'THE NEXT DAY, MARCH 21, 1992, DR. CHARLES SMITH CONDUCTED GAUROV’S AUTOPSY AT THE HOSPITAL FOR SICK CHILDREN. THE POLICE SYNOPSIS OF THE CASE SUMMARIZED HIS FINDINGS AS FOLLOWS:
DR. SMITH FOUND EXTENSIVE HEMORRHAGING WITHIN THE BRAIN, BEHIND BOTH RETINAS AND AROUND THE SPINAL CORD.
IT WAS HIS OPINION BASED ON A GREAT DEAL OF EXPERTISE THAT THESE CRITICAL MEDICAL ABNORMALITIES HAD ALL THE EARMARKS OF INJURIES SUSTAINED AFTER AN EPISODE OF “SHAKEN BABY SYNDROME”.
THIS CONDITION OCCURS WHEN AN INFANT IS PICKED UP AND SHAKEN VIOLENTLY.
BECAUSE OF UNDER-DEVELOPED MUSCLES IN THE NECK AND SPINAL AREAS, THE INFANT’S HEAD IS WHIPLASHED UNCONTROLLABLY AND THE BRAIN IS LITERALLY “PING-PONGED” WITHIN THE SKULL.
THIS TRAUMA LEADS TO HEMORRHAGING WHICH, IN TURN, LEADS TO BRAIN SWELLING AND DIRE CONSEQUENCES, I.E. DEATH.
AFTER THE POST MORTEM EXAMINATION, DR. SMITH CONDUCTED FURTHER TESTS TO CLARIFY HIS INITIAL DIAGNOSES AND AT THE SAME TIME RULE OUT ANY OTHER POSSIBLE ANATOMICAL CAUSE(S) FOR THE INJURIES.
AFTER CONDUCTING THE TESTS, DR. SMITH SOLIDIFIED HIS PREVIOUS OPINION BY DECLARING THAT THE INJURIES WERE DEFINITELY NOT ACCIDENTAL IN NATURE AND BECAUSE OF THE ABSENCE OF EXTERNAL TRAUMA, THE INJURIES WERE CONSISTENT WITH HIS PREVIOUS FINDINGS, TO WIT: “SHAKEN BABY SYNDROME”.
HE EVEN TOOK IT ONE STEP FURTHER AND EXPLAINED THAT THE DAMAGE PRESENT WAS PROBABLY THE RESULT OF CONTINUOUS SHAKING AS OPPOSED TO A SINGLE VIOLENT SHAKE.
DR. SMITH WAS UNABLE TO PINPOINT THE EXACT TIME THE INJURIES OCCURRED BASED ON PATHOLOGICAL EXAMINATION BUT SURMISED THAT A BABY WITH SUCH CRITICAL INJURIES WOULD BE UNABLE TO FEED NORMALLY AS REPORTED BY THE ACCUSED IN ALL HIS STATEMENTS TO BOTH MEDICAL AND POLICE PERSONNEL.
THEREFORE, IT IS HIS CONTENTION THAT THE INJURIES MUST HAVE BEEN INFLICTED DURING THE TIME FRAME BETWEEN THE LAST FEEDING AT 12:30 A.M., AND THE TIME THE 911 CALL WAS PLACED.
DURING THIS CRUCIAL PERIOD THE ACCUSED WAS THE ONLY PERSON TO HAVE EXCLUSIVE CONTROL OF THE INFANT AND THEREFORE THE ONLY PERSON WITH EXCLUSIVE OPPORTUNITY TO CAUSE THE CRITICAL INJURIES TO THE CHILD."
AFFIDAVIT: ALISON CRAIG;
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"DR. SMITH’S CONCLUSIONS WERE ENDORSED BY DR. DIRK HUYER, A PHYSICIAN WHO WAS A MEMBER OF THE SUSPECTED CHILD ABUSE AND NEGLECT PROGRAM (THE SCAN UNIT) AT THE HOSPITAL FOR SICK CHILDREN.
DR. HUYER REPORTED AS FOLLOWS: IN SUMMARY, THE CLINICAL DIAGNOSIS IN THIS CHILD WAS MOST LIKELY SHAKEN BABY SYNDROME.
DR. MCGREAL, THE STAFF NEUROLOGIST INVOLVED IN THE CHILD’S CARE AGREED WITH THIS DIAGNOSIS.
PRELIMINARY AUTOPSY RESULTS ARE CONSISTENT WITH THIS DIAGNOSIS.
IT IS A VERY CONCERNING INJURY AND TYPICALLY RESULTS FROM VIOLENT NOTICEABLE SHAKING OF THE CHILD.
NO HISTORY OF SHAKING WAS PROVIDED AND SHAKING WAS DENIED ON DIRECT QUESTIONING.
THE LACK OF HISTORY TO EXPLAIN THE CLINICAL DIAGNOSIS IS VERY CONCERNING AND COUPLED WITH THE KNOWN MECHANISM IS VERY SUGGESTIVE OF NON-ACCIDENTAL INJURY."
AFFIDAVIT: ALISON CRAIG;
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"THIS CASE ILLUSTRATES THAT NOT ONLY DID DR. SMITH MAKE A DIAGNOSIS OF HEAD INJURY WITH OPINIONS ON CAUSATION THAT WOULD NOW BE CHALLENGED, BUT THE CLINICIANS INVOLVED IN THE MANAGEMENT ALSO HAD SIMILAR VIEWS."
AFFIDAVIT: ALISON CRAIG;
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"DR. MICHAEL POLLANEN, THE CHIEF FORENSIC PATHOLOGIST FOR THE PROVINCE OF ONTARIO, REVIEWED ALL THE CASES REPORTED ON BY THE EXTERNAL REVIEWERS INCLUDING GAUROV’S CASE.
HE MADE THE FURTHER OBSERVATION IN GAUROV’S CASE THAT THE TRIAD OF FINDINGS (SUBDURAL HAEMORRHAGE, RETINAL HAEMORRHAGES AND BRAIN SWELLING) EMPHASIZED BY THOSE PATHOLOGISTS WHO BELIEVED IN THE SHAKEN BABY SYNDROME CONCEPT, AND VIEWED AS A PRE-REQUISITE TO A SHAKEN BABY SYNDROME DIAGNOSIS, DID NOT APPARENTLY EXIST IN GAUROV’S CASE."
AFFIDAVIT: ALISON CRAIG;
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Dr. Charles Smith, and Dr. Dirk Huyer, former Head of the Hospital For Sick Children SCAN Team, insisted in unequivocal language that Gaurov's tragic death showed all of the signs of Shaken Baby Syndrome.
It is therefore instructive to learn about the "proposed fresh evidence from 2005 to the present" that will now be considered by the Ontario Court of Appeal from lawyer Alison Craig's affidavit to the Court;
29. "In November, 2005, the Chief Coroner of Ontario announced that a review would be conducted of 45 criminally suspicious pediatric autopsies in which Dr. Smith had either conducted the autopsy or provided a consulting opinion," this portion of the afidavit begins;
"The results of the review were announced in April, 2007, and revealed that Dr. Smith had made errors in twenty of the cases that were reviewed, including the case of Gaurov Kumar," it continues;
"Professor Helen Whitwell, from England, was the external reviewing forensic pathologist in Gaurov’s case.
She has particular expertise in cases of infants who have died from head injuries, including the so-called Shaken Baby Syndrome, and has published widely in the field.
In her Autopsy Report Review Form of December 5, 2006, a standardized document that the external reviewers were requested to provide, she concluded that the cause of death provided by Dr. Smith was, in 1992, in conformity with accepted opinions of “most pathologists and, certainly, clinicians” but would not be the current opinion of most pathologists from the United Kingdom in 2006.
She noted as follows:
If I was reviewing this case as per Goldsmith Review (Attorney General U.K.), it is highly likely this case would have been referred to the CCRC [Criminal Cases Review Commission]/Court of Appeal.
30. On May 31, the Applicant was contacted by counsel for the Association in Defence of the Wrongly Convicted (AIDWYC).
He was living at 99 Blackwell Avenue in Scarborough with his wife and their son Saurob.
He immediately authorized AIDWYC to pursue his case.
31. Since then, a number of documents have been retrieved on the case from the Applicant’s trial counsel, the Respondent, Scarborough Centenary Hospital, the Hospital for Sick Children, the Chief Coroner’s Office and other sources.
As well, an extremely helpful overview of the case was prepared by Commission Counsel at the Goudge Inquiry in the form of an Overview Report.
32. Professor Whitwell produced a more complete Medico-Legal Report Relating to the Death of Gaurov Kumar for the Goudge Inquiry.
Her report included the following:
Opinion of Professor Whitwell
The male infant was 5 weeks old at the time of death. He had old subdural haematomas. It is now recognized that subdural bleeding may occur in a proportion of normal as well as assisted deliveries. In addition there were areas of fresh bleeding. This raises the issue of whether or not re-bleeding can occur in the background of chronic subdural haematomas. This is a contentious and debated issue. Furthermore it is unclear as to how much force – if any – may be necessary [for re-bleeding to occur]. It is unclear as to how much resuscitation was undertaken by the father. He denied shaking.
Issues relating to the case
1. The understanding of infant head injury has evolved over the last 10-15 years. This includes issues such as degree of force, low level falls and the etiology of subdural haemorrhages in the very young. At the time of this case – 1992 – the common prevailing view was similar to that of Dr. Smith, with clinicians in particular holding these opinions. The expressed opinions of Dr. Smith and the clinicians were conventional for the time. However, these opinions would be subject to challenge in view of the advances of medical knowledge.
This case illustrates that not only did Dr. Smith make a diagnosis of head injury with opinions on causation that would now be challenged, but the clinicians involved in the management also had similar views.
2. Dr. Smith’s descriptive report was detailed. No opinion as to the mechanism involved in the causation of the head injury or discussion relating to the findings was included in the report. I do note, however, that Dr. Smith in a meeting on June 26, 1992 (notes included in the police report) indicated that the injuries were definitely non-accidental in nature and the injuries were consistent with previous shaken baby syndrome. He also comments that the damage was probably the result of continuous shaking as opposed to a single violent shake.
These comments are without scientific basis. However, the clinicians at this time would probably have expressed similar views.
33. Dr. Michael Pollanen, the Chief Forensic Pathologist for the Province of Ontario, reviewed all the cases reported on by the external reviewers including Gaurov’s case.
He made the further observation in Gaurov’s case that the triad of findings (subdural haemorrhage, retinal haemorrhages and brain swelling) emphasized by those pathologists who believed in the Shaken Baby Syndrome concept, and viewed as a pre-requisite to a Shaken Baby Syndrome diagnosis, did not apparently exist in Gaurov’s case.
This was because when Gaurov was first examined at the Centenary Hospital, no retinal haemorrhages were present.
Dr. Pollanen testified at the Goudge Inquiry;
In an undated report prepared for the Commission, Dr. Pollanen had noted:
Gaurov: Shaken baby syndrom was diagnosed based on the presence of the triad (subdural hemorrhage, retinal hemorrhage and hypoxic encephalopathy) at autopsy. However, the first fundoscopic examination (presumably prior to significant brain swelling) failed to reveal retinal hemorrhages. The two possibilities are: the retinal hemorrhages were missed on the first examination, or the retinal hemorrhages developed later and are not indicative of shaking injury. This creates a doubt about the diagnosis of shaken baby syndrome.
Dr. Pollanen outlined several general conclusions that should be drawn from the review of Dr. Smith’s work, and stated that, given advances in the scientific understanding of infant head injury:
… apropos of the results of the Smith and the Goldsmith reviews, there is a reasonable basis to believe that problems could exist with other fatal infant head injury cases including cases certified as Shaken Baby Syndrome.
34. In her testimony at the Inquiry, Dr. Whitwell agreed that the absence of retinal hemorrhages upon Gaurov’s admission to hospital was a key finding that Dr. Smith failed to take into account:
Q. … if we assume that the admitting physician was right in his observation of an absence of hemorrhaging in the eyes, then that sort of inevitably leads to – back to Lorraine Harris’ case, you might say, insofar that would surely indicate that there must be something other than shaking that caused the hemorrhaging of the eyes?
A. That’s correct.
Q. So the hemorrhaging of the eyes, in a sense you could use Gaurov’s case as – as a precedent for future literature explorations of whether the triad is in fact caused by shaking in the first place.
A. Correct.
Q. Or necessarily caused by shaking –
A. Yes, that’s correct.
Q. -- in the first place. Gaurov’s case would be a good case to use as a – as a precedent, is that fair
A. Well it does – yes. I mean it – if – if the assumption is that retinal hemorrhages are caused by trauma, i.e shaking, and they’re not there on admission, then what – one looks at other potential explanations, such as brain swelling.
Q. And so in Gaurov’s case, whilst we have – the preexisting condition may have been responsible for what ultimately caused Gaurov’s death, beyond that, potentially, as Dr. Pollanen has pointed out, we don’t even seem to have the triad in the first place.
A. No, you don’t.
35. At autopsy, Gaurov was seen to have an old subdural haemorrhage, likely due to birth trauma which is not an uncommon event. The presence of this old subdural haemorrhage raised the possibility that a re-bleeding of it had occurred, leading to Gaurov’s death. Dr. Whitwell testified about this at the Goudge Inquiry. She was asked:
Q. If you go to page 24 and 25 of Dr. Becker's report, he's listed under CNS diagnosis:
"Epidural hemorrhage, acute at the spinal cord, subdural hemorrhage, acute, of the frontal convexity, flax cerebri, tentorium cerebelli, optic nerves right and left and spinal cord, subdural hemorrhage, old, focal of the occipital lobe, tentorium cerebelli, and cervical cord, subarachnoid hemorrhage, acute, focal of the basal cistern optic nerves, right and left, retinol hemorrhages, acute, right and left, cerebral edema, and hypoxic ischemic encephalopathy."
What is the issue that's -- that's raised in this case, if I might ask you that directly?
A. Well, the issue raised in this case is the infant was five (5) weeks old. There's evidence of old subdural bleeding and the issue is could that have resulted from birth? And then the potentially subsequent rebleeding occurred either with or without trauma.
. . . . .
Q. All right. And I want to get to the re-bleeding issue in a moment, but before we do, when Dr. Smith was expressing his opinions on this case back in 1992, was the issue of re-bleeding front and centre within the forensic pathology community?
A. It was recognized that in some -- in cases of suspected or in cases of infant head injury, that you could see evidence that previous bleeding. The -- how -- whether or not that could occur -- sorry, of older bleeding. I'm sorry.
But in fairness, the issue of the potential for re-bleeding in the background, for example, birth injury with older collections, was assumed not to occur. So it was assumed that there had been another traumatic -- there would have had to be another traumatic event or another event.
Q. All right. And how, if at all, has the state of science either developed in terms of either another controversy or something more that's known about -- about this issue since 1992?
A. Well firstly there has been mainly radiological work done on normal deliveries. In fact screening of babies when they're born, which does demonstrate a proportion of them, in both normal and abnormal deliveries, may have subdural bleeding.
Q. So just stopping there for a moment. So the radiological studies have shown that subdural bleeding can exist –
A. At birth.
Q. - - as a birth injury?
A. Correct.
Q. All right. Go on please.
A. Now what isn't known because the studies of which there are few, have only been done in the last two or three years, is how long the evidence of subdural bleeding can remain. And the issue of whether or not re- bleeding can occur in the background of older bleeding without trauma.
Q. All right. So the issue that's being raised, as I understand it, is whether or not -- and perhaps it's the wrong terminology to say spontaneously, but whether or not old bleeds in effect can re-bleed without the intervention of trauma?
A. That’s correct.
Commissioner: How would they start if it wasn’t for an intervening event?
A. Well - -
Commissioner: Just theoretically?
A. Because in older hematomas or older collections you’ve got tiny blood vessels which are quite thin walled.
. . . . .
Commissioner: Sorry, I just - - I’m interested in the medicine, Dr. Whitwell. If an older child suffers a bleed like this, does it run the risk of a re-bleed within, say, four weeks? Injury, say, based on trauma, a blow?
A. Well - - in fact, in adults, chronic subdural - - from an active subdural - - we don’t know the answer in fairness. I have seen infants who’ve been in hospital following subdural hematomas and a degree - -
Commissioner: Infants older than four weeks like?
A. Yes. And, I’m, with evidence of subdural hematomas and brain damage, and rebleeding has occurred whilst in the hospital was spontaneous.
Commissioner: Right. So it’s not something that is unique to newborns.
A. No. I think in this case, was the issue of the birth - - potential birth injury and then -
Commissioner: Yeah, well that would cause the original bleed.
A, Yes, correct.
In her testimony, Dr. Whitwell also observed that Gaurov’s aunt’s actions, which were observed by emergency personnel, when she shook Gaurov could have led to the re-bleeding...
Harold Levy...hlevy15@gmail.com;
