In Re JD Alotta

By Suzanna and Larry Alotta

This is the story of one family's unwarranted involvement with Child Protective Services in San Diego, California. This story is about false charges of child abuse and a system that will do whatever it takes, including lying in court, to make the charges stick. This case is based solely on the finding of bilateral retinal hemorrhages discovered during a routine eye exam of a 10-week-old infant.

Joseph Daniel Alotta (J.D.) was born on May 7, 1997 to Danielle and Joseph Alotta, my son and daughter-in-law. She was 22 years old at the time of birth and my son was almost 21 years old. The birth was a very traumatic vaginal delivery that caused severe bruising to the face and resulted in black eyes that lasted 3 to 4 weeks, with petechiae on his face and neck.At the time of the birth, the platelet count was estimated to be 40,000 to 60,000. This is very low (the normal range is 150,000 to 450,000), and is diagnostic of thrombocytopenia, a bleeding disorder. After his birth, physical characteristics led doctors to suspect that our grandson had a rare genetic disorder called Rubinstein-Taybi Syndrome. This was later confirmed with DNA and a chromosome test. There have been six hundred studied cases of "RTS" in the world and although there may be many more cases of this syndrome, it is considered extremely rare. This syndrome can result in numerous complications including severe retardation, partial brains, mild deformities, heart problems, and ocular problems (including glaucoma, torn retinas, and cataracts). Weakened connective tissue is also a symptom of this syndrome. Dr. Rubinstein has told us that each case is unique and that new information is coming in as a result of his ongoing study.

 

J.D. remained in the neo-natal special care unit of the hospital where he experienced a seizure at six days of age. This seizure lasted one and a half to two minutes with no breathing. The medical record states that he did not respond to stimulation to resume breathing and that he turned blue. The medical record does not record the manner of stimulation attempted nor does it indicate the extent of effort made to get him to resume breathing. After the seizure, he experienced several episodes of apnea, desaturation, reflux, choking, and coughing. He was kept on oxygen and fed through a tube placed through his nose. His mother worked with him and managed to get him to breast feed, but due to the desaturation he had to be placed on oxygen at each feeding until two weeks after his discharge. During his seven week stay at the hospital, J.D. experienced many procedures, tests, and exams related to respiratory problems, feeding problems, and reflux. It was also determined during this period that he was profoundly deaf. Two days before his discharge he underwent a bronchoscopy, under general anesthesia, for a tracheal exam to determine the ongoing cause of the reflux and desaturation. The results of the procedure were inconclusive, as no explanation was found. The cause of the respiratory problems remain unknown. The day after the bronchoscopy he suffered emesis (vomiting), coughing, and choking. He was lethargic and pale. His scheduled discharge was postponed for a day until he recovered from the trauma of the procedure.

On six separate occasions during J.D.'s stay at the hospital, Dr. Bromberger, the attending physician, was asked by the mother and paternal grandmother to order an eye exam, as ocular problems are common in RTS children. The neurologist, Dr. Richard Kaplan, also recommended an eye exam because ocular problems are commonly associated with the RTS. Dr. Bromberger said she would; but never did. Instead, she scheduled an eye exam to take place 3 weeks after the discharge. The rest is history. Bilateral retinal hemorrhages were found at this eye exam and Shaken Baby was suspected. These findings were turned over to San Diego County Child Protective Services and our family has been in emotional and financial turmoil ever since.

We were told by the Kaiser doctors that the only explanation for retinal hemorrhages was shaking. It took Larry only an hour and a half in the UCSD's medical library to find that there are numerous causes of retinal hemorrhages including: bleeding disorders, seizures, vomiting, coughing, choking, tracheal stimulation, general anesthesia, vaginal delivery, weight lifting, mountain climbing, scuba diving, difficult bowel movements, various diseases, infections, etc. (J.D. experienced 9 out of 14 of these conditions during his stay at Kaiser Permanente Hospital). The causes associated with vomiting, coughing, and choking relate to a condition known as "valsalva manuever" that happens when you cough, vomit or choke against a closed voice box which increases thoracic pressure which is transmitted through the venous system to the veins and capillaries of the eyes. It is interesting to note that at the time of birth two factors existed that could lead to retinal hemorrhages, i.e: vaginal delivery and thrombocytopenia. The combination of the two could cause massive retinal hemorrhaging. Up to 40% of infants born vaginally suffer retinal hemorrhages due to the trauma of birth and thrombocytopenia hinders the blood's ability to coagulate. Bruising and petechiae (which J.D. had at birth) are symptoms associated with the bleeding disorder. According to the medical records, a nose bleed was also noted the day after birth, a further indication that a blood dyscrasia existed.

We also came to discover that in virtually all "shaken baby" cases, there are other associated trauma involved, particularly intracranial hemorrhages, swelling of the brain or hematomas adjacent to the subdural space. In fact, retinal hemorrhages are thought to be secondary to the brain injuries. Also, there is normally some bruising to the extremities and neck injuries associated with the whiplash effect of shaking. Although retinal hemorrhages are a symptom of "Shaken Baby Syndrome," it takes a constellation of factors to actually diagnose "SBS."

In this case, a skeletal X-ray, a CCT exam of the head, and a neurology exam came back negative and there was no other evidence of trauma. Throughout the 3 week and 4 day period that our grandson was in the care of his parents, several health care workers visited the home to evaluate J.D.'s progress. During their exam, they undressed him in order to weigh him. At no time did anyone see or report any evidence of mistreatment. During this period, Danielle took J.D. to several doctors appointments, again, no indication of abuse was observed or noted.

The social study done on the family by CPS shows a cohesive and loving family with no history of violence or abuse.

In spite of the lack of evidence, CPS (after being told by hospital personnel that it would be difficult to make such a definitive statement as to say that our grandson had been shaken) filed misleading allegations where they isolated the retinal hemorrhages to have taken place only during the period between the discharge date and the time of the eye exam (25 days). All of the doctors involved in this case agreed that retinal hemorrhaging cannot be dated (especially to a specific time period). In fact, the medical records show that they believed that the hemorrhages were of varying ages, the newer ones occurring within the last several weeks from the date of the exam and the older possibly from birth (later, on the witness stand, the ophthalmologist admitted that he didn't know if the hemorrhages were from separate events or a single event that took a long time to resolve). CPS also stated in the allegations that the injuries were not limited to the retinal hemorrhages even though the results of the exams had already concluded that no other injuries existed. The allegations claim that the injuries (retinal hemorrhaging) is of a nature that could only be caused by the parents, in fact, as stated above, retinal hemorrhages have many natural causes.

After being told that it would be difficult to state that my grandson had been shaken, CPS went to Dr. Thomas Lohner and told him that they needed a letter saying that our grandson had been shaken. Dr. Lohner gave them what they asked for. We found out during the trial that Dr. Lohner has a long standing relationship with CPS. Evidently, they use him when the facts do not support the case.

With this misleading and embellished document, County then presented their case against us in Court where we were sure someone with a reasonable mind would throw this case back in County's face. Boy, were we wrong! Not only did we find that everyone involved was of the same mindset, the Judge had our grandson removed from his parents and his home. She literally ripped this family apart based only on a medical condition and speculation. Our family was now accused child abusers and unless we could absolutely prove ourselves innocent, then we were guilty.

The court appointed attorney assigned to our son (the father of J.D.) was carrying a case load of 150 cases and barely had the time to discuss our case with us. Her first statement to my son was to tell him that all the court had to prove was based on the preponderance of the evidence and that by reviewing the allegations it would be an easy case to prove. If he chose to contest the allegations they could file criminal charges against him and he could go to prison. Now I knew we were in trouble.

Being innocent, we decided to fight the charges.

To make a very long story short, we have spent more than $23,000 so far hiring an attorney, paying expert witness fees, and related expenses, not to mention the bills coming in from the county for court costs and legal services (*which so far total $5000.00). When our case went to trial, the Judge dismissed the Count A charge that the parents injured their son, but made a "True Finding" on Count B, that the parents failed to protect their child and our grandson was made a ward of the court. This was done in spite of the fact that all of the expert witnesses, ours and theirs, stated that in their experience they had NEVER seen a case of shaken baby with no other trauma involved. All of the expert witnesses, ours and theirs, stated that the retinal hemorrhages could have been caused by the events that took place in the hospital. Our two expert witnesses consisted of Dr. Kirschner from Chicago and Dr. Gayle from Florida. They are considered two of this nation's leading experts in child abuse cases and in shaken baby cases in particular. Dr. Kirschner is considered a child abuse zealot and almost always testifies in behalf of the prosecution. He stated that it is generally believed today that the amount of force required to cause retinal hemorrhages by shaking is greater than the amount of force required to cause brain injury. He further stated that in fifty to eighty percent of shaken baby cases that have brain injury there are also retinal hemorrhages, but he has never seen a case where there were retinal hemorrhages with no brain injury. Dr. Gayle stated that shaken baby cases are usually presented in the emergency room when the caregiver brings the child into the hospital in a coma state or with severe neurological damage. Both of these doctors reviewed the medical records from both before the allegations and after, both concluded that this was not a shaken baby case. All of the medical journal articles that address the subject stated that the mechanism causing retinal hemorrhages due to shaking is unknown, but that the dominant theory is that the intracranial injuries are due to injury to the easily torn bridging veins in the subdural space causing increased pressure that is transmitted through the ocular nerve into the eyes. This certainly indicates that brain injury must occur first in order for there to be retinal hemorrhages. The county's witness, Dr. Lohner from Kaiser Permanente, formulated his own opinion that retinal hemorrhages could occur by themselves but offered no basis to draw that conclusion. He also could not explain how no other trauma was evident in this case other than to say it could happen. He also stated that he was not 100% sure that the hemorrhages were caused by shaking.

If one were to look at the events that took place in the hospital as being the cause of the retinal hemorrhages, it would explain why there was no other evidence of trauma, as these causes are well documented as to the mechanisms involved.

In spite of the lack of evidence that anyone harmed our grandson, the Judge threw out all of the evidence and testimony that countered the County's fabricated claims and made our grandson a ward of the court. In the Judge's opinion, this is the only case of shaken baby limited to retinal hemorrhages alone. The Judge came up with her own theory concerning the dating of retinal hemorrhages and then based her decision on that theory (she had earlier decided that J.D. wasn't really deaf--she was "reading" his hearing test and apparently knew more than the doctors who have since prescribed hearing aids for J.D.).

The emotional trauma and the pain and suffering forced upon us by San Diego County and the Judge is an atrocious travesty of justice and is inexcusable. It is clear that from the beginning the Judge had a preconceived assumption of guilt in this case. No amount of evidence or credible testimony could possibly sway her from the predictable outcome. Our family was nearly destroyed based on a medical condition and speculation of CPS and the Judge. There was no evidence of abuse and no history of abuse. We have a judge here who is incapable of recognizing the obvious.

After our article came out in the San Diego Union (Sunday, January 11, 1998) we received a telephone call from a mother who had an experience with Dr. Lohner. She said that on two occasions, Dr. Lohner misdiagnosed her daughter's illness. On one occasion, her daughter almost died and she had to seek emergency medical attention. She further stated that she was told by another Kaiser doctor that she should not take her children to Dr. Lohner.

* San Diego County has turned the outstanding legal bills over to a collection agency against my son and daughter-in-law and consequently, against my grandson. It seems that if you decide to stand up for your rights and fight for justice, the county will bill you for their court and legal costs. This should discourage anyone from seeking justice.

** On July 17, 1998, the Fourth District Court of Appeal REVERSED the decision made by Judge Lasater. This reversal came exactly one year from the date CPS first became involved with our family. It has been a long, difficult year. Thankfully, justice finally prevailed.

 

 

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