Shaken Baby Syndrome Has Found New Life as Abusive Head Trauma — ProPublica

On the 911 call, Nick Flannery’s voice was frantic as he tried to revive his infant son. “Come on, buddy,” he pleaded with the 2-month-old, who had gone limp. “Come on, buddy. Breathe.”

Nick, who was on paternity leave from his IT job, had been caring for his two boys while his wife, Felecia, was at a doctor’s appointment. Not long before he called 911, on Sept. 7, 2023, his baby, Arlo, vomited while being given a bottle. Nick, who was cradling him, turned him over to ensure that he did not choke, then changed him into fresh clothes and put him in his bouncy seat. Suddenly, Arlo’s eyes rolled back and his body stiffened. Then he went still.

Paramedics rushed to the Flannerys’ house in Blue Ash, Ohio, a suburb of Cincinnati. They revived the infant, but his breathing remained shallow. Felecia, who returned home to find emergency medical workers swarming her driveway, staggered across the front yard toward her family, uncomprehending.

In the emergency room at Cincinnati Children’s Hospital Medical Center, the Flannerys looked on as doctors worked to save their son. Soon, a social worker took them aside. She explained that a CT scan revealed the presence of subdural hematomas, or bleeding between the brain and the skull: a symptom, she said, commonly seen in abuse cases. Nick and Felecia were dumbfounded.

More tests still needed to be run, she told the Flannerys, but mandatory reporting laws required that the police and child welfare officials be alerted. Nick and Felecia, upset but certain that any concerns would be allayed once doctors gathered more information, said they understood.

Detectives arrived, and the attending physician told them that subdural hematomas could indicate an underlying medical condition — or that the baby had been shaken. It was the latter scenario that Felecia remembers the doctor mentioning to her that evening. “I’ll never forget him telling me, ‘You would probably know this as shaken baby syndrome,’” she says. Felecia, having once listened to a podcast that characterized the diagnosis as controversial, grew alarmed.

No outward signs suggested Arlo had endured harm. (Arlo is a nickname his parents asked that I use to protect his privacy.) He had no bruises, scratches or cuts. No external evidence of head trauma, like a scalp injury or a skull fracture. No broken bones. No symptoms of neglect or malnutrition. Nick and Felecia were his sole caregivers, and neither of them had any prior interaction with child protective services or a criminal history.

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The next day, as they sat at their son’s bedside in the pediatric ICU, they were visited by two doctors with the hospital’s child abuse team. Dr. Steven Pham, who was halfway through a three-year fellowship in childhood pediatrics, and Dr. Pratima Shanbhag, a child abuse pediatrician, each examined Arlo. Child abuse pediatrics is a relatively new subspecialty whose practitioners work closely with police officers and social workers to investigate potential cases of intentional harm. These physicians are entrusted with a profound responsibility: deciding whether a child’s symptoms indicate abuse or are due to an unrelated medical issue. Their findings often determine whether parents face criminal charges and whether children are separated from their families.

Pham asked the Flannerys whether anything had happened to their son — a fall? a car accident? — that might account for the bleeding on his brain. More tests still needed to be performed, he said, but the absence of any reasonable explanation for Arlo’s symptoms suggested that the infant had suffered abusive head trauma.

Pham was using the term that the American Academy of Pediatrics has recommended physicians employ since 2009 instead of “shaken baby syndrome.” That year, the AAP endorsed the use of the more comprehensive term “abusive head trauma” to describe not only brain, skull and spinal injuries that result from shaking but also those resulting from blunt impact or a combination of the two.

The name change came amid controversy over whether shaken baby syndrome’s signature symptoms — brain swelling and bleeding around the brain and from the retina — were always evidence of abuse. Once believed to be proof of shaking, the symptoms had by then been shown to have other causes, including accidental falls, illness, infection and congenital disorders. The courts took notice, and in 2008, a Wisconsin appeals court held that “a shift in mainstream medical opinion” raised questions about the diagnosis’s core assumptions.

It was in the wake of the Wisconsin decision that the AAP’s Committee on Child Abuse and Neglect, a small group of child abuse specialists, spearheaded the name change. The committee’s work came at a time when confidence was eroding in a diagnosis that the child protection community saw as vital to safeguarding children. The new name, abusive head trauma, was not only more precise, according to its 2009 consensus statement on the matter, it would also shore up credibility in the courts. “Legal challenges to the term ‘shaken baby syndrome’ can distract from the more important questions of accountability of the perpetrator and the safety of the victim,” the statement read.

Fifteen years later, the diagnosis is still shaping criminal prosecutions and child welfare investigations. Child abuse pediatricians say they do rigorous workups to rule out the possibilities of both natural and accidental causes before they settle on the diagnosis. But doctors — and the police, prosecutors and judges who look to them for guidance — don’t always get it right. Thirty-five people whose convictions rested on the diagnosis are currently listed on the National Registry of Exonerations. Not yet counted is Joshua Burns, whose wrongful conviction was vacated by a Michigan court in November.

This year, convictions that hinged on the diagnosis were overturned in California, Minnesota and Kentucky. In Texas, doubts about the guilt of a death row inmate, Robert Roberson, galvanized a bipartisan group of lawmakers to call for a wholesale reappraisal of the evidence; the legal battle that followed succeeded in postponing his scheduled execution in October. In a similar case in Arkansas, another father, Cody Webb, was acquitted of capital murder. Some judges, meanwhile, have started looking at the diagnosis with more skepticism. Last year, a New Jersey appellate court backed a lower-court judge who pronounced the diagnosis “akin to junk science.”

That tension — between child abuse pediatricians who stand by their ability to identify abuse from telltale symptoms and a mounting number of criminal cases that point to the fallability of the diagnosis — leaves families like the Flannerys vulnerable. “The rebranding of shaken baby syndrome preserved the diagnosis and allowed it to live on with less scrutiny,” says Randy Papetti, an Arizona trial attorney and author of the 2018 book “The Forensic Unreliability of the Shaken Baby Syndrome.” “Shaken baby syndrome is alive and well but mostly operates under an alias.”

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Nick and Felecia had been together ever since they were juniors in high school in Troy, Ohio — he, earnest and mild-mannered, with chunky black glasses that channeled Buddy Holly; she, warm and unguarded, with a mane of red hair. They were strivers, intent on muscling their way out of what Nick called “the bottom end of the lower middle class.” He enlisted in the Army to pay for college, serving a combat deployment to Afghanistan, and Felecia worked her way into management at a national retail chain. They were intentional about starting a family, waiting until they were financially secure enough, in their late 20s, for Felecia to stay at home when they had their first child, Arlo’s older brother, in 2021. They built a house in a good school district, with room for a big family, and painted it a cheerful lavender.

The Flannerys did not hire a lawyer when the specter of abuse was first raised by doctors. They remained singularly focused on their infant son, who lay intubated in the pediatric ICU, his tiny body dwarfed by medical machinery. Before his hospitalization, they had told his pediatrician how he slept so much that Felecia often had to wake him for feedings, but their pediatrician had not been overly concerned; Arlo was meeting all his milestones and appeared to be thriving. Three days after he arrived at the hospital, he underwent surgery to relieve the excess fluid that had been building up inside his head. Nick and Felecia were relieved to see that he gradually improved with each day that followed.

In a report that Pham forwarded to the Blue Ash Police Department a week after the operation, he wrote that Arlo’s symptoms — which a recent exam had shown included retinal hemorrhages — raised a “concern” for abusive head trauma. Further testing, he noted, had not turned up any evidence of a genetic condition or a bleeding disorder that could explain his symptoms. Though it was not a definitive diagnosis, it was enough to set in motion a chain of events that would upend the Flannerys’ lives.

Two days later, on Sept. 20, 2023, a social worker came to their home to inform them that Hamilton County Job and Family Services, which oversees child protective services for the area, was filing for temporary custody of their children. Moments later, Blue Ash police detectives served a search warrant, demanding that the Flannerys allow them entry and turn over their phones.

Police body cameras captured the Flannerys’ anguish: Nick buckled, nearly falling to his knees. Felecia, wide-eyed, stared back at the officers’ hardened expressions.

What followed was a grinding bureaucratic journey that stripped them of everything they had worked so hard to build. They were forbidden from bringing Arlo home when he was released after a two-week stay at the hospital; a court order mandated that he and his brother live with Felecia’s aunt. Limited to supervised interactions with their children, Nick and Felecia did everything they could to maintain a sense of normalcy, arriving at the aunt’s house each morning before dawn, so they could be there when the boys awoke, and caring for them throughout the day, until Felecia nursed Arlo to sleep. Barred from spending the night, they returned home each evening to an empty house.

Desperate to be a family again, and hoping that voluntarily submitting to an extra degree of scrutiny might convince the authorities they had nothing to hide, the Flannerys had cameras installed in every room of their house. At a hearing in Hamilton County Juvenile Court that October, Magistrate Nicholas Varney offered a tentative path forward: The children could return home, but under strict conditions. Nick and Felecia were barred from being alone with them, and the boys’ grandmothers, who had come to court and volunteered to help, agreed to take turns and maintain a constant presence.

The threat of losing their children never went away. A caseworker would appear unannounced, entering their home and probing whether the Flannerys had deviated in any way from the court order. Their original caseworker, and then her replacement, often sought to get Felecia alone, pressing her to accept that her husband was an abuser. “I was not seen as protective of my children because I did not believe that Nick hurt our son,” she told me. In a November hearing, a prosecuting attorney put the county’s objectives plainly: “We maintain that the Flannery children would be at imminent risk of harm were they to continue to reside in their parents’ home today and were custody not to be granted to Job and Family Services.”

Then, on Jan. 3, Blue Ash police detectives made an unannounced visit, arresting Nick on assault and child endangerment charges. Nick, who was handcuffed in front of his older son, was careful not to react. “I knew they wanted to see me as this horrible, violent person with a hairpin trigger,” he says. From that moment onward, the Flannerys found themselves in parallel legal battles: one in juvenile court over custody of their children, and another in criminal court, where Nick faced prosecution.

Two days after his arrest, when he was set to be released on bond, the Flannerys’ caseworker arrived at the house without warning. Though Nick was within his rights to return home — the court had not imposed a no-contact order — the caseworker removed the infant and toddler that afternoon.

Felecia hurriedly nursed Arlo before he was taken away. “I was sitting on the stairs, just crying and crying,” Felecia told me. “My toddler started wiping my tears away, and I remember thinking, ‘I have to get it together, because this might be the last time I ever see them.’”

The boys were not placed in foster care, as she had been told was a possibility — they went to her aunt — and they were returned home the following week at the direction of the juvenile court. But the knowledge that her children could be taken from her at any moment left her unmoored. Stalked by the fear of what might happen if one of the boys fell or hurt themselves, she rarely left home, trusting the cameras she had installed to document her every interaction with her children. She and Nick scrupulously followed the court’s order to have an approved family member present around the clock, but she began losing sleep over any possible breach — even imagined — that could cost them custody. “I started having nightmares,” she says, “where the nightmare was that I was found alone with my children.”

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The Flannerys felt certain there was a logical explanation for Arlo’s symptoms, and they began to piece together what they knew, starting with his difficult delivery, which had ended in an emergency cesarean section. More than 24 hours of labor — augmented with Pitocin, to make contractions stronger — had left a deep hollow above his forehead. The Flannerys had been assured that this was a normal consequence of a challenging delivery, and the indentation, though conspicuous, had eventually gone away. In retrospect, they wondered if this had anything to do with the bleeding on his brain.

Also notable, looking back, was the dramatic increase in Arlo’s head circumference in the weeks after his birth. By one month, his medical records showed, he had leapt from the 81st percentile for head size to the 99th, which was a possible cause for concern. The Flannerys had been told that his head growth would have to be monitored, and that if it continued to expand at the same rate, that he would be referred to a specialist for evaluation. (His next head measurement was scheduled to be taken the day after Nick called 911.)

As their questions multiplied, the Flannerys consulted three doctors: a pediatrician who was qualified to testify in court as a child abuse expert, a pediatric neurologist and a radiologist. After studying Arlo’s medical records and imaging, they each concluded that he had not suffered a sudden trauma just before he was rushed to the ER. In written reports, and later testimony given in juvenile court by two of the experts, they laid out their findings. Arlo, they determined, had a preexisting health condition: the bleeding on his brain was chronic, likely originating at birth. Fluid had then collected between his brain and skull, and pressure built, eventually triggering seizures. This explained Arlo’s rapid head growth and the excessive sleepiness that the Flannerys had reported to their pediatrician.

In his report, Pham dismissed the idea that Arlo’s birth was to blame, pointing to the baby’s sudden collapse a full two months after he was born. Pham made no mention of the details in Arlo’s medical records that noted the baby’s head circumference at one month or the unusual rate of growth that his pediatrician had flagged for further monitoring.

But several facts in the medical record suggested an ongoing condition: In addition to his quickly expanding head circumference, there was his pronounced sleepiness — possibly a symptom of seizures related to fluid around the brain. There were also the post-operative notes of Arlo’s neurosurgeon, which described the subdural hematomas as “chronic,” suggesting they had been present for an indeterminate period of time. The blood on the infant’s brain was straw-colored, the surgeon had observed, not the pink or red typically associated with acute trauma. During a 2023 juvenile court hearing, Pham acknowledged speaking with the neurosurgeon and reviewing the surgical notes, but he said he did not include them in his report because he focused on other indicators, such as Arlo’s rapid decline. “The thing that I focused on is his acute presentation,” Pham said.

I wanted to better understand Pham’s perspective and that of the pediatrician who had examined Arlo with him, Shanbhag. The Flannerys agreed to provide a letter authorizing the doctors to talk to me about their son’s protected health information, but a spokesperson for Cincinnati Children’s declined to make them available for an interview. The hospital also did not respond to a detailed list of questions.

The Flannerys believed the new expert opinions provided by the three doctors would exonerate Nick. “I thought investigators would consult the doctors we were talking to, and this whole misunderstanding would be swept away,” Felecia says.

But the suspicion of abusive head trauma, once raised, is hard to undo. Kristina Kerlus, a Las Vegas mother I spoke with, whose 2-month-old, Jocai Davis, was rushed to the hospital in 2018 in cardiac arrest, told me that doctors developed “tunnel vision” after finding that her son had the diagnosis’s signature symptoms. Jocai died three days later, and she was charged with murder. It took years of legal wrangling — during which her three other children were removed from her custody — for Kerlus to be vindicated. Prosecutors dropped charges in 2022 after the defense’s medical experts determined that Jocai had died from complications of sickle cell trait, an inherited blood disorder.

Even if accused parents challenge an abusive head trauma diagnosis with medical experts of their own, prosecutors tend to view these witnesses cynically. Their distrust stems from a core belief among some child advocates that physicians who question the diagnosis — whom some dismiss as “denialists” — are bad actors. “Denialists persist in generating false controversy against the diagnosis of AHT and unwarranted skepticism about shaking being an important mechanism of AHT,” states an opinion piece co-authored by three prominent child abuse experts that appeared last year in JAMA Pediatrics, a journal of the American Medical Association. “Misinformation generated by science denialists may harm children.”

Dr. Cindy Christian, a lead author of the American Academy of Pediatrics’s 2009 statement, called it “cynical” to suggest that the shift to abusive head trauma was made to evade scrutiny of the diagnosis. Rather, she wrote in an email, the name change ensured “that physicians were using correct terminology in medical records and in courts.” The controversy around shaken baby syndrome, she added, is largely contained to the legal arena. “The diagnosis is not controversial in children’s hospitals around the world,” she wrote. “The courtroom is not designed to be the arbiter of scientific truth.”

In its most recent policy statement about the diagnosis, the AAP said in 2020 that the name change to abusive head trauma “was misinterpreted by some in the legal and medical communities as an indication of some doubt in or invalidation of the diagnosis and the mechanism of shaking as a cause of injury.” The AAP “continues to embrace the ‘shaken baby syndrome’ diagnosis as a valid subset of the AHT diagnosis.”

The antipathy for physicians who challenge the diagnosis was hard to miss at the International Conference on Shaken Baby Syndrome/Abusive Head Trauma, held in Salt Lake City this September. The conference — which draws child abuse pediatricians, social workers, police and prosecutors — featured multiple presentations that cast doctors who testify for the defense as both ill-informed and mercenary. During a keynote presentation, a Milwaukee prosecutor, Deputy District Attorney Matthew Torbenson, questioned whether doctors operate in good faith when they rebut an abusive head trauma diagnosis. “Is that practicing medicine,” he asked a sympathetic crowd, “or is that providing reasonable doubt for sale?”

The expert opinions of doctors from outside the field of child abuse pediatrics who weigh in on these cases — including radiologists, neurologists and pathologists — are rarely given the same deference by the courts, one reason most legal efforts to counter the diagnosis fail. In July, I chronicled the efforts of prosecutors at the Nashville DA’s office to overturn the 2004 shaken-baby conviction of Russell Maze; though seven medical experts concluded that his son’s death was the result of natural causes, the presiding judge refused to grant a new trial.

For the Flannerys, having three physicians who provided an alternate explanation for Arlo’s symptoms did not prove to be enough. During a hearing in juvenile court in March, Shanbhag took the stand to dismiss the notion that a birth injury could explain the infant’s presentation at the ER, emphasizing that abusive head trauma was the only possible cause. “There was no other medical condition that could account for those injuries,” she said.

After hearing from both sides, Varney, the magistrate, handed down a ruling late this summer in which he leaned heavily on Shanbhag’s testimony, finding that the infant had been abused. Still, the magistrate was careful to state that due to doctors’ differing opinions, both “the origin and cause of the injuries” remained “unknown.” The attorneys whom the Flannerys retained to represent them in juvenile court, James Whitfield and Aaron Rapier, criticized this conclusion as logically inconsistent with a finding of abuse and the equivalent of claiming there “may be ‘abuse’ without any ‘abuser.’” The guardian ad litem — the attorney appointed by the court to represent Arlo’s interests — opposed the magistrate’s ruling that abuse had occurred, noting that such a conclusion was “not supported by the manifest weight of the evidence.”

Protective orders remain in place, requiring the Flannerys to keep living under the watchful eyes of family members, cameras and caseworkers. They have done everything the court has asked — taking parenting classes, submitting to mental health evaluations, complying with the safety plan — but more than a year after their boys were returned home, they are still living in limbo. “We’ve asked our caseworker, ‘So what comes next?’” Felecia says. “And the answer is that they are still pursuing custody. They offer us no plan — just that we need to say that Nick harmed Arlo.” (A spokesperson for Hamilton County Job and Family Services declined to comment on pending litigation.)

Felecia longs for their old life, unencumbered by the quiet terror of an abuse investigation. She looks at other mothers at the grocery store — mothers who are unaware that their lives can be turned upside down in an instant — and she feels “like a different species, like an alien,” she told me. Nick speaks of what feels like a primal wound: “the shame and stigma of being called an unfit parent.”

Still, the Flannerys know they are lucky. Unlike other parents who have faced the same kinds of accusations, they had the means to post bond and get Nick out of jail. They had family members who were able to serve as caregivers, which prevented Arlo and his brother from being put in foster care. Their friends stuck by them. Nick did not lose his job. And they did not suffer the worst possible outcome: Their baby lived. Arlo, now a healthy 1 1/2-year-old, has enjoyed a full recovery; ever since the surgery that relieved the excess fluid on his brain, he has not needed any medical interventions.

Yet the future is filled with uncertainty. Nick, who is expected to stand trial next year, faces up to 12 years in prison if convicted. Felecia once wanted to fill their lavender house with children, but she no longer thinks beyond the present. “We used to have plans and dreams,” she told me. “And now our future is a huge question mark.”