On Wednesday morning at 11, after just three days of deliberations, the jury returned a verdict of not guilty on two charges involving the death of a three-month-old baby. The verdict came approximately a day after the jury was sent back after reaching an impasse.
The jury had a tough task of sorting through expert testimony that at times conflicted. It became clear that there were multiple reasons why the jury reached a not guilty verdict.
When the prosecution began their case several weeks ago, they attempted to focus the jury on the serious injuries that their experts testified caused the death of the young baby. One by one, day after day, these experts would testify to what they saw in the x-rays, blood work, and what was found in the autopsy.
The prosecution’s case was based on the notion that the injuries were a direct result of shaking the baby violently on more than one occasion. However, the science of shaken baby syndrome has been called into question in recent years.
The key prosecution expert, Dr. Bennett Omalu, testified that there was no doubt that the baby died of a severe traumatic brain injury.
He would testify, “Sam’s injuries were not sustained from a fall. It was non-accidental. An infant’s motor abilities are very small and the injuries incurred would require a lot of mass and energy.”
However, Dr. John Plunkett, a critic of shaken-baby theory, would testify a few days later that it is was just as likely that Samuel’s injuries resulted from a fall from a three-foot-high bed onto the hardwood floor.
He would tell the jury that even landing on a carpeted floor could produce a devastating injury if the baby landed on his head. He also testified that if the baby had been shaken violently enough to cause death, the neck should have shown signs of injury or a break—which it did not. When asked about the rib fractures, he noted that “normal handling” with a child who has a Vitamin D deficiency, which Sam did have, could result in rib fractures.
As the Vanguard noted at the outset of the trial – SBS diagnoses have been increasingly problematic.
SBS was first identified in the 1970s and diagnosed with a triad of symptoms: “retinal hemorrhage (bleeding at the back of the eye), subdural hematoma (blood gathered between the outermost layer of the brain and the lining between the brain and the skull), and cerebral edema (excess fluid in the brain).”
The parent or caretaker, frustrated or exasperated by the infant, shakes the child which causes the symptoms and leads to brain damage or death.
Critics note that the diagnosis provides both the cause and manner of death as well as giving the prosecutors mens rea. The testimony of the expert in this case for the prosecution, Dr. Omalu, bears that out, noting in his expert opinion that the diagnosis not only determines the nature but also the cause of injuries, and reaches a conclusion best reserved for the jury.
One of the big problems that we face in such cases is that the system really is not equipped to vet medical testimony. The jury had to listen to competing theories from experts and weigh between them.
During Mr. Stone’s own testimony, he testified that the baby suffered from a fall from a bed onto the hardwood floor. This occurred approximately a month prior to his death.
Kaiser’s Dr. Erickson testified that, after examining the infant, he felt the baby appeared normal. He stated, “He was a white, healthy, happy baby boy with no outward injuries, no bruised, swelling or dilated pupils.”
But he acknowledged that, at the same time, he never thought it was necessary to order a CAT scan, despite knowledge that the baby had fallen three feet. The baby’s doctor testified that she assured the parents that the baby’s symptoms were the result of acid reflux rather than serious trauma from a fall from a three-foot-high bed.
One of the jurors indicated in an interview with the Enterprise that he sided with the defense out of the belief that Mr. Stone did not fit the profile of a child abuser.
Moreover, the doubts and uncertainty behind the science of SBS played a role. He told the paper, “Medical science is not exact at all.” He added, “I think this family just had a really bad day — that’s what this is about.”
This was a particularly difficult case to prove beyond a reasonable doubt, as there were no witnesses, only experts who read injuries post mortem. Deputy DA Steve Mount would conclude his closing statements arguing that the defense’s medical account “just does not match up.”
“This was not an accident, and it leaves you with medical evidence that tells you something happened. No one was home with Stone when this happened to the baby,” he would argue. “you must believe the story of how Sam got from the middle of that bed to the floor but let’s take a look at what we are here for and not here for. Mr. Stone is not charged with murder, the Grand Jury is the one who charges and they are not saying that he did this out of anger, intent or even that he struck him, wanting to hurt him. What the evidence shows is that something happened on October 3, within minutes, causing great bodily injury and death.”
He said, with Shaken Baby Syndrome, sometimes children present with no injury, no signs, no abrasions, no external trauma but if a child fell there would be evidence of an epidural bleed and with those falls, it would be death. He admitted, “Study of SBS needs more research on both sides.”
He added, “I gave him the opportunity to tell me what could have happened, but he didn’t.”
The problem with Mr. Mount’s argument is he was attempting to shift the burden for the death. It is not the defense’s burden to come up with a coherent counter-explanation, it is the duty of the prosecution to prove their explanation beyond a reasonable doubt.
That is really where this case ends. The jury did not believe that the prosecution provided their case beyond a reasonable doubt.
A horrible tragedy occurred here and it is something that the Stones will have to live with for the rest of their lives. Now the focus will turn to reuniting Mr. Stone with his two sons, who have been limited to weekly supervised visitations.
—David M. Greenwald reporting
this is really problematic testimony: “Sam’s injuries were not sustained from a fall. It was non-accidental. An infant’s motor abilities are very small and the injuries incurred would require a lot of mass and energy.”
the expert is becoming more juror than witness when he argues this with such certainty given the unsettled nature of the medical evidence.
The expert, Dr. Omalu, was terminated from UCDavis Med Center last fall for reasons no one is talking about, and UCD medical staff have nothing positive to say about Omalu.
was he caught up in the scandal?
Why would the DDA use an expert witness that was fired from his job at UC Davis Med Center? It would make someone question his reliability. Can you verify that he was terminated, and did this fact come up in the trial?
I doubt that this will be the end of this case. Once the family has had some time to begin the healing process, I would expect to see some civil actions brought against several of the physicians involved in the treatment of both the mother and babies prenatally and certainly the babies postnatally.
An acquittal is appropriate. Prejudgment of the actions of the doctors is no more appropriate than prejudgement of the actions of Mr. Stone were. The reason one might expect to see these kinds of actions is that as a society, we are bound and determined to blame someone for every bad outcome. Especially when there may be some compensation available. I hope that the Stones will not pursue this and will move on to rebuilding their lives.
What comes to mind for me was the distant threat of a lawsuit which did not come to pass. The accusation was of wrongful birth. I had performed a tubal ligation on one of my patients with a quoted 1/250 failure rate ( yes, it was many years ago when we believed that was the case). She subsequently conceived, decided that she wanted to keep the pregnancy and the baby and actually had me take care of her throughout the pregnancy. She and the baby both did well and she seemed very happy until I got the notification of her intent to sue.
Had the procedure failed….yes. Had I done anything wrong….no. Did she get the outcome she wanted…..no.
Unfortunately anyone can sue anyone at any time, with the subsequent damage to our health care system in terms of costs.
Perhaps if we were to put aside what seems to be our inherent love of placing blame, making assumptions, valuing winning over determining the facts we would have a much less contentious and more productive society. I am not holding my breath.
You are incorrect, there is ample evidence of inadequate care at almost every stage of this disaster. Whether or not the Stones decide to pursue it legally is their decision to make once they have recovered somewhat from this horrifying nightmare. although I have heard that it is definitely being considered. I wish them the very best in whatever they decide to do.
The reason why I think it would be important for them to pursue a civil action, is because it might then cause other physicians to think very carefully before making the very same mistakes that were made in this case. I would hate to see this happen to any other family and I suspect that the Stones feel the same way.
Incorrect in what ? I am making no claims of fact. I do not believe that either of us have reviewed the records in question. If you have you could certainly say so. If not, you are making sweeping assumptions based on the very limited information that was provided to us. I am sure that you are aware as a doctor, that QA of a case involves an exhaustive process of reading every bit of a chart including all the notes, all the orders, all of the labs,and all of the tests and interviewing everyone involved before drawing a conclusion.
How you are willing to cast aspersions without going through such a process does not do you credit.
I am certainly glad that the jurors did not do what you seem to be doing which is having decided the case before being provided with full information and then making every bit of information conform to your prejudgement. Maybe there is a reason for not letting medical personal sift on trials of this sort after all.
You are incorrect again, I actually took into account the medical evidence that was presented during trial while you seem to have done the opposite.. You repeatedly said that the Vitamin D level of 20 was “normal” when every single expert on both sides said it was low to “very low’. You even said that is 2 is not a “treatable level” but I cannot for the life of me think of a ingle physician who would not treat a level of 20 in either a pregnant woman or infant – I certainly hope that you are not the exception . You also completely disregarded Dr. Barnes findings of metabolic bone disease consistent with infantile rickets because it simply did not fit with you preconceived notion of what happened, even though Dr. Baarne is the world’s leading expert in this very disorder.
No, I’m afraid it is you, not me, who has prejudged this case and cherry picked the evidence to fit your theory.
But the wonderful thing about our legal system is that the jury saw through the shenanigans an arrived at the right decision. And I have every confidence that if there is a subsequent civil action, they will once again see through the nonsense and arrive at the right decision. once more.
“who has prejudged this case and cherry picked the evidence to fit your theory.”
What theory ? I do not have a theory. I am willing to admit that I do not know what happened to baby Stone. I am presupposing nothing. And in any medical case, without full review of all of the medical information, not just that felt advantageous to present by either the prosecution or the defense, I am willing to admit that I never will.
You even said that is 2 is not a “treatable level”
should read 20 not 2
Yes, I did say that. As you are aware, there is controversy within the medical community on this issue.
You yourself said that you adopted the standard of 30 a few years ago. This certainly did not make you a bad doctor several years ago before you made this change. It merely means that you have adopted the changes recommended by endocrinologists. In a recent presentation by a UCD endocrinologist, he stated that he also has changed his “low threshold” to 30. However, he also made a couple of other interesting observations. He does not recommend routine screening for Vitamin D for the reason you gave. If 95 % of the population is vitamin D deficient, you do not need a lab test to recommend supplementation. This is the same principle by which we recommend that the entire population of sexually active women capable of conception take folic acid. You only order a test if it will change your course of action. The other point that he made is that the adjustment from the level from 20 to 30 would probably change the rate of fractures in the geriatric population, in his words, ” a little bit”. Since Vitamin D supplementation is relatively inexpensive and safe, this is a reasonable strategy. So in my mind is advice to supplement which I do not consider the same as treatment just as I do not consider that I am
“treating” an illness when I recommend folic acid to all women capable of conception.
I don’t know of any “controversy” within the medical community about using 20 versus 30 as the lower end of the normal range when it comes to Vitamin D. The fact that some of the professional organizations continue to use the outdated range, does not constitute a controversy, it means that they are using outdated ranges. I know of no one who is arguing for a return to the 20-100 range. All of the labs in the country with which I am familiar use the 30-100 range, as did the lab in this very case. There is ample evidence in the medical literature, much of which I have posted on this blog, that 20 is completely inadequate to protect against disease, as this very case has tragically demonstrated.
Elizabeth
Have you reviewed the records ?
All of the medical testimony I have referenced is what was presented at trial and available to everyone – I should note that Dr.Barnes findings of metabolic bone disease was unrefuted by the prosecution on rebuttal. Those were the facts that were before the jury.
True. And the involved providers were not on trial.
Have you reviewed the medical records ?
You are correct, the treating physicians are not on trial, yet, although, as I said, I believe that at some point they will be so that this kind of travesty never happens again. Since I am not one of the treating physicians, I have had to pay very close attention to the medical evidence that was presented at trial and that is what I have relied upon entirely in my comments.
Elizabeth and Tia, I am reading your comments with interest!
As far as ‘reading the medical records VS listening in court;
I have been an expert witness in medication-related cases a few times and recently testified as such for the first time. This experience brought home to me that the evidence presented can be a far cry from the complete medical record depending on how the attorneys question the witness, and truthfully, how the expert views the case.
And how we view the cases comes from our perspective, whether it be by discipline or specialty.
As I spent hours reviewing many documents as I progressed, I was probably looking at that record for things which supported the hypothesis which I began to build (which I think came partly from the attorney who had engaged me). I have no doubt I would have expressed my view of the opposite conclusion if that is what the case presented but again as I continued the case seemed to support my opinion.
During testimony, the ‘facts’ can be presented fully OR depending on the attorneys and judge, and their line of questioning, can be limited to yes/no which is tough with medicine and can confound the whole truth. In my case, I was given latitude to explain my findings of the case, but in one case was given a hypothetical by the opposing attorney which had an obvious answer but did not relate to the case as I saw it. Did it sway the jury? Who knows? Did I wish I could have given a longer answer than what was asked? By all means!
SODA, I can certainly relate, I have found myself in your exact situation on countless occasions.
Hi SODA,
I have been very fortunate in my career in that I have never gone beyond giving a deposition.
That process in itself taught me a great deal about the “game” that constitutes our legal system.
First, the case in which I was deposed was a bad outcome during birth. My only interaction with this patient had occurred on the first day of an attempted induction of labor. My only involvement was to read a completely normal 20 minutes of strip prior to her being in labor in order to allow the nurse to give her lunch. Since she was not in labor, hungry and the baby’s strip was fine, I had written a lunch order into the chart. Why, you might wonder was this a deposable interaction ?
I asked that myself. During the extensive ( an hour) of briefing by our attorney on how to answer questions, that was answered. I was told that the patient’s attorney was going to try to get me to say that I had reviewed more of the tracing, because if they could get me to affirm that I had seem more of the tracing, then they would have opened the door for me to testify about the entirety of the tracing and how it was handled and what actions were and were not taken even though I was not even in the hospital at the time.
And sure enough, that is exactly what happened. I was grilled for over an hour by the patient’s attorney in an obvious attempt to get me to say something that would imply that I had done more than just approve lunch. I answered the same questions posed in as many different ways as she could think to ask the same thing for the entire time ! Many times longer than it had taken me to read 20 minutes of tracing by the way. This happened to every doctor who had seen the patient no matter how peripherally during her stay and to all the nurses, even the one that greeted her in the triage area.
This kind of process has left me with a profound dislike for our “winner take all” torte system which has, in my opinion nothing at all to do with healing, and everything to do with money some for the patient, but in the grand scheme of things much, much more for the lawyer.
“I believe that at some point they will be so that this kind of travesty never happens again”
I believe that this is a mistaken view of cause and effect. If punishing people for presumed errors were an effective strategy, in our very litigious society, surely we would have eradicated medical errors by now. Likewise, if trying people for child abuse were effective in its prevention, there would be no cases of child abuse.
What works best in preventing medical errors is a systems approach in which all of the factors contributing to a bad outcome are evaluated for what changes would be preventative in the future. Thankfully, this is a process which is becoming much more common in the medical community. Suing, fining and other forms of punishment are singularly ineffective. Analysis of systems, education and rewards for safety improvement are effective.
We should all be moving in this direction if what we want is to secure better future outcomes.
From what I have seen, people who are sued for medical malpractice don’t generally tend to make those same mistakes again, the medical board is also likely to be involved in those cases so there is ongoing monitoring and additional training requirements.
From what I have seen, people who are involved in an extensive process of evaluation of not only their own decision making, but the systems that are in place that either prevent or eliminate errors not only do not make the same error again, but are much more open to enacting changes when they are not subjected to an adversarial but rather a collaborative process which recognizes that doctors like everyone else are human and may make errors.
Another benefit of a non adversarial process is that both individuals and systems are much less likely to try to hide or deny errors. This is not true in an adversarial process.
I think that our different points of view on this may be due to the different tracks our careers have taken. You have stated that you have testified in many cases and thus probably see the adversarial or legal approach as the right way to go. I on the other hand have been involved with major safety innovations ( although not a leader in my group in this area) and have found that prevention is best done through education and systems improvement rather than shaming and castigation. Thinking of Atul Gawande as opposed to Jeff Reisig might give you an idea of my perspective.
I think it is all very well and good to talk about systems and which is better than the other.
But what would you propose to do to compensate the Stone family, to attempt to make them whole (which of course is impossible because one of their precious children is dead), for this travesty to which they have been subjected?
“what would you propose to do to compensate the Stone family”
Well that is an entirely different question. As you accurately state, we cannot “compensate” the Stone family.
As you know, I do not favor an adversarial legal system. I think a step towards alleviating some of the pain of the Stone family would be to work on a legal system designed not to accuse and punish someone, but to identify truth. The loss of their child was of course tragic. It is also true that it was not a deliberate act on the part of anyone within the medical system. Not true of the judicial system where a deliberate decision was made to prosecute Mr. Stone.
For me, changing the system in which deliberate harm is inflicted by not seekng the truth, but rather trying to sell the jury on their preferred version of the truth is where we should be placing our efforts.
“I think it is all very well and good to talk about systems and which is better than the other.”
If you are at all familiar with the work of Atul Gawande, you are aware that this goes far beyond “talking about which system is better than the other” and has become a process of widespread systemic change which has saved
thousands of lives through the institution of check lists, multiple patient identifiers, pre procedure time outs, debriefings and many other formalized safety features of hospitals and clinics. I think that more has been accomplished by the wides spread adoption and expansion of these ideas than by any number of “malpractice” trials.
so do I take this to mean that you do not feel that the Stone family deserves compensation of any kind for what has been done to their family?
“so do I take this to mean that you do not feel that the Stone family deserves compensation of any kind for what has been done to their family?”
No I just view “compensation” and its value differently. More explanation following your next quote.
“They most certainly can be “compensated”, and money is the way in which people are compensated in torte cases. If they bring a successful in a malpractice suit they will be awarded money.”
And what does that say about the values of our society ? No money will ever “compensate” for the loss of a child.
What might is the knowledge that one’s own situation brought about improvements in a system be it medical ( very unlikely since very few people become aware of the outcomes or amount of money “won”) ,or judicial.
I have heard many times that people are suing in order to prevent it from happening again. I doubt that. I think that people who sue, are attempting to gain money as opposed to those who become activists or write or blog about their experience who I feel are genuinely trying to make positive change.
I wish the Stones all the peace of mind and love and happiness that they can obtain. To think that money will achieve this goal is in my mind a very narrow, shallow approach. However, I suspect that some will talk them into it. Probably a lawyer. That is what happened with the patient who was going to sue me for wrongful life. She was talked into a “suit” by a lawyer, who then, once it was realized that this case was not winnable, dropped her completely with a letter stating that he was out. There is a very unscrupulous industry built around convincing people that they should sue and essentially promising them big “takings” when they win, only to drop them with nothing when the lawyer realizes that there is no basis for the suit. It’s a shame that we don’t have a “first do no harm” for other professions, just for doctors. Which by the way has not been a required oath for years and so is merely a standard that we hold ourselves to as I am sure you know.
Money is the only remedy in torte cases. That is not my opinion or creation, that is just how the system works. And you are right, money will never compensate for the loss of their child, but hopefully it will help slightly to repair some of the damage they have suffered at the hands of the medical and legal systems. But most importantly, I hope that in future cases it will cause the providers to pause and carefully consider their options and the consequences before launching on another SBS crusade.
“Money is the only remedy in torte cases. ”
I don’t dispute that. But no one is forced to bring a torte case. So when one does, it is a safe bet that they are doing it for money, or they have a lawyer who is persuasive and is doing it for money.
I understand that you did not create this system. Neither did I. But when faced with a poorly functioning system, I believe it is our responsibility to speak out and do what we can to effect change.
“I believe it is our responsibility to speak out and do what we can to effect change.”
I couldn’t agree more. That is why I tend to be rather vocal about a few issues, SBS being one. Clearly, the information is getting out there, as the result in this case would indicate, but these types of prosecutions have got to stop. A number of countries prohibiting or limiting SBS prosecutions in the absence of non-medical evidence, such as a confession, or a video, or a witness, for example. I think that we need to move towards such a model because the medical “evidence of SBS is so faulty as to render it useless. I know that the Innocence Project is working towards this end and I am encouraged that at some point we will see some reasonable, evidenced-based guidelines for cases such as this. That is my hope at least.
“Innocence Project is working towards this end and I am encouraged that at some point we will see some reasonable, evidenced-based guidelines for cases such as this. That is my hope at least.”
On this point we are in complete agreement.
” It is also true that it was not a deliberate act on the part of anyone within the medical system.”
I completely agree, as that would be murder and I certainly do not believe that anyone in the medical professional set out to murder the baby. But physicians are held to a higher standard than that starting with “first, do no harm” and it is clear to me that they fell far short of that standard.
“As you accurately state, we cannot “compensate” the Stone family.”
I stated that they can never be made “whole” as their baby can never be returned to them. They most certainly can be “compensated”, and money is the way in which people are compensated in torte cases. If they bring a successful in a malpractice suit they will be awarded money.
“tortue case?” Only one tortured was that baby…
What medical testimony covered by us in this trial, or any trial, is a drop in the bucket! NO one has viewed every document in his medical file…..trust me, I used to copy medical records and for a case like this there are probably no less than hundreds of pages.
Agree with Tia…
Just because there was an aquital does not mean SBS was proven, nor did some jurors believe in his story or innocence. Seems to me a lawsuit of any sort would be difficult to prove.
Unless any one of us went thru that file, page by page, I wouldnt claim to know anymore than told in trial.
Once again, a lot doctors were not even asked about. This was an issue a couple jurors had.