PASSAGE ONE OF THE DAY: "But then, four years later, the Texas Court of Criminal Appeals took a look at the case and found serious problems. The court’s concerns centered on the testimony of Cox, who initially examined the child at Parkland Memorial Hospital in Dallas and reported her injuries to authorities, as well as one other physician who was less certain about whether the child had been abused. As a child abuse pediatrician, a growing subspecialty of doctors who assist authorities with child welfare investigations, Cox is considered an authority in differentiating accidental injuries from those that are inflicted. But some child abuse pediatricians have at times overstated their ability to determine when a child has been intentionally harmed, placing them at the center of medical and legal battles, an investigation by the Houston Chronicle and NBC News has found. In a scathing 6-3 opinion issued in October 2016, the Texas criminal appeals court concluded that the jury in the Walker trial should not have relied on Cox’s burn-pattern analysis because he “did not base his opinion on the particular facts of this case.”
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STORY: "Do No Harm: Part 3: Burned by ‘bad science’, by Mike Hixenbaugh/NBC News, Keri Blakinger/Houston Chronicle, with photography by Elizabeth Conley, published by The Houston Chronicle on October 24, 2019. This article, the third in a series, was published in partnership with NBC News. ( Mike Hixenbaugh is a national investigative reporter for NBC News, based in Houston. Prior to joining NBC earlier this year, he spent three years at the Houston Chronicle, where his reporting about a troubled heart transplant program led to changes to improve patient safety. Keri Blakinger is a Houston Chronicle reporter specializing in criminal justice. Her reporting has prompted improvements in Texas’ prisons, including a recent change to provide dentures to inmates. She joined the Chronicle after covering breaking news for the New York Daily News. She has a popular podcast, Behind the Walls.Elizabeth Conley is a an award-winning staff photographer for the Houston Chronicle.).
THE STORY SO FAR: "A Houston Chronicle and NBC News investigation found that doctors trained to spot child abuse had in some instances overstated their ability to determine when a child had been harmed, triggering traumatic family separations. In response, some Texas lawmakers have begun calling for additional safeguards to protect families."
GIST: "A prosecutor projected a grisly photo onto a screen for the jury. It showed a little girl’s feet, burned up to her ankles and covered in blisters. The 2-year-old had climbed into a bathtub when nobody was looking, her grandparents had said, and the hot water must have been set too high.
In the Texas courthouse 100 miles east of Dallas that day in September 2012, the prosecutor turned to his expert witness and asked whether he believed the child’s injuries could have been the result of an accident. “The pattern of her burn injuries is what I would call a forced immersion,” the expert, Dr. Matthew Cox, said, indicating that someone must have intentionally held the child in scalding water.
Later, when pressed by a defense lawyer, Cox was unequivocal: “Absolutely, this is child abuse.”
Following that testimony, the girl’s grandparents, Kenneth and Shelley Walker, 55 and 60 at the time, were both convicted of injury to a child and sentenced to 25 years in prison. They assumed they would die behind bars. But then, four years later, the Texas Court of Criminal Appeals took a look at the case and found serious problems. The court’s concerns centered on the testimony of Cox, who initially examined the child at Parkland Memorial Hospital in Dallas and reported her injuries to authorities, as well as one other physician who was less certain about whether the child had been abused. As a child abuse pediatrician, a growing subspecialty of doctors who assist authorities with child welfare investigations, Cox is considered an authority in differentiating accidental injuries from those that are inflicted. But some child abuse pediatricians have at times overstated their ability to determine when a child has been intentionally harmed, placing them at the center of medical and legal battles, an investigation by the Houston Chronicle and NBC News has found. In a scathing 6-3 opinion issued in October 2016, the Texas criminal appeals court concluded that the jury in the Walker trial should not have relied on Cox’s burn-pattern analysis because he “did not base his opinion on the particular facts of this case.” Cox, who declined through an email to answer questions for this story, relied on an incorrect estimate of the water temperature, the court wrote. He never considered the configuration of the bathtub, which the justices noted was encased in sliding-glass doors, or whether that might have caused the child to become trapped. And he didn’t realize that the grandparents, the only adults home at the time, suffered from medical problems that their lawyer said would have made it difficult for them to hold a toddler in hot water. The justices cited a Texas law that allows courts to overturn convictions that were based on the conclusions of “bad science” or “bad scientists.” “We do not know, nor can we know, how the child came to be injured without resort to speculation,” the justices wrote on Oct. 19, 2016. “Putting a scientific gloss over that speculation does not make the evidence more certain. Both defendants are entitled to an acquittal.” After more than four years, the Walkers were set free. But that didn’t do anything to help Jessica Byas-Lurgio. In a strikingly similar case less than a year later, Cox’s burn analysis helped send her to prison. Hot water hazards: Every year in the U.S., thousands of children are scalded by hot water flowing from household faucets. In most instances, these burns are accidental. But sometimes, child abuse experts say, hot tap water is used as a weapon to teach children a lesson. Parents fed up with potty-training accidents will scoop up toddlers and dunk them in scalding bathwater, abuse experts say. Or a caregiver who has grown tired of a disrespectful child might grab his hand and force it under a hot tap. Child abuse pediatricians say this type of abuse is more common than some people realize. Inflicted burns make up about 10 percent of all child abuse cases, according to some estimates, and about 1 in 10 children admitted to burn units nationally is believed to be a victim of child abuse. To prevent tap-water scalding injuries, inflicted or otherwise, the Centers for Disease Control and Prevention recommends setting water heaters at no higher than 120 degrees Fahrenheit, but many households and apartment complexes fail to do so. That was the case at the Dallas townhome community where Jessica Byas-Lurgio moved in 2015 with four children, including two young half-siblings she was raising after the death of their father. Soon after moving in, Byas-Lurgio said she burned herself while taking a shower. But when she went to adjust the water heater, she said she found a padlock blocking her access. An apartment maintenance worker came by after she complained, she said and later testified in court, but rather than adjust the water heater, she said he coached her on how to position the faucet handle to produce a comfortable temperature. That conversation flashed through her mind a few months later, on June 27, 2015, when Byas-Lurgio, 35 at the time, heard her 3-year-old sister, Nicole, call her name from the bathroom. The bath water was running. In the four years since that day, Byas-Lurgio has told and retold a consistent story about what happened next, including while testifying at her own sentencing hearing in Dallas County District Court in 2017. She says she rushed around the corner to find Nicole — that’s the child’s middle name — with one leg out of the bathwater, as if she had been trying to get out, but seemingly frozen in place. Steam was rising from the water, which appeared to be a couple of inches deep, she recalled. Byas-Lurgio said she grabbed a towel and scooped Nicole into her arms. The girl wasn’t screaming, she said; that made her think maybe it wasn’t too serious. But when she went to dry Nicole’s legs, some of her skin slid out of place. Byas-Lurgio grabbed her phone and dialed 911. The paramedics were amazed, given the seriousness of the burns, that the girl wasn’t screaming. Nicole had a high tolerance for pain, Byas-Lurgio remembered telling them. Not long after they arrived at Parkland Memorial Hospital that morning, Cox, the doctor from the Walker case, entered the room. He told Byas-Lurgio he had some questions. A recipe for bad forensics?: When a child comes into an emergency room with serious scald burns, a child abuse pediatrician often is called in to assess the injuries. These specialized doctors say abusive burns have hallmarks that help separate them from accidental injuries. Severe and extensive burns from tap water are almost always suspicious, the doctors say, because a child with normal pain-reflexes will usually escape scalding water before they’re injured too badly. The doctors also look for well-defined lines between burned and unburned skin — a “classic forced immersion burn pattern,” some call it — which can indicate that a child was held steady in hot water, according to child abuse pediatrician training materials. But some pediatric burn experts and forensic pathologists caution against drawing firm conclusions based only on the appearance of a child’s burns. “I don’t know that you can tell the difference always,” said Dr. Robert Sheridan, the burn unit medical director at Shriners Hospitals for Children in Boston and a professor of surgery at Harvard Medical School. “I don’t know that you can hang your hat entirely on burn pattern in the absence of other information.” Doctors and investigators also should consider water temperature, experts say, because that can affect how quickly a child is burned and whether a parent’s story is plausible. And doctors also should try to understand the child’s physical limitations and pain thresholds, as well as the configuration of the bathtub. Even with all of that information, experts say it can be remarkably difficult to differentiate an accident from abuse. Dr. Shaku Teas, a forensic pathologist in Chicago, has reviewed cases and testified for Illinois parents accused of burning their children in bathtubs. She said she’s noticed that some physicians draw conclusions based only on the pattern of a child’s burns — before getting any other information — and then interpret the evidence to support the hypothesis. It’s a recipe for bad forensic analysis, she said. “If you make the conclusion first and then try to prove that conclusion, you’re going to be wrong, if not 50 percent of the time, then 100 percent of the time,” Teas said. “And I think that is the problem.” During the Walker trial in 2012, Cox said that the lack of splash burns higher on the child’s legs indicated that the girl was held still and wasn’t hopping from foot to foot, like a typical child would when stuck in hot water. But when pressed, Cox said in court that he didn’t know that a research paper published in the Journal of Pediatrics indicates that water temperatures below 130 degrees Fahrenheit won’t typically cause splash burns. He also acknowledged while testifying that he didn’t know the maximum water temperature in the Walkers’ tub, which police measured at 129 degrees, but he said that information didn’t change his assessment. And at least one aspect of the girl’s burns was supportive of the grandparents’ account that the girl had climbed into the tub on her own and couldn’t get out, according to an NBC News and Houston Chronicle review of guidelines for investigating pediatric burns and interviews with experts. Official instructions issued by the Department of Justice say that when a child suffers severe burns to the tops of her feet but not the bottoms, that’s evidence that the child was forcibly held against the bottom of the tub, sparing the soles from contacting the hot liquid. But when the bottoms of a child’s feet are severely burned — as was the case with the Walkers’ granddaughter — that suggests a child might have climbed in accidentally. “A child cannot jump up and down in hot water and not burn the bottoms of the feet,” the Department of Justice training document states. Cox acknowledged in court that burns on the bottoms of a child’s feet could indicate it was an accident. But he offered an alternate hypothesis in the Walker case: He testified that the severe burns on the bottoms of the granddaughter's feet meant that someone must have dipped the girl in scalding bathwater, holding each of her legs steady for an unknown amount of time, but without pressing her feet against the bottom. In the East Texas courtroom seven years ago, he delivered his conclusions with absolute certainty. “Her pattern of burns, no, couldn’t be accidental,” Cox said. “It’s just flat out nonaccidental.” The jury deliberated for five hours before sentencing the Walkers to 25 years in prison. In a short phone interview, Kenneth Walker said he and his wife couldn’t understand why the doctor was so certain that someone abused the girl. After being released from prison, he and his wife moved to a small town in southern Missouri, where they’ve been reunited with their grandchildren. They declined a more in-depth interview. “It’s just too painful,” Kenneth Walker wrote in a text message. Cheryl Johnson was the Texas Court of Criminal Appeals justice who reviewed the Walker case and wrote the opinion overturning their convictions in 2016. She told NBC News and the Chronicle in a recent interview that the jury should not have placed faith in Cox’s testimony. “He was so wrong and so ignorant of the facts,” Johnson said. If she had been the judge during the original trial, she said, “I would have stopped the proceedings and said: ‘Just a minute here. You are going to have to justify all of this. Otherwise I’m kicking you off the stand.’” In 2015, three years after the Walker trial, Jessica Byas-Lurgio said she was at Nicole’s bedside at Parkland Memorial Hospital when Cox stopped by to examine the girl the first time. The doctor asked a few questions about what happened, she later testified in court. Soon after, investigators from Child Protective Services and the Dallas Police Department arrived. That's my baby: Byas-Lurgio said she explained that she had moved to Dallas that summer from Joliet, Ill., just temporarily, so that her medically fragile 6-year-old son could have an experimental surgery to improve his breathing. She told the investigators about repeated maintenance problems she had with her townhome, and about burning herself in the shower soon after moving in. She said she still had a scar to prove it. And she detailed how she’d started the bathwater the morning of the incident and walked away before hearing Nicole call out from the bathroom. The investigators took notes, then left. A day later, Cox again stopped by Nicole’s hospital room, where the girl was being prepped for surgery. Cox often was called in when doctors at Parkland’s burn unit had concerns about a child’s injuries. As the medical director of the Referral and Evaluation of At Risk Children program at Children’s Medical Center in Dallas, Cox was the area’s most prominent child abuse pediatrician. He’d come to Dallas in 2004 after completing a child abuse pediatric fellowship in Philadelphia, and in the years that followed, he helped evaluate hundreds of cases of suspected abuse. While testifying over the years, he often explained that his job wasn’t simply to find abuse. In many instances, he said, he ruled children’s injuries to be accidental. But not Nicole’s. Byas-Lurgio said Cox told her that Nicole had suffered second- and third-degree burns on her buttocks, on the back of her right thigh, along the majority of her right leg and on her feet. The girl would require skin graft surgery and months of healing, he said. The injuries, he explained, did not appear to be accidental. Byas-Lurgio said she told him he was wrong. That she never would have hurt Nicole, who she’d come to think of as a daughter — her only daughter. She didn’t even believe in spanking her children, she recalled telling him. Byas-Lurgio said the conversation grew heated and she yelled at him to get out of Nicole's hospital room. Cox did not respond to detailed written questions about his handling of the Walker and Byas-Lurgio cases. In an earlier email, he wrote, “I do not recall any information about the cases and am not comfortable discussing these cases as you present them.” Two days after the encounter with Byas-Lurgio, Cox wrote his final report and sent it to Child Protective Services: “The pattern of the burn injuries is not consistent with a history of a child climbing into a tub on her own,” Cox wrote. “The extent and pattern of her injuries is consistent with immersion into scalding hot water and child physical abuse.” Cox signed the affidavit on June 30, 2015, one day before a police investigator visited Byas-Lurgio’s apartment to measure the water temperature. Byas-Lurgio said the officer cut the padlock off the hot water tank, and according to his report, he found that it was set at the maximum temperature: 150 degrees Fahrenheit, hot enough according to some estimates to cause instantaneous second- or third-degree burns. Measuring the water temperature in the bathroom, the officer reported that the bath water reached 134 degrees within 20 seconds of turning on the faucet, hot enough to seriously burn a child’s skin in a matter of seconds, according to published research. The officer didn’t document whether the water continued to get hotter after 20 seconds, the report shows. The officer also measured the tub’s height at just 11 inches, shorter than most bathtubs, making it more likely that a toddler could climb in on her own. None of those findings factored in to Cox’s report, which by then had already been sent to child welfare workers. The same day police measured the water temperature, a Child Protective Services investigator showed up at Byas-Lurgio’s home to inform her that the agency was taking emergency custody of Nicole. Months later, the agency would come back for the girl’s older brother, too. The worker documented Byas-Lurgio’s reaction to the news: “Mrs. Byas was extremely emotional and cried uncontrollably when given the paperwork. She dropped her head saying, ‘That’s my baby.’” A spokesman for the Texas state agency that oversees Child Protective Services said the department could not comment on specific cases. Three months later, Dallas police charged Byas-Lurgio with felony child abuse for intentionally placing her sister in hot water. The only evidence cited in the indictment: the pattern of Nicole’s injuries, as described by Cox. Byas-Lurgio told reporters she believed her race and economic status factored in the way doctors, police and the courts handled her case.“It was like, because I was black, nobody believed me,” Byas-Lurgio said. Nobody believed me’. Decades of research have found that bias can play a role in these types of cases. Study after study, including a 2011 paper co-authored by Cox, has demonstrated that black and low-income families are disproportionately accused of child abuse. The potential reasons for the disparity are numerous and reflect broader societal inequalities, experts say. But one contributing factor, according to numerous studies, is that doctors are more likely to suspect child abuse when a family is not white. Research shows that, compared to white patients, black and Hispanic children who come to hospitals with head trauma are twice as likely to be evaluated for abuse. And black children are more likely to receive extensive testing like full body X-rays to screen for other injuries. “Doctors are far more comfortable assigning blame to parents when the family is unimportant than when it is a privileged family,” said Martin Guggenheim, a New York University law professor and co-director of the Family Defense Clinic, which provides free legal services to low-income families. “That is a broad truth about child welfare intervention throughout the United States.” Child abuse pediatricians acknowledge that nonwhite children and children from low-income families are more likely to be referred to them. To eliminate the disparity, some doctors have proposed expanding the types of injuries that result in automatic examinations for abuse, as part of a campaign dubbed, “Think less, screen more.” In some instances, research cited by child abuse pediatricians points to economic status and other social factors as risk factors for abuse. For example, the doctors say that children living in low-income homes with a single parent are at greater risk of suffering abusive burns. But a 2001 paper by a pair of researchers at Harvard Medical School examined nine such cases and identified problems with the way doctors and the courts handled them. The authors — a pediatric burn specialist and a medical researcher — found reasons to doubt the conclusions of reporting doctors in each of the cases, including three in which children suffered serious burns while bathing. The authors noted that it’s not uncommon for water heaters to be set at dangerously hot temperatures in low-income rental housing, putting children at risk for serious injuries. And they found that some reporting pediatricians did not seem to contemplate or understand the ways water temperature or the time of exposure affect a child’s burns before drawing their conclusions. “The finding of guilty because of an inadequate analysis or basic prejudice is anathema to our system of justice,” the authors wrote in conclusion, “and the impact on the child and the family can prove devastating and lasting.” The Walkers had been set free, and Cox had left Dallas to lead a child abuse team at a hospital in Boise, Idaho, by the time Byas-Lurgio pleaded guilty to reckless endangerment of a child, a lesser charge that she believed would allow her to avoid prison time. The judge’s ruling: She had, after all, failed to keep a close eye on her sister, she remembered her public defender telling her. She said he advised her to forfeit her right to a jury trial, even though prosecutors hadn’t offered a plea bargain and there was no guarantee that she would receive a lenient sentence. Byas-Lurgio hoped pleading guilty would put the matter behind her and allow her to move on with her life back in Illinois, where she was raising her two biological sons. At a sentencing hearing on Sept. 18, 2017, in Dallas County District Court, the prosecution called Dr. Suzanne Dakil to testify. She’s a child abuse pediatrician who had replaced Cox as director of the child abuse program at Children’s Medical Center. She told the judge that she had reviewed her predecessor’s findings, along with Nicole’s medical records, and said she agreed with Cox’s conclusion. “She was either being held in the water or felt that she could not move for some reason,” Dakil said, according to a transcript, indicating that she believed the girl may have been intimidated into sitting still in scalding water. Disturbing photos of Nicole’s injuries flashed on a screen as Dakil spoke. She also testified that it would take “a half minute or so” for a child to suffer third-degree burns when water temperatures approach 150 degrees, contradicting research on the subject, which states that children can suffer full-thickness burns within a few seconds or instantly at those temperatures. In response to a reporter’s request for comment on the Walker and Byas-Lurgio cases, a spokesman for UT Southwestern Medical Center, the medical school that employed both Cox and Dakil, said the system “does not publicly discuss specific individuals or cases out of respect for privacy and confidentiality.” Next, Nicole’s foster mother testified, followed by the woman whose family had permanently adopted the girl along with her older brother. Byas-Lurgio cried as the prosecutor clicked through photos of Nicole, wearing a pretty dress and smiling with her new siblings. She’d grown so much since she’d last seen her. Finally, Byas-Lurgio was called to the stand. She described taking custody of her young siblings after the death of their father in 2013, when Nicole was still a baby. Both children had been neglected by other family members before she took them in, Byas-Lurgio said. Those struggles were confirmed by court records reviewed by reporters. The boy had suffered a traumatic brain injury before he came into Byas-Lurgio’s care, and Nicole was prone to self-harm as a toddler, sometimes running her head into walls or grabbing for lit candles. The children needed a safe home, she said, and she tried to provide one for them. “Nobody’s perfect,” Byas-Lurgio said, acknowledging that if she hadn’t turned away from Nicole that day, the girl might not have gotten hurt. “I tried to do the best I could. Even when people told me that it was too much, and that I wouldn’t be able to, I still tried. She recalled the moment when Cox told her that he believed Nicole’s burns were inflicted. “How did that make you feel?” Bret Martin, her defense lawyer, asked. “Made me feel like s---,” Byas-Lurgio replied. “He don’t know me. He don’t know what I went through.” In his closing statement, Martin asked the judge for leniency. He recalled how every person directly involved in investigating the case in 2015, including the Dallas police officer who filed the charges, had told him that they believed Byas-Lurgio’s story. Only one person didn’t, Martin said. “The story has never changed from minute one, when Dr. Cox started questioning her,” Martin said. “The reality of the situation is, but for that medical report that you have, his affidavit, there would not be criminal charges filed against Ms. Byas.” The officer who investigated the case was not called to testify at the hearing, and the Dallas Police Department did not respond to an email seeking comment for this story. After a short recess, the judge delivered his ruling, sentencing Byas-Lurgio to 10 years in prison. She dropped to her seat as he spoke, stunned. Who was going to take care of her two sons back in Illinois? She sobbed, crying out, “My babies, my babies,” as a bailiff put her in handcuffs and led her away. Nine months later, Byas-Lurgio finally caught a break. A judge agreed to release her on shock probation, a sentencing arrangement in which an offender is set free after a short time in prison, in the hopes that their experience behind bars will inspire them to make better choices. Clinging to memories: She was thrilled to finally leave Texas and be reunited with her two sons, who had been in the care of her parents back home. But life has been a struggle in the year since. Byas-Lurgio had been a child therapist and part-time teacher before all of this. She loved working with kids who struggled with behavioral disorders. But since being released, she hasn’t been able to pass a background check to continue working with children. She’s taking online courses now in the hopes of becoming a forensic investigator. She wants to help parents facing abuse allegations like she did. She still thinks about Nicole, who’s now 7, and her older brother. The children are pictured in nearly all of the photos on display at the house that she’s renting in Joliet. Byas-Lurgio wonders what the children are like now. She’s tried to look up their adoptive family on social media, but she hasn’t had any luck. Since having her custody terminated, she has no legal right to visit them. Do they even remember her? Byas-Lurgio’s therapist told her recently that she needs to stop thinking about them so much. To help her along in that process, Byas-Lurgio’s mother and step-father have gotten rid of most of Nicole’s old clothes and toys. They don’t know about the pairs of tiny pink and red and orange socks that she has stashed away, hidden in her dresser. When she’s feeling depressed, she pulls the socks out and holds them, trying to remember the sound of Nicole’s voice."
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Part 1: A Devastating Diagnosis
Part 2: ‘Imminent Danger’
Coming soon
Part 4: Short falls, serious injuries
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The entire story can be read at:
https://www.houstonchronicle.
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/
