State ex rel. W.H.V. v. J.A.V.

811 So. 2d 189
Louisiana Court of Appeal·Decided February 27, 2002·No. No. 35,887-JAC·Published·Cited by 10 cases

Opinion

JjPEATROSS, Judge.

This is an appeal by the Department of Social Services (“Department”) from the ruling of the trial court finding that the Department failed to prove by a preponderance of the evidence that W.H.V. is a child in need of care. Counsel for W.H.V. is aligned with the Department in challenging the judgment of the trial court. For the reasons stated herein, the judgment of the trial court is reversed.

FACTS

W.H.V. was born May 19, 2001, and was discharged from the hospital on May 23, 2001. Over the course of the following three weeks, W.H.V. was in the exclusive care and control of his parents, J.V. (the [191]*191mother) and C.V. (the father), and his maternal grandmother. On June 2, 2001, the grandmother had traveled to Shreveport from Ohio to help with the care of W.H.V. On June 12, 2001, the grandmother returned to Ohio — J.V. and W.H.V. took her to the airport around 11:00 a.m. that day. C.V. had returned to work and was not home for the remainder of that afternoon. Around 8:00 p.m. on June 12th, J.V. noticed that W.H.V.’s left leg was “twitching.” She called her husband, who encouraged her to call the child’s pediatrician. J.V. placed a call to Mid-City Pediatrics’ answering service, which alerted Dr. Robert Haynie, the on-call doctor that evening. J.V. also called her mother in Ohio to inquire if she had any ideas as to what could be wrong with the child. When Dr. Robert Haynie returned J.V.’s call, around 10:00 p.m., C.V. was just coming in from work. Dr. Robert Haynie advised J.V. to bring the child in to his office the next morning. Around 3:00 a.m., however, when J.V. awoke to feed the baby, she noticed increased | ¿‘twitching” on the entire left side of W.H.V.’s body. She and C.V. took W.H.V. to Christus Schumpert Medical Center’s (“Schumpert”) emergency room where it was determined that W.H.V. was experiencing seizures. Dr. Robert Haynie examined W.H.V. at approximately 7:00 a.m. on June 13, 2001. A CT scan, nuclear bone scan and x-rays revealed intracranial hemorrhage (sub-arachnoid and subdural), eight fractured ribs, a fracture of the left ankle and a metacarpal fracture in the right thumb.

On June 14, 2001, the Department received a report of suspected abuse from Schumpert and began an investigation. An instanter order was obtained, removing W.H.V. to the temporary custody of the Department. At the continued custody hearing, the trial judge returned the child to the parents and a petition seeking to adjudicate the child as one in need of care was filed by the Department. Two supplemental affidavits requesting that the child be removed from the parents were denied. The matter proceeded to trial, where expert testimony was adduced along with the testimony of the parents and grandmother.

Dr. Scott Ritch, a pediatrician, testified that he was the first medical doctor to examine W.H.V. after his birth. He noted no abnormalities, but indicated on his report that W.H.V. was born with some splinter bleeding on his back, head molding and a caput seccedaneum (“caput”). The splinter bleeding, according to Dr. Ritch, is when small capillaries burst just under the skin. Head molding occurs during a vaginal birth from passage through the birth canal and usually resolves within six to twelve months of birth. Dr. Ritch further explained that a caput is superficial bleeding right beneath |3the scalp due to the head being pressed against the intrauterine or intravaginal wall for a long period of time. A caput is consistent with bruising or abrasions on the scalp, which was apparent on a photograph of the infant just after birth. Dr. Ritch testified that the abrasions were caused by scraping on the pelvic bones during labor. On direct examination, Dr. Ritch indicated that the caput is seen in about 50-60 percent of newborns; however, on cross-examination, he stated that percentage to be 1-2 percent. Dr. Ritch found no evidence of seizure or broken ribs and further testified that he had never seen an occasion where multiple ribs were fractured in the birth process. Dr. Ritch acknowledged that, while not technically classified as “prolonged labor” (which is in excess of 16 hours), J.V. did experience a labor of 15 hours, 40 minutes.

As previously stated, the “on-call” pediatrician who took J.V.’s call and saw W.H.V. in the emergency room was Dr. Robert Haynie. In his testimony, Dr. Robert [192]*192Haynie described W.H.V.’s seizures as rhythmic, but nonviolent. Dr. Robert Haynie ordered a CT scan, which revealed the brain bleed (bleeding in the area between the skull and brain). In his opinion, it was the bleed that was causing the seizures; and, based on the brightness of the bleed on the scan, indicating new blood which had not yet begun to resorb, he determined that the bleed was 8 to 10 days old. He opined that the bleed was too new to have occurred at birth. Dr. Robert Haynie stated that seizures usually occur within 12 hours of the bleed which causes them. He also ruled out other causes such as infection or bleeding disorder and concluded that the bleed was caused by trauma. Dr. Robert Haynie noted |4the rib fractures, but deferred to a radiologist on the question of the ages of the fractures. He did opine, however, that a long labor would not create a great enough force to break 8 ribs and that, in his 14 years of practice, he had never seen this type of bone injury from birth trauma.

On cross-examination, Dr. Robert Hay-nie admitted that brain bleeding is possible as a result of birth trauma, but stated that he had only seen one such case and the child was seizing within one hour of birth. He also testified that the external bruising on W.H.V.’s scalp was fairly common. Dr. Robert Haynie also testified that his father, Dr. William Haynie, who was the child’s regular pediatrician, had performed a well-baby exam of W.H.V. on June 7th and found no problems.

Dr. Robert Haynie diagnosed W.H.V. with Shaken Baby Syndrome. He explained that, in such cases, the baby would be grasped around the chest and shaken back and forth and that the shaking could be out of frustration — requiring no meanness, anger or ill will of the perpetrator. When questioned about W.H.V.’s lack of retinal hemorrhaging, Dr. Haynie stated that this fact had no effect on his opinion. He explained that, although the existence of retinal bleeds in a child shows a virtual diagnostic certainty of Shaken Baby Syndrome, the absence thereof, by no means, rules it out.

Dr. Robert Haynie further testified that he found no signs of osteogenesis imper-fecta (“01”) or Brittle Bone Disease, in W.H.V.

| fiDr. Penny Labor is a diagnostic radiologist who read the CT scan, x-rays and nuclear bone scans of W.H.V. She outlined the child’s injuries, including four left posterior rib fractures and four right lateral rib fractures, a fracture of the left ankle and metacarpal fracture of the right thumb. From reviewing the nuclear bone scan, Dr. Labor concluded that the left rib fractures occurred at a different time from those on the right, with the right side fractures being newer than the left and having occurred within two weeks of the x-ray, and possibly as recent as the day before. She noted that the left fractures could have occurred at birth, but the right ones were clearly after birth due to the lack of callous formation. She further testified that a baby’s ribs are pliable and that breakage such as this (especially the left posterior ribs) would more likely be the result of a direct blow rather than squeezing. There was no external bruising on the child, and Dr. Labor deferred to the pediatricians on whether there would necessarily be external bruising with fractures of the ribs.

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State ex rel. W.H.V. v. J.A.V., 811 So. 2d 189 (La. Ct. App. 2002).

811 So. 2d 189 (State ex rel. W.H.V. v. J.A.V.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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