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MILITARY LAW REVIEW
Volume 188 Summer 2006
A NUTS AND BOLTS APPROACH TO LITIGATING THE
SHAKEN BABY OR SHAKEN IMPACT SYNDROME
Lieutenant Colonel Matthew D. Ramsey
“Did he fall, or has he suffered inflicted injury?” is a
question faced frequently by clinicians caring for infants
and toddlers with traumatic brain injury. Published
court cases, with widely divergent medical opinions,
illustrate the dilemma of distinguishing between inflicted
and accidental causes, especially when there are no
other signs of abuse but just an uncorroborated, alleged
accident, often [a] fall. Although there has been
resistance to diagnose abuse there may also be over
enthusiasm to do so, although there is an increasingly
prevalent opinion that short falls can never cause
serious injury; this, too is still open to debate.
One of the most difficult cases for counsel to litigate is one involving
an infant or toddler alleged to have died as a result of violent, non-
Judge Advocate, U.S. Army. Presently assigned as Chief, Military Law, Office of the
Command Judge Advocate, Human Resources Command–St. Louis, St. Louis, Missouri.
LL.M., 2006, The Judge Advocate General’s School, U.S. Army, Charlottesville,
Virginia; J.D., 1992, Cumberland School of Law; B.A., 1989, University of Alabama.
Previous assignments include 90th Regional Readiness Command, Camp Robinson,
Arkansas (Chief, Military Justice, 2003-2005; Chief, Administrative Law, 2001-2003);
Senior Defense Counsel, Fort Wainwright, Alaska, 1999-2001; 1st Armored Division,
Germany (Chief, Soldier Services, 1997-1999; Administrative Law Attorney, 1996-1997;
Chief, Operational Law, Bosnia-Herzegovina, 1995-1996); Fort Meade, Maryland
(Claims Attorney, 1994-1995; Trial Counsel and Special Assistant United States
Attorney, 1992-1994). Admitted to practice before the Alabama bar. This article was
submitted in partial completion of the Master of Laws requirements for the 54th Judge
Advocate Officer Graduate Course.
Barry Wilkins, Head Injury-Abuse or Accident?, 76 A
MILITARY LAW REVIEW
accidental shaking or shaking in connection with some form of cranial
impact. Often referred to as the “shaken baby syndrome”
“shaken impact syndrome”
(SIS), these cases not only contain the
emotional turmoil of a dead child, but must also be tried using evidence
that is highly dependent on complex circumstantial medical data.
Interpretation of this highly complex data is typically dependent on
expert testimony and is extremely vulnerable to subjective
interpretations. Consequently, practitioners often find themselves easily
overwhelmed and in a highly-charged atmosphere where emotions and
the personal agendas of the purported experts can run roughshod over
logic, science, and the law.
The purpose of this article is to provide trial and defense counsel
with a basic foundation for use when preparing to litigate a case where
SBS or SIS is alleged. A comprehensive guide covering every
conceivable nuance of a SBS/SIS case is beyond the scope of this article.
Instead, this article will define SBS/SIS as it is most commonly regarded
by the medical and legal community, outline the medical terminology
and definitions common to such cases, provide a framework for
requesting expert assistance and using and challenging expert testimony
at trial, and conclude with a discussion of several of the current
controversies surrounding SBS/SIS.
II. The Starting Point
A review of recent military cases involving SBS/SIS reveals that it is
most often one of the parents or primary caretakers, typically the male
parent or caretaker, that is suspected and charged with perpetrating the
John Caffey, The Whiplash Shaken Infant Syndrome: Manual Shaking by the
Extremities with Whiplash Intracranial and Intraocular Bleeding, Links with Residual
Permanent Brain Damage and Mental Retardation, 54 P
[hereinafter Caffey, Whiplash]
(Although Dr. Caffey actually referred to his theory as
whiplash shaken infant syndrome, virtually all medical and legal practitioners drop the
term whiplash and refer to it as shaken baby syndrome.);
see also John Caffey, On the
Theory and Practice of Shaking Infants, 124 A
[hereinafter Caffey, Theory and Practice].
Ann-Christine Duhaime et al., The Shaken Baby Syndrome, a Clinical, Pathological,
and Biomechanical Study, 66
James LeFaun, Letter to the Editor-Patterns of Presentation of the Shaken Baby
Syndrome, 328 B
J. 767 (Mar. 27, 2004).
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