20 child autopsies by pathologist questionable: review

Last Updated: Thursday, April 19, 2007 | 4:45 PM ET

CBC News

An Ontario pathologist made questionable conclusions of foul play in 20 child autopsies, 13 of which resulted in criminal convictions, Ontario's chief coroner says.

Coroner Barry McLellan presented these findings Thursday, based on a review of 45 child autopsies conducted by Charles Smith between 1991 and 2002. All 45 autopsies concluded the cause of death was either homicide or criminally suspicious.

A team of international forensic experts is concerned over autopsies performed by Dr. Charles Smith.
(CBC)

The review, conducted by a team of international forensic experts, raised concerns with 20 of the 45 autopsies. Some concerns were minor, but several were "serious," McLellan said.

"I am very surprised with the overall results of the review, and concerned," he said.

"In a number of cases, the reviewers felt that Dr. Smith had provided an opinion regarding the cause of death that was not reasonably supported by the materials available for review."

The results of the review are being shared with defence and Crown attorneys involved in all criminal cases, McLellan said.

Michael Bryant, Ontario's attorney general, said in light of the review, his first priority will be to deal with the criminal convictions. Crown prosecutors are ready to help if cases need to be reopened, he said.

One of the 13 people convicted is still in jail.

"Errors in 20 pediatric forensic pathology reports over 10 years is totally unacceptable," Bryant said. "Totally unacceptable."

The review was launched nearly two years ago after several autopsies Smith performed were called into question. At the time, Smith was considered a leading expert on pediatric forensics at Toronto's Hospital for Sick Children.

McLellan noted that the review only covered Smith's work dating back to 1991, a date picked arbitrarily.

"There may well be cases prior to 1991 which raise similar concerns," McLellan said, noting Smith started performing autopsies in 1981.

He said his office will work with the attorney general's office to identify all autopsies Smith performed. Anyone convicted as a result of those autopsies can ask to have Smith's findings reviewed, McLellan said.

Stigma of accusation never leaves: freed man

William Mullins-Johnson, who was convicted of murder in the wake of a Smith autopsy, said even when errors are pointed out and sentences are overturned, the stigma of the accusation remains.

Mullins-Johnson spent 12 years in jail after being convicted of killing his four-year-old niece. He was released last year when evidence surfaced showing that Smith had lost tissue samples that could have proved the girl died of natural causes.

"Something was made out of nothing and my life was taken from me," Mullins-Johnson said.

The Association in Defence of the Wrongly Convicted, an advocacy group, is calling for a full public inquiry into Smith's work.

In 2005, Smith moved to Saskatchewan to work for the Saskatoon Regional Health Authority. This past February, he was fined and reprimanded by the Saskatchewan College of Physicians and Surgeons after he pleaded guilty to a charge of unprofessional conduct.

The college said he didn't disclose that he was the subject of an investigation in Ontario when he applied for a licence to practise in the province.

Smith is now believed to be living in British Columbia.

Smith performed autopsies long after asking leave

Dr. Charles Smith

Updated: Tue Nov. 13 2007 12:14:03

The Canadian Press

TORONTO — Discredited former pathologist Dr. Charles Smith was still performing autopsies for Ontario's chief coroner a year after he asked to be excused from those duties, a public inquiry heard Tuesday.

Smith, at one time a leading pediatric forensic expert in Canada whose work has since come under a cloud of suspicion, wrote in January 2001 to then-chief coroner Dr. James Young asking to be excused from performing all coroner's autopsies.

The letter, which also asked Young to arrange an external review of Smith's work, came after charges against Louise, accused in the 1997 death of her seven-year-old daughter, were dropped.

Smith concluded that Louise stabbed her daughter Sharon 80 times with a pair of scissors, but the charges were withdrawn after other pathologists concluded the girl was mauled by a dog.

In 2002, a year following the letter, Smith was still performing autopsies -- but not in homicide or "criminally suspicious'' cases, former Ontario chief coroner Dr. Barry McLellan said Tuesday.

However, Smith did perform one ''criminally suspicious'' case involving dehydration following his letter, McLellan said.

"The autopsy was done under circumstances where, as I understand it, another pediatric pathologist could not be found at the time,'' McLellan said.

"It was felt appropriate after that the case be reviewed and I assisted with identifying someone to review the case and, at my request, the case was reviewed.''

However, that case was not among 20 of the 45 child death cases Smith had handled since 1991 which came under question by an expert panel. Of those 20 cases, 12 resulted in criminal convictions, while one ended with a finding of not criminally responsible.

The panel's findings, which raised serious doubts about opinions given by Smith, prompted the province to call the public inquiry to examine the role played by pediatric forensic pathology in the criminal justice system since 1981.

Smith, who has managed to remain out of the public eye since the expert panel made its conclusions, surprised the inquiry Monday by offering an apology for the "mistakes'' he made over two decades performing autopsies on children -- findings which led the courts to toss out one conviction and a number of criminal charges.

In a statement read by his lawyer, Smith acknowledged that he made a number of mistakes, but that they were made without any intention of obstructing the investigations in which he was involved.

The public hearings began Monday with an expert panel and are expected to take about three months, with Smith due to testify in late January.

Tuesday's hearing focused on the testimony of McLellan and Dr. Michael Pollanen, Ontario's chief forensic pathologist.

Led by Justice Stephen Goudge, the inquiry is expected to report his findings and make recommendations on restoring confidence in the pediatric forensic system in April.

Pathology system failed at 'top end': ex-coroner

Dr. Charles Smith Updated: Thu Nov. 29 2007 16:30:58 The Canadian Press TORONTO — Ontario's former chief coroner expressed remorse Thursday for his repeated failure to act on a judge's scathing criticism of pediatric forensic pathologist Dr. Charles Smith, whose evidence led to several wrongful prosecutions involving the deaths of infants. Testifying at a judicial inquiry, Dr. James Young admitted that he essentially blew off opportunities to take a serious look at criticism that came from a judge presiding over the case of a Grade 6 student who was charged with killing a baby. "None of them stuck with me,'' Young, who was Ontario's chief coroner from 1990 until 2004, told the inquiry. "I regret it deeply but I can't go back and change history.'' In 1988, 16-month-old 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 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 S.M. in 1991, Justice Patrick Dunn tore a strip off Smith, who had worked with other pathologists at the Hospital for Sick Children in Toronto on the case. Dunn attacked Smith on 16 points, including his failure to consider any other possibilities for the cause of death, and for concluding that Amber had been shaken to death even before performing the autopsy. Young, who is currently a special adviser to the federal deputy minister of public safety, said no one ever sent him the judge's written ruling. However, commission counsel Mark Sandler produced a complaint letter written in 1999 by the father of a woman accused of killing her son based on Smith's opinion. The letter, which Young called "astoundingly accurate,'' detailed Dunn's criticism of Smith in the Amber case. "I regret -- I regret deeply -- that I didn't read this, it didn't register, and it didn't signal something in me,'' Young said of the letter. "I don't think I read it.'' Nevertheless, he wrote back to say he had given detailed consideration to the complaint. Young also testified that the coroner's office has no way of tracking cases that end up in court. "You see a weakness there?'' Justice Stephen Goudge interjected. Young responded that it would be a "monumental feat'' for the coroner's office, which has enough on its plate already, to track so many cases. "If we're satisfied that the Crown seems happy and things are running along, we're not paying attention,'' Young responded. "We're moving on to tomorrow's problems.'' William Mullins-Johnson, who spent a dozen years in jail for raping and suffocating his four-year-old niece based Smith's faulty pathology, was contemptuous of Young's explanation. "You're sent letters, you're sent complaints, you're sent judgments from courts, and nothing is triggering?'' Mullins-Johnson said. "You can't explain that away with, `Oops, I just wasn't paying attention,' or, `Oops, it wasn't my responsibility.' It was his responsibility.'' While he did not elaborate, Young did say that Smith told him some time after the acquittal that the judge had expressed the view that had he known more about shaken baby syndrome, he would have convicted S.M., whose full name is covered by a publication ban. Commission counsel indicated that Dunn maintains he never expressed any such view.

Pathologist made dubious forensic calls: ex-coroner

Dr. Charles Smith Updated: Fri Nov. 30 2007 12:42:02 The Canadian Press TORONTO — Forensic pathologist Dr. Charles Smith made bad findings, was chronically late issuing reports, misplaced evidence, and changed his opinions at the last minute, but Ontario's chief coroner took little action even though the problems were repeatedly brought to his attention, an inquiry heard Friday. Smith's poor procedures and faulty opinions are blamed for several criminal prosecutions against people wrongly accused of killing babies or children between 1991 and 2001. "I was aware of the general concerns but I can't recall specifics,'' Dr. James Young told commission lawyer Mark Sandler at one point. "I just knew there were a lot of problems getting reports out of him.'' In one case, Smith decided a skull fracture was the result of abuse, where another expert later determined it was the result of the autopsy itself. As a result, in early 1999, years after complaints about Smith first began surfacing, Young finally called the pathologist to a formal meeting. "I discussed with him that I was concerned that his report had gone too far and that he had viewed abuse essentially where there was not good evidence that it existed,'' Young told Commissioner Stephen Goudge. Young, who was chief coroner from 1990 to 2004, also said he impressed on Smith the need to be conservative in his findings, rather than be on "the leading edge'' of pathology. "He didn't argue. He didn't debate with me.'' The office of the chief coroner soon issued a memo on the "pitfalls'' of pathology but Smith, who worked at Toronto's Hospital for Sick Children where problems with him were well known, continued his pediatric forensic work for another two years. Young, who helped lead Ontario's response to the SARS crisis in 2003 and to the huge blackout in August of that year, stressed he was not Smith's employer. He insisted he "wasn't aware of the issues around the quality'' of Smith's pathology although he did speak informally to him on a few occasions in the 1990s about his tardiness. Young also defended Smith in the case of a mother wrongfully accused of killing her child in 1997 based on his view of when the injuries occurred. "I'm not suggesting that Dr. Smith's opinion is correct,'' said Young, who at times grew testy with Sandler. "But he is not totally wrong.'' The woman's father, who spent his life savings to have his daughter exonerated, wrote a detailed complaint to Young in early 1999 outlining the numerous errors Smith had made. Young's response was general in nature because, he said, "one letter leads to 50 other letters.'' "You have to put it in the context of what one person sees or interprets versus what another person sees or interprets,'' Young said. "That's why we have experts and that's why we have differing points of view.'' The inquiry also heard about disagreements between Young and the body that regulates doctors in Ontario about who had jurisdiction in discipline cases involving pathologists. At one point, the deputy registrar of the College of Physicians and Surgeons of Ontario wrote in a memo that Young "finds himself compelled to give the best appearance he can of trying to protect Crown pathologists.'' Young, who is now a special adviser to the federal deputy minister of public safety, said he wanted to ensure that pathologists, who were in short supply, would not be scared off from taking part in court cases because a judge might deem their findings to be wrong. In one memo shown as evidence, a Crown prosecutor complained they looked like "fools'' because of the pathologist.

Discredited pathologist had time to change opinion

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.

Missing evidence turned up in pathologist's office

Dr. Charles Smith Updated: Mon Dec. 17 2007 16:02:49 The Canadian Press TORONTO — A secretary who repeatedly tried to have discredited pathologist Dr. Charles Smith clean up his messy office and return phone messages was surprised to find missing evidence in the room just three days after searching it, a public inquiry heard Monday. The 20 autopsy slides discovered by administrative co-ordinator Maxine Johnson in November 2004 were part of the evidence requested by lawyers representing William Mullins-Johnson, who spent a dozen years in jail after Smith's faulty pathology helped convict him in the death of his four-year-old niece. Mullins-Johnson, of Sault Ste. Marie, Ont., was released from custody in September 2005 after evidence surfaced that Smith had misplaced tissue samples capable of showing the girl died of natural causes in 1993. Mullins-Johnson was acquitted of her murder in October. Johnson said she found 20 of the missing slides on Nov. 29, 2004, during a second search of Smith's office in the pathology division of the Hospital for Sick Children in Toronto, where she works. Jim Cairns, Ontario's deputy chief coroner, made the urgent request to find the slides the previous week after Smith failed to provide them, Johnson testified. She and another secretary, Dorothy Zwolakowski, located "a few'' slides in Smith's office that Friday. But when Johnson looked again the following Monday, she discovered 20 slides on a shelf in Smith's office -- the same spot she had checked three days prior, she said. "Did you draw from that the inference that they had been placed in the position where you found them between the Friday and the Monday?'' said Philip Campbell, a lawyer who represents Mullins-Johnson and other families convicted of crimes in cases that involved Smith. "Yes, I did,'' Johnson replied. "Because we did spend a lot of time and we did look everywhere for those.'' She said she spoke to Zwolakowski about finding the missing slides in a spot they had already searched. "I told Dorothy that I thought it was kind of strange that we had looked,'' Johnson said. "I mean, we spent a lot of time looking.'' Additional evidence related to the case was found some months later in places that Johnson had already searched, she testified. The inquiry also heard that Smith's office was often unkempt and littered with phone messages taken by frustrated clerical staff who answered numerous calls from police and other parties looking for Smith, once considered a leading Canadian expert in the field of forensic pediatric pathology. A search of Smith's office in June 2005 unearthed a collection of bizarre objects, such as human bones and pieces of dried-out tissue, Johnson said. She had a picture taken of Smith's office in 2001, hoping it would "motivate'' him to keep it tidy. But it didn't have the desired effect, she said. The grainy picture appears to show numerous documents and other materials strewn all over Smith's desk. Johnson testified the photo was taken after she'd already been cleaning his office for an hour, as she did a number of times. Smith's computer screen was often littered with phone messages taped to the monitor, Johnson said. When there was no room left, the secretaries would leave messages on his chair, knowing that when Smith sat down, he would be forced to look at them. "The secretaries always seemed to, sort of, be blamed for him not getting his messages,'' she said. "He would say, `Oh, I didn't get the message.' So we developed a system where if you put it on his computer, we always know that he's going to sit in his chair and turn around to his computer screen.'' Still, the secretaries liked working for Smith because he was easy to get along with, Johnson said. "He's really a great guy,'' she told the inquiry. "He's sociable and definitely not a difficult person to deal with.'' But the chronic delays in completing autopsy reports were often of Smith's own making, the inquiry heard. His "love'' for typing his own autopsy reports was part of the reason authorities rarely received them on time, Johnson said. "He liked to type them himself,'' she said. "He just didn't give them to us (secretaries).'' Dr. Don Perrin, who sat on a Hospital for Sick Children committee between 1995 and 2001 that kept track of outstanding autopsies, said Smith had more delayed reports than any other pathologist. Perrin, who sat on the committee along with Smith and Dr. Laurence Becker, former chief of the hospital's pediatric laboratory medicine department, said he offered some ideas about helping Smith clear the backlog, but they fell on deaf ears. "Dr. Smith didn't want me to help him,'' Perrin said. "He said he would catch up.'' The inquiry into pediatric forensic pathology in Ontario is investigating the deaths of 20 children which involved criminal proceedings where Smith was a forensic pathologist. Led by Justice Stephen Goudge, the inquiry was prompted by a review of 45 cases Smith handled between 1991 and 2001. Twenty of those led to criminal proceedings.

Smith made 'ridiculous' conclusions: pathologist

Dr. Charles Smith Updated: Tue Dec. 18 2007 16:31:17 The Canadian Press TORONTO — Discredited pathologist Dr. Charles Smith second-guessed his colleagues in some of the child death cases he oversaw and jumped to "ridiculous" conclusions, a pathologist who frequently clashed with Smith told a public inquiry Tuesday. Once considered a leading Canadian expert in the field of forensic pediatric pathology, Smith also made serious errors in diagnosing patients at Toronto's Hospital for Sick Children, including a girl with a kidney tumour who didn't receive the right medical treatment as a result, the inquiry heard. Dr. Ernest Cutz, a pathologist and expert in sudden infant death syndrome or SIDS, said there were a number of cases where Smith suspected criminal activity even though there was no evidence to support his opinions. In one case, Cutz concluded that an infant had died accidentally after being found tangled in the cord from a venetian blind close to the crib. But Smith, who signed off on Cutz's cases as director of Ontario's forensic pediatric pathology unit, said the incident "looked suspicious" and that the parents might be involved, Cutz said. "I found it quite ridiculous, especially knowing that this is a recognized hazard, which has been documented in the literature, and it has even been the subject of television reporting," he said. Smith never explained the reasons behind his suspicions, Cutz added. "There was no evidence from police or other investigations that anything untowards has happened, and I presume that's how it ended up classified," he said. Another case involved a small child who had the croup and died after collapsing in a shower that was intended to alleviate his respiratory problems, Cutz said. During the autopsy, Cutz found a fungal obstruction in the child's airway, which he concluded had developed as part of his illness and caused the child's death. Smith thought the obstruction was a red herring - something that happened while the child was being resuscitated - and suspected the mother had a mental disorder and was somehow responsible for the child's death, Cutz said. Smith also made errors in his surgical pathology work at the Hospital for Sick Children, the inquiry heard. Dr. Glenn Taylor, now head of the hospital's pathology division, testified about one case where Smith misdiagnosed a girl in 1996 as being in the early stages of a kidney tumour, when she actually had a more aggressive form of the illness. Taylor, who reviewed the original slides after the child returned to the hospital about a year later with a recurrence of the tumour, discovered the error, which had prevented the girl from receiving proper medical treatment. "It would have at least included ... additional chemotherapy and possibly radiation therapy," said Taylor, who testified he didn't know what happened to the girl. "It would have been a more aggressive treatment." The inquiry into pediatric forensic pathology in Ontario also heard Cutz's misgivings about the forensic unit, which he felt had strayed from its initial, primarily academic focus towards forensics and conducting more autopsies of criminally suspicious cases. It was a concern he seemed to share with Dr. Laurence Becker, the former head of the hospital's pathology division, who drafted a letter in 1999 proposing that the hospital sever its link with the coroner's office through the unit and perform autopsies only in medical or natural death cases. Cutz, who conducted research with Becker, a fellow SIDS expert, said they had supported the move to form the unit in 1991 because they believed it would help fund and support their research. But that work effectively stopped when they were cut off from accessing tissue samples from SIDS cases investigated by the coroner, Cutz said. In early 1997, Cutz said he was surprised to hear that the coroner's office was considering removing him from performing all medical-legal autopsies because of "vague" allegations that he was soft on crime and didn't co-operate with police. He later straightened things out with Dr. David Chiasson, former chief forensic pathologist at the coroner's office, and his name wasn't taken off the autopsy roster, he said. But Cutz, who didn't hide his distaste for Smith's methods during Tuesday's hearing, testified he had reservations about the former Ontario pathologist from the time he was appointed director of the forensic unit. "I didn't know if Dr. Smith was qualified, but I didn't think that he had the appropriate training to assume that, to do those kinds of (forensic) cases," Cutz said. "But it was his choice. ... I wouldn't have recommended him to do it." Led by Justice Stephen Goudge, the inquiry into pediatric forensic pathology in Ontario was called after an expert panel reviewed 45 cases Smith handled between 1991 and 2001. The panel found problems in 20 of those cases, which raised serious doubts about opinions given by Smith and the criminal proceedings that stemmed from his findings.