Sick Child's Parents Say Hospital & County Falsely Labeled Them as Child Abusers

By ERIN MCAULEY

HARRISBURG, Pa. (CN) - Parents say they lost custody of their children, were identified as child abusers and the father was jailed for more than a year because doctors and state officials falsely attributed their 4-month-old daughter's childhood stroke and congenital rickets to child abuse.

Jamel Billups and Jacqueline Rosario, who are black, sued the Penn State Milton S. Hershey Medical Center, Franklin County and its Office of Children, Youth and Families and a long list of individuals, in Federal Court.

The parents say that when their daughter, L.B., suffered a stroke and showed signs of rickets on Oct. 19, 2009, the Child Safety team at Penn State Hershey Medical Center falsely blamed her condition on child abuse, and the state then seized her and her 2-year-old brother, T.R., and sent them to foster homes.

The parents say L.B.'s abdominal CT scan and skeletal surveys revealed 16 rib fractures, but medical evidence that showed no related internal injuries proved these fractures were the result of "weak bones rather than abusive trauma."

They say that despite medical knowledge that Vitamin D deficiency can lead to rickets and weak bones in African Americans, Penn State's Child Safety Team failed to require that L.B.'s blood be tested for abnormal clotting factors or that the child's or mother's blood be tested for vitamin D deficiency.

They add that "no evidence of any injury to L.B.'s spine or any evidence of disruption of her spinal ligaments" was apparent after her stroke, and a report on an MRI exam stated that "thrombosis was a possible explanation."

The parents say, "It is well established in the medical literature that a thrombophilia workup should be performed looking for potential risk factors for clotting when thrombosis is possibility. No such thrombophilia workup was ordered to be performed in 2009 by L.B.'s treating physician or by any member of defendant Penn State's Child Safety Team."

The parents say the Franklin County Office of Children, Youth and Families "has a policy of relying upon doctors affiliated with the American Academy Pediatrics, whose opinions are tainted by a burden shifting medical presumption that the cause of any intracranial injury in a child under the age of one year is caused by abuse unless the parents provide an accidental explanation, to perform the medical investigation into whether injuries suspected to have been caused by child abuse were, in fact, caused by child abuse."

They claim that agents of the Office of Children, Youth and Families, defendants Tammie Lay and Dawn M. Watson, "failed to conduct their own independent non-presumption tainted investigation" and "relied exclusively upon the conclusion of defendant Penn State's Child Safety Team and defendants [Drs. Mark S.] Dias, [Kathryn R.] Crowell and [Arabinda K.] Choudhary that L.B.'s intracranial hemorrhages were caused by abuse on the afternoon of October 19, 2009 and rib fractures were caused by abuse 4 to 8 weeks prior to her hospitalization without conducting any independent medical review or confirmation of their own."

The complaint continues: "On October 21, 2009, eight days before Jamel was arrested, defendant [Lauren] Sulcove emailed defendant Dias to introduce herself as the prosecutor that would be handling the case against Jamel."

Sulcove, an assistant prosecutor, worked for defendant Franklin County District Attorney Matthew Fogel, according to the complaint, which continues: "On October 28, 2009, with reckless indifference to the truth and the Billups' family civil rights, defendant Crowell issued a report on Penn State letterhead falsely concluding that L.B.'s childhood stroke and 16 rib fractures without internal injuries were caused by abuse. Defendant Crowell's report stated that L.B. 'does not have any evidence of coagulopathy or bleeding disorder' and concluded that 16 anterior rib fractures without any associated internal injuries 'occurred as a previous incident of inflicted trauma' concluding that 'this is a clinical picture of inflicted trauma' of 'some event ... likely a short time before [L.B.] had difficulty breathing'." (Brackets and ellipsis in complaint.)

After the report was issued, Jamel Billups was charged with felony aggravated assault and endangering the welfare of a child.

The parents say: "As soon as Jamel learned of the issuance of the arrest warrant on the day it was issued, October 29, 2009, he immediately and voluntarily reported to the Chambersburg police station and was taken into custody. The court set a $200,000.00 straight bail for Jamel, a bail that the Billups' family could not post. Jamel's remained in jail from October 29, 2009 until December 17, 2010, when a jury acquitted Jamel of all criminal charges."

According to the complaint, "Penn State created a Child Safety Team on September 1, 2009 for the express purpose, inter alia, of investigating whether injuries reported as suspicious for child abuse were, in fact, caused by child abuse. Penn State has a discriminatory policy that lends the full faith and credit of Penn State to employees who testify for the Commonwealth of Pennsylvania in criminal prosecutions, for the Commonwealth's county child protection agencies in dependency proceedings and Childline expunction hearings but denies the same full faith and credit of the Penn State Hershey Medical Center to those employees who testify for the accused parents."

Penn State, according to the complaint, received "a 2.8 million dollar grant from the United States Center for Disease Control (CDC) for educating parents about shaken baby syndrome."

Defendant Dr. Mark Dias, co-director of the Penn State Child Safety Team, is a neurosurgeon, a Fellow of the American Academy of Pediatrics, and "holds himself out as an expert in child abuse who can determine whether an injury was caused by abuse and frequently testifies with the full faith and credit of Penn State for the prosecution in criminal cases," according to the complaint.

"In 2010, defendant Dias wrote a chapter of a book about child abuse entitled 'The Case for Shaking'." It was Defendant Dias' published efforts that enabled Penn State to receive the CDC 2.8 million dollar grant to 'educate' parents about shaken baby syndrome."

While Dias was never L.B.'s treating physician or surgeon, the parents say that Dias "attributed L.B.'s venous childhood stroke to a congenital anomaly (an anatomic impossibility) and with reckless indifference to the truth wrote a report rendering the false conclusion that L.B.'s injuries were caused by abuse on Penn State letterhead, testified at Jamel's criminal trial that defendant Dias was a professor at Penn State and, upon belief, was paid by, and enjoyed the liability insurance, of Penn State when he participated in the investigation of whether L.B.'s injuries were caused by abuse and testified at Jamel's criminal trial." (Parentheses in complaint.)

The parents add that Dr. Crowell, a member of the Penn State Child Safety Team, "qualified as an expert in child abuse for the first time in her life at the dependency hearing for L.B. and T.R on December 18, 2009. Defendant Crowell was qualified as an expert in child abuse for the second time in her life at Jamel's preliminary criminal hearing on December 28, 2009. Dr. Crowell acknowledged under oath at Jamel's criminal trial that she misrepresented medical evidence critical to L.B.'s case when she testified at Jamel's preliminary hearing."

Thirty paragraphs later, the parents say that Dr. Crowell "testified falsely that L.B. had 'an extensive screening' for 'coagulation problems' and 'an extensive screening for bleeding disorders' that were 'normal' and that L.B.'s 'metabolic workup was normal.'"

The parents add that Crowell testified, erroneously, that the child's rib injuries "were on the posterior side," but that "Contrary to Crowell's testimony, no Penn State radiologist ever reported that any of L.B.'s rib findings were posterior."

Rib injuries in true child abuse cases are "typically lateral or posterior," according to the complaint.

The complaint adds: "Posterior rib fractures have been considered by proponents of the shaken baby syndrome hypothesis as pathognomonic, or having a virtual 100 percent predictive diagnostic value, of the diagnosis of abuse in the medical literature. Whether L.B.'s rib fractures were located posterior, in the back near the spinal column, or anterior in the front, as was L.B.'s rib findings, has been considered by proponents of shaken baby syndrome as critical to making conclusion of child abuse."

The parents say that Crowell was also "paid by, and enjoyed the liability insurance, of Penn State" and was never their daughter's treating physician.

Defendant Dr. Arabinda Choudhary, another member of the Penn State Child Safety Team, "was not board certified by the American Board of Radiology nor does he possess any certificates of additional qualifications in pediatric radiology or neuro-radiology," according to the complaint. The parents say that Dr. Choudhary, "with reckless indifference to the truth, changed his initial diagnosis of L.B.'s venous stroke from possible thrombosis to the anatomically impossible diagnosis of a congenital/developmental anomaly."

Choudhary also was "paid by, and enjoyed the liability insurance, of Penn State" and was never their daughter's treating physician, the parents say.

The chairwoman of Penn State's Radiology Department, defendant Dr. Kathleen D. Eggli, "just before the scheduled criminal trial of Jamel ... implemented a new policy in the radiology department in which defendant Eggli selectively imposed restrictions on a Penn State radiologist who was sought out for a second opinion by the Billups family and rendered an opinion different than that of the Penn State Child Safety Team," the complaint states. "The restrictions imposed on this doctor who was willing to testify for the Billups family were not imposed on the Penn State radiologist who testified for the prosecution, defendant Choudhary, or on any other doctor at Penn State who testified for the prosecution. The restrictions included a prohibition on communicating the doctor's faculty appointment as an assistant professor of radiology at Penn State, denial of liability insurance from Penn State and a prohibition on the use of Penn State logo and letterhead, all prohibitions that were not applied to Defendants Dias, Crowell or Choudhary during their investigation and testimony on behalf of the prosecution and county children and youth agency."

The district attorney and assistant district attorney of Franklin County, Matthew Fogel and Lauren Sulcove, are also named as defendants. Sulcove is "sued solely in her role of investigating the false allegations of abuse prior to the arrest of Jamel." According to the complaint, "Pennsylvania law mandated that Defendant Fogel convene an investigative team upon the report of L.B.'s suspected abuse in October of 2009 to avoid duplication of fact-finding efforts with such team consisting of a minimum of a health care provider, county caseworker and law enforcement official. Defendant Sulcove led and/or was a member of the team and either followed the policy of the District Attorney's office to exclusively rely upon doctors affiliated with the American Academy of Pediatrics to make conclusions about whether suspected child abuse was, in fact, child abuse or defendant Sulcove individually failed to ensure that the investigation into allegations of abuse against Jamel was not tainted with the burden shifting medical presumption of doctors affiliated with the American Academy of Pediatrics."

Also sued is William C. Frisby Jr., an employee of the defendant Borough of Chambersburg. "Frisby was the detective assigned to investigate the allegations of abuse against Jamel and is sued solely in his role of investigating the allegations against Jamel. Defendant Frisby either followed the policy of defendant Chambersburg to rely upon doctors affiliated with the American Academy of Pediatrics for child abuse investigations or defendant Frisby individually failed to ensure that the investigation into allegations of abuse against Jamel was not tainted with the burden shifting medical presumption of doctors affiliated with the American Academy of Pediatrics."

The parents say that even after Jamel was acquitted of criminal charges, "FCCYS agents Kari Coccagna and Minnie Tuner threatened to immediately send the police to forcibly remove T.R. and L.B. from Jamel and Jackie if Jamel and Jackie did not agree to a 'voluntary' safety plan. The 'voluntary' safety plan required that Jamel 'agree' that he would not be alone with his children and required Jackie and Jamel to 'agree' to unannounced visits from employees of defendant FCCYS or suffer the immediate removal of their children from their care by the police. At all times relevant to this complaint, defendant Franklin County and defendant FCCYS had a policy of using safety plans as voluntary placement agreements and extending those agreements beyond 30 days in violation of 55 Pa. Code §3130.65. Defendants Franklin County, FCCYS, Coccagna and Tuner extended the voluntary placement agreement beyond 30 days without obtaining a court order in violation of Pennsylvania law and Jamel's and Jackie's right to due process pursuant to Franklin County and FCCYS policy or, in the alternative, defendants Coccagna and Watson violated the due process protection provided in 55 Pa. Code §3130.65 and failed to obtain a court order to extend the 'voluntary' safety plan beyond 30 days on their own."

The parents add: "On June 18, 2011, FCCYS closed its case with the Billups family and terminated the 'voluntary' safety plan."

The parents and their children seek punitive damages for reckless indifference to civil rights, due process violations, negligence, failure to train, extending voluntary placement agreements beyond 30 days, unconstitutionally favoring expert witnesses for the prosecution and disadvantaging expert witnesses for the defendants, and for the 414 days that Jamel was jailed for a crime he did not commit.

They are represented by Mark Freeman of Media, Pa.

Source http://www.courthousenews.com/2011/10/03/40229.htm