Judge slams Starship Hospital doctorsTONY WALL - Sunday Star Times
Photo: Grahame Cox
The case has raised concerns about the way medical staff differentiate between accidental and non-accidental head injuries in children and has sparked a high-level meeting between Starship management and the Crown Solicitor to further discuss the "potentially far-reaching" implications of the verdict.
Famaile Lino, a machine operator from Onehunga, was charged with causing grievous bodily harm with reckless disregard for his six-month-old daughter, Mere. He told police her injuries were the result of her falling from a La-Z-Boy chair.
After a judge-alone trial in the Auckland District Court, Judge David McNaughton found Lino not guilty and said it was "regrettable" the doctors at Starship did not review all of the evidence before reaching their conclusions. They had failed to take into account Lino's interviews with police and witness statements before forming their views, he said in a written decision.
Judge McNaughton said the doctors would not have altered their views no matter what explanation Lino gave, "and to that extent the decision to prosecute... was a foregone conclusion".
The judge said he was satisfied there was at least a reasonable possibility that Mere suffered her injuries as a result of a fall. After the incident Child, Youth and Family took Mere and the couple's other two children into care. The two oldest children have been returned to their parents and the couple is now trying to overturn a court order granting interim custody of Mere to a relative. She has ongoing physical and possibly intellectual disabilities.
Lino's lawyer, Charles Cato, said it was one of the most concerning cases he had been involved with in 30-plus years of law, because of the deficiencies in the evidence of the Starship experts, who had rushed to judgement.
"When expert evidence gets to that state, it becomes dangerous in the criminal courts," Cato said. He was concerned there might be other similar cases and said it was imperative that police consulted experts independent of Starship.
The only thing that prevented what could have been a "gross miscarriage of justice", Cato said, was a legal aid grant which allowed him to call an internationally respected paediatrician to give evidence.
Mere was admitted to Starship on May 11, 2009. According to her father, he had placed her on the chair and then fell asleep – he was working nightshifts and caring for his two younger children during the day – and was woken by the sound of Mere thumping on to the floor. Her breathing became laboured and he threw her into the air, slapped her face and performed CPR in an effort to revive her. An ambulance was called straight away, which the judge noted was not typical in cases of child abuse.
But two Starship doctors who examined Mere concluded that her injuries, including a subdural haemorrhage, could not have occurred by falling such a short distance, and that the injuries were usually seen in high impact car crashes or falls from buildings.
One doctor said that haemorrhaging seen in Mere's eyes was, according to international studies, "highly specific of non-accidental injury" and in the absence of some other major trauma, "considered as diagnostic of child abuse".
But Judge McNaughton said he preferred the evidence of Terrence Donald, senior consultant in child protection services at the Women and Children's Hospital in Adelaide. Donald was also called by the defence in the Kahui twins murder case – challenging the evidence of Starship paediatrician Patrick Kelly on the timing of those assaults.
Donald told the court in the Lino case there was a lot of debate about how such retinal haemorrhaging was caused. Until 2000 it was considered characteristic of shaken baby syndrome, but more recent opinion had moved away from that.
Judge McNaughton wrote: "Like Dr Donald, I have a nagging doubt that the scientific position could be quite different in another 10 or 20 years' time."
Donald told the court he would never write a report until he had read all of the interviews conducted by police, and he was surprised the Starship doctors had not reviewed the police interviews and did not know that the Linos' older son had also provided witness evidence.
He was also concerned a bone scan on Mere was only carried out a week after admission to hospital, and there was no observation of the progress of the one possible impact mark on her forehead.
Kay Hyman, the Auckland District Health Board's general manager of clinical services for women's and children's health, said hospital management would meet with the Crown Solicitor for Auckland to discuss the case.
"We want to understand the implications of the decision, which are potentially far-reaching." She would not elaborate on the implications.
Hyman said the hospital had a robust clinical process for handling potential child abuse cases and she stood by the assessment of its doctors. "Our view was not formed without a comprehensive process of independent expert advice and review," she said.
She said the primary interest of Starship staff was protecting vulnerable children and staff did not question whether abuse had occurred without good reason.
The decision on whether to bring charges was up to police, not doctors.
Cato described the Linos as hard-working "battlers" who had not only suffered the trauma of having their baby seriously injured, but faced Famaile Lino doing a lengthy jail stint.
"It's a very important case. It shows how suddenly a person can be at home with their feet up looking after their children, and a nightmare commences."