Interview by BEVANJAE KELLEY and JOVONNA FRIESON

In March, the Houston Chronicle published a story about a Texas judge who took the rare step of punishing a child welfare agency for rushing to remove children from home.

The case started in January when Darcy and Tye Miller brought one of their newborn twins to the Texas Children’s Hospital with bronchitis. The baby’s X-ray showed healing rib fractures that the parents could not explain. The hospital asked the parents to bring their other two children in for X-rays and found the same fractures in the other twin.

An expert later testified that, because the twins were premature, the fractures could’ve been caused simply by the parents picking them up. But CPS rushed to place the children in foster care. First, CPS asked the parents to place their children with relatives during the investigation. Then, without telling the judge about the voluntary agreement, CPS asked for emergency custody.

In an unusual twist, though, the judge dismissed the case March, calling it “groundless” and requiring that child protective services pay $32,000 of the family’s legal fees and that the caseworker and her supervisor write a report proving that they understand the state’s child removal statutes. “The offensive conduct by (CPS) has significantly interfered with the legitimate exercise of the traditional core functions of this court,” the judge wrote.

Most parents face a tougher battle contesting a medical diagnosis in court. Diana Rugh Johnson, an attorney and child welfare law specialist in Atlanta, Georgia, has represented parents accused of child abuse because of a hospital misdiagnosis. Here, she explains how these medical misdiagnoses happen and what parents can do to protect their families.

Q: How do you see families affected by medical misdiagnoses and child welfare?

A: There were two parts to the case in Texas that felt very familiar.One was the misdiagnosis. It’s very frustrating that child abuse doctors in hospitals usually don’t have any expertise in premature babies. In 2006 the American Board of Medical Specialties approved Child Abuse Pediatrics as a recognized specialty. The first certifications were issued in 2009, so there are only a small handful of pediatricians who have earned the certification.

The second part was the unnecessary removal. Here in Atlanta, hospitals will often call law enforcement to remove the child, which keeps child protective services from making the required reasonable efforts to find a relative to care for the child instead of the child going into foster care with strangers.

I have had several similar cases in the last two years. Most recently, I represented parents of an extremely premature infant, who was born at 24-weeks gestation and remained in intensive care for more than two months. When the case started the baby was 5 months old, but developmentally she was the equivalent of an 8-week-old baby.

There were three children in the family, including a very active 17-month-old. On the day the baby was injured, the father put the baby in her crib and the 17-month-old was lying on the parents’ bed. The father went into the kitchen and was preparing a bottle when he heard the baby scream. When he went back to the room, the toddler was standing near the crib and the baby’s arm was hanging out of the crib through the slats.

The father checked the baby all over and saw that she wasn’t moving her arm and her elbow was very, very tender. He called his wife at work and said, “Come home, the baby’s arm is hurt.” It turned out that the baby had a fracture of the upper arm bone right at the elbow. The doctor didn’t feel comfortable splinting such a small baby, so he sent her over to the local children’s hospital. That’s when everything went wrong.

The emergency room doctor at the children’s hospital called for a child abuse consult. The child abuse specialist interviewed both parents and decided she didn’t believe their version of the events leading up to the injury. She ordered additional X-rays, which revealed a healed posterior rib fracture. It also revealed irregularities on the bones of the baby’s forearms at the wrists on both sides. That is when they said, “This must be child abuse” and called law enforcement and the Department of Family and Children Services (DFCS). Law enforcement removed not only the baby from the parents' custody, but the toddler and the 8-year-old sister too.

At the first hearing, I was able to show that there was no reason to remove the two older siblings, so they were immediately returned to the parents. The baby was able to leave foster care and go to a relative’s home until the trial, which was a month later.

At the trial, the baby’s neonatologist testified that extremely premature babies have very fragile skeletons and that the healing rib fracture most likely happened while the baby was still in-patient in the intensive care unit. The alleged wrist fractures were just the frayed edges of the long bones that are commonly seen in extremely premature infants with metabolic bone disease. After a full trial, the judge dismissed DFCS’s petition and said in her ruling, “Well, this case shows how dangerous it can be to take your infant to the hospital.” It was very satisfying to win the case, but nothing can erase the hell that the parents went through.
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Q: What are some of the reasons these false diagnoses are made?

A: I think there’s a little bit of prejudice and a little bit of “Just to be on the safe side we can’t rule out child abuse.” The sad part is that the doctors who make these diagnoses often fail to consider alternative explanations for the injuries. Those alternative explanations don’t get considered until the trial.

In one case I tried, the parents were accused of abuse, but the mother, who was a pediatric nurse practitioner, suspected her baby had rickets. When I got the case, we had the baby evaluated by an endocrinologist, who looked at the hospital records and said, “Any doctor who sees lab numbers like these should know to call for an endocrinology consult instead of just concluding that this was abuse.” I see this a lot with hospital child abuse specialists. When your tool is a hammer the entire world is a nail. If your job is to diagnosis child abuse you’re going to see it in everything.

Q: What can parents do to protect their families before they go to the hospital or during an investigation?

A: I tell everyone I know what hospitals to stay away from. The other thing a parent can do is make sure you have a good relationship with your pediatrician and always keep copies of the paperwork your pediatrician gives you, such as the shot records. Very often pediatricians are the best witnesses for parents. They say, “These parents are diligent. They bring their children for all their vaccinations. They ask questions. I’ve never seen any red flags for abuse.”

Another thing parents can do is to document any injuries to your child. If your child had an injury in day care they should give you documentation about how that injury happened. Keep that.

If you’re subjected to a child welfare investigation, go out and hire an attorney very early on in the process if you have the money. People without money can be in their first hearing before they’re appointed a lawyer, and the best thing you can do is hope you get a good one.

Once you get an attorney, your job isn’t over. You should ask a lot of questions of the doctors, especially: “Is there anything else that could be causing this?” Unfortunately, in this situation, the people you’re asking are often the people accusing you. But if you have a good relationship with your pediatrician, you can talk to your pediatrician about alternative explanations. I’ve had a pediatrician write referrals to have a baby evaluated by an endocrinologist and an orthopedist because the pediatrician said, “There has to be an alternative explanation.”

You should also ask for your child to remain with the same pediatrician so your child doesn’t get lost in that medical shuffle, and you should attend all of your child’s medical appointments and request copies of all medical records to give to your attorney.

Lastly, for many parents there is a tremendous amount of guilt and shame that comes from just being investigated and accused. Child welfare agencies benefit when families accept deals and then go into hiding. The best thing families can do, if it feels right to you, is to talk about your case, whether to friends in the community, the local news, or to a publication like Rise. The more awareness there is, the less likely it is that other parents will feel isolated and helpless when they’re in the same situation.

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