Opinion
No. NA–21238/09.
2013-06-10
In the Matter of NICOLE C., A Child under the Age of Eighteen Alleged to be Neglected and Abused and by v. Jane C., Samuel C.
Anthony James DiMango, Esq., Assistant Corporation Counsel, Administration for Children's Services, Brooklyn. Carol M. North, Esq., Joan L. Bernbaum, Esq., New York, for respondent Father.
Anthony James DiMango, Esq., Assistant Corporation Counsel, Administration for Children's Services, Brooklyn. Carol M. North, Esq., Joan L. Bernbaum, Esq., New York, for respondent Father.
Jacqueline McMickens, Esq., Brooklyn, for respondent Mother.
Resham Mantri, Esq. Juvenile Rights Project, Legal Aid Society, Brooklyn, for the Children.
EMILY M. OLSHANSKY, J.
The question presented in this child protective proceeding is whether the doctrine of res ipsa loquitur compels finding of child abuse where the experts presented by the Administration for Children's Services (hereinafter, “ACS”) testified that the baby's fractures were not the result of Rickets and, therefore, must have been caused by “physical abuse until we identify some other cause;” while respondents' experts testified that the child's injuries were the result of Infantile Rickets or vitamin D deficient bone disease and a degree of force expected in routine medical and child-care. Additionally, respondents' experts testified that some of the injuries occurred while the baby was hospitalized and not in the exclusive care of respondent. For the reasons set forth herein, the Court finds that respondents rebutted any evidence of parental culpability and the allegations of child abuse are, therefore, dismissed.
PROCEDURAL HISTORY
Factual Background
Respondent mother and respondent father met when they were 16 and 18 years old respectively. They married on July 19, 2008, after the mother had suffered two miscarriages.
On May 28, 2009, the mother and father became the parents of their first child and named her Nicole C. When the parents learned that the mother was pregnant they were thrilled. Both of them took a training program at the hospital for new parents. Nicole was a full-term baby. She was born when her mother was 33 years old.
The pregnancy was not an easy one. The mother had nose bleeds, swollen legs, skin rashes, sinus and ear infections and morning sickness, resulting in frequent vomiting.
Her doctor instructed her to take pre-natal vitamins but she could not keep them down. She tried different vitamins but continued to vomit. Finally, the doctor recommended Flintstones vitamins and the mother was sometimes able to keep them down.
When Nicole was born she weighed 6 lbs, 8 ounces. She was jaundiced and she had a sickle cell trait. She was kept in the hospital in the neonatal intensive care unit for four days, where she was treated with phototherapy and UV lights to help in the breakdown of excess Bilirubin.
The mother was medically cleared and released from the hospital after three days. While the baby remained hospitalized the parents stayed in a hotel room they rented near the hospital to ensure that the mother could regularly breastfeed. The doctors had stressed the importance of breastfeeding especially in light of Nicole medical problems. Because the mother was not producing sufficient milk the parents met with a lactation specialist.
After Nicole was medically cleared and released from the hospital, her parents regularly brought her to the pediatrician and consulted with her doctor regarding Nicole's “colics”
which began a few weeks after birth. After Nicole was discharged, the mother continued to breastfeed. Nevertheless, after approximately three or four weeks, because she was not lactating adequately the parents began to use formula. At first, they tried Similac's original formula but it seemed to make the “colic” worse. Thereafter, they tried different formulas. They discussed the possibility that Nicole might be lactose intolerant like her father and therefore, tried a soy-based formula but that gave her diarrhea. Nicole also had difficulty sleeping and generally slept for short periods of 20–30 minutes at a time.
“Colic” was described by Dr. Palusci, the expert called by ACS, as a “period of inconsolable crying, generally [for] a couple of hours a day or more, [and] generally [for] several days a week.” According to Dr. Palusci, “colic” “doesn't usually respond to normal things [and] can last for a couple of months.” During the periods when Nicole suffered from “colic,” she would cry even after she had been fed, bathed and changed.
During these initial weeks, the parents took Nicole to the pediatrician five times to monitor her medical problems. The purpose of the visits was to check on Nicole's jaundice; to explore the cause of “crystals in her urine and diaper;” to follow-up on Nicole's sickle cell trait; to discuss her frequent crying and the condition that had been diagnosed as “colic” and, for a regular check-up. For the “colic,” the pediatrician recommended “Gripe water” and more aggressive burping.
During the initial weeks after Nicole was born the parents focused almost exclusively on her care. The mother, an attorney, was on maternity leave from her firm where she worked as a recruitment manager. She was planning to return to work in September 2009. The father, an accountant, had just returned to work after taking almost one month for parental leave.
On July 11, 2009, the mother left Nicole with her father and she went out to have brunch with several friends. She was gone from 3 PM to 7:30 or 8:00 PM. When she returned with two of her friends the baby was sleeping. The mother and her friends went upstairs to work on Facebook and look at pictures of the baby.
The following day, July 12, 2009, the mother left Nicole with her father and she went out shopping with friends. She was gone from approximately 3:00 or 4:00 PM to 9:00 PM.
At approximately 8:30 PM that evening, when the mother was returning home, she called the father to ask him if he needed anything. While they were talking, the mother heard the baby begin to cry in the background. The mother asked the father if everything was okay. The father said that everything was fine and he speculated that maybe the “colic” had returned.
The mother arrived home shortly thereafter. She changed her clothing and ate dinner. She fed the baby. She spoke with the father. The father said that the baby had been fine all day. He said that Nicole ate and slept normally. The mother attempted to breastfeed the baby but she would not eat. She started to cry. The mother assumed that Nicole wanted to be held and she held her in her arms. She continued to hold the baby for most of the night. The baby alternately cried and slept for brief periods throughout the night.
The Injuries
The following morning, July 13, 2009, at approximately 5:30 AM, the father woke up. He started to get ready for work. He changed the baby's diaper. He noticed that Nicole's right thigh looked swollen and that she seemed to be holding her leg differently than usual. The father showed the mother what he saw. They agreed that something was wrong. Later that morning, when the pediatrician's office opened, the parents called and made an appointment for that day. The father decided did not go to work. Instead he and the mother took the baby to the doctor.
The pediatrician examined the baby and concluded that she might have a bacterial infection or septic arthritis. She told the parents to take the baby to the New York University Medical Center's emergency room. The pediatrician called Dr. Fulton at New York University in advance and told her to expect them. The parents followed the doctor's instructions and took the baby directly to the emergency room.
The Hospital
At the hospital the doctors examined the baby and spoke with the parents. The parents described the baby's medical history. They also reported that the baby ate and slept normally the day before. They explained that she had slept and cried intermittently through the night. They explained that early that morning the father noticed that the baby had a swollen leg and thigh.
Radiology Studies
After the baby was examined, x-rays were taken. The films revealed fractures of the baby's right femur and right clavicle. The mid-to-distal-right clavicle fracture was “mildly displaced.” It was “acute to sub-acute.” The radiological studies “confirmed the absence of periosteal reactions or calluses indicating acuity of the fractures.”
When the parents were told about Nicole's injuries they were shocked. When the doctor asked the parents for an explanation of how this could have happened they were unable to explain it.
The baby was admitted to the hospital and remained there for seven days. During that period, numerous procedures and tests were conducted, including an abdominal ultrasound, a head CT scan, an ophthalmology study, a SCAMP series and multiple x-rays.
Nicole was placed in a Davlik's harness, to restrict her movement. The baby was described by hospital staff in the records as “pleasant.” Staff indicated that she only “cried with movement of her leg.” The records indicate that when the baby was admitted she was “in no apparent stress” and that she did not appear to be in pain. The only pain medication prescribed was “Tylenol PRN for pain.” Hospital records dated July 13 and 14, 2009, establish that the baby remained pain-free and that “No PRN Tylenol given thus far .” According to the records the baby moaned or whimpered occasionally but was easily reassured by occasional talking or touching.
Radiological studies performed on July 13, 14 and 20, 2009 showed that the baby had no other fractures.
On July 14, 2009, Nicole was examined by Dr. Palusci, a pediatrician who specializes in child abuse. Based on that examination and his review of the radiology reports, he concluded that abuse was the cause of the fractures, at least until he was able to “identify some other cause.” As a result, on July 15, 2009, a report of suspected child maltreatment was called in by New York University to the New York State Central Registry.
According to the records, during the day of July 15, 2009, the baby remained free of any symptoms of pain. She was described as contented and relaxed. Later that day, it was noted that she occasionally grimaced or frowned. It was again noted that she was reassured by occasional touching, hugging or talking. According to the records the baby was first given medication for pain, e.g.,Tylenol, that night at 9:30 PM.
The hospital records indicate that Nicole was not given Tylenol on July 16, 2009. Early on July 17, 2009, Nicole was described as lying quietly and relaxed, with normal facial expressions. The records indicate that she was reassured by touching, hugging or talking. Later that night, however, she started to cry and kick. According to hospital staff she became difficult to console. The following night she was described as alert and awake but irritable, crying and difficult to control. Both nights she was given one dose of Tylenol.
The parents were described by hospital staff as cooperative. They were also reported to be fully cooperative with the police and the Administration for Children's Services. In the records, it was noted that the parents did not drink or use drugs. The mother was described as “appropriately upset about the situation. She has remained at the baby's bedside reacting appropriately and actively participating in the baby's care.” It was also noted that the “parents continue to remain very involved in [the baby's] care and supportive of her. Mother expressed being very concerned and upset about the current process and ACS's involvement. She was tearful after she was told that [the baby] might not be able to return home to her and her husband.”
The social work report contained in the hospital records noted that the baby was “appropriate in height and weight.” The report further noted that the baby was “adequately nourished [and] appropriately attired.” It was noted that “both parents came to the [emergency room] with the baby's supplies and formula.” The report indicated that the “mother and father seemingly bonded to the baby and the baby wants to be constantly held by them and seems to be responding well to their attention.”
According to the hospital's progress notes the “parents remain at bedside. Appropriate bonding witnessed. Infant calm and content in crib, does not cry with palpitation of limbs. Parents asking appropriate questions. Mom observed to be cooing at infant.” The notes further indicate that the baby was “with parents at bedside. Parents active in patient's care, feeding and diaper changes.” The parents and other family members including the grandparents, an uncle and an aunt, were present at the hospital on a regular basis. “The parents appeared very involved with the patient's care and supportive of her. The father was almost tearful as he reported that the [patient] does not look herself today and expressed concern at the pain that she must be feeling.”
At various points in time when speaking with the caseworker and hospital staff, the parents analyzed their own actions in an effort to understand how the baby could have sustained these fractures. The mother questioned whether she might have held the baby too tight going up the stairs. She mentioned that the baby did not like to be in her carrier. She said the baby never fell or was dropped. She said that she was never in any car accident. The father wondered if placing the child in the car seat could have done it. He questioned whether he could possibly have pulled on the baby's leg when he was changing her or whether he might have pulled her arm when he was changing her one-piece jumper. The mother wondered whether they could have burped her too hard, explaining that they had been instructed by the doctor to be more aggressive in this regard.
The parents both met with detectives and were interviewed at the Child Advocacy Center. They also met with Dana Decker, the caseworker assigned to conduct the investigation for ACS. According to Ms. Decker the parents had no child protective or domestic violence history. Their home was appropriate and had all requisite supplies, furniture and other necessities for the baby.
Metabolic Testing
The testimony and the hospital records establish that the hospital staff had a great deal of difficulty obtaining adequate blood from Nicole to conduct essential metabolic tests. For example, the records reveal that the first day, doctors made at least two attempts and failed both times. The father described watching the baby struggle as the doctors held her down. He testified that he objected to the way that they were treating her. Ultimately, the parents were asked to leave the room while the doctors continued their efforts to extract blood with only limited success.
As a result, adequate measures of calcium deficiency ( e.g., parathyroid stimulating hormone (PTH), vitamin D, 1, 25–dihydroxy and vitamin D, 25 hydroxy) could not be obtained until the baby had been in the hospital for several days. Additionally, the hospital did not perform a bone density test or a test for Osteogenesis Imperfecta or any other bone disease.
According to the hospital records, on July 13, 2009, there was not enough blood to measure vitamin D levels or PTH. With the limited supply of blood that was obtained, the hospital determined that Nicole's alkaline phosphatase (ALP) level was significantly elevated at 457 u/L (ref level <350 u/L). According to the expert testimony, ALP is not specific to the baby's liver, since this enzyme is also present in a baby's other cells.
The hospital also determined that Nicole's liver enzymes were abnormal upon her admission and that they remained so throughout her stay. These included Bilirubin, which was elevated at 1.6 (0.2–1.0 mg/dL), alanine transaminase (ALT) which was elevated at 340 (11–50 u/L) and aspartate transaminase (AST) which was elevated at 253 (15–46 u/L). According to the expert testimony, AST is not specific to the baby's liver since this enzyme is also present in saliva and muscle cells). Albumin, protein, potassium and calcium were all within normal limits (albumin 4.5 [3.5–5.0 gm/dL]; protein 7.1 [6.3–8.2 gm/dL]; potassium was 6.6 [3.6–5.0 meq/L]; and calcium was 10.3 [8.3–10.3 mg/dl] ).
Again, the following day, July 14, 2009, there was not enough blood to measure vitamin D levels. PTH was abnormal at 112 (ref range 15–75 pg/mL). Calcium was 10.4 (8.3–10.3 mg/dl). Nicole's liver enzymes were still abnormal. Bilirubin was 1.1 (.2–1.0 mg/dL); aspartate transaminase (AST) was elevated at 141 (15–46 U/L), alanine transaminase (ALT) was elevated at 238 (11–50 U/L) and protein was low at 6.0 (6.3–8.2 gm/dL).
Again, the following day, July 15, 2009, there was not enough blood to measure vitamin D. That day, however, PTH was elevated at 112 (ref range 15–75 pg/mL). Nicole's liver enzymes were still abnormal. Bilirubin was 1.1 (0.2–1.0 mg/dL), albumin was 3.5 (3.5–5 .0 gm/dL), alkaline phosphatase (ADP) was 331(u/L), aspartate transaminase (AST) was 115 (15–46 U/L), alanine transaminase (ALT) was 153 (11–50 u/L) and protein was 5.9 (6.3–8.2 gm/dL). Additionally, on July 15, 2009, Nicole's coagulation results were abnormal. Her PTT was high at 45.6 (30.3–43.5 seconds); APTT was low at 25.8 (27.0–38.0 seconds); fibrinogen was low at 83 (150–350 mg/dL). Thrombin was high 38.1 (21.5–29.9 seconds). APTT was low at 25.8 (27 –38 sec). Factor II was low at 68 (70–146%). Factor VIII was low at 59 (65–150%).
According to the hospital records from July 15, 2009, an abdominal sonogram indicated the presence of “some free fluid” adjacent to the liver; however, the liver was otherwise normal in size and texture. Thereafter, x-rays of the liver were taken. The x-rays were reviewed by two independent radiologists. Both radiologists concluded that there was no injury to the liver. One of the radiologists concluded that there was no fluid and the other opined that there was a piece of bowel near the liver.
On July 16, 2009, there was still not enough blood to measure vitamin D. Nicole's Bilirubin remained high at 1.1 (0.2–1.0 mg/dL).
The fourth day of the baby's hospitalization, July 17, 2009, was the first day that there was enough blood to measure vitamin D. Vitamin D, 1, 25–dihydroxy (Vitamin D 2), which was high at 105 pg/mL (ref range 15–75 pg/mL). Vitamin D, 25 hydroxy (Vitamin D 3) was “insufficient” at 24 ng/mL (ref range 30–80 ng/mL). According to the hospital records this level was “insufficient” (since “insufficient” is 20–29 ng/mL; “deficient” is less than 20 and “optimum” is 30–80 ng/mL). There was not enough blood to complete a hepatic panel, however, Nicole's albumin had dropped to 3.2 (3.5–5 .0 gm/dL) and protein remained low at 5.9 (6.3–8.2 gm/dL)
On July 20, 2009 Nicole was discharged. The records from that date indicate that Nicole had “no retinal hemorrhages.” On that day, there was once again not enough blood to measure vitamin D.
The Child Protective Proceeding
On July, 17, 2009, ACS filed petitions against both parents alleging that they violated FCA § 1012(e)(i) or (e)(ii), in that they inflicted or allowed to be inflicted upon such child, physical injury by other than accidental means which caused or created a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or created or allowed to be created a substantial risk of physical injury to such child by other than accidental means which would likely cause death or serious or protracted disfigurement or protracted impairment of physical or emotional health or protracted loss or the impairment of the function of any bodily organ. The petitions alleged that Nicole sustained fractures to her right femur and her right clavicle. The petitions also alleged that she child sustained an injury to her liver. The petitions further alleged that the parents' failed to provide an adequate explanation for the injuries and that the explanation they provided was inconsistent with the nature and extent of the injuries. The petitions further alleged that the parents were primarily and solely responsible for the baby's care at the time her injuries were sustained.
On July 17, 2009, both parents appeared in Family Court with retained counsel. The Legal Aid Society was assigned to represent Nicole. The parents were granted liberal supervised visitation with the child in the hospital.
On July 20, 2009, after Nicole was medically cleared, she was temporarily released to her maternal grandmother under ACS supervision. The grandmother indicated that she did not wish to be certified as a foster parent. As a result, Nicole remained in the custody of her grandmother, under supervision, for almost four years until the protracted litigation concluded.
When Nicole was discharged from the hospital, the family was instructed to return for a two-week follow-up x-ray series. Accordingly, on July 27, 2009, Nicole was brought back to the hospital and additional x-rays were taken. The x-rays indicated that Nicole had two rib fractures which had not been seen on prior studies.
Thereafter, on August 6, 2009, ACS filed amended petitions adding allegations that Nicole had also sustained fractures to her ribs. The amended petitions alleged that the parents failed to provide a plausible explanation for the injuries and that the explanation they did provide was not consistent with the nature and extent of the injuries. The petitions further alleged that the parents were primarily and solely responsible for the baby's care at the time her injuries were sustained.
During the months that followed, the parents visited the baby at the grandmother's home every day. They fed her and bathed her before she went to sleep. They also attended all of her medical appointments.
Throughout the pendency of this proceeding, caseworkers repeatedly observed and assessed the child's interaction with her parents. The caseworker observed how “attentive the respondent mother Ms. Clarke was towards the subject child. [The maternal grandmother told] CPS that no matter what time [they] get off at work, both parents visit the child” (report dated January 6, 2010 and submitted by Danyell Singletary, CPS and Anwana Anwana CPSS; see also permanency hearing report dated March 24, 2010; permanency hearing report dated November 4, 2010). Caseworkers observed that the parents were “attentive,” “appropriate,” “affectionate,” “loving” and “bonded to Nicole” (see report dated December 3, 2010 and all subsequent reports submitted by Danyell Singletary, CPS and Anwana Anwana CPSS). In turn, Nicole was uniformly described as “friendly” and “affectionate” with both parents ( Id.).
On November 29, 2009, prior to the commencement of the fact-finding hearing, the parents completed all recommended services including parenting skills and anger management programs at CAMBA Family Center. The parents were never asked to attend any additional services and they were cooperative with every aspect of the agency's service plan.
The grandmother complied with court orders and ensured that the baby completed an Early Intervention Evaluation on March 27, 2010. After the evaluation, it was reported that Nicole's cognitive, social, emotional, communicative and adaptive functioning were normal and no services were recommended. Her immunizations were kept up to date.
Every report about an agency-supervised visit described the parents' interaction with their daughter in extremely positive terms. The parents were always “attentive to the child, reading books, and allowing the child to play with toys they brought to the agency” ( see e.g., report dated March 1, 2010 submitted by Danyell Singletary, CPS and Anwana Anwana CPSS).
During the pendency of the proceeding, the Court granted ACS discretion to gradually increase the parents' visitation. For example, on March 1, 2010, ACS was granted discretion to begin overnight visits by the parents supervised at the grandmother's home. On April 26, 2010, ACS was directed to explore the possibility of unsupervised visitation between the child and the parents. On December 6, 2010, ACS was granted discretion to begin unsupervised visitation between the child and the parents. On November 1, 2011, ACS was again granted discretion to begin unsupervised visitation between the child and the parents. Nevertheless, since ACS declined to exercise its discretion and begin either overnights or any period of unsupervised contact, the parents' attorneys repeated the request for expanded visitation at almost every court appearance.
On January 25, 2011, after the mother learned that her own vitamin D levels might be an important factor in evaluating Nicole's bone health, she was tested to determine whether she was deficient. The test revealed that she was, in fact, vitamin D deficient and that her level of 25 hydroxy (vitamin D 3) was 11 ng/mL (ref range 30–80 ng/mL). According to the standards applied by the New York University Medical Center laboratory that placed the mother in the “deficient” range (According to those standards “deficient” is less than 20 ng/mL, “insufficient” is between 20–29 ng/mL, and “optimum” is between 30–80 ng/mL; see respondent mother's hospital records subpoenaed from Weill–Cornell Medical College–New York Presbyterian).
The mother was later retested after she had been taking Vitamin D supplements for an extended period of time. Nevertheless, on June 26, 2011, the mother's level of Vitamin D, 25 hydroxy was still “insufficient” at 22 ng/mL. Thereafter, on March 4, 2012, despite the continued use of supplements, respondent mother's level was still “insufficient” at 21 ng/mL.
More than two years after the commencement of the proceeding, the maternal grandmother requested and, on October 25, 2011, the Court granted the application for permission to allow the grandmother to move into the parents' home with the baby. The Court directed that the grandmother was not to leave the baby in the care of either parent unsupervised. Thereafter, on March 28, 2012, the Court granted the parents unsupervised visitation with the baby three times each week for up to three hours each visit.
On December 12, 2012, the parties rested, the hearing concluded and the attorneys were directed to submit written summations. At the request of the attorneys, the date for submission was originally set for March 1, 2013. That date was subsequently extended to April 1, 2013 by stipulation among the attorneys.
On April 10, 2013, the attorneys and the parents appeared for a permanency hearing before a Court–Attorney–Referee. ACS submitted a permanency hearing report that was introduced into evidence as petitioner's exhibit No.1. In the report, the assigned caseworker wrote that “continued placement of Nicole C. [with the maternal grandmother] is deemed unnecessary.” The caseworker indicated that the parents had completed recommended services on November 24, 2009 and that they had received certificates of completion. The caseworker wrote that her agency “d[id] not believe that Nicole would be at risk of abuse or neglect if she is returned to Mr. and Mrs. C. The interaction between the parents and the subject child was observed to be kind and loving. Nicole appears to have a very close bond with both parents. Mr. and Mrs. C.'s protective capacity is not a concern at this time.” Consequently, the caseworker indicated that the agency was “recommending final discharge of the subject child to both parents.” Despite the report, ACS objected to the release of the child to the parents.
After the conclusion of the permanency hearing, the attorneys and parents appeared before this Court to address the parents' request that the child be released to their care. The Attorney for the Child indicated that she was supporting the parents' request that the child be released without supervision. ACS objected based on the seriousness of the underlying allegations, the fact that the Court had not yet issued a decision on the fact-finding portion of the proceeding and the possibility that, if a finding were entered, “the parents could be required to undergo a mental health evaluation.” Additionally, ACS asserted that a temporary order of protection should be entered against the parents on behalf of the subject child.
At the conclusion of oral argument, the Court ordered that the child be temporarily released to her parents under the supervision of ACS. The Court ordered that ACS supervision be limited to one visit by ACS caseworkers each month. That determination was based on the voluminous evidence that had been adduced since the commencement of this proceeding. Specifically, it was based on the fact that there was no mention in any of the reports or records from the caseworkers or hospital personnel of any neglectful, uncaring or inappropriate behavior on the part of either parent. To the contrary, the records uniformly documented that Nicole's relationship to her parents was positive, loving and supportive. The caseworkers had reported that they were “able to assess the child interaction with both parents. The child Nicole is friendly and affectionate to both parents. CPS observed that the parents are attentive and affectionate to both parents” (report dated December 3, 2010 and submitted by Danyell Singletary, CPS and Anwana Anwana, CPSS). The determination was also based on the report of ACS's own caseworker that the child would not be at risk of abuse or neglect if she were released to her parents without supervision. The assertion by the attorney for ACS that a temporary order of protection was necessary to protect Nicole was rejected as without merit. There was no indication in the Court's file that ACS had requested an extension of the temporary order of protection since it had expired shortly after the commencement of the proceeding. The matter was adjourned to June 10, 2013 in Part 6 for a written decision on the fact-finding.
The Fact-finding Hearing
This Court conducted a fact-finding hearing over the course of more than two years on dates including November 4, 2010, November 9, 2010, March 8, 2011, April 7, 2011, May 13, 2011, October 25, 2011, March 28, 2012, July 23, 2012, July 25, 2012, August 13, 2012, October 2, 2012, October 17, 2012, December 4, 2012 and December 12, 2012. During the hearing, ACS called Dayna Decker, the ACS caseworker who conducted the initial investigation to testify, as well as two physicians from New York University Medical Center, Vincent John Palusci, M.D., M.S., an expert in pediatric child abuse and Sarah S. Milla, M.D., F.A.A.P., an expert in pediatric radiology.
Respondent mother and respondent father both testified. In addition, the parents called Michael F. Holick, M.D., Ph.D., an expert in endocrinology, metabolic bone disease, vitamins and nutrition; Gary S. Medows, M.D., F.A.A.P., an expert in pediatrics and child abuse; David Ayoub, M.D., an expert in radiology; and Preneet Cheema Brar, M.D., originally called as a fact witness but ultimately qualified as an expert in pediatric endocrinology. Documents and records were also introduced into evidence, including ACS case records, the mother's blood test results, the doctors' resumes, the child's hospital records and numerous radiological studies.
The Parties' Assertions
At fact-finding, ACS sought a finding of child abuse against both parents relying on the doctrine of res ipsa loquitur. ACS cited Family Court Act § 1046(a)(ii) which permits an inference to be drawn establishing a prima facie case of abuse or neglect against the parents of a child when the child suffers an injury which would not ordinarily occur in the absence of an act or omission of the caretakers. Thus, ACS sought to establish a prima facie case of abuse by introducing evidence of injuries to the child which, it asserted, ordinarily would not have occurred absent an act or omission of respondents. Additionally, ACS contended that respondents were the caretakers of the child at the time the injuries occurred.
ACS attempted to establish that the child's injuries could not have occurred in the absence of abuse by offering the testimony of two different experts who offered differing opinions as to which of the baby's fractures would normally not occur in the absence of abuse. Additionally, the experts called by ACS testified that the child's fractures were not the result of Rickets and, therefore, must have been caused by “physical abuse until [they were able to] identify some other cause.” The Attorney for the Child supported ACS's request for a finding of abuse.
The parents denied that the baby's injuries were the result of abuse or neglect and they sought to rebut any evidence of parental culpability. The parents and the experts that they called testified that the child's injuries were the result of infantile Rickets or vitamin D deficient bone disease. The experts testified that as a result of Nicole's compromised bone strength the fractures resulted from a lesser degree of force than would ordinarily be required and that the fractures could have occurred during routine medical and child-care activities. In addition, the parents asserted that the child's rib fractures, discovered two weeks after the child was hospitalized, were sustained while the child was in New York University Medical Center and not in their care.
Vitamin D Deficiency and Rickets
According to the expert testimony, the major physiologic function of vitamin D is to maintain serum calcium and phosphorus levels within normal ranges to support metabolic functions and bone mineralization. In the absence of sufficient vitamin D only a small percentage of dietary calcium and phosphorus is actually absorbed.
The experts who testified explained that Rickets is a disorder caused by inadequate or improperly metabolized vitamin D, calcium, and/or phosphate, which is of such magnitude that it interferes with metabolic functioning and bone growth and development. Calcium deficiency alone can cause the same metabolic and bone abnormalities even if vitamin D levels are normal.
Vitamin D is either produced in the skin by exposure to direct sunlight (UVB radiation) or it is ingested in the diet from food or supplements. Once vitamin D is produced or ingested, it is converted in the liver to 25–hydroxyvitamin D, which is the form of the vitamin that is stored by the body. 25–hydroxyvitamin D is converted in the kidneys to 1, 25–dihydroxyvitamin D, which is the biologically active form of the vitamin responsible for maintaining calcium and phosphorus levels and bone metabolism. 1, 25–dihydroxyvitamin D causes an increase in the levels of phosphate and calcium in the blood by causing these substances to be released from the bones. It also facilitates the absorption of calcium from the small intestine.
Metabolic Manifestations
In evaluating whether the infant in the instant case had the metabolic manifestations associated with vitamin D deficiency, the parties' experts considered her blood levels of calcium, phosphorus, parathyroid hormone (PTH), alkaline phosphatase (ADP) and the various forms of vitamin D, including 1, 25–dihydroxyvitamin D and 25–hydroxyvitamin D.
The expert testimony established that parathyroid hormone (PTH) is released by the parathyroid gland and is crucial to vitamin D metabolism. PTH controls calcium, phosphorus and vitamin D levels in the blood and bone. When calcium concentrations in the blood fall below the normal range, calcium sensors in the parathyroid glands increase the secretion of PTH. Low blood calcium or vitamin D levels cause an increase in PTH, while high blood levels block the release of PTH.
PTH increases blood calcium and phosphorus levels by mobilizing the stores of these elements from the skeleton. In addition, PTH stimulates the reabsorption of calcium and prevents its excretion in the urine. In the kidney, PTH also prevents a detrimental build-up of phosphate by preventing its reabsorption and thus stimulating its loss in the urine. Elevated PTH also stimulates the production of the biologically-active form of vitamin D within the kidney by initiating the conversion of 25–hydroxyv D to 1, 25–dihydroxyvitamin D.
When considering vitamin D deficiency one crucial metabolic measure is the level of alkaline phosphatase in the blood. According to Dr. Brar this is “the key diagnostic criteria” when considering nutritional Rickets. She testified that alkaline phosphatase is a protein found in all body tissues but released primarily from the bone and the liver. Alkaline phosphatase is elevated in infants deficient in vitamin D because it serves to mobilize calcium and phosphorus to provide the basic elements to build new bone. According to the expert testimony, there is an inverse relationship between alkaline phosphatase and vitamin D; as the level of vitamin D decreases, the level of alkaline phosphatase increases.
Thus, a deficiency in vitamin D causes ADP and PTH to increase. This increases blood levels of calcium and phosphorus. It also converts the stored form of vitamin D into the active form. As a result, an infant deficient in vitamin D may have normal levels of the active form of vitamin D (1, 25–dihydroxyvitamin D) despite the fact that the body's stores of the vitamin (25–hydroxyvitamin D) have been completely depleted. Accordingly, measuring the levels of calcium, phosphorus and the active form of vitamin D (1, 25–dihydroxyvitamin D) does not provide an accurate picture of an infant's vitamin D status because the levels of these nutrients often appear normal. The only reliable measure for determining whether an infant suffers from vitamin D deficiency is to measure their level of stored vitamin D (25–hydroxyvitamin D). Additionally, infants with Rickets or vitamin D deficiency typically have elevated levels of PTH, ADP and 1, 25–dihydroxyvitamin D.
Radiological Manifestations
In evaluating whether Nicole had the radiological manifestations of Rickets or vitamin D deficiency, the experts reviewed her x-rays to determine whether there were changes in the shape and structure of the bones. According to the testimony of the experts for ACS and respondents, Rickets and vitamin D deficient bone disease result in bone fragility and decrease the level of force required to cause a fracture.
Radiological manifestations predominate in areas of the body and during periods of time involving rapid bone growth. This is why Rickets is mostly observed in babies younger than 18 months of age.
According to the expert testimony, vitamin D deficiency in an infant does not instantaneously result in bone abnormalities observable by x-ray. Skeletal deformities develop over a period of time. Except in severe cases, infants younger than six months of age do not typically have the tell-tale radiological signs of Rickets.
A number of these signs were described at length by the various medical experts who testified. For example, the experts testified about the typical changes that occur in the rib cage of a vitamin D deficient child. Swelling of the costochondral joints between the ribs and cartilage in the front of the rib cage often occurs. The swelling of these prominent joints or “knobs” creates the appearance of large beads under the skin of the rib cage and are known as a “rachitic rosary” or “beading” of the ribs. This change is due to a lack of mineralization and an overgrowth of cartilage. Over time this can progress into an involution of the ribs and protrusion of the sternum (sometimes referred to as a “pigeon chest”).
Additionally, the experts testified about typical changes in the growth plate of the long bones, which eventually result in an outward curving of the long bones in the legs (often referred to as “bowing”). The growth plate is found in developing infants on all long bones. It is the site where the bone increases in the length. It is a cartilaginous structure that lies at the end of each long bone. Vitamin D deficiency can cause a widened, bulky growth plate to form irregularity (this is also known as “fraying”). Additionally, certain sections of the growth plate often appear abnormal in infants deficient in vitamin D. The Hypertrophic Zone can become enlarged and the Zone of Provisional Calcification may not form completely. As a result, there can be cellular disorganization and splaying of the bone which results in a build-up of maturing cartilage cells (also known as “cupping”). These abnormalities alter the overall geometry of the skeletal site and lead to increases in the diameter of the growth plate. This structure is often weaker than healthy bone and makes it more vulnerable to injury.
The experts also testified that there can be changes in the skull. Softening of the occipital area (“craniotabes”), enlarged sutures and fontanelles, as well as the delayed closing of the occipital bone or parietal flattening can be observed. These changes can cause a distinctive flat or square-headed appearance. Further, the pelvic bone structure may be flattened in children with Rickets and the spleen and liver can be enlarged as well.
Babies at Risk for Vitamin D Deficiency
According to the expert testimony babies born to calcium or vitamin D deficient mothers are likely to have inadequate vitamin D stores to draw on in early life since the mother is the infant's source of these essential nutrients in utero. As a result, inadequate maternal calcium or Vitamin D during pregnancy is a significant risk factor for infantile Rickets. In severe cases, the radiological changes associated with the deficiency can be observed even during fetal development.
Babies who are breastfed are at higher risk for these deficiencies unless they are adequately supplemented. This is because breast milk-even the breast milk of women with normal vitamin D levels—contains insufficient vitamin D to fulfill an infant's growth needs. The breast milk of women who are vitamin D deficient is completely inadequate to satisfy an infant's developmental needs.
Since the body synthesizes vitamin D when the skin is exposed to direct sunlight and UVB radiation, anything that interferes with the skins' absorption of UVB rays will reduce the amount of vitamin D that is synthesized. The skin pigment melanin and sun-screen both absorb UVB rays and reduce vitamin D synthesis. According to the expert testimony, African Americans and others with darker skin absorb less UVB rays and, therefore, synthesize far less vitamin D when exposed to sunlight for the same length of time as Caucasians or others with lighter skin. According to respondents' experts this factor can reduce vitamin synthesis by as much as 90%. Consequently, as the experts testified, African Americans and other darker skinned individuals are at greater risk for vitamin D deficiency than lighter skinned individuals. As a result, African Americans may also be at greater risk for decreased bone density and fractures than their lighter skinned counterparts.
As the experts testified, the symptoms of vitamin D deficiency generally disappear once replacement calcium, phosphorous and or vitamin D are obtained. Ordinarily, there is a rapid correction of both serum calcium and phosphorus levels and, shortly thereafter, a normalization of PTH levels. Alkaline phosphatase levels also decline. The healing of radiologic signs can be observed within a number of months depending on the severity of the original deficiency.
In this case, respondents' experts asserted that Nicole had virtually every risk factor listed above. She is African American. She was breastfed by her mother who is also African American. The mother was seriously vitamin D deficient the first time she was tested after her pregnancy. Respondents' experts also concluded that the baby exhibited metabolic and radiological findings consistent with vitamin D deficiency and infantile Rickets.
ACS' experts disagreed, asserting that although Nicole had certain metabolic signs of vitamin D insufficiency, she did not have Rickets and that her bones could not have been weakened to the point that fractures would have resulted from activities related to routine child-care. ACS' experts acknowledged that Nicole had certain abnormal blood test results. Nevertheless, they contended that these abnormalities were minor and not inconsistent with the levels expected for a growing infant healing from bone fractures. Additionally, they disagreed with testimony of respondents' experts that Nicole had early radiological signs of infantile Rickets.
Petitioner's Case
The ACS Caseworker
Dana Decker, the ACS caseworker originally assigned to investigate the case, was called to testify. Ms. Decker testified that the source of the report of suspected child maltreatment was New York University Medical Center. She described the steps that she took during her investigation. She testified that the parents cooperated with ACS and the police. She spoke to the parents individually, on July 15, 2009, and each of them corroborated the other's statements.
ACS's Expert Witness
ACS called Vincent John Palusci, M.D., M.S. He was qualified as an expert in pediatric child abuse and he worked at New York University Medical Center. Dr. Palusci has been licensed to practice since 1985 and he has taught at Wayne State University Medical School, Michigan State University Medical School and New York University Medical School. He has lectured throughout the United States about child abuse. He has served on numerous committees and acted as a consultant to a number of professional groups, institutions and societies addressing the subject of child maltreatment and fatalities. His major research interest is evaluating traumatic brain injury and sexual abuse in children. He has served as an editor, author and co-author of numerous articles, reports and chapters about “shaken baby syndrome,” child sexual abuse, medical neglect, the physician's duty to report, traumatic brain injury in children and Munchausen Syndrome by Proxy.
Dr. Palusci testified that he made his diagnosis and completed his evaluation of Nicole on July 14, 2009. He testified that his conclusions were based on his examination of Nicole on July 13, 2009 and the information contained in the hospital records on that date. During the fact-finding, he testified that within a reasonable degree of scientific certainty, “based on the information I know now, which is not much different from what I knew on July 14, 2009, physical abuse is the medical diagnosis until we identify some other cause.”
When Dr. Palusci made that diagnosis he had the results of the blood tests from July 13, 2009 and July 14, 2009. He also had the x-rays, including one SCAMP series, that were taken on those dates. He knew that Nicole had a femur fracture and a clavicle fracture.
Dr. Palusci testified that no rib fractures were observed on Nicole's July 13, 2009 x-rays or her July 14, 2009 SCAMPE series or her July 20, 2009 x-rays. Dr. Palusci testified that the rib fractures were not detected until July 27, 2009, after Nicole had already been discharged from the hospital and out of the care of her parents for two-weeks.
Additionally, Dr. Palusci testified that when he made his diagnosis, he knew that the baby's alkaline phosphatase level was significantly elevated at 457 u/l (ref range <350). At the time, Dr. Palusci did not know her PTH, Vitamin D, 1, 25–dihydroxy or Vitamin D, 25 hydroxy levels. Those tests were ordered on July 14, 2009; however, the following day the laboratory reported that it still did not have sufficient blood to complete testing.
Dr. Palusci testified that at the time he made his diagnosis he did not know if Nicole had Rickets. Dr. Palusci testified that there are numerous tests for diagnosing Osteogenesis Imperfecta and that the hospital did not perform any of them; nor did the hospital perform a bone density test or any other test for bone disease. He explained that decision by stating that there “were no findings on the x-rays supporting that it was present in this child.” He admitted, however, that infants under the age of six months do not always have radiological signs of Rickets.
Dr. Palusci examined Nicole on July 14, 2009. That day he also spoke with the parents. Dr. Palusci acknowledged that if a nursing mother had insufficient levels of vitamin D and the infant was not receiving adequate supplementation or direct sunlight, it could impact on her levels of vitamin D. Nevertheless, he did not ask the parents whether the baby had been taken outside or whether she had any exposure to direct sunlight. He did not ask the mother about her prenatal diet or whether she took calcium or vitamin supplements while she was pregnant. Dr. Palusci did not ask the mother about her diet since the baby's birth or whether Nicole had been given vitamin supplements. He did not ask her whether she was vitamin D deficient during or after her pregnancy. He did not ask the mother whether her vitamin D levels had ever been tested, nor did he ask her any other questions about her medical history.
Dr. Palusci did not see any bruises or other marks on Nicole. He acknowledged that each individual finding could have had an abuse cause or, it could have a non-abusive cause with the proper medical history and evaluation. He said that there could be a likelihood that all of the injuries had a non-abusive cause but he said that he did not know what the likelihood was.
When Dr. Palusci was asked whether any of the information learned after July 14, 2009, would have changed his opinion, he testified that it would not. Dr. Palusci acknowledged that Nicole's PTH levels on July 15, 2009 were 112 pgs mL (ref. range 15 and 75 pgs mL). He also acknowledged that on July 17, 2009, the first day that there was enough blood to measure Vitamin D, 1, 25–dihydroxy (Vitamin D 2), it was high at 105 (ref. range 15–75) and that the level of Vitamin D, 25 hydroxy (Vitamin D 3) was “insufficient” at 24. Dr. Palusci testified that this insufficiency was not Rickets. According to Dr. Palusci these measures were “insufficiencies rather than full-blown disease.”
Dr. Palusci testified that Nicole's liver enzymes were abnormal upon admission. He testified that the levels increased and then decreased rapidly during her hospitalization, which he testified was suggestive of trauma. He testified about the phototherapy that Nicole received at Weill–Cornell Medical College New York Presbyterian Hospital after she was born. There is no indication, however, that he considered whether Nicole's jaundice at birth or the treatment she received at that time could have had any effect on her liver enzymes or other blood test results.
The July 15, 2009 abdominal sonogram indicated the presence of “some free fluid” adjacent to the liver. Based on the sonogram results, Dr. Palusci ordered an x-ray of the liver. That x-ray was reviewed by two New York University Medical Center radiologists who confirmed that there was no injury to the liver. Dr. Milla, one of the radiologist's who reviewed the study, did not observe any evidence of trauma to the liver. Dr. Milla reported observing a “small amount of free fluid adjacent to the liver.” She then wrote that “the liver is normal in size and echotexture. No focal masses or lacerations are seen The common bile duct is normal in size. [N]o evidence for intra or extra-hepatic biliary dilations.” (Medical Report dated July 20, 2009, p. 4). Additionally, the medical records from New York University Medical Center dated July 20, 2009 indicate that there is “no evidence of spleen or liver injury.”
With respect to the degree of force required to cause the fractures, Dr. Palusci testified that if a child suffered from a “metabolic bone disease, then the forces required to cause the fractures decrease dramatically. depending on the bones and their calcification and a variety of things.” He said that children with Rickets have changes in their bones that make them much easier to fracture.
With respect to the fractures, Dr. Palusci testified that all of them “could have occurred at the same time. I can't tell you which day. I know that they didn't occur in the hospital.” Dr. Palusci testified that it generally takes approximately 10 days to see evidence of the healing of such fractures on an infant. He testified that the clavicle fracture could have been sustained a few days or a week prior to July 13, 2009. He was unable to say whether the clavicle and femur fractures occurred at the same time or the same day.
Dr. Palusci testified that the clavicle injury could have happened during the child's birth. He testified that such fractures happen “fairly easily.” However, he emphasized that he observed no evidence that the clavicle fracture was healing and this led him to conclude that it occurred more recently. He testified that the femur would have required more force than the clavicle to fracture because “it is one of the strongest bones in the body.” Dr. Palusci testified that the rib fractures did not “take a lot of force, but more force than we would expect in routine child care.”
Dr. Palusci testified that he considered that Nicole was African American in evaluating her condition because studies indicate that there is an increased risk of vitamin D deficiency in certain populations including African Americans. He also testified that African American mothers may require additional vitamin D supplementation than non-African American mothers.
Respondents' Case
Respondents called as an expert witness Michael J. Holick, M.D., Ph.D. Dr. Holick was qualified as an expert in endocrinology, metabolic bone disease, physiology, vitamins and nutrition. Dr. Holick specializes in vitamin D, calcium metabolism and metabolic bone disease.
Dr. Holick has taught about vitamin D deficiency and its impact on bone development at Harvard Medical School, Massachusetts Institute of Technology, Boston University Medical School and Tufts University Medical School, among others. He has lectured throughout the United States, Europe, Asia, Africa and Australia about vitamin D, its precursors, calcium and bone metabolism, among other topics. He has served on committees and as a consultant to a number of groups and institutions including NASA, the Department of Agriculture and the National Institute of Health, among many others in the United States and around the world. He has devised, conducted, assisted and/or supervised hundreds of studies about the sources and structure of vitamin D, as well as its synthesis, metabolism, absorption and transportation throughout the body and into the cell in humans and other mammals. Dr. Holick's research has also focused on vitamin D's precursors, receptors and antibodies, as well as the impact of skin pigment, sunlight, seasonal changes, ultraviolet light, solar ultraviolet light, clothing and sunscreen on synthesis and metabolism. His research has also involved examining the various ways in which vitamin D's effects are hampered in patients with Rickets, hypoparathyroidism, renal disease, sarcoidosis and psoriasis. He has authored or co-authored 410 original reports, 213 reviews and chapters, as well as 12 books. Dr. Holick has received numerous awards and honors relating to his work on vitamin D and calcium metabolism in the United States and in Europe. Additionally, in 1987, he established the Boston University Medical Center Bone Health Care Clinic and has been the Clinic's director since that time. Dr. Holick's curriculum vitae is 78 pages long. He has treated hundreds of infants with bone disease. He has also worked as a consultant for Quest Diagnostics for 30 years. Quest is one of the largest research laboratories in the United States and Dr. Holick has assisted in establishing Quest's reference values for vitamin D and its metabolites.
Dr. Holick testified that during recent years there has been a startling increase in the frequency of vitamin D deficiency being reported and that this deficiency can have a devastating impact on a child's bone strength. Dr. Holick testified that African American children are at greater risk of vitamin D deficiency because of the increased quantity of melanin in their skin. Dr Holick testified that melanin pigmentation acts as a sunscreen and markedly diminishes, by more than 90%, the production of vitamin D.
Dr. Holick testified that within a reasonable degree of medical certainty Nicole suffered from infantile Rickets. He testified that in his opinion it was “extremely likely based on even her blood tests [alone] that she was vitamin D deficient from the time she was born.” Additionally, Dr. Holick testified that it was very likely that Nicole was vitamin D deficient “during her development in utero which meant that she was really not accruing very much calcium in her skeleton and putting her at extremely high risk for Infantile Rickets. And Infantile Rickets would increase your risk for minimum trauma in non-fragility fractures.”
Dr. Holick testified that in forming his opinion, he reviewed Nicole's hospital records and her mother's medical records. Additionally, he examined Nicole and he interviewed both of her parents. Dr. Holick testified that in reaching his conclusion he also considered that the mother had morning sickness for most of her pregnancy. He testified that, as a result, she was unable to digest and metabolize prenatal vitamins, including calcium supplements, and the necessary levels of vitamin D supplementation for proper fetal development. Dr. Holick testified that since the mother was unable to digest the supplements and because she did not drink milk, she became vitamin D deficient herself. Dr. Holick testified that when he saw the mother after Nicole's birth her own vitamin D level was “severely deficient” (Vitamin D, 25 hydroxy was 11 ng/mL [ref range 30–80 ng/mL] ). According to the standards employed by New York University Medical Center and other laboratories this level was “deficient.” According to the laboratory report, “deficient” is less than 20, “insufficient” is between 20 and 29 and “optimum” is between 30 and 80. In Dr. Holick's view, Nicole was vulnerable to fractures that were the result of minimal force including the degree of force that would accompany ordinary medical and child-care.
Dr. Holick stated that if the mother were vitamin D deficient during her pregnancy, then Nicole would also have been vitamin D deficient in utero. Additionally, since the mother was presumably vitamin D deficient after Nicole was born and she was breastfeeding, she provided inadequate vitamin D to the baby. Thus, the mother's vitamin D deficiency resulted in Nicole having inadequate vitamin D stores to draw on in early life since the mother was the source of her baby's calcium and vitamin D.
In Dr. Holick's opinion, the fact that Nicole was fed formula at various times, which presumably contained vitamin D supplementation, was insufficient to compensate for the baby's failure to obtain adequate quantities in utero and after birth. He emphasized that Nicole had difficulties digesting breast milk and that she did not immediately adjust to her formula. This resulted in recurrent bouts of diarrhea which diminished her ability to absorb nutrients she needed for proper bone health.
Additionally, in Dr. Holick's opinion, Nicole's x-rays and her blood tests established that she was vitamin D deficient. Dr. Holick testified that he observed signs of Rickets in Nicole's x-rays. He testified that he observed fraying at the end of certain bones, the flattening of the baby's head and the lack of clarity at the end of the bones indicating higher levels of alkaline phosphatase.
He emphasized that Nicole's alkaline phosphatase level of 453 was “markedly elevated” when she was admitted to New York University Medical Center since the normal range is “up to 350.” He also testified that her vitamin D levels were deficient when they were finally measured more than four days after she was admitted. He noted that Nicole's parathyroid hormone (“PTH”) was elevated to 112 on the second day after her admission and this level was also outside the normal range. Dr. Holick also mentioned that Nicole had head sweating, another sign of vitamin D deficiency.
In Dr. Holick's opinion, New York University Medical Center failed to adequately address Nicole's alkaline phosphate level, which was “markedly elevated or her vitamin D level, which was insufficient by their own standards.” In Dr. Holick's view, the doctors should have asked the mother to submit to testing to determine whether she was vitamin D deficient.
In Dr. Holick's opinion, the hospital failed to notice that Nicole had many serious risk factors for infantile Rickets. She is African American. She was breastfed by her mother who is also African American and seriously vitamin D deficient. In addition, Dr. Holick testified that the doctors should have looked at the mother's prenatal history.
Dr. Holick testified that Nicole's vitamin D deficiency increased the likelihood that she would sustain fractures with minimal force. In his opinion, Nicole sustained the fractures as a result of vitamin D deficiency in utero and after her birth making her bones more vulnerable to fractures. Dr. Holick agreed with the other experts that Nicole's fractures did not all occur at the same time.
Respondents also called Dr. Gary S. Medows, M.D., F.A.A.P, who was qualified as an expert in pediatrics and child abuse. Dr. Medows was in private practice and had been licensed to practice medicine since 1967. He taught at Mt. Sinai Medical School and the Albert Einstein Medical School. He was a member of several professional organizations and received a number of honors. He previously testified in many cases involving allegations of child abuse or neglect.
He testified that, within a reasonable degree of scientific certainty, Nicole suffered from vitamin D deficient bone disease, which resulted in the weakening of certain bones. He testified that this was the cause of Nicole's injuries and not abuse or neglect by her parents. Dr. Medows testified that because of Nicole's compromised bone health, her injuries could have been caused by minimal force, including the use of a harness, a car seat or restraints applied to conduct medical testing. Dr. Medows testified he based his opinions on Nicole's radiology studies, her blood test results, her medical records, her family history and his examination of her when she was approximately two years old.
Dr. Medows noted that New York University Medical Center was unable to obtain adequate blood samples from Nicole to test her vitamin D levels until the fourth day after her admission and that by then she had already been receiving formula for several days. Dr. Medows testified that all types of infant formula contain vitamin D supplements. Dr. Medows testified that even after receiving vitamin D supplements for several days, Nicole still tested as vitamin D deficient. In his opinion, this was a factor that should have been considered in evaluating the extent of Nicole's initial vitamin D deficiency.
He also emphasized that on July 17, 2009, Nicole's vitamin D, 25 hydroxy (vitamin D 3) was 24 ng/mL (ref. range 30–80 ng/mL). According to the laboratory report submitted by the hospital this level was “insufficient.” Dr. Medows disagreed with Dr. Palusci about the significance of this result. According to Dr. Medows “insufficient” means that an infant is unable to incorporate calcium into the bone and that this results in an increased susceptibility to fractures. Dr. Medows emphasized that Nicole's PTH and ADP results were also abnormal. When Dr. Medows was asked about the fact that her levels declined after she was in the hospital for several days, he testified that Nicole levels would be expected to decline since she was given vitamin D in formula. As all of the experts testified, an increase in Nicole's level of vitamin D would cause her levels of PTH and ADP to decline.
Dr. Medows was critical of New York University Medical Center because they did not perform a bone density test on Nicole or ask the mother about her own vitamin D and calcium intake during pregnancy. Dr. Medows testified that there were numerous other tests that New York University Medical Center could have conducted to determine whether Nicole and/or her mother suffered from the vitamin D insufficiency. He also criticized the mother's doctors for their failure to inform her of the importance of providing Nicole with vitamin D supplements while she was breastfeeding because even women who are not vitamin D deficient, have breast milk with inadequate levels of vitamin D for an infant.
In Dr. Medows' opinion the fracture of the clavicle and femur happened at approximately the same time and the fractures to the posterior ribs happened later in time. In Dr. Medows' opinion the rib fractures occurred while Nicole was in the hospital. He testified that if the ribs had been fractured prior to her hospital admission on July 13, 2009, they would have been visible on one of the x-rays taken on July 13, 2009, July 14, 2009 and July 20, 2009, the date she was discharged.
According to Dr. Medows, the x-rays taken on July 27, 2009, after Nicole had been out of the hospital for seven days, showed two new rib fractures, which had not begun to heal. Dr. Medows agreed with Dr. Palusci to the extent that he also believed that it would take approximately 10 days to see evidence of the healing of such fractures in an infant. According to Dr. Medows Nicole's ribs were fractured approximately 10 days before the x-rays were taken. He emphasized that 10 days before the x-rays were taken was the fourth day of Nicole's hospitalization.
Dr. Medows also noted that on July 27, 2009, the fracture to the femur and the clavicle had callous formations and were at a more advanced stage of healing than the ribs. He said that this showed that the rib fractures were not sustained at the same time as the femur and clavicle fractures.
In Dr. Medows' opinion, the nature of Nicole's femur fracture and the lack of any “collateral damage” pointed to vitamin D deficiency rather than abuse as the cause. Dr. Medows testified that a femur fracture inflicted by blunt force or trauma to an infant with normal bone strength would have caused bruising and other marks.
Dr. Medows disagreed with Dr. Palusci's testimony that Nicole's liver function tests were indicative of physical abuse. According to Dr. Palusci, Nicole's liver enzymes were extremely elevated when she entered the hospital and then declined dramatically. According to Dr. Medows her levels were elevated throughout her hospital stay.
Dr. Medows testified that Nicole's clotting factors were consistently abnormal. He testified that these abnormalities were the result of her jaundice at birth and over exposure to Bilirubin. Additionally, Dr. Medows testified that inadequate vitamin D levels would have contributed to Nicole's compromised ability to breakdown Bilirubin.
Dr. Medows disagreed with Dr. Palusci's testimony regarding the significance of the fluid near Nicole's liver. He testified that the fluid was actually inside the bowel and that it was not a sign of abuse.
Dr. Medows disagreed with Dr. Palusci's testimony about the significance of a red mark in Nicole's eye. He testified that the doctors at New York University Medical Center were looking for retinal hemorrhages as a sign of “shaken baby syndrome” and that all they found was a small irritation on the front of the eye that was insignificant. He also testified that according to the hospital records Nicole was examined by a pediatric ophthalmologist who concluded that the baby's eye was normal in all respects.
Dr. Medows further testified that he examined Nicole when she was approximately two years old and that all of her injuries had healed. He explained that the healing was the result of Nicole having grown older and taking vitamin supplements for an extended period of time. He testified, however, that he did find residual signs of craniotabes or changes in the skull that cause a distinctive flat or square-headed appearance. Dr. Medows concluded that Nicole would not suffer any other long-term damage as the result of the injuries she sustained.
Dr. David Ayoub, M.D. was also called to testify by respondents. He started practicing medicine in 1990 and was qualified as an expert in radiology. He is a member of numerous professional organizations. He has written, taught and presented at major conferences, including the Radiologist Society of North America and the American Society of Bone and Mineral Research, about metabolic bone disease in infants and children, infantile Rickets and the issues that arise in attempting to distinguish Rickets from child abuse. He has testified in approximately 25–30 cases in 10–15 states. Dr. Ayoub testified that he had seen approximately 200 radiographs of patients with Rickets.
Dr. Ayoub demonstrated the skeletal changes associated with infantile Rickets using the x-rays that had been taken at New York University Medical Center. He also used x-rays taken one week after Nicole's discharge and compared them to the x-rays taken on her admission to illustrate the difference in the healing rate of the different fractures.
Dr. Ayoub testified that he examined the July 27, 2009 scans, which revealed the rib fractures for the first time (July 27, 2009 at 4:43:01 PM, hospital number 4862656). Dr. Ayoub testified that in his opinion, Nicole's rib fractures occurred after July 13, 2009 when she was admitted to the hospital. He emphasized that the prior films contained no indication of any rib fractures, one of the few points upon which all of the experts agreed. Dr. Ayoub emphasized that all of the hospital x-rays were of good quality and that there was no hint of any rib fracture on any of the studies taken on July 13, 2009, July 14, 2009 or July 20, 2009, while Nicole was hospitalized.
Dr. Ayoub testified that within a reasonable degree of medical certainty Nicole's x-rays showed that she suffered from infantile Rickets in a state of healing. Dr. Ayoub rejected the notion that the absence of rachitic rosary or flaring in Nicole's ribs was dispositive. He testified that these are not reliable signs of Rickets and that they are only present 30 to 50% of all cases.
Dr. Ayoub showed an x-ray of Nicole's leg and the changes caused by Rickets including a spur on the front of her tibia as well as the extra calcifications extending from the growth plate ( see radiology study entitled TIB, dated July 13, 2009 at 9:22:10 PM, hospital number 4842067; FEMUR, dated July 27, 2009 at 5:19:58 PM, hospital number 4862656; see radiology study entitled TIB dated July 13, 2009 at 9:22:10 PM, hospital number 4842067, in evidence). He testified and pointed out how the x-rays of the femur showed that Nicole had a build-up of maturing cartilage cells, resulting in thicker cartilage and other rachitic changes ( see radiology study dated July 27, 2009 at 5:09:58 PM, hospital number 4862656). He pointed out on her skull x-rays where he observed signs of craniotabes, the abnormally flattened sides of the skull and other abnormalities ( see radiology study dated July 13, 2009 at 9:40:46 PM hospital number 4842154; see radiology study dated July 15, 2009 at 2:03:47 PM, hospital number 4844804–3). Dr. Ayoub also showed on the x-rays where changes in the growth plate of the long bones were taking place and how the zone of provisional calcification was not forming normally. He also pointed out how and where the x-rays indicated that the fractures were healing abnormally.
Dr. Ayoub testified that in his opinion the femur fracture, the clavicle fracture and the rib fractures all occurred at different times. Referring to the initial study, he testified that the clavicle fracture was not acute and that it must have taken place before the other fractures. He testified that it was “older than 48 hours, for sure. You don't see [the type of] periosteal reaction [seen here] in 48 hours.”
Dr. Prenest Cheema Brar was called by respondents as a fact witness to discuss the tests that had not been done at the time that Dr. Palusci made his diagnosis of child abuse. Nevertheless, shortly after the beginning of her testimony, respondents' counsel began to ask her questions calling for opinion testimony. As a result, Dr. Brar was qualified as an expert in pediatric endocrinology.
Dr. Brar testified that she worked for New York University Medical Center and had been practicing medicine for five years. According to Dr. Brar, prior to the instant case, she had never testified in court.
Dr. Brar testified that she was asked by Nicole's treating physicians at the hospital to conduct a consultation on July 17, 2009. She testified about a report she and another doctor signed on that date (part of the medical records and also marked as respondents' exhibit “M” in evidence).
In Dr. Brar's opinion, Nicole did not have Rickets. Dr. Brar testified that the baby did not have the typical radiological signs associated with Ricketts including the flaring usually observed at the ends of the long bones or the rosary pattern that is often seen in the ribs or the changes in the growth plate.
Additionally, Dr. Brar testified that Nicole did not have the metabolic signs sufficient to warrant a Rickets diagnosis. For example, she noted that Nicole's calcium level was 10.3 mg/dl (8.3–10.3 mg/dl). She acknowledged that Nicole's PTH was 112 pg/mL (ref range 15–75 pg/mL). According to the laboratory report, this level was significantly elevated; however, in Dr. Brar's opinion, this level was not abnormal in an infant. Additionally, she emphasized that the PTH level subsequently dropped.
Dr. Brar testified that, at the time that she conducted the consultation, she ordered that the Nicole's vitamin D levels be tested. According Dr. Brar “most importantly at the time of the evaluation I ordered that the vitamin D levels be done” because one of the causes of the fractures could have been vitamin D deficiency. Nevertheless, Dr. Brar did not have the results of those tests by the time she completed her assessment.
Dr. Brar testified that she subsequently learned that the baby's level of vitamin D (D–25 hydroxy) was 24 ngs/mL. According to the laboratory report, that result placed Nicole in the “insufficient” range. According to Dr. Brar, however, that result was not unusual given Nicole's age. Dr. Brar testified that the reference range values listed on the laboratory reports were not controlling because they are meant as guides for adults and not infants.
Dr. Brar testified that the “key diagnostic criteria when [considering] nutritional Rickets is [whether] alkaline phosphatase [is elevated].” Here, the baby's alkaline phosphatase (ALP) on the day of admission was 457 (ref. range < 350 u/l). Dr. Brar testified that this was “slightly elevated;” however, she stated that this was appropriate because she had healing fractures. Dr. Brar testified that elevated levels of ALP are often observed in patients with healing fractures since it is released in order to mobilize calcium and phosphorus at the site to lay down new bone and heal the injury. In any event, Dr. Brar testified that the initial level of 457 u/L was not high enough to be “cause for concern.” She testified that she did not “get alarmed” until the level reached 400 and that, in cases involving Rickets it can be much higher than that.
Dr. Brar testified that breast milk contains plenty of calcium but not enough vitamin D to satisfy an infant's needs. She said that an infant's concentration of these nutrients come from the mother. Dr. Brar testified that did not know whether Nicole had been breastfed.
Petitioner's Rebuttal Witness
ACS called Sarah S. Milla, M.D., F.A.A.P., as a rebuttal witness. Dr. Milla was qualified as an expert in pediatric radiology. Dr. Milla testified that she was employed by New York University Medical Center. Dr. Milla testified that she had five years of experience as a radiologist. She had only testified in one case prior to her testimony in this case. She stated that she spoke to Dr. Palusci in preparing for her testimony. Dr. Milla has co-authored a number of articles, reports and chapters and has lectured about child abuse, pediatric neuroradiology, ultrasound imaging of children, pediatric abdominal masses and the use of MRI to investigate gynecological and obstetric abnormalities, lung cancer and tuberous sclerosis.
Dr. Milla testified that in her opinion Nicole did not have Rickets. She disagreed with the conclusions of Dr. Holick, Dr. Ayoub and Dr. Medows that Nicole had craniotabes or changes in the bones of her skull causing a square or flat-headed appearance. She focused on other radiological signs. She testified that Nicole lacked the signs of cupping and fraying of the long bones.
When asked about the blood test results Dr. Milla testified that, although she was qualified to discuss the radiological evidence, the other issues were more in the expertise of an endocrinologist. Dr. Milla testified that although she did not see radiographic evidence that Nicole had Rickets it was possible that her blood test results could suggest otherwise.
When asked whether she would expect to see evidence of Rickets in x-rays of a 47–day–old infant, Dr. Milla said, “Maybe not.” Dr. Milla agreed with Dr. Palusci that it would ordinarily take about six months for a baby to have the bone changes associated with Rickets to develop. She emphasized that generally more severe cases of Rickets manifest themselves in bone changes at an earlier point in time. Dr. Milla testified that if Nicole had a less severe case there may have been no observable signs on the x-rays. She testified that this was still an evolving area of study and that it was not possible for her to state the precise age that a child with a less severe case would have radiographic signs.
Dr. Milla testified that the hospital's radiological protocol for an infant with fractures is to take two sets of x-rays two weeks apart. However, here the hospital completed three sets of x-rays of Nicole's chest (on July 13, 2009, July 14, 2009 and July 20, 2009) prior to discovering the rib fractures on July 27, 2009.
Dr. Milla testified that signs of callous formation or healing are typically observable between 7 and 14 days after an injury. She testified that babies often heal faster than adults. She also stated that some fractures may be visible before healing begins. Dr. Milla testified that displaced fractures are in this category and that such fractures can generally be seen right away. She testified that CT scans and nuclear medicine studies are more revealing but result in higher levels of radiation exposure and are, therefore, not generally performed on infants.
Dr. Milla testified that, in her opinion, the fracture of the clavicle and femur happened at about the same time and the fractures to the posterior ribs happened at a later point in time. She testified that the x-rays taken on July 20, 2009 indicated that the fracture of the clavicle had a “bridging periosteal reaction and callus formation,” meaning it had signs of healing. The x-rays of the femur taken the same date, revealed “no evidence for periosteal reaction or a callus formation.”
Dr. Milla re-examined the x-rays in court and did not see any signs of rib fractures on the films from July 13, 2009, July 14, 2009 or July 20, 2009. She testified that the July 27, 2009 x-rays, conducted after Nicole had been in the hospital for seven days and then in her grandmother's home for seven days, were the first to reveal evidence of the rib fractures. In Dr. Milla's opinion, the reason that the rib fractures were not observed before the July 27, 2009 was that those fractures were “still in the acute phase,” meaning that healing had not begun. When asked about the fact that Nicole had no bruises associated with the fractures, Dr. Milla offered no opinion indicating that, in her practice, she ordinarily did not see the children themselves but only their radiological films.
Dr. Milla testified that in her opinion the fracture of the clavicle was not indicative of child abuse “because it is a bone that is fractured in many types of trauma, in particular accidental trauma. So it doesn't have high specificity for child abuse.” Dr. Milla testified that the femur fracture required more force because it is a stronger bone, however, she did not believe it was necessarily a sign of abuse. In Dr. Milla's opinion, however, the rib fractures were “specific for abuse.” In this regard, Dr. Milla did not agree with Dr. Palusci who testified that the rib fractures were not specific for child abuse. On that point, Dr. Ayoub agreed with Dr. Palusci that the rib fractures were not specific for abuse.
Legal Analysis
A parent is liable for abuse of his or her child pursuant to Family Court Act § 1012(e)(i) or (ii) respectively, when either they inflict or allow to be inflicted upon such child, physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or create or allow to be created a substantial risk of physical injury to such child by other than accidental means which would likely cause death or serious or protracted disfigurement or protracted impairment of physical or emotional health or protracted loss or the impairment of the function of any bodily organ.
Family Court Act § 1046(a) permits an inference to be drawn so as to establish a prima facie case of abuse or neglect when the child suffers an injury which would not ordinarily occur in the absence of an act or omission of the caretakers (Matter of Philip M., 82 N.Y.2d 238 [1993];In re Ashley RR., 30 A.D.3d 699, 816 N.Y.S.2d 580 [3d Dept 2006] ). Thus, a prima facie case of abuse may be established by evidence of such an injury to a child and that respondents were the caretakers of the child at the time the injury occurred (In re Kayla C., 19 A.D.3d 692, 797 N.Y.S.2d 559 [2d Dept 2005]; In re Infinite G., 11 A.D.3d 688, 783 N.Y.S.2d 656 [2d Dept 2004] ).
In order to establish that the injury would ordinarily not occur absent an act or omission of respondents, ACS may rely on expert testimony to supplant a court's understanding (States v. Lourdes Hospital, 100 N.Y.2d 208, 213 [2003],rearg. denied100 N.Y.2d 577 [2003]citing Restatement 2d of Torts § 328D, Comment d). The assertion that a particular injury does not ordinarily occur in the absence of neglect or abuse should be supported by expert testimony unless that conclusion is within the common understanding of the finder-of-fact.
Where ACS is relying on the doctrine of res ipsa loquitur, the expert's testimony must represent a reasonable degree of medical certainty. It may not be based on supposition or speculation. The doctrine is not applicable where it is merely possible that neglect or abuse was the cause of the injury (Richardson, Evidence § 367, pp. 151–152 [Prince 10th Ed, Cum Supp 1972–1985]; People v. Donohue, 123 A.D.2d 77, 79, 510 N.Y.S.2d 722 [3d Dept 1987], appeal denied69 N.Y.2d 879 [1987] ). Similarly, where the probabilities are at best evenly divided between neglect or abuse and its absence, it becomes the duty of the court to find that there is not sufficient proof (Restatement 2d of Torts, § 328 D, Comment d, p. 159; Spica v. Connor, 56 Misc.2d 364, 365–366, 288 N.Y.S.2d 719 [Dist Ct, Suffolk County 1968]; People v. Miller, 116 A.D.2d 595, 497 N.Y.S.2d 455 [2d Dept 1986] ).
Although ACS is not required to conclusively exclude all other possible explanations, the evidence must reasonably permit the conclusion that neglect or abuse is the more probable explanation (Spica v. Connor, 56 Misc.2d at 365–366, 288 N.Y.S.2d 719;Dermatossian v. NYC Transit Authority, 67 N.Y.2d 219 [1986];Stone v. Courtyard Management Corp., 353 F.3d 155, 158 [2d Cir2003] [plaintiff is not required to altogether eliminate the possibility of other causes of the injury only that their likelihood is so reduced that the greater probability lies at defendant's door]; Nesbit v. New York City Transit Authority, 170 A.D.2d 92, 98, 574 N.Y.S.2d 179 [1st Dept 1991] [evidence that it was probably defendant's negligence that caused the injury is sufficient]; Pavon v. Rudin, 254 A.D.2d 143, 679 N.Y.S.2d 27 [1st Dept 1998] [plaintiff need not conclusively eliminate all other possible explanations; it is enough to present evidence establishing that it is more likely than not that defendant's negligence was the cause] ).
Although the statute is often described as providing for a “presumption” of culpability, it does not create a true presumption. Rather, it creates a permissible inference of culpability that the finder-of-fact may choose to draw upon all the evidence in the record, however, it does not compel a finding in accordance with that inference ( see Id; In re Christopher Anthony M., 46 A.D.3d 896, 898–899, 848 N.Y.S.2d 711 [2d Dept 2007]; In re Jaiden T.G., 89 A.D.3d 1021, 1022–1023, 934 N.Y.S.2d 420 [2d Dept 2011] ).
As the Court of Appeals has explained, just as in negligence cases tried on the theory of res ipsa loquitur, once the petitioner has established a prima facie case under the statute, the burden of explanation shifts to respondents (Matter of Philip M., 82 N.Y.2d at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168;In re Shade B., 99 A.D.3d 1001, 1003, 953 N.Y.S.2d 126 [2d Dept 2012] [petitioner sustained its burden of proving that the four-and-one-half-year old child contracted gonorrhea while in the care of the parents and unexplained evidence that a young child suffers from a sexually-transmitted disease suffices to establish a prima facie case] ).
The shift in the burden of explanation does not shift the burden of proof or the burden of persuasion. It merely confers on ACS an inference of neglect or abuse necessary to establish a prima facie case. The burden shift does not require respondents to present exculpatory evidence. The burden of proof always rests with ACS to prove abuse and neglect by a preponderance of the evidence ( see Id.; In re Seamus K., 33 A.D.3d 1030, 822 N.Y.S.2d 168 [3d Dept 2006]; see alsoFamily Court Act 1046[b][i]; In re Patrick GG., 286 A.D.2d 540, 543–546, 729 N.Y.S.2d 215 [3d Dept 2001] [reversing a res ipsa loquitur finding based on allegations that the mother suffered from Munchausen Syndrome by Proxy where the mother exhibited none of the typical characteristics of the disorder, she did not have a symbiotic relationship with her daughter and she did not seek out an excessive number of medical providers, since no psychiatric evidence was offered, the hospital could not rule out a metabolic disorder and one doctor testified the child's symptoms could be explained by a medical condition] ).
Once a prima facie case of child abuse or neglect is established, the parents may choose to rest and allow the court to decide the case on the strength of ACS's evidence. “While the fact-finder may find respondents accountable for abuse after a prima facie case is established, it is never required to do so” (Matter of Philip M., supra at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168). Instead, the Family Court is required to weigh all the evidence in the record before making a determination regarding abuse or neglect ( Id., at 244, 246, 604 N.Y.S.2d 40, 624 N.E.2d 168;In re Ashley RR., 30 A.D.3d at 700–701, 816 N.Y.S.2d 580).
The parents may also choose to present evidence tending to refute the prima facie case by showing, for example, that the injury could reasonably have occurred accidentally, that is, without any acts or omissions on their part (Matter of Philip M., 82 N.Y.2d 238, 604 N.Y.S.2d 40, 624 N.E.2d 168;In re Ashley RR., 30 AD3d 69; In re Jaiden T.G., 89 A.D.3d 1021, 1022–1023, 934 N.Y.S.2d 420 [2d Dept 2011]; Matter of Eric G., 99 A.D.2d 835, 472 N.Y.S.2d 434 [2d Dept 1984] [evidence was insufficient to establish that the infant's fractured femur was the result of abuse where the child had no other injuries or bruises, the parents had no prior history of abuse and ACS's expert conceded that the injury could have occurred when one of the parents removed the baby from the crib while his leg was caught]; In re Brandyn P., 278 A.D.2d 533, 716 N.Y.S.2d 830 [3d Dept 2000] [abuse petition dismissed where a spiral fracture of the leg of a one-year-old was not accompanied by other physical manifestations of abuse]; Matter of Smith, 128 A.D.2d 784, 513 N.Y.S.2d 483 [2d Dept 1987], appeal denied69 N.Y.2d 613 [1987] [expert testified that reddening around the child's anus could have been caused by a foreign object but could also have been caused by chronic bedwetting, diarrhea or constipation]; In re Myriam L., 17 Misc.3d 1125[A] [Fam Ct, Kings County 2007] [abuse petition dismissed based on expert testimony that the child's depressed skull fracture was caused by an accident]; In re Christopher Anthony M., 46 A.D.3d 896, 898–899, 848 N.Y.S.2d 711 [2d Dept 2007] [allegations dismissed where the father established that the injury could reasonably have occurred accidentally]; Matter of A.G. and K.G., NYLJ, Jan. 13, 1992, p. 25, col. 4 [Fam Ct, Kings County] [allegations of sexual abuse dismissed where expert testimony established that the child's Chlamydia infection could have been acquired through perinatal transmission] ).
SRespondents may also seek to rebut a prima facie case by establishing that during the time that the child was injured she was not in their care or custody ( see e.g., Matter of Vincent M., 193 A.D.2d 398, 597 N.Y.S.2d 309 [1st Dept 1993] [abuse petition dismissed where the mother was not caring for the child when the injuries occurred]; Matter of Philip M., 82 N.Y.2d 238, 604 N.Y.S.2d 40, 624 N.E.2d 168;In re Tony B., 41 A.D.3d 1242, 841 N.Y.S.2d 419 [4th Dept 2007] [abuse petition dismissed where there were other caretakers of the three-month-old child within the 48 hour period before the fractured skull was diagnosed, therefore, the evidence did not establish a prima facie case against any particular person]; In re Ashley RR., 30 A.D.3d 699, 816 N.Y.S.2d 580 [3d Dept 2006] [abuse and neglect petitions against parents dismissed where the evidence suggested that the injury took place while the grandmother was responsible for the children, not when they were in the parents' care]; Matter of Israel S., 308 A.D.2d 356, 764 N.Y.S.2d 96 [1st Dept 2003][neglect petition against the father dismissed where the mother's use of excessive corporal punishment occurred when he was not living with the children]; In re Zachary MM., 276 A.D.2d 876, 714 N.Y.S.2d 557 [3d Dept 2000] [abuse petitions against the child's parents dismissed where the evidence established that the child-care provider injured the child]; In re Kristen B., 283 A.D.2d 195, 724 N.Y.S.2d 303 [1st Dept 2001] [abuse petition against respondent dismissed since the babysitter for the child on the day the injury occurred failed to testify, thus, supporting respondent's contention that she was not with the child when the injury was sustained]; Matter of P. Children, 272 A.D.2d 211, 707 N.Y.S.2d 453 [1st Dept 2000], lv denied95 N.Y.2d 770 [2000] [abuse and neglect petitions against the father dismissed where the mother hit her nine-year-old son causing bruising and lacerations since the father was not present and had no reason to know the child was at risk]; Matter of Robert YY., 199 A.D.2d 690, 605 N.Y.S.2d 418 [3d Dept 1993] [abuse and neglect petitions dismissed since the evidence established the mother was napping when the child was injured while with the father]; In re Jaiden T.G., 89 A.D.3d 1021, 1022–1023, 934 N.Y.S.2d 420 [2d Dept 2011] [petitioner established a prima facie case by presenting evidence that the four-month-old child suffered a Greenstick fracture, that a child of that age would not normally sustain such a fracture accidentally and that the mother's explanation was inconsistent with the injury; however, the mother rebutted the evidence by establishing that the child was solely in the care of her paramour when it happened]; Matter of Ana P., 13 Misc.3d 855, 827 N.Y.S.2d 525 [Fam Ct, Albany County 2006] [allegations of abuse against the mother dismissed where petitioner's own witness testified that the child's sexually transmitted disease was probably not caused by her] ).
In the instant case, respondent parents assert that the allegations of abuse should be dismissed for a number of reasons. First, they assert that ACS has failed to establish that the injuries sustained by Nicole would not ordinarily have occurred without child abuse or neglect. Respondents contend that, given Nicole's Rickets or vitamin D deficiency and her increased susceptibility to fractures, ACS failed to establish that her injuries would not have occurred absent any act or omission on their part. Alternatively, respondents assert that even if ACS had established a prima facie case, they succeeded in rebutting it by proving that Nicole suffered from Rickets or vitamin D deficient bone disease and that, as a result, she was more susceptible to fractures from minimal force, including activities related to routine child and medical care.
Second, respondents assert that ACS failed to establish that the child was in their exclusive care and control during the time that the rib fractures most likely occurred. Accordingly, respondents assert that they have rebutted any permissible inference of abuse as to the ribs fractures by establishing that the fractures occurred when Nicole was in the hospital and no longer in their exclusive care and custody.
Based upon consideration of counsels' written summations, the case and statutory law and all the evidence introduced, including the expert testimony, the Court finds that respondents have succeeded in rebutting the prima facie case established by ACS. This conclusion is based on the evidence adduced by respondents establishing that the child's fractures were the result of infantile Rickets or vitamin D deficient bone disease which led to an impairment of Nicole's skeletal health and left her vulnerable to fractures with minimal force. Additionally, the Court finds that the rib fractures were sustained after Nicole was hospitalized and that numerous other adults were primarily responsible for her care when these injuries were sustained. In the Court's view, respondents have rebutted the res ipsa loquitur statutory inference and, further, that the record as a whole does not support a finding that respondents abused their child.
1. The Child's Injury Most Likely Occurred by Unintentional Means
Family Court Act § 1046(a)(ii) attempts to strike a reasonable balance between the parents' right to care for their child and the child's right to be free from harm. The establishment of a prima facie case does not require the court to find that the parents were culpable; it merely establishes a rebuttable inference of parental culpability which the court may or may not accept based upon all the evidence in the record.
Before relying upon the statutory inference, the Court is required to consider such factors as the strength of the prima facie case, the credibility of the witnesses testifying in support of and opposition to the assertion of culpability, the nature of the injuries, the age of the child, the medical evidence and the reasonableness of respondents' explanation in light of all the circumstances. In weighing respondents' explanation, the Court may consider the inferences reasonably drawn from their actions upon learning of the injuries. Certainly, if respondent had failed to offer any explanation for the child's injuries, failed to treat the child or failed to show how future injuries could be prevented, these would be factors that would be considered by the Court, since they would reflect not only on respondents' culpability and competence but also the strength of respondents' rebuttal evidence.
In the instant case, ACS sought, through the testimony of Dr. Palusci and Dr. Milla, to establish that the baby's fracture could not have occurred absent an act or omission by her parents. Although the Court found both Dr. Palusci and Dr. Milla to be caring and dedicated professionals, they lacked the extensive professional experience, training and recognition enjoyed collectively by respondents' experts in the relevant area of specialization. Accordingly, the Court credited the testimony of Michael F. Holick, M.D., PhD.; David Ayoub, M.D. and Gary S. Medows, M.D., F.A.A.P., to the extent that the experts' views diverged. This determination was based on numerous factors.
First, in the Court's view, respondents' experts were more qualified to diagnose infantile Rickets and vitamin D deficient bone disease. Although ACS and the Attorney for the Child emphasize that Dr. Palusci is an expert in child abuse, the fact remains that respondents' experts had far more experience researching, diagnosing and treating infants and adults with Rickets and vitamin D deficient bone disease than either Dr. Palusci or Dr. Milla.
Dr. Palusci's resume indicates that his area of focus is child maltreatment and fatalities. His major research interest is traumatic brain injury and differentiating between sexual abuse and other conditions. Dr. Milla's resume indicates that her areas of interest are child abuse, neuroradiology, the ultrasound imaging of children and the use of MRI to investigate gynecological and obstetric abnormalities.
In contrast, Dr. Holick's work has focused on vitamin D deficiency and its impact on bone development. He has engaged in original research and authored a multitude of reports, articles, letters and books on the specific issue before the Court, e.g., distinguishing Rickets and metabolic bone disease from normal bone in a developing infant. He has devised, conducted and supervised hundreds of research studies about the sources and structure of vitamin D, as well as its synthesis, metabolism, absorption and transportation. Dr. Holick's research has also focused on the impact of skin pigment, sunlight and ultraviolet light on vitamin D synthesis and metabolism. Dr. Holick is widely cited by other researchers and is considered a national—if not international—expert in the fields of metabolic bone disease, vitamin D and the physiology of calcium metabolism. Additionally, Dr. Ayoub's specialty is radiology and he has worked on the problem of distinguishing the radiological signs of Rickets and vitamin D deficiency from child abuse. Dr. Medows is an expert in pediatrics and child abuse and he has testified repeatedly about the specific issue presented in this case.
Second, in the Court's view, respondents' experts conducted far more careful, detailed and comprehensive evaluations of Nicole's skeletal health than either Dr. Palusci or Dr. Milla. Before respondents' expert reached their conclusions they reviewed all of Nicole's medical records. They reviewed the mother's medical records. They directed the mother to be tested for vitamin D deficiency. They interviewed both parents. They examined Nicole. They learned about the mother's medical history. They asked about her pregnancy. They asked about her diet and whether she took any vitamin supplements before during and after her pregnancy. They considered whether the mother was capable during or after her pregnancy of transferring to her infant daughter the minimum quantities of vitamin D, calcium and other nutrients required to build and develop healthy bones. They considered whether the mother was vitamin D deficient during and after her pregnancy and they evaluated whether such a deficiency could have caused or contributed to Nicole's fractures.
In conducting their evaluations, respondents' experts also considered that the mother suffered from morning sickness for most of her pregnancy. They considered that, as a result of the mother's vomiting, she was unable to digest and absorb the prenatal vitamins and calcium supplements necessary to support healthy fetal skeletal development. These factors are particularly important given the undisputed evidence that a vitamin D deficiency in the mother would have a significant impact on her infant's bone health.
Thus, the Court credited the opinions expressed by respondents' experts that the mother was vitamin D deficient during her pregnancy and after Nicole's birth. This resulted in her daughter being born with inadequate vitamin D stores to draw on in early life, since the mother was her original source of calcium and vitamin D. Additionally, since the mother was vitamin D deficient when Nicole was born and she breastfeed, the mother unknowingly provided inadequate levels of vitamin D to Nicole after her birth. Nicole's ability to recover from this deficiency was impeded by the fact that she had difficulty adjusting to breast milk and then formula. As a result, Nicole suffered from bouts of diarrhea which further diminished her ability to absorb the nutrients she needed for proper bone health.
Additionally, the Court credited the testimony of respondents' experts that Nicole's metabolic functioning supported a diagnosis of vitamin D deficient bone disease and rejected the contrary testimony of Dr. Palusci and Dr. Brar. Dr. Palusci's testimony that Nicole test results established “insufficiencies rather than full-blown disease,” is inconsistent with Dr. Brar's testimony. Dr. Brar's testimony that Nicole's test results were normal for an infant in her circumstances is inconsistent with the standards established by New York University Medical Center's laboratories. Dr. Brar's testimony that the laboratory's standards are only valid for adults was not supported by the testimony of any other expert.
The Court credits the testimony of respondents' experts that Nicole had metabolic test results typical for an infant with Rickets or vitamin deficient bone disease. She had elevated levels of alkaline phosphatase (457 [<350 u/l] ) and parathyroid hormone or PTH (112 pg/mL, ref range 15–75 pg/mL). Nicole's vitamin D levels, once they were finally tested on the fourth day of her hospitalization, were consistent with the levels expected for an infant with vitamin D deficient bone disease (1, 25–dihydroxy [vitamin D 2], was elevated at 105 pg/mL [ref range 15–75 pg/mL] and her vitamin D, 25 hydroxy [vitamin D 3] was insufficient at 24 ng/mL [ref range 30–80 ng/mL] ).
The Court further credits the testimony of respondents' experts that Nicole's x-rays revealed signs of Infantile Rickets or vitamin deficient bone disease. The testimony of Dr. Palusci and Dr. Milla that Nicole's x-rays showed little evidence of bone abnormality warranting further exploration—let alone evidence that her bones were more vulnerable to fracturing-was contradicted by Dr. Holick, Dr. Ayoub and Dr. Medows, as well as the observations of this Court.
During Dr. Ayoub testimony, he used the x-rays taken at New York University Medical Center to demonstrate the skeletal changes he observed. He showed one x-ray of Nicole's leg and pointed out the changes caused by vitamin D deficiency. These included a spur on the front of her tibia as well as changes on the growth plate and in the zone of provisional calcification. He showed one x-ray of Nicole's femur and pointed to the places where he observed a pathological increase in her cartilage and other rachitic changes. He also showed x-rays of Nicole's skull and pointed out where her head had become abnormally flattened and other rachitic changes.
Respondents' experts each testified within a reasonable degree of medical certainty that Nicole suffered from infantile Rickets or vitamin D deficient bone disease and that, as a result, she would have sustained fractures more easily and with less force than an infant without her medical condition. Further, Dr. Holick and Dr. Medows testified that, in their opinions, Nicole was vitamin D deficient in utero and after she was born. Respondents' experts each testified that because of her mother's vitamin D deficiency, Nicole never received an adequate supply of the nutrients necessary to ensure that her skeleton developed normally. The expert testimony established that this put Nicole at an extremely high risk for Infantile Rickets which created the risk for fractures from minimum force.
Respondents' experts explained that children with vitamin D deficiency frequently suffer from low bone density and consequently are more likely to sustain fractures. Respondents' experts described the evidence that they considered in reaching the conclusion that these were unintentional injuries, including the lack of bruising, bleeding and the absence of any pattern to the injury.
In contrast, Dr. Palusci's diagnosis of child abuse was based on an incomplete evaluation. In his words, it was based on the information he knew on July 14, 2009, which he believed established “physical abuse until we identify some other cause.” When Dr. Palusci made his diagnosis, he did not have Nicole's vitamin D levels. The hospital had not performed a bone density test or a test for any other bone disease. As Dr. Palusci acknowledged that, at the time he made his diagnosis, he did not know whether Nicole had Rickets or not.
Dr. Palusci testified that he did not order further testing to evaluate Nicole's bone health because her x-rays did not contain evidence of pathology. Nevertheless, even if that were true, he and Dr. Milla both acknowledged that x-ray abnormalities do not ordinarily appear until a child is six months of age. Additionally, the expert testimony established that Nicole's significantly elevated levels of alkaline phosphatase and PTH should have caused Dr. Palusci to inquire further. Further, the expert testimony established that further inquiry should have been conducted once it was evident that Nicole had many of the known risk factors associated with Infantile Rickets and vitamin D deficient bone disease.
Dr. Palusci acknowledged that if a mother is vitamin D deficient and breastfeeding she will provide her infant with insufficient vitamin D unless the infant is receiving direct sunlight or vitamin supplements. Despite this knowledge, Dr. Palusci did not wait until he obtained the baby's vitamin D levels. He did not inquire about the mother's vitamin D levels. He did not ask whether the mother's levels had ever been tested or any other questions about the mother's medical history. He did not ask the parents whether the baby had been taken outside or whether she had been exposed to direct sunlight or whether she had been given vitamin supplements. He did not ask the mother about her diet before or after the baby's birth. He did not ask the mother whether she took vitamin supplements during or after her pregnancy.
Third, Dr. Palusci's expertise in child abuse did not provide this Court with any particular insight in this case. Dr. Palusci could not determine how, when, why or the mechanism by which these injuries were supposedly inflicted upon Nicole. Nor could he determine how much force was required in order to cause the injuries. He could not state that the injuries were the result of a deliberate act or inflicted trauma.In addition, he acknowledged that “each individual injury may have an abuse cause or it could have a non-abusive cause with the proper medical history and evaluation.” He testified that there was a likelihood that all of the injuries had a non-abusive cause but that he did not know what the likelihood was. This is similar to the testimony deemed insufficient to establish abuse by the Appellate Division, Second Department in Matter of Eric G. (99 A.D.2d 835, 472 N.Y.S.2d 434 [evidence was insufficient to establish that infant's fractured femur was the result of abuse where petitioner's expert conceded that the injury could have occurred when one of the parents removed the baby from the crib while his leg was caught between the crib's railings, the child had no other injuries or bruises and the parents had no prior history of child abuse]; see also Matter of Smith, 128 A.D.2d 784, 513 N.Y.S.2d 483;In re Myriam L., 17 Misc.3d 1125[A]; In re Christopher Anthony M., 46 A.D.3d 896, 848 N.Y.S.2d 711;Matter of A.G. and K.G., NYLJ, Jan. 13, 1992, p. 25, col. 4).
One case factually similar to the instant case is Division of Youth and Family Services v. J.L. (400 N.J.Super. 454, 473, 948 A.2d 172 [NJ Super AD 2008] ). In that New Jersey case, decided under statutory provisions essentially identical to provisions in Article 10, the appellate court affirmed an order of the Family Court dismissing an abuse petition. The New Jersey statute, like Family Court Act § 1049(a), contained a provision allowing for an abuse finding based on res ipsa loquitur.
The Court found that the parents had rebutted a prima facie case arising from unexplained leg fractures where the baby could have had weak and vulnerable bones; routine and benign physical activities during prior medical procedures could have caused some of the fractures and the baby had been under the care of medical personnel during some of the relevant period. The Court noted that the parents had regularly taken the baby for check-ups and other medical care when it appeared to be indicated. For example, when the baby displayed signs of jaundice, the mother promptly took her to have her Bilirubin level tested. When the doctor recommended that the mother take the baby to the hospital, the mother complied and then followed all recommended treatments.
During certain medical testing of the baby the mother was asked to leave the room at the suggestion of the medical personnel who warned that “it wouldn't be pretty.” When the mother subsequently noticed that the baby was holding her leg in an unusual position and that she seemed irritable, she immediately contacted the baby's doctor who instructed her to take the baby to the hospital. X-rays revealed that the baby sustained multiple fractures, which the parents were unable to explain.
A treating pediatrician from the hospital ruled that out Osteogenesis Imperfecta, metabolic or genetic factors as possible causes for the injuries. The pediatrician discounted the baby's frequent vomiting as a contributing factor because the baby's calcium and phosphorus levels were within normal range.
According to a pediatric radiologist who reviewed the x-rays, the baby suffered nine fractures. The radiologist rejected the defense theories that the injuries could have been caused by a metabolic condition or by accident when restraints were used to hold the baby in place during medical procedures. The expert acknowledged, however, that the baby did not have any outward signs of injury prior to the onset of swelling that a lay person would have observed. She also acknowledged that she could not conclusively determine how the injuries were caused, nor could she determine how much force was required in order to cause them.
Both parents testified and denied any abuse. The mother testified that her pregnancy was planned and she received full prenatal care. She also described the comprehensive medical care the baby received during the first three months of her life. She testified she was “shocked” by the discovery of the fractures. The father described the events that took place when the baby was first brought to the hospital. He said one radiology technician twisted the baby's legs to obtain different views. At the time, he expressed concern that the technician was hurting his daughter.
The parents called a forensic pathologist to testify. She noted that the mother and grandmother had histories of osteopenia and osteoporosis. She testified that the baby had a history of recurrent vomiting, noting that she was not able to absorb adequate nutrients to develop a healthy skeletal system. The expert concluded that the baby could have had weak bones, which medical testing did not rule out. The expert added that “calcium and potassium levels are not a measure of bone function, metabolism, or strength.” She further testified that a child with weak bones is particularly vulnerable to an injury in the hospital. She noted that in any medical procedure done on a three-month-old, the child has to be restrained. She cited the medical literature in support of her testimony that even benign medical care in a child with otherwise weak bones can cause a fracture. She explained that the baby had been subject to restraints during the period when she had probably sustained some of the fractures. This led her to conclude that the injuries may not have occurred while the baby was in the care of the parents.
The expert further testified that the baby's leg fractures occurred in the growth plate. The expert opined that such injuries can be sustained if a baby is flipped over from back to stomach using one or both legs. She explained that infants younger than four months of age often develop these kinds of fractures. She testified that there were no studies that established the degree of force required to cause such fractures. The expert concluded that there was no way to conclude within a reasonable degree of medical certainty that the cause of the injuries was inflicted or intentional trauma. However, she could not say that the injuries were not the result of child abuse.
The Appellate Court affirmed the Family Court's dismissal of the petitions finding that the inference of abuse resulting from the prima facie case had been successfully overcome by the parents. As the expert explained metabolic and nutritional forces were at work, including the family history of osteopenia and osteoporosis, which could have made the baby's bones unusually fragile. As the expert also explained, the fragile growth plates, which were most vulnerable when a baby was younger than four months of age, can easily sustain fractures with minimal force and that such fractures have been known to occur during medical procedures (Division of Youth and Family Services v. J.L., 400 N.J.Super. at 473, 948 A.2d 172).
The reasoning and result in DYFS v. J.L. are certainly relevant here. There are numerous factual similarities between Division DYFS v. J.L. and the instant case. Additionally, here the expert testimony offered by the parents was far more persuasive than the testimony presented in DYFS v. J.L. Here, the baby had many of the metabolic changes associated with bone fragility and three medical experts testified that she had the radiological signs associated with infantile Rickets. Additionally, in the instant case, three well qualified experts testified with a reasonable degree of medical certainty that the baby had infantile Rickets or vitamin D deficient bone disease.
Indeed, in the instant case, Dr. Palusci's testimony simply established that, in his opinion, neither Rickets nor vitamin D deficiency was a contributing factor to the infant's injuries. Therefore, since he had no other identified cause, abuse was the presumed cause “until [we are able to] identify some other cause.” That, in the Court's view, is not persuasive expert testimony establishing that abuse was the cause. It is simply a restatement of the permissible inference set forth in Family Court Act § 1046(a). In other words, since Nicole, a 47–day old baby, suffered two fractures and there was no cause that Dr. Palusci was able to identify, abuse was presumed to be the cause (Matter of Philip M., 82 N.Y.2d 238 [1993];In re Ashley RR., 30 A.D.3d 699, 816 N.Y.S.2d 580 [3d Dept 2006] ).
Finally, in the Court's view, the conclusions reached by respondents' experts are wholly consistent with the Court's view of the character and credibility of the mother and the father. This view is based on the Court's observations of the parents for four years as well as the observations of hospital workers and ACS caseworkers indicating that they were dedicated, loving, careful and committed parents who were clearly as bonded to Nicole as Nicole was to them. In this regard the Court notes that Nicole had no other injuries or bruises. The parents had no prior history of child abuse or neglect. They had no prior criminal or family court history. Neither parent had any history of substance abuse or violence.
In reaching this conclusion, the Court has also considered the parents' credible testimony that they were thrilled when they learned of the pregnancy, that they both attended parenting classes and that they were totally prepared for the pregnancy. Additionally, the Court has considered that the evidence concerning the parents' relationship to and care of Nicole has been uniformly positive. The parents are attentive to and knowledgeable about their daughter's needs and involved with every aspect of her care. They were shocked to learn about the injuries. They were appropriately concerned with her medical condition. They were completely cooperative with hospital staff, ACS and the police department.
From the moment that Nicole was admitted to the hospital she wanted to be held and comforted by her parents. She was affectionate with both of them and they were attentive and affectionate with her. Members of the baby's extended family were consistently present and involved from the outset, including the maternal grandmother as well as numerous uncles and aunts. Additionally, from the moment that Nicole was born, the parents sought prompt, regular and ongoing medical attention whenever any issue arose. They immediately followed-up on every suggestion made by any of Nicole's medical providers.
Moreover, although they adamantly denied culpability for Nicole's injuries from the outset, they were nevertheless compliant with ACS supervision and recommendations throughout this protracted litigation. They completed all recommended services before the fact-finding hearing started and complied with every court order that was entered. Despite the protracted nature of this litigation, they never acted frustrated or impatient with ACS caseworkers. In sum, the records as a whole support the conclusion that Nicole's injuries were not the result of abuse or neglect on the part of either parent. As even ACS caseworkers ultimately concluded, Nicole would not be at risk of abuse or neglect if she were released to her parents without supervision.
2. The Child's Rib Injury Occurred during a Period of Time when she was in the Care of Hospital Personnel rather than Respondent Parents
In the instant case, respondents rebutted any permissible inference of abuse as to Nicole's ribs fractures by establishing that these fractures occurred when Nicole was in the hospital and no longer in the exclusive care and custody of her parents (Matter of Vincent M., 193 A.D.2d 398, 597 N.Y.S.2d 309 [1st Dept 1993]; Matter of Philip M., 82 N.Y.2d 238, 604 N.Y.S.2d 40, 624 N.E.2d 168;In re Tony B., 41 A.D.3d 1242, 841 N.Y.S.2d 419 [4th Dept 2007]; In re Ashley RR., 30 A.D.3d 699, 816 N.Y.S.2d 580 [3d Dept 2006]; Matter of Israel S., 308 A.D.2d 356, 764 N.Y.S.2d 96 [1st Dept 2003]; In re Zachary MM., 276 A.D.2d 876, 714 N.Y.S.2d 557 [3d Dept 2000]; In re Kristen B., 283 A.D.2d 195, 724 N.Y.S.2d 303 [1st Dept 2001]; Matter of P. Children, 272 A.D.2d 211, 707 N.Y.S.2d 453 [1st Dept 2000], lv denied95 N.Y.2d 770 [2000];Matter of Robert YY., 199 A.D.2d 690, 605 N.Y.S.2d 418 [3d Dept 1993]; In re Jaiden T.G., 89 A.D.3d 1021, 1022–1023, 934 N.Y.S.2d 420 [2d Dept 2011]; Matter of Ana P., 13 Misc.3d 855, 827 N.Y.S.2d 525 [Fam Ct, Albany County 2006] ).Nicole was admitted to the hospital on July 13, 2009. On that date, she had a fracture to her clavicle and to her femur; she had no rib fractures. Between July 13, 2009 and July 20, 2009, three sets of high quality x-rays were taken and they revealed no evidence of any rib fractures. During that one-week period Nicole remained hospitalized. Respondents were not primarily responsible for her care. She was in the custody of medical personnel and subjected to various medical procedures, including blood testing, which required physical restraint.On July 20, 2009, Nicole was discharged from the hospital. On that date, she had no signs of any rib fractures. Between July 20, 2009 and July 27, 2009, Nicole was in the care of her maternal grandmother. On July 27, 2009, a fourth set of chest x-rays was taken. These x-rays revealed two rib fractures for the first time. During the fact-finding hearing, experts for both ACS and respondents reviewed the three earlier sets of chest x-rays. They all confirmed that there were no signs of rib fractures on any of those films.The experts for ACS (including Dr. Palusci) and respondents testified that it takes approximately 10 days for rib fractures to show signs of callous formation or healing. It is at that time that the fractures become visible on an x-ray. In Dr. Milla's opinion, however, it can take up to 14 days for rib fractures to become visible on an x-ray. She testified that this is simply an approximation. She noted that babies often heal faster than adults and that some fractures may be visible before healing begins. In the Court's view, a preponderance of the evidence supports the conclusion that Nicole's rib fractures were sustained on or about July 17, 2009. Dr. Milla's testimony that the fractures could have been sustained prior to that date is insufficient to establish the requisite element of res ipsa loquitur, that is, that the child was in the exclusive care and custody of respondents when the injury was sustained.
In reaching this conclusion the Court has also considered that one of respondents' experts acknowledged that the rib fractures could have been sustained prior to July 17, 2009. Nevertheless, the record as a whole fell far short of establishing, within a reasonable degree of medical certainty, that the injuries took place while Nicole was in the care of her parents. The mere possibility that abuse was the cause of the injury is insufficient (Richardson, Evidence § 367, pp. 151–152 [Prince 10th Ed] [Cum Supp, 1972–1985]; People v. Donohue, 123 A.D.2d 77, 79, 510 N.Y.S.2d 722 [3d Dept 1987], appeal denied69 N.Y.2d 879 [1987] ). Even where the probabilities are evenly divided between abuse and its absence, it is the duty of the court to find the proof insufficient (Restatement 2d of Torts, § 328 D, Comment d, p. 159; Spica v. Connor, 56 Misc.2d 364, 365–366, 288 N.Y.S.2d 719 [Dist Ct, Suffolk County 1968]; People v. Miller, 116 A.D.2d 595, 497 N.Y.S.2d 455 [2d Dept 1986] ). Although ACS is not required to conclusively exclude all other possible explanations, the evidence must reasonably permit the conclusion that abuse is the more probable explanation (Spica v. Connor, 56 Misc.2d at 365–366, 288 N.Y.S.2d 719;Dermatossian v. NYC Transit Authority, 67 N.Y.2d 219 [1986];Stone v. Courtyard Management Corp., 353 F.3d 155, 158 [2d Cir2003]; Nesbit v. New York City Transit Authority, 170 A.D.2d 92, 98, 574 N.Y.S.2d 179 [1st Dept 1991]; Pavon v. Rudin, 254 A.D.2d 143, 679 N.Y.S.2d 27 [1st Dept 1998] ).
Considering these standards in light of the instant case, the Court finds that a preponderance of the evidence establishes that the rib fractures occurred after Nicole was admitted to the hospital. Expert testimony that the fractures could have taken place while Nicole was still in the care of her parents is insufficient to support a finding of parental culpability. Accordingly, the Court concludes that respondents were not the primary caretakers of the infant during the period that she most likely sustained the fractured ribs, therefore, with respect to this injury the evidence did not establish a prima facie case of abuse against any particular person or persons. 3.Petitioner Failed to Establish a Prima facie Case with respect to Nicole's Alleged Liver Injury
ACS failed to establish that Nicole suffered an injury to her liver or her eye—let alone an injury that ordinarily would not have occurred in the absence of acts or omissions on the part of respondents. Throughout Nicole's hospitalization, her Bilirubin, liver enzymes and clotting-factor level were abnormal. Although there was a slight change for the better during Nicole's hospital stay, these levels were abnormal when she arrived at the hospital and when she left. According to Dr. Palusci the fact that the enzymes increased and then decreased rapidly suggested trauma. Nevertheless, a cursory review of the laboratory results establishes that her Bilirubin and liver enzyme levels remained consistently elevated during her hospitalization. They did not increase and then decrease. Regarding this issue, Dr. Medows testified that Nicole's “liver function tests were abnormal when she came in, and they were abnormal when she went out.” Similarly, when Dr. Holick was asked if there was any proof of liver damage, he replied that Nicole had elevated levels of Bilirubin “right at the time that the infant was born so that will definitely have an impact on the liver. And because the infant was treated with blue lights you would expect that the liver enzymes were going to be elevated and would gradually continue to decrease because the liver health is now improving.”
Additionally, subsequent testing established that Nicole's liver was normal. Dr. Palusci ordered an abdominal sonogram. The report from that sonogram indicated that Nicole had “some free fluid” adjacent to the liver; however, the report otherwise indicated that Nicole's liver was normal in size and texture and that there was no indication of any liver abnormality. With respect to the sonogram, Dr. Holick testified that the “bowel was up against the liver” and contained fluid, however, he concluded that the fluid was not inside the liver. Dr. Medows also testified that the fluid was inside the bowel, rather than the liver. In his opinion, the fluid was a sign that the baby had eaten, not a sign of child abuse.
After the sonogram was concluded an x-ray of the liver was done. It was reviewed by two New York University Medical Center radiologists who confirmed that there was no injury to the liver. In fact, one radiologist saw no fluid in or near the liver and the other radiologist concluded that the finding was unrelated to the liver. Dr. Milla was one of the radiologists who reviewed the liver x-ray. She did not find any evidence of trauma. Dr. Milla reported observing a “small amount of free fluid adjacent to the liver.” She then wrote that “the liver is normal in size and echotexture. No focal masses or lacerations are seen. The gallbladder is normally distended. The common bile duct is normal in size. [N]o evidence for intra or extra-hepatic biliary dilations. The pancreas is sonographically unremarkable. The kidney is normal in size” (New York University Medical Center, medical report dated 7/20/2009, p. 4, and interpreted by Sarah Milla, M.D.). Additionally, the medical records dated July 20, 2009, indicate that there is “no evidence of spleen or liver injury.” Given this evidence the Court finds that Nicole did not have any liver abnormality as a result of trauma or any other cause except her early jaundice and the treatment used as a result. The fact that Dr. Palusci continued to insist that Nicole may have sustained liver damage as a result of trauma simply undermined his credibility and caused the Court to question his conclusions on other points as well. 4.Petitioner Failed to Establish a Prima facie Case with respect to Nicole's Alleged Eye Injury
Dr. Palusci testified that “the same trauma” that he believed affected the liver “may have contributed to a broken blood vessel on the sclera.” He described this alleged injury as “a subconjunctival hemorrhage on the eye, not sitting in the visual field where the light goes in, but on the white part of the eye.” When he described the finding, he stated that it was “just a little red spot there.” Dr. Palusci further testified that a “subconjunctival hemorrhage is often related to increased abdominal pressure.” He explained that such spots can occur where the “abdomen [is] being compressed by a force.” According to Dr. Palusci such spots can result in adults “where you bear down when you have a bowel movement.”
Dr. Holick, Dr. Medows and the New York University Medical Center pediatric ophthalmologist disagreed with Dr. Palusci's testimony about the significance of the “little red spot” in the baby's eye. Dr. Medows testified that the hospital was looking for retinal damage and, instead, found a small insignificant irritation. Additionally, as Dr. Medows testified, according to the hospital, a pediatric ophthalmologist examined Nicole's eye and found her eye to be normal in all respects. Dr. Palusci apparently refused to accept the conclusion of his own subspecialist, the pediatric ophthalmologist, who found there was no evidence of eye trauma.
As Dr. Medows testified, the small mark on Nicole's eye was “very, very superficial.” He testified that it could have happened in many ways, including the baby rubbing against a blanket or rubbing her eye with her hand. This explanation is not only consistent with the findings of the pediatric ophthalmologist but it is also consistent with respondents' testimony that they placed mittens on Nicole's hand to protect her from her own frequent scratching.
In any event, Dr. Palusci failed to explain what relevance his example of an adult “bearing down” during a bowel movement had to this case. He did not suggest that infants of Nicole's age were likely to sustain red spots in their eyes while struggling with constipation. Additionally, he never explained how Nicole could have sustained a spot on her eye as the result of blunt force trauma to the abdomen while at the same time not sustaining any abdominal marks or bruises. Further, as the hospital records establish, there was no evidence to support Dr. Palusci's suggestion that there was an injury to the liver let alone an injury of sufficient force to have caused a broken blood vessel in the eye.
Accordingly, the Court rejects Dr. Palusci's speculative and unsubstantiated testimony about the possibility of an injury to Nicole's liver and her eye. The Court finds that there is no credible evidence to establish that the two independent radiologists who found “no evidence of spleen or liver injury” or that the New York University Medical Center pediatric ophthalmologist who found Nicole's eye normal in all respects, were incorrect. The fact that Dr. Palusci and ACS continue to assert that that Nicole suffered these injuries when more qualified experts concluded otherwise, simply raises doubts about other aspects of their assertions.
Conclusion
In the instant case, ACS failed to establish that the injuries most likely occurred by non-accidental means and that the child was in the exclusive care and custody of respondent parents when these injuries most likely occurred. Since the abuse case is predicated solely upon the doctrine of res ipsa loquitur and since no direct evidence of abuse was introduced, the abuse allegations are therefore dismissed.
Accordingly, it is
ORDERED, that respondent father's motion to dismiss the allegations of child abuse against him is granted; and it is further
ORDERED, that respondent mother's motion to dismiss the allegations of child abuse against her is granted.