Tuesday, December 15, 2009

Discredited pathologist had time to change opinion

Dr. Charles Smith

Dr. Charles Smith

Updated: Fri Dec. 14 2007 17:09:27

The Canadian Press

TORONTO — Discredited pathologist Dr. Charles Smith had ample opportunity to change his mind about the conclusions he reached in child death cases he investigated, some of which were later found to contain errors, a public inquiry into Ontario's pediatric forensic pathology system heard Friday.

There are chances to revisit such opinions, particularly when the ever-evolving science of forensic pathology presents new information that could prompt a review of their findings, a British pathologist agreed.

Such opportunities can arise if there's a complaint about the pathologist's opinion in a criminal case, during an appeal or review, or if colleagues have raised questions about why a judge may have rejected evidence given in a criminal case, Dr. Helen Whitwell said.

"And so in (the case of 16-month-old) Amber, if a complaint were made against Dr. Smith and he had an opportunity to respond, that again would provide an opportunity for him to evaluate or reassess whether or not he wished to maintain the same or different opinion? Is that right?'' commission lawyer Mark Sandler asked.

"Yes,'' Whitwell said. "I mean, I can only speak about what potentially could happen in England, and we would have the opportunity to respond.''

Amber, of Timmins, Ont., died while in the care of her 12-year-old babysitter, S.M., who maintained the child had fallen downstairs.

The death came at a time when still-controversial "shaken baby syndrome'' was working its way into the forensic consciousness, and Smith -- who was deemed an expert -- concluded that Amber died from brain injuries caused by severe shaking. Nine other experts disagreed.

In acquitting the babysitter in 1991, the judge issued a scathing criticism of Smith's work, which has since come under scrutiny.

Smith's lawyer Niels Ortved had argued Thursday at the inquiry that his client, once considered the leading Canadian expert in pediatric forensic pathology, wasn't given a chance to reconsider his opinion before he was blindsided by a team of international experts, which included Whitwell.

Ortved also demanded that Whitwell explain her own reversal in a homicide case, pointing out that she had testified for the prosecution at the 1995 manslaughter trial of Alan Cherry, but later switched sides and testified for the defence when England's Court of Appeal reconsidered his case.

On Friday, Ortved objected to Sandler's questioning of Whitwell, calling it "gratuitous.''

"Dr. Smith was presented with 20 cases, which have now become 18 cases, of conclusions from experts adverse to him, and he was given no notice of those whatsoever,'' Ortved said.

"And that's what I'm objecting to, and I don't agree with this.''

Sandler countered that he was not referring to whether Smith had a chance to modify his findings in 45 cases he handled since 1991 that were examined by the expert panel, which found problems in 20 of them.

Those findings raised serious doubts about opinions given by Smith and prompted the province to call the public inquiry to examine the role played by pediatric forensic pathology in the criminal justice system since 1981.

Whitwell testified that she changed her view in the Cherry case because the knowledge she was operating under in 1995 had changed, and that she had an opportunity to revisit her opinion because the case went to appeal.

However, she noted that there's no mechanism in England that allows a pathologist to take the initiative on their own.

"There's no person I can write to and say, `This has changed,''' she said."There's nobody to write to and no real mechanism for that.''

The inquiry had previously heard that the province's coroner's office had difficulty tracking cases and that its former chief coroner had not seen the judge's ruling in the Amber case that criticized Smith's work or another complaint letter in 1999 that referenced it.

Earlier Friday, the inquiry heard that while pathologists in some countries have been encouraged to be more suspicious when investigating unexpected deaths, they should not take the "think dirty'' approach that Ontario pathologists investigating child deaths began to adopt in 1995.

Pathologists must instead keep an open mind when examining suspicious deaths rather than approach cases with an assumption of wrongdoing, Whitwell and Finnish forensic pathologist Dr. Pekka Saukko testified.

The inquiry also heard that Ontario's "think dirty'' protocol has since given way to a culture that urges pathologists to keep an open mind.