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Abstract The defense of the innocent, as well as the prosecution of the guilty, is a basic premise of American justice. This article reviews nine cases defended by the public defender system, in which the authors were involved, that illustrate some of the pitfalls in making the diagnosis of child abuse and/or neglect caused by thermal injury. The basis for the defense is also discussed, together with the biologic, engineering, and socioeconomic factors. The definition of child abuse and/or neglect is discussed, as is the devastating and long-lasting label of a false accusation, much less false imprisonment. In this regard this review concludes that professionals with thermal injury expertise must become involved in the judicial process if justice is to prevail. During the past several years, an increased awareness of child abuse, coupled with improved and mandatory reporting of burn injuries and, in particular, suspicion of possible child abuse, has led to an increase in reporting of injured children to departments of social services (DSS) for investigation. These agencies, with the best interest in mind for the children, are empowered to act summarily not only in removing the child from the environment but also in charging the parent with child abuse. Although this is commendable, a false accusation can be devastating to both the child and parents, many of whom, from a socio-economic standpoint, primarily need help. 1,–4 Indeed, the concept is that in order to protect the overall well-being of children, innocent parents, who will bear the burden of “collateral damage,” may, unfortunately, be falsely accused. Yet this practice is anathema to our basic principle of justice. 5,6 A review of recent publications revealed numerous articles and books dealing with child abuse that include sections on burn injuries and cite the differences between accidental injury and child abuse. It is noteworthy that most of these articles are by pediatricians, psychiatrists, and emergency room physicians who are unfamiliar with the pitfalls involved with making the diagnosis of child abuse or the pathophysiology of a burn injury. Indeed, even many “burn surgeons” are unfamiliar with the actual fire dynamics that may have a bearing on a particular case. During the past 3 years, the authors have been referred nine consecutive cases of alleged child abuse. The first case was a referral from Technical Advisory Service for Attorneys, a referral company that specializes in referral to attorneys seeking difficult-to-find expert witnesses. The remaining eight cases were referred to the authors by other public defenders. It was the objective of this study to review these alleged child abuse cases caused by thermal injury in order to illustrate the problem of providing a competent defense and to develop recommendations to improve the protection of the innocent. METHODOLOGY AND CASE STUDIES All cases went to trial, where they were defended by the public defender systems located in three of the six New England states. The identity of each case is public record and available. However, in this report persons have not been specifically identified in order to maintain legal and medical confidentiality. Case 1 The child was 20 months old at the time of the injury, after which he was brought to a hospital emergency room, diagnosed with burns to the face, and subsequently reported to DSS as a case of child abuse. The mother, a native of Africa, explained that the father had been unloading bags of Portland cement all day and had come home with cement dust covering his clothing. The child had hugged his father and was covered with the powder as a result. Later in the evening, the mother had tried to wash the child's face with warm water and soap and then brought him to the emergency room where they waited 3 hours before being examined. Later, allergy patch testing with the cement powder was negative and the dermatology consultant stated that this was not an allergic reaction but caused by a thermal burn. The mother was accused of neglect and child abuse. However, this was not an allergic reaction but a classic case of an alkaline caustic burn further exacerbated by the application of soap, activation by the warm water, the delay in treatment, and the child's scratching of the area. A reference to any standard textbook of toxicology at the time of the injury would have confirmed this diagnosis and would have resulted in appropriate treatment. More important, the mother would not have been charged with child abuse and neglect. The case was subsequently dismissed, but not until after the judge offered the mother dismissal if she would leave the child in the United States and return to Africa. She refused to be separated from her child. Case 2 The child was a 2.5-year-old male who was injured when he reportedly pulled a pot of hot water off the stove, incurring a second-degree burn to his right scalp, face, neck, shoulder, and right arm. He was immediately treated by his mother with cold compresses and brought to emergency room after a 15-hour delay. At this time a social worker was called and the incident was reported as a child abuse case. Analysis of the case revealed that the child had received a second-degree burn covering 15% of his body surface area caused by exposure to a hot liquid of approximately 130°F. This pattern of burn injury is common and consistent with the criteria for an accidental injury. Furthermore, the prompt application of cold compresses by the mother was correct and relieved the pain and delayed the onset of the erythema and minor blisters until the next day. The mother was found innocent by jury trial. Case 3 The father, who was baby sitting while the mother was at work, was showering with the 4.5-year-old sibling of the 19-month-old female infant, whom he had placed on a double bed. According to the father, when he came out of the bathroom, the infant had rolled off the bed and was found on the radiator. She was taken to the local hospital where she was found to have sustained a second-degree burn over the right side of her face and a deep second-degree burn over her right chest, abdomen, and thighs. This was estimated as involving 15 to 20% of the total body surface area. Further review of the medical records and further evaluation revealed that the child was below average in motor skills for her age, and although she might possibly have been able to roll on her own from the abdomen to back, she could not go from back to abdomen and thus could not have moved on her own the three to four times necessary to go from the center of the bed to the edge and then the radiator. Upon further review of the burn pattern and degree, the temperature of the radiator, and the duration of contact, it was determined to be consistent with having fallen from the edge off the bed and landing next to the radiator for up to 1 minute of contact. The parents were Vietnamese, with marked language difficulty. When confronted with a charge of child abuse by the District Attorney, they were fearful of the consequences and gave inconsistent information. The father was found innocent after a jury trial. Case 4 The child was 3-year-old male who was burned while in a bathtub. He sustained second-degree and third-degree burns over 50% of his body surface area in a pattern consistent with an immersion in hot liquid. The mother stated that she was giving him a bath, and felt the water in the tub. Comfortable water would be between 104°F and 108°F. With the water still running, she further stated that she turned and lifted the child into the tub of water. It was estimated that the water was approximately 4 inches deep. The hot water then surged from the spigot at above 160°F and at the estimated flow rate of 54 l/min, taking between 15 and 69 seconds to raise the temperature in the bath to 125°F, and resulted in the injury when the child was placed in the water and before he could be removed. The mother was found to innocent after a jury trial. Case 5 The child was an 8-month-old male who reportedly was being bathed by a baby sitter. The mother brought the child to a suburban emergency room, where he was treated and referred to DSS, who subsequently had the patient referred to a pediatric clinic in a university hospital to be evaluated by a pediatrician for possible child abuse. The burns consisted of five areas of second-degree burns in the left lower leg and one on the right, consistent with a clinical impression as stated on the emergency room clinical record as “Probable accidental splash hot H2O.” On recommendation of child abuse by the pediatrician evaluator, the mother was subsequently brought to trial, despite the fact that the history, pattern of the burn injury, and the emergency room medical record were in direct contradiction to the criteria for the diagnosis as published by the same pediatrician evaluator as witness for the district attorney. The mother was subsequently found innocent by a jury in a district court. Case 6 The victim was a 2.5-month-old infant who was being cared for by his 19-year-old African American father, who worked at two jobs to support the child and his unmarried Caucasian mother while she finished high school. While bathing the child and subsequent to shampooing his hair, the father placed the child's head under the spigot of running water, which then surged to 130°F. The exposure, from 1 to 2 seconds, resulted in a second-degree burn of the scalp, face, neck, and anterior chest. The prosecution witness, a pediatrician without burn experience, testified that the father had placed the child face down in the water, despite the fact that the child had been sitting in the same bath water. The nose and the chin were not burned and the pattern on the scalp and face were clearly from water flowing from the spigot over the face and scalp. It should be noted that the Caucasian jury in a rural setting did not seem to be paying attention to the defense witness, who was frequently interrupted by the judge and prosecution and told to hurry because it was almost 4:30 in the afternoon. The father received a prison sentence of 7.5 to 15 years for child abuse. Case 7 Two children, ages 3 and 5 years, were found dead in an upstairs bedroom closet. Their carboxyhemoglobin (HbCO) levels were 41 and 51% and both children suffered third-degree burns. The two children and the two other siblings had different fathers, with mixed racial backgrounds. The single mother, who worked at night as an exotic dancer, was downstairs with her boyfriend in the living room, dozing in the midmorning when a fire occurred. When she detected smoke, she awoke and ran upstairs, burning her hands trying to enter the flaming room. Analysis by fire engineers subsequently revealed that the children had been playing with matches and ignited the polyurethane foam mattress. The time from ignition to bedroom flashover was determined to be approximately three minutes. It was also shown that although the batteries had been removed from the hallway smoke detector, this could not have altered the scenario. At the trial it was testified that, based on National Fire Protection Association data, 40% of 3 and 5 year olds who die in a fire are found within the room of fire origin. 7 It was further testified that the resultant lowering of oxygen and the increased carbon dioxide and carbon monoxide reduced their capacity to escape. The prosecution's psychologist, without fire experience, testified that a 3-year-old or 5-year-old child could have escaped if the door had not been locked, despite the fact that the fire engineers pointed out that the door was not locked or even tightly shut. A jury of mixed sex and racial backgrounds, sipping from water bottles, seemed not to be paying attention to the testimony. The mother received a 5-year sentence for child abuse. Case 8 A child, 3 years and 10 months of age, she was standing on a chair helping her mother make brownies at the stove at 10:00 pm. The mother stated that she picked up the metal spatula that she had been using to remove the brownies from the hot baking pan. She related that the child picked up the spatula and touched it to her abdomen. The mother promptly applied cold compresses that relieved the pain, and the child subsequently slept throughout the night. In the morning there was noted to be some erythema and several small blisters. The family case worker on a “routine visit” the following day noted the injury and took the child to a pediatrician, who made the diagnosis of a first-degree and second-degree burns caused by child abuse. He also noted that there was an old scar on the forearm measuring 1 cm × 2 cm, which was diagnosed as a cigarette burn. The child was subsequently removed to foster care, and the mother was charged with child abuse. Analysis revealed that the burn on the abdomen could have resulted from a 1-sec contact with the spatula at 135°F. It has also been demonstrated that a spatula used in this fashion would maintain this temperature or higher for several minutes after being in contact with a hot baking pan. The pediatrician stated that a 3-year-old child was physically incapable of handling a spatula in this manner. It has been well demonstrated that a female child could certainly perform in this manner. In addition, the mother's treatment was correct, and the delay in development of erythema and blisters was consistent with normal pathophysiology. Also, the location and pattern of the burn injury was not consistent with accepted guidelines for the diagnosis of child abuse. The description of a “cigarette burn” the scar on the left arm was inadequate to form an opinion as to its cause. The Public Defender requested from the court system that he would require approximately $2,000 to provide for the defense. This would cover not only his expenses and that of his office but also pay for defense expertise and the fees and expenses of any prosecution witnesses he might need to depose. The court has approved $500 and at present the Public Defender is trying to depose the prosecution experts and to set a trial date, which is being repeatedly delayed. Meanwhile the defendant waits at home without her child. Case 9 A fire originated in bedroom #1 by matches igniting a mattress. Two children, ages 3.5 and 2.5 years, later survived, with HbCO levels of 35 and 30% when found comatose in bedroom #2 at the time of rescue. The mother was found comatose in the connecting hallway, with an HbCO level of 45%, whereas the third child, age 4.5 years, was found dead in the hallway with an HbCO level of 75%. It was determined by computer modeling and validated by comparison with the smoke and fire pattern that the only way that these levels could have been attained would be if the third child, the fatality, had caused the ignition and then gone into the hallway where he met the mother, who had been sleeping with the other two children, who awoke and went into the hallway. It was determined by further comparison of computer modeling and the times of notification and arrival of the fire department, that had a hard-wired smoke detector directly connected to the fire department been operational, in contrast to the visible sighting and fire alarm notification, the time from ignition until rescue would have been shortened from 30 to 20 minutes. Accordingly, the HbCO levels in the victim would not have reached a fatal level. The smoke detector in this multidwelling project housing was not hard-wired to the fire department as required by code, which resulted in delay in responding to the fire and thus the fatality. The mother was accused of neglect based on removal of the smoke detector batteries. The case against the mother has been dismissed, whereas the housing authority is being sued by the parents for not meeting safety codes. DISCUSSION As these cases illustrate, there are five areas of major concern in providing an adequate defense: knowledge of data on temperature vs time vs depth of burn; the patterns of burn injury, specifically as related to location and depth; the scenario of the injury, which includes the mechanism of injury; the dynamics of the fire; and the socioeconomic conditions, including the legalities and possible bias of the justice system. It is apparent from these cases that although the relationship of temperature and duration of exposure to burn depth has been well recognized since the work of Moritz 8 in 1947 and validated by others since that time, few health care professionals are aware of this data or fail to apply it to the evaluation of possible child abuse. Furthermore, few are aware of the temperatures of common liquids such as bath and wash water, hot drinks, and other common household temperatures. Table 1 summarizes the temperature and duration of contact of liquids that result in either a second-degree or third-degree burn (Maley 1991, unpublished data). 9,–13 Of particular note is that if plotted, these data result in a typical biologic sigmoid curve, whereby all temperatures above 150°F cause a third-degree burn and exposure to temperatures below 104°F do not cause an injury, regardless of the length the exposure. As generally accepted, the skin of children younger than the age of 5 and those adults older than 65 years, are more susceptible to burn injury. In addition, there is a variation between parts of the body caused by the thickness of the skin, vascular supply, and diseases such as diabetes. There is also some minor variation in the numbers between investigators, but these are minor, particularly on the steep part of the curve. Table 1. Temperature vs time vs burn injury depth View Large Table 1. Temperature vs time vs burn injury depth View Large Thus, the basis for those facilities that are subject to Federal codes is 120°F, which allows for a margin for those physically or mentally impaired to escape, particularly if there are no hot water surge protectors, such as found in older and poorer housing. In addition, in this type of housing it is not unusual for the landlord to increase the hot water temperature to 160°F or above rather than install adequate hot water tanks and systems. Except where Federal funds are involved, codes are local and vary greatly between communities. Although the patterns of burn injury in child abuse have been well described in comparison with accidental injury, such as the classic immersion burn injury, they are frequently ignored, with too much emphasis on such criteria as lack of parental concern or delay in seeking treatment. 14 This latter emphasis can readily be misconstrued as child abuse or neglect because of cultural or language differences. The cases presented also reveal that emergency room personnel, case workers, and nonburn physicians as well as many treating burn surgeons may not be fully aware of fire dynamics, such as ignition temperatures, flame spread, and various aspects of inhalation toxicology that are part of the cause of the injury. Similarly, fire engineers may not be familiar with biologic systems and the pathophysiology of thermal injury that have bearing on the determination of possible child abuse. All defendants met the socioeconomic eligibility to be represented by the public defender system. All lived in substandard housing. Thus, older materials, such as the mattress in Case 7 and water temperatures, did not meet modern safety codes. Fire detectors were not maintained or were not in proper locations or hard wired as required, as in Case 9. Eight were in single-parent situations, frequently with multiple partners, and mixed cultural and racial relationships. The juries, judges, and the prosecutors were all Caucasian except for Case 7, in which three of the jurors were African American. As noted in Case 8, although the defense witnesses may be willing to accept whatever the court pays, even to work pro bono, the prosecution witnesses are not willing to, even when being deposed by the defense attorney, who must pay the prosecution witnesses for their time and effort. Clearly the amount designated in Case 8 was totally inadequate and further emphasizes the gross disparity and inequality in providing an adequate defense in these public defender cases. Although the definition of child abuse and/or neglect varies slightly from state to state, it is succinctly stated in New Hampshire law as any child who has been intentionally physically injured or physically injured by other than accidental means. NH 2. Burden of Proof “If the court were to erroneously find that an allegation of child abuse or neglect was unfounded in a given case because it employed a higher burden of proof than preponderance of the evidence, the harm to the victim of that abuse or neglect, as well as to the well-being of the family as a whole, could be devastating. In re Tracy M. (1993) 137 N.H. 119, 624 A.2d 963.” Whereas New Hampshire law XIX defines a neglected child thus: NH XIX “Neglected child” means a child (a) Who has been abandoned by his parents, guardian, or custodian; or (b) Who is without proper parental control, subsistence, education as required by law, or other care or control necessary for his physical, mental or emotional health, when it is established that his health has suffered or is very likely to suffer serious impairment; and the deprivation is not due primarily to the lack of financial means of the parents, guardian or custodian; or (c) Whose parents, guardian or custodian or other physical or mental incapacity; Provided, that no child who is in good faith, under treatment solely by spiritual means through prayer in accordance with the tenets and practices of recognized church or religious denomination by a duly accredited practitioner thereof shall, for that reason alone for considered to be a neglected child under this chapter. The burden of proof in the case of neglect is even more difficult than that of child abuse. Massachusetts law emphasizes the word prudent care, whereas Black's Law Dictionary 15 further divides negligence into a number of different categories such as active, passive, per se negligence, subsequent negligent, and wantonness. Nevertheless, this subjective as well as objective evaluation requires an even a greater degree of caution in the “burden of proof,” lest an innocent person be either accused or convicted, with subsequent and too often long-lasting detrimental effects on both the parent and the child. The Supreme Court, in its Gideon v Wainwright decision, declared it to be an “obvious truth” that “any person haled [sic] into court whom is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Although discussion of the adequacy of the indigent defense systems available in this country is not within the scope of this article, the Supreme Court ruling obviously means that a competent lawyer and also competent expert witnesses need to be provided. In the case of burn injury, burn professionals must not only be prevention activist but also forego their reluctance to go to court, to assist with the defense and not just the prosecution. 16,17 It should be noted that even the label, much less incarceration, for a person accused of child abuse is usually permanent, and when incarcerated, the person may not survive prison, similar to those accused and/or convicted of child molestation. 18 CONCLUSIONS It is the conclusion of this study that, although imbued with the best intentions, prosecutors, social workers, and other health professionals need the assistance of experts on the various aspects of thermal injury in order to make the diagnosis of child abuse and/or neglect. The finding of guilty because of inadequate analysis or basic prejudice is anthema to our system of justice, and the impact on the child and the family can prove devastating and lasting. It is also our conclusion based on these cases that the public defender system is undersupported, both financially and in expertise. This results in an unequal justice system. In this regard and in deference to improving the overall well-being of the so-called lower socioeconomic class, physicians should actively encourage increased support of the public defender system. Furthermore, it is recommended that health professionals with both clinical and laboratory expertise in all the aspects of thermal injury become involved not only in diagnosis but also, where necessary, in legal procedures. References 1. Hight DW, Bakalar HR, Lloyd JR Inflicted burns in children. Recognition and treatment. JAMA. Aug; 242: 517– 20. CrossRef Search ADS PubMed 2. Reece RM, Grodin MA Recognition of nonaccidental injury. Pediatr Clin North Am. 1985; 32: 41– 60. Google Scholar CrossRef Search ADS PubMed 3. Newberger EH Child Abuse. In: Rosenberg ML, Fenley MA editors. Violence in America: a public health approach. New York: Oxford University Press; 1991. p. 51– 78. 4. Stone NH, Rinaldo L, Humphrey CR, Brown RH Child abuse by burning. Surg Clin North Am. 1970; 56: 1419– 24. Google Scholar CrossRef Search ADS 5. Lenoski EF, Hunter KA Specific patterns of inflicted burn injuries. J Trauma. 1977; 17: 842– 6. Google Scholar CrossRef Search ADS PubMed 6. Gideons 's promise unfulfilled The need for litigated reform of indigent defense. Harvard Law Review. 2000; 113: 2062– 79. CrossRef Search ADS 7. Hall JR Patterns of fire casualties in home fire by age and sex, 1992– 96. Quincy, MA: Fire Analysis Division, National Fire Protection Association; 1999. 8. Moritz AR, Henriques FC Studies in thermal injury Part II. The relative importance of time and surface temperature in the causation of cutaneous burns. Am J Pathol. 1947; 23: 695– 719. Google Scholar PubMed 9. Adams LE, Purdue GF, Hunt JL Tap-water scald burns. Awareness is not the problem. J Burn Care Rehabil. 1991; 12: 91– 5. Google Scholar CrossRef Search ADS PubMed 10. Bull JP, Lawrence JC Thermal conditions to produce skin burns. Fire Materials. 1979; 3: 100– 5. Google Scholar CrossRef Search ADS 11. Dressler DP, Hozid JL, Nathan P. Thermal injury. St. Louis: CV Mosby; 1988. 12. Feldman KW, Schaller RT, Feldman JA, McMillion M Tap water scald burns in children. Pediatrics. 1978; 62: 1– 7. Google Scholar PubMed 13. Lawrence JC, Bull JP Thermal conditions which cause skin buns. Engineering Med. 5: 61– 3. CrossRef Search ADS 14. Keen JH, Lendrum J, Wolman B Inflicted burns and scalds in children. BMJ. 1975; 5991: 286– 9. 15. Black HC Law Dictionary. St. Paul: West Publishing Co; 1979. 16. Winter G. Legal firms cutting back on free services for poor. New York Times. August 17, 2000: A1. 17. Manserus L. Shortage of lawyers for the poor nearly stops the wheels of justice. New York Times. January 17, 2001: A21. 18. Silberman CE Criminal violence. Criminal justice. New York: Random House; 1975. Copyright © 2001 by the American Burn Association
Journal of Burn Care & Research – Oxford University Press
Published: Mar 1, 2001
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