The Prosecutor, January-February 2014, Volume 44, No. 1

Investigating medical child abuse

It is vital that law enforcement conduct additional investigation in these horrible cases of abuse. Here’s where to start when one of these unusual cases comes across your desk.

Medical child abuse occurs when a child receives unnecessary and harmful or potentially harmful medical care at the behest of his caretaker.1 Many refer to this as Munchausen Syndrome by Proxy. As a law enforcement officer, that term was familiar to me, but only from movies and television shows.
    That changed shortly after I started at the DA’s office when the chief attorney in the Crimes Against Children Unit asked me to investigate an allegation of medical child abuse. Upon completion of that investigation, I approached the chief attorney and explained that a regular detective with 20 or so cases on his caseload would have a very tough time giving this type of case the attention it deserved, and I asked if I could be assigned any future cases. She agreed but informed me that in her eight years of experience in the unit, there had never been another law enforcement referral for medical child abuse.
    That was in the early spring of 2009. Since then, I have investigated 12 reported cases of medical child abuse, with four resulting in criminal prosecution of the alleged offender (three convictions and one case pending trial), one referred to an out-of-state jurisdiction because all of the injuries (surgeries) had occurred outside Texas, and one still under active investigation. The four cases that were prosecuted were all reported to Child Protective Services (CPS) by attending physicians at Cook Children’s Hospital in Fort Worth. In each case, the offender was the child’s mother. The father was either completely uninvolved in the child’s medical care or not present in his life.
    I have learned several effective techniques through the investigation of these very complicated criminal cases that establish not only probable cause but also proof beyond a reasonable doubt, and I share them with other investigators and prosecutors in the hope that they’ll be of assistance.

This is child abuse
The first thing that we must understand is that this is child abuse. Medical child abuse is not a mental health issue, nor is it a “syndrome” from which the defendant suffers. It is a crime, and it is child abuse.  Law enforcement, especially criminal prosecutors and investigators, need to understand that anytime they receive a report of Medical Child Abuse, Munchausen Syndrome by Proxy, Factitious Disorder By Proxy, Pediatric Condition Falsification, or Caregiver-Fabricated Illness in a Child, they are receiving a report of child abuse. All the above names mean the same thing.

What doctors can (and can’t) tell us
Let’s start with comparing medical child abuse to abusive head trauma. In both cases, law enforcement relies heavily on medical professionals to provide the diagnosis of abuse. With head trauma, law enforcement officers rely on doctors to tell us that a parent’s explanations for a child’s injuries at the time of treatment are inconsistent with the injuries. Law enforcement also relies on doctors to diagnose the closed head injury as abuse. In medical child abuse, law enforcement depends on doctors to tell us that whatever symptoms the parent is claiming are either not confirmed by medical professionals or that doctors suspect the parent of inducing the symptoms. (It is important to note that the parent does not always induce a condition in her child. Many times, the parent simply presents a false medical history to doctors, which leads to invasive surgical procedures.)
    After CPS involvement and the separation of the victim from the suspect, doctors will also provide law enforcement with evidence that the victim does not, in most cases, have any of the symptoms the defendant reported. If the suspect has induced the symptoms, doctors note that after the child was removed from the suspect’s custody, symptoms resolved on their own. 
    In abusive head trauma, does law enforcement rely strictly on doctors to complete the investigation? Of course not. Neither should we in cases of medical child abuse. Are there crime scenes, physical evidence, and witnesses outside the medical community in abusive head trauma cases? Absolutely—and these same elements are also present in cases of medical child abuse. In every such case, there is physical evidence that must be collected and witnesses who must be interviewed (all outside the medical community). Also, a crime scene may exist at the suspect’s residence or other locations. Is it the typical crime scene with shell casings and blood? No, but then neither is an abusive head trauma crime scene. A child abuse prosecutor knows the value of processing crime scenes; it is equally important in cases of medical child abuse.
    Let’s look at the case of Hope Ybarra, a college-educated chemist who was director of laboratories at a food-testing company. Hope presented her youngest female child for years as having cystic fibrosis, anemia, gastric problems (prompting the placement of a gastric feeding tube), constipation, and a host of other ailments. The victim had tested positive on multiple occasions for both Pseudomonas Aeruginosa, a bacterial cause of pneumonia, and Staphylococcus Aureus, commonly referred to as a staph (bacterial) infection.
    As part of any medical child abuse investigation, the investigating law enforcement officer should get an extensive social history from the defendant and interview possible witnesses who have contact with the defendant and victim. They may have information that medical professionals simply cannot provide.  For instance, in the Ybarra case, we contacted her former employer to ask why she left that job. There were rumors that she presented herself falsely as a Ph.D., and the employer confirmed that Hope Ybarra had claimed for years that she had a Ph.D., when in reality she had never received a master’s degree, much less a doctorate. We also discovered that Ybarra came under investigation by this former employer for ordering pathogens (not a legitimate part of her job duties) when the director of human resources became suddenly ill at work one day and suspected Ybarra of poisoning her water bottle (though it could not be proven through an internal investigation).
    The bottle was tested and found to contain Pseudomonas Aeruginosa, a pathogen to which Ybarra had access as director of the laboratory. This is the same pathogen found inside her daughter on multiple occasions and is the same cause of pneumonia that is very common in cystic fibrosis patients (but not common in those who do not have the disease). Four of the nine pathogens to which Ybarra had access had appeared inside her daughter at one point or another during her brief five years of life, including Staphylococcus Aureus. This information was vital to the investigation and could not have been provided by the medical professionals.
    Ybarra’s mother also found petri dishes labeled as pathogens (Pseudomonas aeruginosa and Staphylococcus aureus) in a plastic storage box the suspect had left at her mother’s house. The dishes were later identified by food-testing company personnel as stolen from their laboratory. A search warrant was executed at the suspect’s residence in which a bottle of liquid laxative was seized; that laxative contained one of the four pathogens found inside the victim during medical testing. (More on her case later.)

What else is helpful
Other items that investigators might find at a non-traditional crime scene include unused prescription medication. A doctor might have prescribed the medication, but the suspect may not have administered it to the child, knowing that he does not have the condition warranting the medicine. The same goes for prescribed (but unused) medical equipment and devices.
    What will the suspect’s excuse be when it is found that the medical history she has given for the victim at numerous hospitals is inconsistent, or in many cases, just blatantly false? The only available explanation is that the doctors and nurses misunderstood what she reported: “No, I told them I thought she may have cystic fibrosis, not that she does have the disease. They just wrote it down wrong.” Investigators and attorneys can discredit this excuse by talking to the suspect’s friends and acquaintances and getting statements regarding exactly what she told them about her children’s condition. We then compare that to medical records to see if what she told people outside the medical community is consistent with what she told people inside the medical community.
    We also ask these friends and acquaintances how the child victim acted in their presence. Did the victim present as ill? What we have found in these cases is that honest witnesses outside the medical community will tell you that the victim always appeared to be healthier than the suspect portrayed. Many will tell you that they were confused by the suspect’s reports when they saw the victim in person. This is important because the suspect will almost always portray herself as a victim of a skeptical medical community or that she was just doing what the doctors told her to do in relation to the victim’s care. Having witnesses outside the medical community who confirm the suspicions of those inside the medical community is vital to the case.

Social media’s importance
Social media is one of the most important aspects of medical child abuse investigations. Although the motives for this type of crime may be case-specific, in just about every situation, the offender is seeking attention. Another characteristic of offenders is that they will try to turn most conversations toward the victims’ medical problems.
    Early in the investigation, before contacting the suspect, attempt to find her profile on Facebook. In early interviews, ask collateral witnesses if they are Facebook friends with the suspect and if the suspect posts about the child’s health condition on her account. Witnesses will normally say that the suspect posts constantly about the health of the victim, but don’t stop there. Ask if the suspect kept a blog on any other website and if the suspect was active on any medical blogs or sites. If she was, send a preservation request to every one—Facebook, MySpace, Twitter, Care-pages, Instagram, and any other social media site—on which the suspect posted information about the victim’s health. Follow up with search warrants for the suspect’s account to obtain what the suspect has written about the health of the child.
    Facebook was very useful in several medical child abuse investigations, such as the one against Elisabeth Hunnicut, who intentionally drugged her child with Clonidine to simulate symptoms of hydrocephalus (water on the brain), prompting doctors to place a brain monitor inside the child’s skull. Hunnicutt shared messages with many Facebook friends about the condition of her child, listing four diagnoses that were just blatantly untrue. In fact, she had been specifically told on numerous occasions that the victim did not have two of those conditions. Hunnicutt also posted on another social website, Meetup.com, that her child suffered from a diagnosed case of hydrocephalus, even though she had been informed three weeks prior that a brain monitor had shown that there was no possibility of the victim having that medical condition.
    Her Facebook account presented some challenges. Hunnicutt had time to erase most of her profile due to a very slow investigative response. Just about the only thing remaining on her page were numerous photographs—but also comments from other Facebook users on those photographs. We contacted the people who commented most frequently, and many of them still had private messages from Hunnicutt about the victim’s health and were able to forward these messages. Interestingly, Hunnicutt provided different medical information for the victim depending on how close the Facebook friend was to Hunnicutt in real life. The more disconnected the Facebook friend, the more dire the victim’s medical condition became.
    The child victim in the Hunnicutt case went from (as the defendant reported) sleeping 20 hours a day, suffering from a persistent case of torticollis, previously having a gastric feeding tube, and being prescribed 10 to 20 medications, to being a normal, healthy, active 2-year-old within two weeks of separation from the suspect and removal from all medications. Elisabeth Hunnicutt pled guilty to charges in Texas and California and can have no contact with her two children for four years and extremely controlled supervised contact for six years afterwards.
    In a case where medical professionals accuse someone of presenting false medical symptoms, and a credible witness states that the suspect has posted about the child’s medical condition on any website, investigators have probable cause for a warrant for those sites. The search warrant affidavit should be extremely detailed about the allegations against the suspect, the victim’s improved medical condition after separation from the suspect, and who (preferably more than one person) gave you information that the suspect was posting about the victim’s medical condition. Sometimes suspects leave their social media accounts public and the investigator can establish probable cause from the public portions of the defendant’s account. But do not think that you can simply ask a cooperative witness who is Facebook friends with the suspect to pull up the suspect’s page and copy the information so that you do not have to get a search warrant. First of all, this will appear lazy to a jury. And secondly, there are private messages and other content to which the Facebook friend will not have access. Get a search warrant.
    In the current age of technology, where people routinely put everything important in their lives on the Internet in their own words, law enforcement would be negligent to not capture what the suspect actually typed about the condition of her child. The best evidence in these cases is the suspect’s own writings about the child’s medical condition. How can a parent defend her own written statements that her child has medical conditions when doctors testify that the child has no such problems—and that they have informed the suspect of such? These records are terrific evidence in a criminal case of medical child abuse.

Correlating
the information
Obtaining a complete medical record for the victim is one of the reasons we search for a complete social and medical history from the suspect. These suspects often leave treatment facilities and family doctors once their behavior is suspected, many times crossing state lines to facilitate their need to obtain abusive medical treatment for their children. Once you get these records, they need to be thoroughly examined.
    Often, the medical histories for the victim given by the defendant will vary from medical treatment center to treatment center. This is also important evidence in showing a pattern of the suspect’s behavior of going from doctor to doctor (“doctor shopping”) until the suspect finally finds one who will satisfy the defendant’s need. 
    As you obtain and examine all medical and social history records, enter each relevant piece of information into a Microsoft Excel spreadsheet or an equivalent program. You can set the spreadsheet up to sort by date. If you are not computer-savvy, get someone to help you with the set-up, as it will make your job in this investigation far easier. Enter every relevant piece of information into this program, including dated events described by witnesses, the suspect’s social media statements, medical record events, etc. If a board-certified child abuse doctor is consulting on the case, you might talk him or her into entering the medical records into a spreadsheet while you concentrate on the witness and social media events’ entry. When you merge the spreadsheets and sort by date, you will have a clear picture of the suspect’s deception and abuse over an extended period of time.

The suspect interview
Once an investigator has collected and examined all the medical records, talked to all of the collateral witnesses, and examined all of the social media records for inconsistent statements, it is time for the suspect interview.
    When the suspect interview occurs is entirely dependent on the dynamics of each specific investigation. Ideally, the suspect interview, just like in any investigation, should come after the investigator has collected and examined all pertinent information in the case. If possible, the suspect should be interviewed after all search warrants have been served and all witnesses interviewed, unless the witnesses are sympathetic to the suspect. Such witnesses should be avoided until after the suspect interview to prevent their sharing information with the suspect.
    The best way to approach a suspect is after she has a scheduled meeting with CPS at a child advocacy center where the interview can be recorded for sight and sound. The interviewer should act as if he is a lazy government employee and say something like, “I just got a bunch of medical records dumped on my desk, and it seems like it would be a lot easier for you to tell me what’s going on with your daughter than having to read through all that stuff.” Remember, these are skilled offenders who are practiced in fooling medical professionals, so they may believe that fooling an unmotivated civil servant is child’s play.
    When beginning the interview with the suspect, you first want to get a complete social history and medical history for the child and any siblings. Although CPS and medical professionals have already done this, the suspect may not realize you have read any of these files. The suspect may give you a different medical history for the victim or one of his siblings, and this gives you information to use later if the interview turns into an interrogation.
     For instance, during the interview of Hope Ybarra, she lied about medical conditions involving her older daughter, denying any medical problems when the medical records showed that Ybarra had presented her for years as having cerebral palsy. We later used the knowledge of this lie to obtain incriminating statements from Ybarra when the interview turned to an interrogation, including the admitted falsification of a sweat chloride test for cystic fibrosis and an admission to putting pathogens into the victim’s sputum sample. During the interview, Ybarra first lied about her conduct. Then she minimized her conduct when finally giving admissions, a pattern we’ve seen in just about every successful abusive head trauma interrogation. This indicates that Ybarra knew that what she was doing was wrong. Again, this is child abuse, and without a law enforcement investigation, there would be no confrontational interview of the suspect and her admissions would have never happened.
    As a result, the charge of injury to a child (with SBI) against Ybarra has resulted in a guilty plea. Hope Ybarra, a college-educated woman with no previous criminal history, pled to 10 years in prison. The reason for the pleas in these cases was a thorough law enforcement investigation, which created a mountain of indisputable evidence. Without an extensive investigation, it is very possible that no criminal charges are ever brought and the victim is returned to the suspect through civil courts, which are still grasping to understand the concept of medical child abuse.
    Civil courts seem to struggle with some of the expert opinion that suggests that medical child abuse perpetrators are as difficult to rehabilitate as pedophiles2 and that there are no proven therapies for the abuser.3 A proper law enforcement investigation can take the decision out of the hands of the civil court and put it into that of the criminal court in the form of bond conditions or plea agreements.
    The most frightening statistic comes from a researcher4 who studied 117 cases of medical child abuse and found a mortality rate of 9 percent. Even the possibility for a rate this high demands a professional and extensive law enforcement investigation. Law enforcement should never label this a “CPS issue” or a mental condition. This is a dangerous form of abuse, and the victims deserve a proper investigation.

Statutory help
and caselaw
There is no “abusive head trauma” statute, just as there is no “medical child abuse” statute. They both fall under injury to a child.5 Again, just as in abusive head trauma cases, the prosecution will rely on doctors to testify whether the abuse is bodily injury or serious bodily injury; the needless medical procedures or surgeries performed on the victim are the method of injury.
    A very helpful tool is Art. 13.075 of the Texas Code of Criminal Procedure, which states that any offense of child physical or sexual abuse can be prosecuted in any county where an element of the offense occurred, the defendant is apprehended, the victim resides, or the defendant resides. The statute applies to any case in which the injury occurred on or after September 1, 2011, allowing an agency to file a case if the victim is residing in its county but maybe received one or multiple surgeries or injuries in other Texas jurisdictions. This is extremely helpful for counties in which a children’s hospital is located.
    There is one case annotation specific to establishing serious bodily injury in these cases that may be helpful to you. In Williamson v. State,6 the First Court of Appeals upheld the jury’s verdict that placement of a gastric feeding tube constitutes serious bodily injury. Of course, a child abuse pediatrician and other prosecution medical expert witnesses would need to testify to such at trial, as occurred in the Williamson case, where four different medical experts said as much. The same court also upheld the jury’s finding that the surgeon’s scalpel was a deadly weapon. In all four cases we have prosecuted since 2009 (and the case where the surgeries occurred out of state), a gastric feeding tube had been placed into the victim, so this decision has been important for us.
    Another case addressing medical child abuse is Austin v. State.7 This case involved a mother who injected her (non-diabetic) child with insulin, causing the child to go into a deep coma. The interesting aspect of this case is that a sibling had died previously under suspicious circumstances. The sibling had been brought to hospitals on three separate occasions for accidental overdoses. Medical child abuse was suspected, and the defendant was caught in circumstances suggesting that she was injecting a substance into the child’s IV line. The sibling was removed temporarily from the care of the mother but later returned against the advice of the psychologist treating the mother. This sibling died shortly after being returned to the mother. After it was discovered that the mother had poisoned the current victim with insulin, the sibling’s body was exhumed and re-examined by the medical examiner, who found an injection site on the body. The cause of death was changed to homicide. Austin is significant because the medical records of all of the defendant’s children (extraneous victims) were admitted by the trial court in the guilt-innocence phase and the admission upheld by the 14th Court of Appeals.
    A concerning aspect of the Austin opinion is its continued referral to the defendant as having Munchausen Syndrome by Proxy (MSBP). This would be akin to saying a defendant in an abusive head trauma case had Shaken Baby Syndrome. Again, this is not an illness attributed to a defendant. This is a pattern of abusive behavior committed against a child—by a defendant. Two researchers8 say, “The behavior commonly called MSBP is a form of child abuse that takes place in a medical setting. Child abuse is not an illness or a syndrome in the traditional sense but an event that happens in the life of the child.” They further state, “Medical child abuse is not an illness. However, it is clear that the recipient of the abuse is a child.” Another researcher9 says that the defendant in a medical child abuse case is not mentally ill but “unmasks herself as a perpetrator, not a patient.” Feldman also states that this type of abuse is clearly contained in the Federal Child Abuse Prevention and Treatment Act of 1974.
    A thorough review of the Austin case illustrates the importance of a complete law enforcement investigation into this type of child abuse. One of Austin’s sons was returned to her despite a suspicion of medical child abuse; he was later murdered, and another son was put into a deep coma. Hope Ybarra had told everyone who would listen, including a local news broadcast, that her child had a terminal form of cystic fibrosis, even though she had been told time and again by the victim’s pulmonologist that this was not the case. To what lengths would she have gone to prove her diagnosis correct? How long could she continue the lie without having someone question her and having to take action? I am thankful these are questions that we will never have to answer, as Ybarra’s victim is now an active, healthy, straight-A student in the gifted and talented program and active in sports.

Reporting abuse
While reports of this type of child abuse may come from teachers, daycare workers, concerned family members, or anyone involved in the victim’s life, usually the most viable reports come from the medical professionals involved in the victims’ care. Due to the confusion about this type of offense, each district attorney’s office in the state should consider a special protocol for reporting it. This is especially true for district attorney’s offices whose jurisdictions include children’s hospitals. Is the surge in medical child abuses cases in Tarrant County an anomaly, or do doctors now feel comfortable that if they report such abuse, it will be thoroughly investigated?
    Police departments and Child Protective Services do not always respond to allegations of this type of offense. The Hunnicutt case mentioned previously was filed with our agency as an intentional over-medication, and it was filed—a full year after the police report—only after the child victim’s father pushed the police department for action after being told there had been no offense. Any involvement by a father is very uncommon in these types of cases, so we are fortunate the dad in this case was so proactive.
    A protocol suggestion is for medical personnel at the children’s hospital to make the normal report through the CPS hotline, as well as reporting to the CPS liaison assigned to that hospital (or if there’s no liaison, a pre-appointed hospital social worker), who can then report the suspected offense to a designated member of the district attorney’s office. This will ensure that the district attorney’s office can coordinate with the police department, CPS, and other members of the multi-disciplinary team to make sure the offense is understood, a proper investigation takes place, and nothing falls through the cracks. And if there is a guilty plea or conviction, share this with the physician(s) who reported the abuse to let them know that someone took the time to verify their diagnosis. They will be highly appreciative and encouraged to remain vigilant in recognizing this type of abuse.
    The investigation will take a lot of working hours, review of thousands of pages of medical records, and cooperation between many agencies, all for a successful outcome that may still mean only probation for a mother with no previous criminal history (assuming the victim is still alive). Instead of asking yourself, “Is it worth it?” ask yourself, “What will happen to this child if the allegations are true and we do nothing?”
Endnotes

1 Roesler T, Jenny, C. Medical Child Abuse: Beyond Munchausen Syndrome by Proxy. Elk Grove, IL; American Academy of Pediatrics, 2008:43.
2 Alexander R. The Munchausen by proxy family. In: Levin AV, Sheridan MS, eds. Munchausen Syndrome by Proxy: Issues in Diagnosis and Treatment. New York, NY: Lexington Books; 1995:479.
3 Ludwig S. The role of the physician. In: Levin AV, Sheridan MS, eds. Munchausen Syndrome by Proxy: Issues in Diagnosis and Treatment. New York, NY: Lexington books; 1995:287-294.
4 Rosenburg, DA. Web of deceit: a literature review of Munchausen syndrome by proxy. Child Abuse Negl. 1987;11(4):547-563.
5 Tex. Penal Code §22.04.
6 356 S.W.3d 1, 12 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).
7 222 S. W.3d 801 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).
8 Roesler T, Jenny, C. Medical Child Abuse: Beyond Munchausen Syndrome by Proxy. Elk Grove, IL; American Academy of Pediatrics, 2008:55-56.
9 Feldman, M. Playing Sick? Untangling the Web of Munchausen Syndrome, Munchausen by Proxy, Malingering, and Factitious Disorder. New York, NY; Brunner-Routledge, 2004: 122.