In March 2013, a poor Chinese immigrant mother in Brooklyn took her 9-month-old baby, Mathew, to the hospital because he’d had a seizure. She explained that he’d fallen trying to walk and hit his head, then had the seizure. Hospital personnel and New York’s Administration for Children’s Services (ACS) charged that either the mother, Mei Qi Bao, or the baby’s father, Xiao Hang Wang, had abused their son. They said his symptoms could not have occurred accidentally. The couple’s 9-month-old and 5-year-old son were both removed from home and placed with a relative. It took more than 2 years for a judge to return their children, ruling that it was an accident, not abuse.
Rise spoke with Gabriel Freiman and Emma Alpert of Brooklyn Defender Services’ Family Defense Practice, who represented the father in this case, about how they proved medical misdiagnosis to the court.
Q: How did this case get started?
Alpert: The family came into the hospital saying, “Please help us. Please help our baby,” and then once there, everything changed. The fact that the parents did not speak fluent English made the conversations with doctors more complicated. Mathew was transferred to a second hospital for additional tests. Within a couple of hours, they were being told that perhaps they had hurt their baby and that the baby had suffered “abusive head trauma.”
The children were placed with the father’s sister, which was one of the good things about this case. It meant that our client and his wife got to see their children all the time. Still, both parents were devastated by the removal of their children. It’s a nightmare scenario for anyone who goes to the hospital seeking help for their child to be told that they caused the harm.
Q: Why did the hospital believe that Mathew had been abused? How did you convince the judge that he hadn’t been?
Freiman: The hospital found a couple of typical symptoms sometimes associated with child abuse and that’s what sparked everything.
Our theory really rested on tests that were performed at the second hospital, and especially the MRI. One of our experts argued that what looked like large injuries were actually distortions in the MRI images, like in a blurred photograph. He argued that the hospital had misidentified the numerous blurs as injuries to the child.
The child abuse team based their conclusions on misread images. We argued that if you screened out the distorted parts of the images, what you were left with were images that were entirely consistent with what the mother said happened.
Alpert: The hospital didn’t like being called wrong. Even without the extra injuries, they argued that it was still abuse.
“Abusive head trauma” is a very controversial field right now and smart doctors can disagree. But I think the judge also saw that these parents were loving and caring and had never once been observed to act in a way that could hurt their children. Our client and his wife also did everything that the agency overseeing their case had asked for, and they had a very good rapport with the agency.
The judge had to weigh whether there was that one moment when they stepped off that loving behavior and did something terribly abusive, or whether our explanation—that the images were blurry and the injuries that did exist resulted from an accident—was true.
Q: The case was open for more than two years, and the boys were out of the home for almost two years. The trial itself lasted a year. Why did it take so long?
Alpert: One reason is that expert testimony is often what decides these medical cases, and before experts can tell you if they even have an opinion, you have to collect a lot of medical records to share with them, and that takes a long time. The bureaucratic wheels have to turn and that can be very slow.
Expert testimony also takes a lot of hours to deliver in front of a judge. In medical cases, you generally have more witnesses than in your average family court case, and those witnesses have something very complicated to explain. Cross-examination also takes a long time, with both sides trying to poke holes in the other side’s theory.
The court did make efforts to speed things up in this case. But the way court scheduling often works, you may have two hours of trial one day, and two more hours another day, and those days could be weeks or months apart.
We were able to bring the children home before the conclusion of the trial, because the agency overseeing the case made such positive reports about the parents. But that also took a long time.
In cases where a hospital says that a child’s injury results from abuse, even when there are other doctors saying they believe it was an accident, like in this case, the general approach is often, “I wish I could but I cannot consider sending those children home until we come to a decision about what happened that day in question.”
Freiman: In this case, the judge did issue an order that the children should go home to their parents, but ACS refused to follow that order.
So even though the trial wasn’t finished, we had to go separately to the appellate division to argue that the boys should go home. We won the appeal, but it took eight months. At that point, the boys had been out of their parents’ care for almost two years.
One change I’d like to see is that, when we presented doctors who said, “We don’t think what the hospital said is going on is what’s going on,” ACS went back to the same hospital to ask, “Did you misread the screens?” We think it would be better if ACS worked to find out from an independent source whether it was possible that the hospital made a mistake, as opposed to becoming defenders of the hospital’s initial diagnosis.
Q: You had the assistance of the law firm Davis Polk, which worked on the case with you pro bono (for free) and provided additional funds for expert testimony. Are all parents accused of this type of abuse able to access the types of resources you were able to access for your client?
Freiman: For parents who are represented by court-appointed panel lawyers, who work solo rather than through an organization like Brooklyn Defender Services, they can get experts through county money. The panel lawyer who represented the mother in this case did a great job. We worked very collaboratively with her and her expert, who was an ophthalmologist.
But it’s tricky. When a hospital makes a determination of abuse, all the people working at the hospital are potential witnesses against the parents. In this kind of situation, it may not be enough to get just one doctor to testify on your client’s behalf. You have to figure out how many doctors you need to convince the judge that your theory of the case is correct.
Getting that quantity and quality of testimony can be hard. Expert testimony is very expensive to obtain and very time-consuming to prepare. A lot of doctors are also more willing to work with ACS than they are with parent attorneys. Even if a doctor is sympathetic to the parents, these types of cases are so controversial that a lot of doctors don’t want to step into them.
Our office has ways of dealing with these challenges, by using money from our own fundraising, and by seeking pro bono help. But not all parents will have access to those extra resources.
Q: What advice do you have for parents facing similar allegations?
Freiman: Until we have a better system, it’s really important for parents caught up in these kinds of cases to work collaboratively with their lawyers. Parents can play a huge role in helping their lawyer understand all the background information and get all the medical records, not just for the day of the injury, but any time that child has ever been treated. I can’t emphasize enough how much we worked together with our client on this case.
The good news is that the family is doing very well. Mathew is doing great health-wise and emotionally. This family was lucky that during the removal, they had a lot of contact, because the children were placed with family.
Alpert: But there’s a real human cost. When families are separated, no matter for how long, no matter whether the children are with family or not, there’s a cost in the trust and security they have with each other. There’s also a cost to the confidence that families have in people in positions of authority. The family is doing well, but things will also never be the same for them.