknowledge your sources: Remember Sirhan Sirhan, the chap who shot Robert Kennedy; Obviously there was no question that Sirhan had pulled the trigger. The defense strategy was that Sirhan was a paranoid schizophrenic who, as a Palestinian, was acting out his hatred for Israel by shooting a Kennedy; The first. Witness for the defense was a shrink who wore a bright green jacket (this was .in the days before they were trendy- mistake number 1): And in his written report, .the shrink used some sentences which define a paranoiac and describe what that meant for Sirhan. But when the district attorney cross-examined the shrink, it was apparent that his sentences were plagiarized from the book “The Mad Bomber” about a nut from New York. Sirhan's defense was destroyed by a green-jacketed shrink who stupid enough to plagiarize. The jury found him guilty, and he was initially sentenced to death. There are some related questions that force you to acknowledge your sources.. . Is you opinion based on judgment or on fact? Be prepared for 'this one. Facts are more important that judgment calls. If you have reached an opinion or come to a conclusion based on judgment, be prepared to acknowledge it. And be prepared to show your reason for that judgment call. Are you relying on input from others? You are in court because some cardiac cripple died after you gave him an anesthetic the issue is the guy's heart disease. You testify about it. However, on cross-examination, it becomes. . Apparent that your pre-op examination was a lot less thorough than the cardiologists, and that' you relied on the consultation report of a cardiologist. Are you, in trouble? Maybe yes, if you start behaving like you-are a cardiologist. Maybe no, if ordinary practice allows you to rely on a cardiologist’s report. Your defense is to show that your reliance on a consultant's report is ordinary in your field or is customary in your field.

Eight keys to cross examination: Lawyers will admit that it is not easy to cross examine an expert witness. It Is not very often that they can attack an expert witness head-on, and win. But Most good lawyers will look for one little thing by which they can turn you into Their witness. They will look for one small point by which they can get you to agree with them. And sometimes it will be a big point. But they are attempting to turn you into their expert witness. Here are some of the other techniques that TLWDLY may use...(McEIhaney, 1989)

1. Counsel wants to "make you mine": An opposing lawyer will look for some area by which he can get you to agree with him. Usually it is a small area, but it may not be. But in some way, he wants you to agree with him. This technique is called 'making the witness mine'. And once he starts to make you his, he may continue to probe or he may sit down and savour the victory.

2. Attack your field of expertise: For example, in the US, pediatric pathology is a recognized subspecialty, but in Canada, it is not (there aren't enough of us). In one instance, when I was being offered to the court as an expert in pediatric pathology, the argument was that it was not a recognized specialty in Canada, and therefore I could not be recognized as an expert in that area.

3. Attack your CV: Looking for gaps. For example, I saw a physician testifying who had left a two-year gap in his CV. When questioned, he indicated that it was time spent in the army. The lawyer said, "Oh, you're not proud of your service?" But
before the physician could reply, the lawyer said, 'You don't have to answer
that question."

4. Expose your bias or prejudice: TLWDLY may show that your attitude is unreasonably fixed. A cross examination may be done in such a way that you are lulled into taking a position of absolute certainty. And when you are handed one contra-indication after another, you may continue to hold your position of absolute certainty. Your tenacious adherence to a position can undermine your credibility. In England, there was a megadollar (megapound?) lawsuit against the manufacturers of a certain vaccine, by parents of children who had allegedly suffered permanent brain injuries from their immunizations. And the presiding judge had to listen to a pile of conflicting experts. In deciding which experts to believe, he put great value on the expert who was willing to change his opinion, when additional or contradictory information was given to him.

5. Attack your fact basis:

6. Change facts on hypothetical questions; You must be certain that you understand the assumptions inherent in complex questions. Impeach you with prior statements;

7: Impeach you with your prior statements: If you have written anything or testified in court before, a good lawyer will. have found your statements and will use them to his advantage. Once, I gave a workshop in pediatric forensic pathology to a group of pathologists at a meeting in Winnipeg. With the workshop, I distributed a handout that, like handouts, is a brief overview of the course material. Three years later I was testifying at a murder trial in Northern Ontario, and the defense lawyer not
only had a copy of it, but questioned me at length on it. He tried to suggest
that it was an exhaustive treatise that, because of its brief nature, showed that
there was little science to the area of child abuse, and that I was just guessing.

8.Attack you head-on;

Ninth key:
9. Catch 'em off guard! In addition to this published list of 8 keys for cross examination, here's a ninth: TLWDLY may try to impeach you with relevant texts and journals. Remember that any textbook or journal can be used support an opposing
position, and therefore it can be used, to cross-examine. The scenario with TLWDLY goes something like this:
"Q.: Now Doctor Hartley, are you familiar with Professor Ronald Miller's
textbook entitIed "Anesthesia”.
A. Yes.
Q. The third edition, printed in 2990?
A. Yes.
Q. you recognize it as an authoritative text?
A. Yes." - and then TLWDLY will go on to quote some paragraph and show that it
disagrees with your management of a patient. There is a simple lesson here. Remember that you do not necessarily have to agree with everything that was written in an. authoritative text or journal: (But you must be prepared to disagree with it, and have your own sources.) And if you do not recognize the text or journal article, do not accept what is quoted to you, without first reading it and ensuring that it is not being quoted out of context, or that it is tangential to the matter at hand. If you think you may be caught in this situation, ask the judge for a few minutes to review the material; you may be able to come back into court and indicate why the journal article is irrelevant. . . There is another simple trick that has unfortunately been used successfully in court. That trick consists of duping you into recognizing a work that isn't. Let me give you a scenario. You are feeling a bit worried, and want to be sure that the court knows you are an expert. So TLWDLY stands at his/her desk some feet away, with a pile of texts. And TLWDLY picks up each one, looking at the cover and reading the title to you. Here's how it goes:
Q. Now Doctor Hartley, are you familiar with Pediatric Anesthesia, by
Professor George Gregory of the University of California in San
A. Yes.
Q. The second edition?
A. Yes.
TLWDLY picks up another text.
Q. And you are familiar with 'Smith's Anesthesia for Infants and Children'
by Professor Mitogama of Pittsburgh?
A. Yes.
(Actually, you've only seen it sitting on the shelf in the Department Chief's
Q. The sixth edition?
A. Yes:" (Actually, you don't have a clue how many editions there have been.)
And at that point, TLWDLY walks up with the textbook in his hand, and
shows you the title. It’s 'The Adventures of Huckleberry Finn' by Mark Twain.
There is no sixth edition of Smiths's text on pediatric anesthesia. And at this
point in time, you will wish that you were on board Huck's raft, drifting slowly
down the Mississippi River.

Involve the trier of fact by: There are several steps to winning the trier of fact (judge or jury) to your position. It is generally agreed that the four steps are:

1. Feeling: Your appearance, your manner of speech, your vocabulary, your body
language can make a person get a good feeling for you. To win the trier of fact
(the judge or the jury), you start by causing them to have a good feeling
towards you.

2. Watching: You will be watched. Your clothes will be studied, your hands will be
watched. Your tone of voice will be assessed. The trier of fact will be looking
for behaviour which supports your words, or which minimizes or contradicts
your words.

3. Thinking: Facts follow feelings...Get the trier of fact to think about what you say. When you explain a difficult point, give them an analogy so that they can think about the analogy and then understand your explanation. Don't just give them dry facts. You will get them to think by being a good teacher. And as they think about what you say, they are more likely to agree with you.

4. Doing: If they follow you in their feelings, their observations, and their reasoning, then they will do what you want them to do, which is to agree with you. In an inquest, for example, the jury may return with the recommendation that you
have suggested to them.

A coming question: "How much are you making?" Here's a question that is only beginning to makes ifs appearance in Canada: "How much are you getting paid for this?" If you want a guideline, remember that the CMPA pays an honorarium of about $200 per hour.

What to do when you're done: Leave the courtroom: When you have finished testifying, walk out of the courtroom. (It helps nderscore your air of impartiality.)
Be prepared to be frustrated (you won't be disappointed!) The very nature of the legal process creates frustration within physicians. One reason is that the question process is put in such a rigid order that it makes little sense. That's because one side of the argument goes first, then the other side. And you are not allowed back again. Let me give you a picture. Imagine 6 docs standing around a patient's bed, with the patient's nurse. Three docs on one side of the bed take turns to convince the nurse that the patient has Diagnosis A. Then they are dismissed from the room, while the three does on the other side of the bed all try and convince the nurse that the patient has Diagnosis B. Obviously, the docs supporting Diagnosis A will have some reason to disagree with the docs supporting Diagnosis B. The 'B' boys could be completely off the wall. But the process does not allow the 'A' boys to come
back and explain to the nurse (or the judge) which the B boys are wrong. It’s
frustrating. And so, be prepared to be frustrated.

Be prepared to have your reputation on the line (if not in court, then in a
newspaper!) In medicine, our reputation is very important to us. But in the legal forum, it is fair game to attack a physician's facts, opinions, or reputation. And the attack on your reputation can be very insidious, such that you are not easily able to defend it. Believe me, it can be very depressing to read the Toronto Star (or worse, the Toronto Sun) and discover how dumb you are.

"I am honoured by the audience which you gave me."

McElhaney, J. W. (1989)


Practice What You Preach, Dr. Smith;

One of the most revealing exhibits filed at the Goudge Inquiry is a speech called "See you in court: (The Invitation You can't Refuse)" that Dr. Smith presented to anesthesia students in May, 1992);

Dr. Smith described it as a speech, "on how to be a better expert witness" in a letter he sent to Deputy Chief Coroner Dr. James Cairns.

Commission Counsel Linda Rothstein was quick to point out that at this juncture in his career Dr. Smith did not have any experience as an expert witness - and asked him why he did not turn down the invitation to deliver it - to which Dr. Smith replied:

"Well, I -- I don't think I -- it would be fair to say that it was what I had
learned thus far. Virtually all of this was -- was information which I had -- had borrowed from others or gotten in discussion with others, so -- so some of this was my own experience, but much of it was -- was based upon what I was -- was told because I had no experience in those areas."

Stopping right there, this is a classic example of Dr. Smith's willingness to charge ahead - and take on responsibilities - in areas in which he was ignorant.

The timing was also significant;

Dr. Smith accepted the invitation to deliver this paper in May 1992 - around the same time that he agreed to head the newly established pediatric Ontario Forensic Pediatric Pathology Unit at the Hospital For Sick Children.

He candidly admitted in his testimony over the last several days that he new nothing about forensic pathology - or the justice system - when he took on that job for which he had neither professional qualifications or experience.

(Another classic example of a serious character flaw: A willingness to thrust himself in positions which are over his head without any consideration of the responsibilities involved and how it may affect other people.)

Unless, of course, he lived in a fantasy world at the time, and actually thought he was the wise, ethical, truth-telling, knowledgeable expert witness he was portraying himself as by delivering the speech.

In this Blogster's view, the speech tells us how created the persona of "Dr. Charles Randal Smith" - back in 1992 - like an actor writing his own script, playing the role to the hilt and convincing the audience that he really is the character he so skillfully portrays.

In short, Dr. Smith cunningly, and in a calculated manner, created the persona through speeches such as this and colleagues at the Hospital for Sick Children and the Chief Coroner's Office quite naturally bought in.

It was a pivotal moment;

His new position as head of the impressive sounding Ontario Forensic Pediatric Pathology Unit - I stress "forensic" - helped reinforce the illusion - and served as a prop for his performance as the impressive, experienced forensic pathologist.

The speech also reveals another unfortunate character trait: A willingness to coast on the work of others - making himself look good - without giving them credit.

Dr. Smith may have admitted to Rothstein under cross-examination that he had borrowed "virtually all of this" from others - but he didn't tell this to his audience - who would naturally assume this was all coming from him.

Nor, with one or two exceptions, did he acknowledge the specific source of the information which did not emanate from himself for the benefit of his audience.

That, of course, would have tainted the illusion.

(He actually uses the word "lifted" when he describes how he described how he obtained the contents for the speech - and raises even further questions about Dr. Smith's honesty);

Commission Counsel Rothstein used this speech brilliantly to illustrate the gaping Grand Canyonesque disconnect between the advice Dr. Smith was giving the students on what was required to be an expert witness - and his own career which has drawn the very term "expert witness" into disrepute.

She pointed out passages like:

0: (From the section: "What it means to be an expert, Fact": "The most important part of your evidence is the fact that you are a trained expert. You must communicate in such a way that the jury is convinced of your professional status. They need to know that you are current, credible, competent, capable."

0: (Same section): "The trier of fact, the judge or jury, has to base the decision on fact; however, the understanding or interpretation of a fact may be beyond the ability of a layperson if that fact is of a complex, technical, scientific or medical nature. Therefore, the law recognizes that a judge or jury can be helped by a person who can interpret facts to them. Thus, your role as an expert witness allows you to make statements of fact and interpretation or opinion. It is a significant responsibility and must not be taken lightly."

(Rothstein was also making the point that this fixes Smith's detailed knowledge of the justice system back in 1992: Smith testified under oath at the inquiry that he was utterly ignorant about forensic science and about the justice system because no one taught him how they worked!)

Try this one on for size: Under the heading "Ethics of this position"; "You must show that you are ethical. It is only ethics that bind what you do to what you say. Don't ever get to the place where you have to say, I'm the expert, trust me; the judge and jury won't.." ,

("Those words are apt today are they not, Sir?" Rothstein asked Smith. " I -- I think they are, yeah," he replied.)

Dr. Smith's 17-page speech was filed as an exhibit at the Inquiry.

I am enclosing an unedited version in the next posting - but please note, dear readers. It is entirely Dr. Charles Smith's work - not mine!


Wednesday, January 30, 2008

The Doctor And The Judge: Part Three: Fact, Fantasy or Outright Lie?

In recent postings I examined the question whether Dr. Smith's oft-repeated account of two detailed conversations with Judge Patrick Dunn about the Amber case - one on an airplane and one at a judge's conference years later - was fact or fantasy.

To this Bloggist it now appears to be an outright lie.

(See The Doctor and the Judge: Part One and Part Two);

During these alleged conversations (one supposedly made during the course of the trial) Dunn allegedly praised Dr. Smith his colleagues on the Suspected Child Abuse and Neglect Team at the Hospital For Sick Children in Toronto for their scientific evidence at the babysitter's trial and declared that in his view, the babysitter, whom he had acquitted, was actually "guilty as sin";

(Dunn had rejected their evidence in the judgment he delivered when acquitting the babysitter of manslaughter);

But yesterday Smith told Commission Counsel Linda Rothstein that it was not necessary to bring Judge Dunn to testify because he did not challenge Dunn's a sworn affidavit denying that these conversations had occurred.

Here is the exchange:

"MS. LINDA ROTHSTEIN: And you were asked by Commission Counsel whether it was necessary to call Justice Dunn as a witness to speak to any of the facts
set out in his affidavit. You understood that, did you not --

DR. CHARLES SMITH: I understood --


DR. CHARLES SMITH: -- that was a possibility, yes.

MS. LINDA ROTHSTEIN: And your counsel told the Inquiry that you did not intend to dispute any of the facts set out in Justice Dunn's affidavit and therefore, it was not necessary for the Commission to call Justice Dunn to give evidence and be cross-examined. True?

DR. CHARLES SMITH: That's correct."

The implications of this implied admission are enormous.

First, it means that he unabashedly slandered Judge Dunn - by stating Dunn had discussed the case with him during the trial - to the numerous people he recounted the story to over the years colleagues at the Hospital For Sick Children and senior officials of the Ontario Chief Coroner's Office.

Secondly, it means he mislead the College of Physicians and Surgeons of Ontario - to whom he gave a written account of the story in response to a complaint launched by the babysitter's parents.

To put it bluntly, he lied to his governing body.

(This has serious implications because Dr. Smith is still a member of the College - and subject to its jurisdiction - and because he pleaded guilty in 2005 to misleading the Saskatchewan College of Physicians and Surgeons on his application for temporary membership).

Here is a relevant portion of yesterday's testimony:

"Ms. Rothstein: In the middle of the first paragraph, you say: "In spite of several days of vigorous cross-examination by the defence counsel for SM, Mr. Renault, my opinion did not waiver." You then say:"Furthermore, on two (2) occasions during my week of testimony, the judge, Patrick Dunn, discussed my evidence "Two (2) occasions".Those words were not true, were they, Dr. Smith?

DR. CHARLES SMITH: No. I -- I erred -- I erred in that.

MS. LINDA ROTHSTEIN: And you knew they were not true when you wrote them, sir.


DR. CHARLES SMITH: I'm not sure just -- just what my thinking was then. I don't recall. But they are wrong, and -- and I'm very sorry for that.

MS. LINDA ROTHSTEIN: Discussed my evidence with me at length." Those words are completely untrue, are they not?

DR. CHARLES SMITH: That's wrong. That's -- that's what I believed, but that is -- it is not true, and I acknowledge that.

MS. LINDA ROTHSTEIN: Doctor, you knew that wasn't true when you wrote that.

DR. CHARLES SMITH: No. No. When I got off the aircraft, if you had asked me about my flight, or would have -- what I would have told you because that was
my -- that was my understanding or my reaction.

MS. LINDA ROTHSTEIN: He repeatedly indicated to me that he believed SM to be guilty."

DR. CHARLES SMITH: That's -- I believe I heard what I wanted to hear on that -- he -- based on his complimentary statements about -- about the witnesses. And I now realize that that was, perhaps, better described as pleasantries in his conversation, so. Though -- though that was my interpretation, and I believe I came to believe my interpretation, I recognize that that is wrong, and I -- nd I'm terribly, terribly embarrassed by it."

Thirdly, and perhaps most serious, Smith repeated this admitted lie under oath in court and has therefore exposed himself to a prosecution for perjury.

He repeated the lie under at a preliminary hearing in 1994 when being questioned by the defence lawyer as to his scathing criticism of the pathologist who conducted the autopsy;

Here is the relevant evidence from yesterday's session of the Inquiry:

"MS. LINDA ROTHSTEIN: (Reading from transcript of preliminary hearing):
Q: But people have said that about
you. They've alleged you've done
shoddy work, too.
A: That's absolutely true.
Q: Judges have said that about you.
You've done shoddy work.
A: One (1) judge. I'm told by you,
one (1) judge wrote that in his

submission. I don't know. I don't
know what he wrote. That's Judge Dunn,
who prior to the -- hearing the defence
experts, in fact, told me on more than
one (1) occasion -- private
conversations -- how hasty he was with
the work I had done and others had
done, at the hospital."

(End of preliminary hearing testimony - back to yesterday's evidence):

Dr. Smith, you did know what Justice Dunn had said about you because you had read his reasons for a decision, had you not?

DR. CHARLES SMITH: Yes. By that time I would have, yes. Yes.

MS. LINDA ROTHSTEIN: You also knew perfectly well that Justice Dunn had never said on more than one (1) private occasion how hasty he was with the work that you or others had done at the hospital.

DR. CHARLES SMITH: That -- that's correct. I don't -- I don't remember this remark, or this statement about --

MS. LINDA ROTHSTEIN: Your testimony was untrue, sir.

DR. CHARLES SMITH: It was wrong.

MS. LINDA ROTHSTEIN: It was untrue, sir.

DR. CHARLES SMITH: Yes. It's a mistake, and I was wrong. Yes.

MS. LINDA ROTHSTEIN: You were under oath, Dr. Smith.

DR. CHARLES SMITH: And -- and I understand that, and -- and I made a mistake. I'm not sure why I made that mistake, but I made a mistake, and
it was wrong."

Why did Dr. Smith make up this elaborate lie?

Commission Counsel Rothstein asked Smith if he had persuaded himself that Dunn had made the comments because he felt the Dunn's decision had the power to unfairly expose you to criticism.

Rothstein also wondered if, as the years went on, he became concerned that the case would cast a shadow over his work;

But Smith appeared reluctant to articulate a motive for perjury out of his own lips, as he repeatedly conceded nothing more than being, "embarrassed".

This humble Bloggist is more interested in what the lies say about Dr. Smith than in whether he can be thrown out of the medical profession or prosecuted for perjury.

There's lots of time for that. (And it is not the purpose of the public inquiry to assign blame);

At the outset, he (Smith) did not hesitate to hesitate to slander a good judge who was in no position to defend himself.

Good, honourable people don't do that.

Especially good Christians who are supposed to cherish the truth.

He did not hesitate to mislead the governing body of his own profession - as he had done in Saskatchewan.

There is pattern here.

Doctors are supposed to be open and direct with the College because the College has been given the awesome responsibility of regulating the medical profession for the protection of the public.

If he is willing to mislead his own profession, why will hesitate to mislead the courts, the police or any other institution of government?

His defence - that this was not a lie - it was merely what he wanted to hear - is the ultimate evasion of personal responsibility.

If indeed, it was all a fantasy - something Dr. Smith wove together in his mind because he wanted it to be that way - we are then faced with serious concerns about Dr. Smith's mental health and sense of reality.

Moreover, if he will lie under oath in a criminal case where someone is charged with murdering a child, why wouldn't he lie under oath in cases where parents or caregivers are charged with murdering children in order to help the Crown win the case?

After all, he testified that he tended to see himself as a member of the prosecution team who was committed to helping the Crown win.

To think that this man was once the revered Dr. Charles Smith who for many years was worshipped throughout the world of forensic world - and his word was treated like gold in the courts.

Dr. Charles Randal Smith.

A very ugly man.

A note to Janet: Thank you for pointing out that I had referred to the babysitter as Amber - which, of course, is the name of the deceased child. It's not a defence, but occasionally I find it difficult to keep identities straight when publication bans apply to the story - as is the case here. I appreciate your prompt response. Responses like this help insure the accuracy of this Blog. Thanks again, Harold;


Tuesday, January 29, 2008

A Stunning Revelation From Dr. Smith's Very Own Lips: He Was A Member Of The Prosecution Team And Was Committed To Helping It Win.



During the many years that I have been reporting on Dr. Charles Smith I strongly suspected that he regarded himself as a member of the prosecution team - instead of as an independent witness for the Crown.

Of, course, Dr. Smith did not declare his bias to the jury.

To the contrary, he appeared to be a sincere, objective and conscientious scientist who was there to help the judge and jurors decide the case.

So I almost fell off my chair yesterday when Dr. Smith candidly admitted to Justice Steven Goudge that for many years he saw himself as a member of the prosecution team and believed his job was to help the Crown win the case - and that it was all part of the war against the sexual abuse of children.

Dr. Smith made this stunning admission after Commission Counsel Linda Rothstein asked him to expand on his earlier testimony that, "I Fell victim to my tendency to become dogmatic, adversarial, too defensive, speak in black and white terms."

Here, without editorial comment, is a portion of the transcript from yesterday's hearing in which Dr. Smith makes his stunning admission:

"DR. CHARLES SMITH: in the very beginning when I went to court in the -- on the few occasions in the 1980s, I -- I honestly believed it was my role to support the Crown attorney. I was there to make a case look good.

That's being very blunt but that was the why I felt and I know when I talked with some of my other colleagues especially those who were junior, we -- we
shared the same -- the same kind of an attitude.

And -- and I think it -- it took me a long time, years, to acknowledge that my role was really not to make the Crown's case, or to make the case of whoever wanted me in court, but really to be much more impartial.

And though into the 1990s I would have told you that that was what my role was, I -- I think I was pretty lousy at executing it. I'm sorry for that -- for that language. I think I was poor at executing it.

Though I knew what to do, I didn't do it and so my -- my understanding or my book knowledge was not -- was not borne out by my execution in court.

MS. LINDA ROTHSTEIN: And did your desire to make a case for the Crown lead as well to its converse? A feeling that you were there to refute the defence case?

DR. CHARLES SMITH: I -- I certainly felt tat pressure at times when I walked into court; that pressure from a Crown attorney, yeah.

COMMISSIONER STEPHEN GOUDGE: Where did you get the sense originally that that was the role?

DR. CHARLES SMITH: I -- I think this is an expression of ignorance. The first time I went into a court case, you know, I had a -- I had a diagnosis of
head injury, of non-accidental head injury.

My colleagues had come to a similar thing and I think as we discussed the case in the hospital, it was our -- our view that this was a non-accidental head
injury and we were going out there to make sure that a
judge and jury understood it.

And as I spoke to my colleagues from, you know, radiology or -- or what was, I think, the forerunner to the to SCAN Team, that was the sense that I had.

As I think back on it now, I wonder to what degree the -- the -- sometimes the advocacy role that was used by some at the hospital coloured my thinking.

I certainly didn't understand sort of that concept of advocacy in the -- in the early '80s but I believe that I was giving an opinion as part of a group
that was supposed to -- to make -- make it very clear to everyone what the right diagnosis was.

COMMISSIONER STEPHEN GOUDGE: And who at the hospital had an advocacy role then?

DR. CHARLES SMITH: Oh, there -- there -- before the SCAN Team was kind of redesigned under Dr. Mian, which would have been -- I'm -- I'm sorry I can't
remember the year, it would have been mid or late '80s perhaps, there was prior to that others who were involved in those cases, and -- and they were -- they were
proactive in -- in their investigation.

As well, one (1) of the radiologists who I leaned heavily on, a -- a very senior gentleman, also was very clear cut in black and white and -- and that -- and...


MS. LINDA ROTHSTEIN: Who was that, Dr. Smith?

DR. CHARLES SMITH: Dr. Reilly, R-E-I-L-L-Y. Bernard, Bernie Reilly, who I presume he's deceased now because I was junior and he was towards the end of his career and --
COMMISSIONER STEPHEN GOUDGE: And this was a general atmosphere of advocacy against child abuse?

Is that --

DR. CHARLES SMITH: Yes. I think -- I think that's a fair way of doing it.

And -- and please understand, sir, that his is a period of time where the whole area of child abuse is just kind of coming into being and so there was a sense that this is a new area, we need to pay attention to it.

And -- and it was almost wanting to educate and kind of bringing attention to this, and I think that might have been part of that advocacy community, or environment, or culture that -- that was exist -- in existence at that time.



MS. LINDA ROTHSTEIN: So just to follow up on that point before the break, Dr. Smith, you would share the view of those who've already told us that in
the mid '80s there as a concern that child abuse was under reported?

DR. CHARLES SMITH: Yes. Yes, I agree with that.

MS. LINDA ROTHSTEIN: That child abuse was under detected by health care professionals across the board?

DR. CHARLES SMITH: I believe that's accurate.

MS. LINDA ROTHSTEIN: That child abuse was under prosecuted by the State?

DR. CHARLES SMITH: I think that -- I -- I think at that time, I would have agreed with that, yes.

MS. LINDA ROTHSTEIN: And that there had to be changes made in order to reverse those trends?

DR. CHARLES SMITH: Yes. I agree with that, yes.

MS. LINDA ROTHSTEIN: And you saw it, in part, as your job to try and reverse those trends?

DR. CHARLES SMITH: I -- I think if you'd asked me that then I would have said no, but -- but I think I -- I did feel that way.

It was many years later when -- when mention was made of the possibility of me being part of the SCAN Team, and by that point in time -- but this is many years later -- I recognized that the SCAN Team could be more of an advocate that I could be.

And -- and I believe that was by definition their role, and I was reluctant to -- to be painted with that brush. I wasn't part of the SCAN Team; I didn't see live patients.

And I was a -- a little concerned about being an advocate, because by that point in the 1990s, I knew at least in theory, if not practice, that I should not be an advocate.

But if you set the clock back five (5) or ten (10) years earlier, I believe I was in -- I was part of that advocacy culture, though I don't think I would have recognized it or stated it at that time.

MS. LINDA ROTHSTEIN: And by the mid '90s, how would you have characterized your approach?

DR. CHARLES SMITH: Well, I'd like -- I'd like to think, or I thought that I was sort of down the middle of the road, but obviously in -- in situations, I
was not, and I veered to the left or to the right at times."

As I heard these word coming out of the mouth of Dr. Charles Smith, I wondered how they were sounding to Sherry Sherret, Brenda Waudby, Lianne Thibeault, Bill Mullins-Johnson and the others present in the hearing room who were so sorely affected by his opinions over the years.

Apart from losing their children, the involvement of Dr. Charles Smith must have been the worst possible nightmare that could have entered their lives.

Now they learn that he saw himself as part of the prosecution team.

How far would he go to help the prosecution win?

That's question surely goes to the heart of this Inquiry.


Monday, January 28, 2008

Part Two: The Doctor And The Judge; Fact Or Fantasy? Seeing Through The Apology;

The apology that Dr. Charles Smith made earlier today to Judge Patrick Dunn for two comments to reporter Jane O'Hara rang hollow in this Blogster's ears.

It still leaves open the possibility that Smith's account of his two alleged conversations with Dunn were a full-blown fantasy.

Smith admitted that his statement that Dunn told him that the babysitter in the Amber's case was "guilty" was false.

Smith also admitted that his statement that Dunn told him he believed Amber's case would have had a different result if tried in the 1990's because of new scientific knowledge was false.

His justification for making these two false statements he acknowledged were "harmful" to Dunn's reputation is that, "I believe I heard what I wanted to hear."

That's ludicrous.

It's like saying, "forgive me for my opinions that caused innocent people to be jailed, lose their other children to the authorities, and have their names placed on sexual offender lists, because that is what I wanted to believe."

The fact remains that even today Smith insisted that Dunn discussed Amber's case with him - while Dunn, deposed, in a sworn affidavit, that no such discussions had ever occurred.

During the course of the day Smith made numerous apologies to the innocent people he had caused to suffer.

These apologies had one thing in common: They were all made in cases where his misconduct was so notorious that there was nothing else that he could do.

I was not left with any confidence that these apologies came from his heart - if, indeed, he truly has one.

On several occasions, Dr. Smith told the Inquiry that he was "embarrassed" by his actions - which means, I suppose that they might sully the reputation of the great Dr. Charles Randal Smith.

How embarrassing!

If I seem angry and more sarcastic than usual - because even today - the day on which he says he is embarrassed, humbled, and contrite - there is something fundamental that he still does not seem to understand.

It is that pathologists who work in the criminal justice system bear a huge responsibility to be neutral, fair, thorough and accurate - because if they abuse their power innocent people may suffer.

On another note, I can't imagine how difficult it must have been for the fifteen individuals and family members who were sitting just a few feet away from Dr. Smith, as he tried to justify much of his misconduct.

One of them described her reasons for being present when Smith took the witness stand in an email She posted to friends over the Internet:

"I want this man to see he has not broken me nor my family nor my children," she said.

"I want this man to see that I still have a hell of a lot of fight left in me.

I want this man to know this is just the beginning for me yet the complete end for him.

I hope he loses he license to practice period.

If he can make mistakes and affect peoples lives in death then I am sure he has no problem doing it in life."

Another had to flee the hearing room in obvious distress just moments after Dr. Smith had begun testifying.

I wonder if I would have been able to show such restraint when finally confronted with this obnoxious, pedantic, professorial, and yes, arrogant man, who tore a hole in my life at a time when I should have been allowed to mourn the sudden loss of my child.

Their dignity is exemplary.

(My thanks to the reader who promptly pointed out that I had mixed up the Nicholas and Amber cases). This type of input is greatly appreciated. I have promptly made the necessary changes. HL;

Harold Levy;;

Sunday, January 27, 2008

Part One: Smith Takes The Witness Box; Fact or Fantasy; The Doctor And The Judge;



One of the most fascinating documents to emerge during the Goudge inquiry is an affidavit from a judge denying statements by Dr. Charles Smith to a reporter.

To say the least, it is highly unusual for a judge to swear an affidavit for consideration in a public inquiry.

This is the first time that I have ever seen it happen.

The Judge is Patrick Dunn, the provincial court judge who acquitted a ten 12-year-old babysitter in Timmins, Ontario, with a lengthy judgment, released on July 25, 1991, which was harshly critical of the evidence given by Dr. Smith and the Hospital For Sick Children Suspected Child Abuse and Neglect (SCAN) team.

The reporter is Jane O'Hara, who obtained Smith's controversial comments during a lengthy interview in preparation of a major article on Smith for MacLean's magazine.

Smith's controversial quotes to O'Hara are particularly significant this morning as as one of the dominant themes that has emerged during the Inquiry is his credibility.

I am referring particularly to matters such as his credibility in his work (the honesty and completeness of his forensic reports), his testimony under in oath in court, his defence of his conduct to the College of Physicians and Surgeons of Ontario, and his comments to reporters.

But let's focus for now on the information he gave O'Hara, as reflected in a transcript of the interview which was filed at the inquiry:

O'Hara: Okay now somewhere along the line when I was doing my research somebody mentioned to me that during the trial that you had said and I'm not sure you had said it but that the judge apparently told you during the trial that (the babysitter) was guilty);

Smith: He told me that on several occasions;

O'Hara: Was that in open court?

Smith: No, I'll tell when it first occurred and this is all off the record.

O'Hara: Sure;

Smith: I testified, I flew up there, being told I would be on the stand for a few hours. And I can't remember the day of the week but I ended up there on a Friday or something and then I was flying back to Toronto for the weekend. And at that time both Canadian and Air Canada or Air Ontario flew up to Timmins. Ummm at lunch time, just as we were going to break Judge Dunn asked me how I was returning to Toronto and I indicated to him unbeknown st to me, he was aware that the Canadian flight I was on was cancelled and he made arrangements for me to have my ticket moved to the other airline and then he made arrangements for me to sit with him on the airplane. And I walked onto the airplane and was stunned when I found myself sitting next to this man, who immediately began discussing this case with me.

O'Hara: At this point you're flying back down to Toronto?

Smith: Yeah, I'm in the middle of my testimony. And I felt extremely uncomfortable discussing the case with him and he said it's fine, because I will base my evidence on the evidence in Court. He said I can be hearer of the fact and trier of the fact and this is fine. And that was the first occasion in which he told me that (the babysitter) was guilty as sin. And he made arrangements when I flew back Sunday afternoon to go back and testify some more, I found myself once again sitting beside him on the airplane which I found extremely, extremely unusual. So that was yeah, the conversation came from there. I didn't know how to handle the man or the situation. It was absolutely bizarre. As soon as I got to Timmins on the Sunday night and the crown attorney, not the one who was prosecuting the case, but the senior crown a guy named Dave Thomas met me at the airport. I said this thing has happened to me I don't know how to interpret it, and what does it mean. And I told Thomas this and I said do I continue, what do we do here? And he said there's been a number of problems in this case and that he would simply take it under advisement and I was simply to go on and testify.

O'Hara: Wow, I think that's dynamite. Were you actually blown away when you read the judge's 75-page judgment.

Smith: I never bothered reading the judgment;..."

During the course of the interview Smith told O'Hara that he had a second discussion about the case with Smith at a family law conference in Toronto about a year after the decision was released.

And now for the judge's affidavit:

The alleged discussion on the airplane:

"During the course of the trial, I flew back and forth between Toronto and Timmins. On one occasion, I was on the same flight from Timmins to Toronto as Dr. Charles Smith. Dr. Smith and I exchanged pleasantries on the flight; Although I do not have a specific recollection of my conversation with Dr. Smith, I am certain that I did not discuss the merits of the case or the evidence with Dr. Smith..."

Dunn's alleged making of Dr. Smith's travel arrangements:

"I have no recollection of making any arrangements with regards to Dr. Smith's airline tickets and I do not believe I would have made such arrangements;"

Dunn's sworn comments on a statement Smith made to the College of Physicians and Surgeons of Ontario dated May 4, 1992 - filed in evidence at the Inquiry - in which Smith says that during the trial Dunn told him he believed (the babysitter) was guilty, and that he agreed with evidence that given by himself and other members of the Hospital for Sick Children Suspected Child Abuse and Neglect (SCAN) team, which Dunn had rejected at the trial:

"At no point during the course of the trial did I discuss Dr. Smith's evidence with him or indicate to Dr. Smith that I believed (the babysitter) to be guilty. I also did not indicate to Dr. Smith that I believed the opinions provided by Drs. Barker, Driver and Smith, as alleged in Dr. Smith's letter to the (College)";

Judge Dunn also made short shrift of Smith's claim that they had discussed the Timmins case at a family law conference, saying: "...I have no recollection of discussing the (Timmins) case with Dr. Smith at the family law conference or at any other time. I would not have discussed the case with Dr. Smith. I would let the written judgment speak for itself."

To this Bloggist, Judge Dunn's affidavit goes to the heart of Dr. Smith's credibility and could raise questions about his (Smith's) mental state depending on who you believe - a provincial court judge in a sworn affidavit or Dr. Charles Randal Smith.

If the judge was to be believed - that he never, ever, discussed the Timmins case with Smith - (let alone told him that the 12-year old babysitter was "guilty as sin"0 -the implication would be that Smith has constructed an elaborate fantasy over two chance meetings (on the airplane and at the family law conference). This would be a detailed fantasy containing very specific conversations, and very specific acts, such as the alleged arrangement of airline tickets and seating accommodation on the plane.

If the doctor is to be believed, Judge Dunn has broken some of the serious rules and traditions that govern judges: They do not talk to witnesses during the course of trials; They do not discuss the merits of trials after they are completed (let alone with witnesses like Smith. This would be utterly improper and could land the judge before a hearing of the Judicial Counsel; (All of which explains why Dunn would have taken the extraordinary step of filing an affidavit with the Goudge Inquiry);

The implications of this credibility issue are extremely serious to both the judge and to Dr. Smith.

Why would Judge Dunn break the cardinal rules? I can't imagine any reason why any judge would put his or her job on the line, especially a judge who had presented such a careful, detailed analysis of all of the scientific evidence - prosecution and defence - in his decision?

Why would Dr. Smith offer a false account to the reporter and the College? We know that the Hospital for Children SCAN team went into "damage control" after Dunn's decision was released. We also know that the Dunn's decision was viewed as a set-back for doctors involved in the ideological movement towards criminalizing as "baby-shaking syndrome) cases which previously had been categorized as "Sudden Infant Death Syndrome (SIDS); Indeed, Dr. Smith described the influential role he was playing in the Shaken Baby Syndrome movement, in an email to O'Hara, dated May, 5, 2001, which reads, in part:

"Some of my cases have triggered research activities into forensic pathology. For instance, you are familiar with the (babysitter) case from Timmins. I was frustrated by the judge's apparent inability to understand the complex medical issues, and so began looking for a way to lay to rest some of the questions which the case posed. As a result we published the largest series of shaken baby syndrome (SBS) in the literature, while we were identifying an autopsy finding which may be unique to this form of injury. (One of the controversies at trial was whether there was such a thing as SBS, let alone whether shaking could kill in the absence of blood impact injury; Our research answers those questions.) Several years ago I was invited to present my special investigation in child abuse to the provincial association of family court judges. Judge Dunn who presided over the (Timmins) case was in the audience and he approached me later to discuss the case. We agreed that if the case had gone to trial in the late 1990's, as opposed to the early 1990's, as opposed to the early 1990's, the uncertainties of that trial would have been obviated. (Dunn denied that this alleged conversation occurred in his affidavit - as well as swearing under oath that he never discussed the Timmins case with Smith.H.L.)"

In the context of the Inquiry, if, Judge Dunn - who enjoys an impeccable professional and personal reputation among lawyers and other judges in his area - were to be believed, then all of Dr. Smith's actions and testimony would have to be viewed through the prism that he has difficulty distinguishing fantasy from truth.

For many years however, Dr. Smith's testimony was largely accepted as gospel by judges, crown attorneys, police officers, and even some defence lawyers.

But he won't walk up to the witness stand this morning as the renowned Dr. Charles Randal Smith whose word was gold throughout the world of forensic pathology, backed up by the Hospital For Sick Children and the Chief Coroner's Office.

He will have to stare out at the many individuals and families who have been effected by his erroneous opinions - many of themwill be present - and he will be required to testify under oath, as to his actions.

The tables have certainly turned.

Next posting: Smith Takes the Witness Stand: Fact or Fantasy; Part Two;


Thursday, January 24, 2008

Part Fourteen: Interrogation Of An Innocent Woman: Last Installment Of Ground-Breaking Fifth Estate Documentary: "Diagnosis: Murder";

(A CBC Fifth Estate investigation appropriately called "Diagnosis: Murder" exposed the enormous harm Dr. Charles Smith caused to innocent parents and caregivers within Ontario's criminal justice system.

The police probe of Lianne Gagnon - after Smith turned an accidental bump on the head into a suspected homicide - comes under intense scrutiny in the documentary, which ran on November, 10, 1999.

This Blogster would love to see the CBC re-run this powerful program before Dr, Smith enters the witness box at the Goudge Inquiry on Monday under compulsion of a subpoena. (This transcript was filed as an exhibit at the Goudge Inquiry);

It makes us look directly at the human cost imposed on innocent people by Dr. Smith - and those who looked the other way as the evidence of his incompetence mounted - as contrasted with the more abstract systemic issues being explored by the Inquiry.)


"It would be comforting to think that Lianne's ordeal was an isolated case, but it's not. Another occurred in the early nineties in the Northern Ontario lumber town of Timmins. In this case another report by Dr. Charles Smith led to a 12-year-old girl being charged with manslaughter following the death of 16-month-old toddler she was babysitting. The doctor alleged a case of baby-shaking. The baby-sitter swore the child struck its head when it fell down a small flight of stairs.

From the outset the case was embroiled in controversy. Dr. Smith allowed the body to be buried without an autopsy even though he admitted he already had suspicions that the death may not have been accidental. But it turned out that Dr. Smith did have to do an autopsy, and the newly buried body had to be exhumed. Once the autopsy was done, more problems.

Dr. Floyd Gilles, head of Pediatric Neuropathology at the Children's Hospital in Los Angeles testified at the Timmins trial.

Dr. Floyd Gilles: (head of Paediatric Neuropathology Children's Hospital Los Angeles); It's the kind of autopsy that I would report, that I would not allow out of my training program which I had for many years in Boston. It was too lacking in specific detail.

Malarek: According to Dr. Gilles, standard autopsy practices were neglected.

Gilles: For instance, one strips all of the dura form inside the skull and looks for cracks. As far as I could tell from the pictures obtained at the time of the autopsy, the dura had not been stripped, so he could not adequately look for fractures.

Malarek: Dr. Smith said that even if he had found a linear fracture, he still would have concluded death by shaking;

Gilels: Well, I think that's an error. I think that's wrong.

Malarek: Dr. Gilles wasn't the only one who thought Dr. Smith got it wrong. During the trial, numerous medical experts appeared on behalf of the defence, testifying that this wasn't a baby-shaking death. And in his acquittal, the judge was harsh on Dr. Smith. He criticized him for not seriously considering possibilities other than shaking. He was concerned that Dr. Smith's assumptions might "colour his approach to the facts". And he concluded, "For these reasons I am not inclined to put much weight on Dr. Smith's opinion".

(To Dr. Gilles): How serious are the above criticisms? This is what the judge is saying.

Gilles: These are very serious. These are very serious because someone has been charged here and faces a serious outcome. And one has to be very careful about making these statements without adequate evidence.

Malarek: But according to Deputy Coroner James Cairns the judge simply got it wrong.

Cairns: I, with due respect, feel that the medical evidence was confusing and that the judge may not have clearly understood all the evidence that was being given.

Malarek: Although the 12-year-old babysitter was acquitted, (indecipherable)...(suggesting that there is no recourse against incompetent pathologists in an atmosphere where some critics are saying forensic pathology in Canada is in serious trouble.)

Dr. James Ferris: forensic pathologist, Vancouver): It's basically rather unhealthy;

Malarek: Dr. James Ferris is a forensic pathologist working in Vancouver. He was trained and certified through the Royal College of Pathologists in Britain and has worked on many high profile cases.

Ferris: We are short of forensic pathologists, we have really no formal training programs, and there is no such thing as certification in forensic pathology in this country.

Malarek: Although sine Canadian pathologists have gone through the rigorous certification process in the U.S. or Britain, it's not the norm. Most, like Dr Charles Smith, are pathologists who pick up forensic training and experience along the way. Often these pathologists are called in court as so-called experts in areas outside their field of expertise.

(To Dr. Ferris); When pathologists cross their area of expertise what problems can that cause?

Ferris: First of all they may be talking about something they know nothing about, but because the court(s) have qualified them as an expert, they are given authority to talk that is really not justified. And I suppose the danger is that they may be completely wrong.

Malarek: (To Dr. Cairns); So when someone says that the situation in Canada is unhealthy, you're saying in Ontario it's what?

Cairns: I'm saying in Ontario we have recognized for quite a number of years that there needed to be an upgrade in forensic pathology, and we are doing all in our power to, in fact, accomplish that.

Malarek: No formal training, no accreditation, no peer review - it's a worrisome combination when you realize that these people are making crucial decisions in cases where innocent people could end up being dragged through the court system or sent to prison.

Malarek: Today Dr. Smith is at the centre of another controversial case. It involves the death of 7-year-old Sharon Reynolds in Kingston, Ontario. She was found in the basement of the family home with eighty-two (82) wounds to her body; What has aroused attention is another heated debate over medical pathology: Dr. Smith says the injuries are eighty-two (82) stab wound inflicted by the child's mother, Louise. Dr. Ferris has looked at the autopsy results and concludes they weren't stab wounds at all.

Ferris: Well, I believe that all the injuries on (Sharon's) body are consistent with being caused by a dog.

Malarek: Dog bites;

Ferris: Dog bites, because all of those injuries are associated with extensive crushing and splitting and damage to the tissues that you simply do not get in stabbing.

Malarek: Adding to the mystery, a pit bull was seen in and around the house with red stains on its mouth. For now, however, the Louise Reynold's case boils down to a difference of opinion between Dr. Ferris and Dr. Smith. It is schedules to go to trial in the middle of (indecipherable). By then Louise Reynolds will have spent three years in some form of custody, and if the court agrees with Dr. Smith's version, she can face the rest of her life in prison."

(Next posting: Smith takes the stand: The doctor and the judge; Truth or Fantasy? Part One);

(See previous postings:

Lawyers warned "to guard" against Dr. Smith's testimony back in 1993; (October, 2007);

Dr. Smith's "mistakes": The Timmins case: Independent reviewers fond a litany of errors; (November, 2007);

Sharon's Case: Part One: Notable quotes from expanded medico-legal report; (November, 2007);

Sharon's case: Part two: More revelations: Smith claims Solicitor General agrees, "to back me." November, 2007;

Sharon's case: Part three: Kingston police defended Dr. Charles Smith after murder charge withdrawn;

Sharon's case: Part Four: Prosecutor's explanation why murder charge withdrawn; November, 2007;

Sharon's case: Part Five: The Crown's withdrawal statement: A tale of two missing paragraphs; November, 2007;

Sharon's case: Part Six: Kingston police lose bid to keep out documents; November, 2007;

Sharon's case; Part Seven; Police and pathologists and dirt; November, 2007;

Sharon's case: Part Eight; The unravelling of an expert; November, 2007;)

Harold Levy:

Part Thirteen: Interrogation of an Innocent Woman; Third Installment Of Fifth Estate Documentary: "Diagnosis: Murder";

(A CBC Fifth Estate investigation appropriately called "Diagnosis: Murder" exposed the enormous harm Dr. Charles Smith caused to innocent parents and caregivers within Ontario's criminal justice system.

The police probe of Lianne Gagnon - after Smith turned an accidental bump on the head into a suspected homicide - comes under intense scrutiny in the documentary, which ran on November, 10, 1999.

This Blogster would love to see the CBC re-run this powerful program before Dr, Smith enters the witness box at the Goudge Inquiry on Monday under compulsion of a subpoena. (This transcript was filed as an exhibit at the Goudge Inquiry);

It makes us look directly at the human cost imposed on innocent people by Dr. Smith - and those who looked the other way as the evidence of his incompetence mounted - as contrasted with the more abstract systemic issues being explored by the Inquiry.)


The transcript continues at the point where the Children's Aid Society has placed Lianne's name on a child abuse registry and put a plan into motion to seize the baby right after it was born - and Maurice Gagnon decides to fight back.

"When Maurice got wind of the plan, he was furious and vowed there was no way he would let strangers take away his daughter's baby.

Maurice: I knew nothing about the Children's Aid. When I started looking into it and started talking to lawyers that anger turned to fear. I didn't realize the power that these people have.

Malarek: And power it was: Lianne was not allowed to take her baby home.

Lianne: It was a nightmare. The hospital was a police zone. All the nurses were on call and they were notified that I was coming in and that I was never to be left alone with my daughter.

Malarek: Lianne's parents managed to get temporary custody of the new baby, but Lianne was only allowed to see her daughter during supervised visits. Lianne and Pierre returned to their apartment, where their lovingly prepared nursery stood empty.

Maurice realized that the only way Lianne was going to get her baby back was to prove her innocence once and for all. He dipped heavily into his retirement funds, and with The best lawyer he could find, searched for an expert; an experienced neuropathologist to review Dr. Smith's findings.

Dr. William Halliday. now head of Neuropathology at Toronto Western Hospital was that expert. Dr. Halliday concluded that Nicholas did not die from severe brain swelling and he was highly critical of Dr. Smith's methods. He noted that although Dr. Smith said the sutures were "widely" split, the radiologist's report said they were actually (indecipherable). He said that Dr. Smith's failure to consult a specialist in neuropathology was a "serious deficiency", and his conclusion of "non-accidental" went "far beyond the boundaries of scientific and forensic facts." And as for that large head, well. Nicholas was born with a large head.

Yet despite Dr. Halliday's criticisms, the Ontario Coroner's Office initially backed Dr. Smith. It took three highly critical reports before Dr. James Cairns finally took action.

Cairns: At that stage we indicated that we were going to hire an independent forensic pathologist from the United States, a Dr. Mary Case from St. Louis, Missouri. She's also an associate professor of pathology and an expert on child abuse deaths. She reviewed Dr. Smith's report.

Dr. Mary Case (expert on child abuse deaths); I disagreed with it. His conclusion was that the child had died from blunt injury to the head, and my conclusion was that I could see no head injury, so I could not make that diagnosis. To make a diagnosis of head injury, you must see something in addition to brain swelling.

Malarek: According to Dr. Case, the amount of brain swelling Nicholas suffered was only as much as occurs normally from the process of dying.

Case: In my profession as a forensic pathologist, to find that - maybe three to four per cent of all the autopsies we do at any age, we can't determine why the person has died. And if you can't tell why a person has died, the best thing to do is to say, I don't know, because if you call it abuse and it's not, somebody may lose their freedom. It's a very serious problem.

(Dr. Case, speaking at a lecture); The child was autopsied, and there were no findings, other than a very significantly swollen brain. There was no blood in the head.

Malarek: Dr. Case feels so strongly about her findings in this matter that she recently raised it during a lecture in Washington.

Case: (Lecturing): Now, he has made another statement and that was, Well, if it's not head injury, it was asphyxiation by strangulation, but one of those things happened. I consider this in the area of irresponsible testimony.

Malarek (to Dr. Case); Dr. Smith said that in the absence of a credible explanation, the post-mortem findings are regarded as resulting from non-accidental injury. What's he saying here?

Case: I'm not sure exactly what he is saying, other than this is a child that you don't expect to die. It's a child that has no reason that we can find to be dead, and, in his opinion, lacking that, then somebody must have killed that child. But that is , in my opinion, that's not always true. There are children of this age that die that we never know why they have died.

Malarek: Ultimately, it took three experienced pathologists to finally knock down Dr. Smith's opinion of how Nicholas died. On March 24th of this year, after receiving Dr. Case's report, the Children's Aid Society informed Lianne by letter that they were returning her baby and removing her name from the Child Abuse Registry. They expressed their sympathies, but no one has ever offered an apology. So finally, after four torturous years, Lianne's ordeal was over. Today, it's her parents she feels sorry for.

Lianne: My parents supported me through and through, and although they supported me financially and emotionally, financially it killed them. My father's retired, my mother's soon to retire, and they spent their retirement fund.

Maurice: And what really gets me is that they're using the full resources of government to do it to you, which is essentially my tax dollars to really make my life miserable.

Malarek: And then you have to use your savings ... your retirement savings...

Maurice: Then I've got to use my retirement savings to defend against the full forces of the government. I feel sorry for the poor single mother, the young single mother that has no resources, no emotional resources, no support, no financial resources - they're railroaded. They're gone.

Malarek: Deputy Chief Coroner, Dr. James Cairns;

(To Dr. Cairns): You've got one very angry father. He spent well over $100,000 to defend his daughter and to make sure that his daughter would get the new baby back.

Cairns: I think his concerns have been dealt with in the manner in which they could only be dealt with given the mandate of investigating deaths.

Malarek: In his autopsy report on Nicholas' death,Dr. Smith concluded "in the absence of a credible explanation, in my opinion the post-mortem findings are regarded as resulting from non-accidental injury."

(To Dr. Cairns) What do you think of Dr. Smith taking that position?

Cairns: He took that position after he reviewed all the material. We are all aware that, unfortunately, children die as a result of abuse - and I'm talking in general now - and that when we have no explanation for it, we have to consider the possibility that foul play is involved.

Malarek: But you don't charge into the fray holding that assumption, because it would colour the way you would investigate.

Cairns: I don't think it would colour your investigation. I think it will make it a thorough investigation.

Malarek: We wanted to ask Dr. Smith about specific cases, but despite repeated requests for an interview, he was unavailable for this program";

See previous postings related to Nicholas' case:

Nicholas' Case: Questions going to the heart of Dr. Charles Smith's credibility; October, 2007;

Nicholas' Case: Smith accused of "uncivilized conduct" for bringing 11-year-old son to exhumation of 11-month-old baby boy."

Smith and the media: Part Four; Fifth Estate probe triggers plea to Premier Mike Harris for inquiry into Smith cases; Deaf ears; November, 2007;

Goudge Inquiry: Thinking Dirty; Dr. Cairns defends the indefensible; November, 2007;

Interrogation of an innocent woman series: January, 2008;

Next posting: "Diagnosis: Murder"; Last installment; There were others.

Harold Levy;