SPECIAL REPORT

THE BABYSITTER DIDN’T DO IT

Jane O’Hara May 14 2001
SPECIAL REPORT

THE BABYSITTER DIDN’T DO IT

Jane O’Hara May 14 2001

THE BABYSITTER DIDN’T DO IT

SPECIAL REPORT

As early as 1988, an autopsy by Dr. Charles Smith was at the centre of a major judicial storm. That is when police in Timmins, Ont., relying on his judgment, charged a 12-year-old babysitter with manslaughter in the death of a 16-month-old baby girl in her care. The girl (who can be identified only as S under the Young Offenders Act) said the child fell down a flight of five stairs and landed on her forehead, then went limp and nonresponsive. Flown to the FFospital for Sick Children in Toronto, the baby died of brain injury. No autopsy was done. After interviewing the babysitter, Timmins police concluded the death was an accident. But three weeks after the baby died, and after discussing the case with colleagues at Sick Kids, Smith obtained a coroners warrant to exhume the body, and conducted an autopsy to determine cause of death.

On Aug. 19, 1988, Smith reported his autopsy findings verbally to the coroners office, terming the death a case of child abuse: the 12-year-old, he concluded, had shaken the baby to death. Four months later, police charged S with manslaughter.

But according to his own writing on the subject, Smith had not followed basic procedures for arriving at his conclusion, including not obtaining a complete set of X-rays of the baby’s body.

Smith also failed to talk to the doctor who had performed head surgery on the baby when she was rushed to Sick Kids hospital.

And he made his initial diagnosis even before examining tissue-sample evidence under a microscope. But defence experts said his most critical oversight was denying the importance of a deep bruise on the baby’s forehead—the site of impact where the babysitter said the 16-month-old fell.

In his autopsy report, Smith ruled the death was due to head injury. Then, in an unusual gesture, he travelled the 560 km north to Timmins to tell the Crown, the police and the parents of the dead child that the injury was caused by shaking. Reluctandy, the police charged the 12-year-old. “This is the hardest thing I’ve ever had to do in my life,” said Denis Lavoie, now the police chief in Timmins, as he read the 12-year-old her rights.

At the trial, which lasted 30 days spread over 13 months, Smith took the stand for five days. There, he was emphatic in his belief that children cannot die from the type of short fall described by the babysitter. The weight of medical literature, he said, was on his side. In concluding the baby had been shaken to death, he expressed full confidence to the court. “I wish there was doubt,” said Smith. “There is simply no doubt. There is only one conclusion I can come to.”

To defend his daughter, the babysitter’s father went into overdrive. “With Smith’s testimony, the Crown thought the case was

going to be a slam dunk,” said the father. So he sought the opinions of 18 leading experts on brain injury from North America, Britain and Australia. Some said they would testify with only their travelling expenses covered. Others charged as much as $525 an hour. The father had to sell the family home and cash in his RRSPs to raise $150,000 for his daughter’s defence. With no home and rapidly declining funds, the father was forced to live in his lawyer’s house during the trial.

Nine of these respected neurosurgeons and pediatric neuropathologists travelled to Timmins to testify in what amounted to a world-class symposium on children’s head injury. They almost all agreed on one point: that even a small household fall could have caused the child’s fatal brain injuries.

Another expert said that Smith—and many other pediatricians—were out of touch with the latest research into children’s head injuries. That key defence witness was Dr. Ayub Ommaya, a neurosurgeon and professor at George Washington University in Washington, one of the world’s experts in the biomechanics of children’s brain injury. Even if it was theoretically possible to cause fatal brain injury by shaking a child, said Ommaya in his testimony, a 12-year-old girl could not generate enough force to shake a welldeveloped 16-month-old baby to death. Smith, he continued, was still holding views that had been overtaken by newer research. Smith “has taken as an article of faith that the shaken baby syndrome has existed in this case,” testified Ommaya. “He has made a pathological decision based on totally inadequate data.”

In acquitting the babysitter, provincial court Judge Patrick Dunn had strong words for Smith. In a 75-page judgment, he tried to steer clear of the medical controversy surrounding shaken baby syndrome but dealt with the facts of the case. Dunn cited Smith’s failure to keep up with the current research. “A diagnostician,” he said, “should be as aware of the new studies in medical literature as he is of the old ones and be alert to problems in the articles in reporting the particulars of the injuries.” Dunn also criticized the shortcomings of Smith’s autopsy procedures. “It would behoove Dr. Smith, in making a diagnosis of shaking that would lead to a manslaughter charge, to show he seriously considered possibilities other than shaking,” wrote Dunn. “The unanimity of the defence experts, their careful clinical and scientific, objective analysis of all the evidence, is more persuasive than Dr. Smith’s undocumented memory of an autopsy that took place 18 months before he testified.”

Jane O’Hara