News of the Day ... in Perspective9/1/2004
“Shaken baby” conviction overturned
On August 27, Judge Alan Lawson overturned the conviction of Alan Yurko, who had been sentenced to life imprisonment without possibility of parole, for allegedly shaking his 10-week-old son to death. Yurko had been imprisoned for six years, 125 days.
At a week-long hearing, defense witnesses argued that the infant’s death resulted from natural causes and medical error.
“Mr. Yurko was convicted of doing the impossible,” stated Jane Orient, M.D., Executive Director of AAPS. While subdural hemorrhage can be caused by acceleration-deceleration injury (whiplash) alone, recent experimental evidence shows that an adult male cannot generate the needed force by shaking alone, without impact. Autopsy showed no head trauma, and also no neck injury.
Unquestionably, the baby suffered a respiratory arrest, followed by cardiac arrest, and had anoxic encephalopathy as a result. These facts could explain all of the autopsy findings, Dr. Orient argued, especially since the baby was started on intravenous heparin soon after admission, and some five hours before a CT scan showed a small subdural hematoma.
Several witnesses stated that the apneic episode as well as other findings resulted from a vaccine reaction. The infant, who was born after 35 weeks gestation, received six vaccines at once, while ill, 13 days prior to the fatal event. Dr. Orient stated that vomiting with aspiration was another possible explanation.
Horace Gardner, M.D., of Colorado, an ophthalmologist, observed that alleged shaken baby syndrome occurs at much younger ages in the U.S., peaking at age 3 months, than in Japan, where it peaks at 9 months. There is less than a one in a million chance that the age distribution is different on the basis of chance alone. Dr. Gardner notes that the age of vaccination is later in Japan, with the timing consistent with a causal connection.
Dr. Gardner also testified that shaking could not produce unilateral retinal hemorrhage, as observed in Baby Yurko, for biomechanical reasons.
The DtaP, Hib, OPV, and hepatitis b vaccines were contraindicated at the time that they were given, testified pediatrician F.E. Yazbak, M.D., of Massachusetts. The pediatrician did not even record the baby’s temperature on that day.
Dr. Yazbak also raised the possibility of late hemorrhagic disease of the newborn in addition to other reasons for a bleeding tendency.
A key element in Yurko’s conviction was the presence of four “probable” healing rib fractures of various ages. This sustained the charge of aggravated child abuse. Dr. Yazbak stated that the probability of inflicted injury was very low in the absence of any bruising or damage to the lung. Each traumatic fracture has a 75% probability of damaging the lung, he stated. (Thus, the probability that four independent traumatic fractures will not damage the lung is [0.25]4 or 0.4%). Dr. Orient also noted the improbability of breaking just one rib in each of four presumed episodes of violent squeezing.
Nontraumatic explanations for rib fractures include temporary brittle bone disease, for which the baby was at risk because of oligohydramnios. Barlow’s disease or vitamin C deficiency is another possible explanation. Dr. Archie Kalokerinos had flown in from Australia to testify to this, but early in the hearing was disqualified as an expert because he had stated that his views were not “generally accepted” by the medical community. He had reduced infant mortality in his district from one of the highest levels in the world to near zero by giving vitamin C at the time of vaccination; however, the court chose to exclude these results from consideration.
The prosecution’s case depended on the autopsy report by Sashi Gore, M.D., the first chief medical examiner in the history of Florida to be disciplined so harshly for errors on an autopsy. He had reported a gross and macroscopic examination of the heart, which had previously been removed for transplantation. As Dr. Yazbak pointed out, Dr. Gore had testified at trial to the presence of “diffuse” axonal injury on the basis of examining only one section. Dr. Orient noted that the window of time for the supposed injury, which happened to coincide with the time when Yurko was alone with the child, was dated back from the time of certification of brain death. The senior manager from the medical examiner’s office testified that the corpse had been received on Nov. 27, 1997. However, at 3:45 a.m., Nov. 29, 1997, the child was on an operating table undergoing an organ harvest.
Dr. Orient raised questions about the timing of brain death, based on failure to follow the accepted protocol. The report of the EEG that purportedly showed electrocerebral silence gave the child’s temperature as 90 degrees Fahrenheit. An EEG is uninterpretable in a patient so severely hypothermic. Moreover, drug levels were never done to rule out oversedation. The child had been treated with an anesthetic agent Versed and a paralyzing agent Norcuron, which could mimic all the signs of brain death.
Judge Lawson found that “the credible cause and manner of death cannot be gleaned from Mr. Gore's autopsy because of the very serious deficiencies that were found by the medical board and brought to light in this hearing and of course in other places.”
“Because of that I think it does cast doubt on the entire trial,” Lawson held. “I don't know how you can maintain public trust in a system of justice if you let stand a conviction obtained through reliance on an autopsy that is later so thoroughly discredited.”
Mr. Yurko then entered a plea of no contest to manslaughter, and the Judge sentenced him to time served.
The Orlando Sentinel reported that “Mr. Yurko stated that he was accepting responsibility for permitting the vaccination of his son at a time when he was ill, without adequately investigating indications and adverse effects. He was then released from prison.” (www.orlandosentinel.com; search on “Yurko”)