Friday, April 18, 2008

Part Five: Case Studies: The "Tyrell" Case; Presented by the Affected Families Group;

Among the most insightful reads that have come out of the Goudge Inquiry are studies of several of the cases studied by the Inquiry - with a view to identifying the systemic issues that they raise.

These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;

The third case has been identified by the Inquiry as the "Tyrell" case;


By way of brief background:

Tyrell was born in Toronto on February the 1st of 1994.

Tyrell died on on January the 23rd, 1998 in Toronto.

He was almost four (4) years old at the time of his death.

Criminal proceedings were initiated against his caregiver.

The criminal proceedings concluded on January the 22nd of 2001 when the Crown
withdrew a charge of second degree murder that had been laid against the caregiver.


"Tyrell’s case is a striking example of the deficiencies with written post-mortem reports in Dr. Smith’s era," the case study begins;

"Other systemic issues arising from the case include confirmation bias, misleading testimony, inappropriate reference to controversy in the literature and communications between Crown and defence," it continues;

"The post-mortem report of Dr. Smith describes the cause of death as “CNS trauma”. It contains no history.

It contains no information explaining how the cause of death was determined. It says nothing one way or another about Maureen’s explanation about Tyrell's fall.

Although Dr. Becker obviously was consulted regarding the neuropathology issues raised by the post-mortem and authored a report on the central nervous system which was incorporated into the report, this is not apparent from the report itself.

The Hospital for Sick Children Final Autopsy Report, a document not released to the police, Crown or defence, contains a history which accurately describes Maureen’s summary of Tyrell’s fall (“he was jumping on couch and jumped backward off the couch, lost his footing, and fell backward, hitting his head on a marble table or a tile floor.

He immediately got up and tried to run forward but fell and struck his forehead”).

However, this report contains highly prejudicial information about Tyrell’s father.

It is impossible to say whether this information might have played a role in Dr. Smith’s thinking about the case.

In conclusion, there are a number of problems with the report itself – with what it contains and what is left out.

Dr. Smith’s reasoning and opinions are not contained in the report but in verbal sidebars with the police at various stages of the investigation.

No attempt appears to have been given to serious consideration of the explanation in light of the pathological findings of bruising in two different areas of the skull.

As outlined in the Overview Report, and in Dr. Crane’s evidence before the Inquiry, Dr. Smith’s evidence at the preliminary Inquiry was inflammatory and misleading.

He was drawn into testifying outside his expertise.

He repeated his opinions on whether short falls could kill in words that could have been taken from a transcript in Amber, even using the same article.

Instead of acknowledging any continuing debate in the literature, he attempted to suggest that Dr. Duhaime now supported his position.

According to Dr. Smith, “...with the newer studies, the literature is on my side”.

One can usefully contrast Dr. Smith’s approach to that of Dr. Robin Humphrey, Neurosurgeon in Chief at the Hospital for Sick Children, who was retained by the Crown shortly before trial.

Dr. Humphreys took the explanation provided by the caregiver as something to be considered seriously (“If the description of what happened to in any way accurate...”).

He reviewed the pathology findings with the explanation in mind (“Those scalp contusions...could thus be in keeping with the two separate blows to the head created first by striking it on the table and floor, and then secondly after again falling to the floor”).

He concluded that the pathology could provide confirmation for this history (“There is pathological confirmation of these blows”).

He ended his report by concluding that there is considerable uncertainty as to the mechanism of the head injury.

Contrast this to Dr. Smith’s verbal advice to the police: “children do not die from accidental falls of this nature.”

It is clear in retrospect that in this case defence counsel laid traps for Dr. Smith, encouraging him to talk at the preliminary to get his evidence tied down, and preparing to demolish him at trial.

There was sharing of defence opinions just before trial, presumably to ensure that the Crown would not be in a position to seek further opinions.

The Chief Coroner's Office appears to have been unaware of any issues raised by this case until the time when the charges were stayed, when the media reported that the Crown had done so to avoid a miscarriage of justice.

At that time Dr. Cairns spoke to the Crown, Frank Armstrong, and was advised that there were no concerns about Dr. Smith’s conduct in the case.

Arguably, given the controversy swirling about Dr. Smith at the time, Dr. Cairns should have gone further.

Had he spoken to defence counsel, for instance, he may have learned of the misleading evidence given by Dr. Smith earlier in the case.