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         2.  Redefining (and Reaffirming) MSBP/FDBP [Sixth Essay]

 

One of the reasons that the diagnosis of MSBP/FDBP survived and even flourished at the end of last decade was because of the publication, in September 1997,  of the immensely popular The Death of Innocents:  A True Story of Murder, Medicine and High-Stake Science. It was named a Notable Book of the Year by the NY Times.  The major point made by the authors, husband and wife team Richard Firstman and Jamie Talan, was that the wave of SIDS deaths (Sudden Infant Death Syndrome) documented from the 1970s – 1990s may have been fueled by parental murder of children rather than inexplicable crib deaths. They tell their story like a crime thriller worthy of John Grisham. The book begins by bringing us into the investigation of the deaths of three Van Der Sluys siblings—deaths that had been written off as accidental choking or SIDS.  Ten years, three exhumations and a trial later, the determination of a group of law enforcement professionals was rewarded when a judge found the father of the children guilty of murder. He had suffocated the children for the life-insurance proceeds. For the rest of the book the authors detail the sordid story of the deaths of five siblings in upstate New York which had been described as a classic SIDS cases in a 1972 article in Pediatrics.  When the prosecutors in the Van Der Sluys case did some digging, however, they identified the children and found that the mother, Mrs. Hoyt, was, you guessed it, an suspected MSBP sufferer. She was convicted of murder. The Pediatrics article had contended that the children were victims of a rare genetic disease.

 

The effect of The Death of Innocents among most child abuse specialists or mental health professionals was to shelve their doubts about MSBP/FDBP for the moment and refocus their efforts on combating child abuse and its perpetrators. Yet, the imprecise and conflicting definitions of MSBP/FDBP provided by Rosenberg (1987) and the DSM-IV (1994) had to be addressed.  In 1998 the American Professional Society on the Abuse of Children, the leading organization of those professionally concerned with the problems of child abuse, published a consensus paper on definitional issues in MSPB. (64) They recognized the problem that the phenomenon had been called several things in the literature since 1977—MSBP/FDBP, and even “medical battering.”  Some people were fed up with the definitional problem and simply wanted to classify cases according to the method of assault—suffocating, poisoning, infecting. The definitional problem was exacerbated, they said, because when one expert opined that MSBP was present, a defense expert would simply rebut the allegations, often causing confusion for judge and jury alike.  (65) Then, there was the problem of the “exotic” nature of the word Munchausen.  Finally, there was the difficulty with the DSM-IV definition that emphasized the mental state of the mother. Because the issue of abuse was central to their professional interest, with the abuser being important but not quite as central as the abuse, they proposed another term be used to cut through the confusion of MSBP/FDBP jargon.  That new term, “Pediatric Condition Falsification” (“PCF”) emphasized that their concern, fundamentally, was with the child and not the mental state of the mother/perpetrator. To be sure, they said that one might continue to use the old labels (preferably FDBP) when the issue was a concern over whether the mother had assumed the “sick role,” but their focus from then on would be on “Pediatric Condition Falsification.”

(64) "Definitional Issues in Munchausen," 11 APSAC Advisor 7 (1998).

(65) Described more fully in "Mommie Dearest?  Prosecuting Cases of MSBP," Criminal Justice 13 (Winter 1998), p. 27.

 

Though the APSAC report never specifically said it was changing its terminology because of some of the problems highlighted in this paper, it seems clear that the Society felt that focus on the mother’s intent distracted them from their major task of dealing with the child’s needs. Their interest was in determining whether the child’s illness was “fabricated” (either through simulation or production) and not why it might have been fabricated. What is interesting to note here is that their terminology, though picked up in many ways in the medical and child abuse literature, has not really made it into law.  While there are more than 100 appellate cases in law (cases that have gone to state appeals courts; many more cases on MSBP don’t go beyond the trial stage) in the past decade that refer to MSBP, there are only four that use the moniker “Pediatric Condition Falsification”—and one of these cases talks about PCF as a subset of MSBP cases, which is clearly a misunderstanding.

 

This narrowed definitional focus was picked up by none other than Professor Rosenberg in a 2003 article. We recall her “classic” fourfold definition of 1987, a definition which, when combined with a gradually-emerging “profile” of the “MSBP mom,” served to convince courts and others of the prevalence, insidiousness and need for early intervention where MSBP was suspected.  In 2003, however, we see a different Professor Rosenberg, one who has seen how “the term MSBP has been used somewhat variably,” and who wants to bring precision into the resulting linguistic fog. (66) The problem is that unclarity may hinder prosecution of MSBP cases. As she says:  “Because there are legal implications when MSBP is suspected, lack of clarity about the diagnosis or its certainty may be transported to the legal arena.” (67) She recognizes how imprecision may result in “misdirected” legal decisions (that is a new term for me, a former law professor) as well as lawsuits against doctors who have diagnosed MSBP.  Her thought is that narrower and more precise definitional criteria for MSBP may help remedy these problems.

(66) "Munchausen Syndrome by Proxy:  medical diagnosis criteria," Child Abuse and Neglect 27 (2003), pp. 421-430.

(67) Ibid., p. 421.

 

But like the uncertain trumpet that confuses rather than urges the troops to battle, she then goes on to construct such a narrow definition of MSBP that its implications would lead to a complete rewriting of all the MSPB literature and also call into question the importance of the diagnosis.  After stressing the importance of focusing on observed criteria, she suggests the following as a “definitive diagnosis” for MSBP.  Her definition by inclusion consists of the following:

 

“1) Child has repeatedly presented for medical care,
2) Test/event is positive for tampering with child, or with child’s medical situation.
3) Positivity of text/event is not credibly the result of test error or misinterpretation, nor of miscommunication or specimen mishandling.
4)  No explanation for the positive test/event other than illness falsification
is medically possible.
5) No findings credibly exclude illness falsification.” (68) 

 

Three observations about this proposed definition are appropriate.  First, it looks surprisingly similar to the PCF definition in the APSAC report, detailed above.  She, too, has recognized the “fog” or “haze” that enters into the analysis when too much focus is on the mother/perpetrator rather than the effects on the child.  Yet, for some reason she keeps the label MSBP for this narrower definition—something that will provoke more confusion, to be sure.  Second, she has eliminated most of her 1987 definition from consideration, especially the two prongs regarding maternal/parental denial and child improvement when removed from parent’s care.  Since all of the MSBP literature since her 1987 article assumed her earlier definition, we are left up in the air now on how to view the mother/perpetrator. Third, one should note her emphasis on elimination of other possibilities before a determination of MSBP is made. This responds to the growing consternation in the literature of the late 1990s that MSBP was used as a sort of “you’re it!,” as if diagnosis was a sort of sophisticated game of “tag.” The only way to read her proposed definition, then, is to conclude that a MSBP diagnosis has to happen at the end of a rigorous clinical differential diagnosis (professional process of elimination). This is a strikingly different emphasis from the way the MSBP label had been used up to that time.

 

But she goes one step further in the remainder of the article, for she maintains that any attempt to divine maternal/perpetrator intent is beyond the scope of her definition.  Since intent is not directly observable, it cannot be quantified and cannot be used to determine if a person can be diagnosed with MSBP.  (69) And, she adds another qualifier.  Since she now wants the diagnosis of MSBP to come after a long differential diagnosis process, where every other logical possibility is excluded before a MSBP label is affixed to someone, she says, “rather than increasing the weight of medical evidence in support of a diagnosis of MSBP, accumulating data may sometimes instead diminish its likelihood.” (70) These two qualifications are significant; they point to, in my judgment, a sort of chastened awareness not only of the damage that a misplaced MSBP diagnosis can effect but of the need to be as precise as possible in defining it, lest the legal system be bogged down in confusion.

(68) Ibid.,  p. 424.

(69) Ibid.,  p. 422.

(70) Ibid.,  p. 425.

 

Despite the debatable proposition that maternal/perpetrator intent ought to be left to the side in defining MSBP/FDBP, Rosenberg’s salutary “conversion” in this article indicates that even the “true believers” aren’t believing quite so uncritically in MSBP as they did 20 years ago.  Yet, as if to show that generalizations in the study of MSBP/FDBP are hard to come by, a 2003 article by social work professor Mary Sheridan attempts to build on Rosenberg’s 1987 article without noting her 2003 “conversion.” (71) What Prof. Sheridan purports to do in this article is to “update” the numbers of cases since 1987.  While pursuing a method of literature review slightly different from Rosenberg, Sheridan claims to have identified a total of 451 cases in 154 journal articles published between 1972 and 1999.  (72) There really is no need to relate all her numbers and statistics; suffice it to say that she measures only one of the four features of Rosenberg’s 1987 definition.  That is, she says nothing about the frequency of medical visits, what percentage of denials the caregivers give when confronted that they are likely MSBP sufferers, or how the children improve when separated from caregivers.  Thus, one already has significant doubts about the value of her study.  Her identification of all the manifestations of this abuse, such as upset stomach, blood in urine, rickets, seizures, etc. (she lists more than 100 symptoms suffered in the children) is quite interesting but really beside the point. The fact that a mother might hit her kid over the head with a shovel would dutifully be recorded as a “symptom” of MSBP, though it really would tell us nothing about underlying motivation, frequency of service, denial by mother, etc.  Thus, Sheridan majors on the minors, so to speak.

(71) "The deceit continues:  an updated literature review of Munchausen Syndrome by Proxy," Child Abuse and Neglect 27 (2003), pp. 431-451.

(72) Ibid., p. 433.

 

Her numbers also don’t make sense at times.  For example, she said that 27 of the 451 children (6.0) “were dead, with an average age of death of 18.83 months.” (73)  But then she says earlier that the average age of diagnosis was 48.6 months. (74)  How could it happen that people die 30 months before they are diagnosed?  She might mean that the average survival time after diagnosis/allegation was 18.83 months, but that isn’t what she says.  Then she says that in 21 cases of death the illness “had been produced.”  Does that mean that the original insult to the child was produced, or that after the child had been returned to the family the death was through the production of the illness, however measured?  This kind of maddening obscurity tends to vitiate whatever interest one still might have after realizing that she doesn’t key her numbers to the 1987 Rosenberg definition (which she does adopt in the article).  Other statistics are problematic.  The numbers of mothers with medical training is considerably fewer than in Rosenberg’s 1987 article.  In fact the most frequent life situation which “might lead to” a diagnosis of MSBP is no longer the triad discussed earlier in this paper but the mother’s “depression.” (75)  Once we are removed to that level of generality, however, we cease to have helpful identifying markers.

(73) Ibid., p. 435.

(74) Ibid., p. 433.

(75) Ibid., p. 438.

 

Thus, even though there has been some attempt in the recent psychological/medical literature to rehabilitate MSBP/FDBP, its intellectual foundations remain shaky and definitional precision is elusive.  This has not stopped law, however, from its eager embrace of MSBP.  A survey of legal writing since 1995 has yielded more than a handful of articles devoted exclusively to the theme of MSBP, with most emphasizing the need for eager prosecution of cases of suspected MSBP.  One of those articles, noted below, combs through MSBP litigation at the end of the 1990s, and illustrates the way that courts have gradually accepted the diagnosis of MSBP as an evidentiary “boost” for the prosecution. While a close review of these works really isn’t necessary here, a few comments will suffice to show the tenor of these articles.  

 

Even though the psychological literature refers to the “syndrome” as rare or relatively uncommon, and the cases cited by Rosenberg and others don’t give one confidence that even the few cases isolated fit the full definition of MSBP (either Rosenberg’s or the DSM-IV definition), by the late 1990s the legal literature referred to it as not rare at all. Suzanne Mochow called it “not uncommon,” (76) and a 1999 article, with the inflammatory title of “Mommie Dearest?” (77) not only highlighted Rosenberg’s discredited mortality rates from her 1987 article but talked about a growing caseload of more than 300 published cases. (78) In fact, rather than speaking about a possible 9% mortality rate, which Meadow showed was hugely excessive, Holland and Yorker speak of a mortality rate as “at least 10 percent.”  The editors of that volume of Criminal Justice highlighted that figure, placing it in bold and enlarged letters in the text of the article. (79) That is, any overworked judge quickly leafing through the publication would be assaulted by this figure, a figure so worrisome that s/he would certainly tend to exercise caution on the bench in child custody proceedings and order a child to be taken from the home when MSBP was even suspected. And, if the judge had some time to read the article, s/he would read sentences such as “The repetitive, compulsive nature of MSBP and the high mortality rate make this one of the more dangerous forms of abuse.” (80) One can hardly imagine a statement more damaging to families than this, especially since it isn’t really supported by data.  

(76) Suzanne Mochow, "Munchausen Syndrome by Proxy:  A Subtle Form of Child Abuse and Potential Due Process Nightmare," 18 Journal of Juvenile Law 167 (1997).

(77) Lynn Holland Goldman and Beatrice Crofts Yorker, "Mommie Dearest?  Prosecuting Cases of Munchausen Syndrome by Proxy," 13 Criminal Justice  (Winter 1998), pp. 26-33. 

(78) Ibid., at p. 29.

(79) Ibid.

(80) Ibid. 

Nevertheless, this was the legal tone that tended to engulf MSBP cases in the late 1990s and early 2000s. Despite Mochow’s salutary warning that parents’ constitutional rights needed to be protected in child-custody proceedings (81), the general tone of law review articles is that this insidious, confusing, nearly untreatable and deadly dangerous form of child abuse was “out there,” masquerading under the form of concerned mothers.  It needed to be detected early before children meekly went home to probable deaths at the hands of deceptive mothers. Only one law review article raised the possibility that this latest assault on mothers was really a not-so-subtle form of negative gender stereotyping, but this article didn’t really suggest any way out of the morass. (82)  In fact, instead of rushing to the defense of falsely accused mothers, one article suggested that lawyers consider arguing a “diminished capacity defense” for mothers so accused. (83) The effect of such a defense would be to admit the charge but to argue that somehow “Munchausen’s made me do it, “ and thus try to get a lesser sentence or leniency from the court.  

(81) Mochow, Op. cit., pp. 169ff. 

(82) Clearly, Melinda, "Mothering Under the Microscope:  Gender Bias in Law and Medicine and the Problem of Munchausen Syndrome by Proxy," 7 T.M. Cooley Journal of Practical & Clinical Law (2005), pp. 183-250.

(83) Steeleman, E. Selene, "A Question of Revenge:  Munchausen Syndrome by Proxy and Proposed Diminished Capacity Defense for Homicidal Mothers," 8 Cardozo Women's Law Journal 261 (2002). 

 

The reason why these seemingly hapless defense tactics were suggested, however, is that the prosecutors definitely had the upper hand in MSBP/FDBP prosecutions in the last decade or so.  In a carefully-researched piece, again with the passionate title, “Mothers Who Maim and Kill,” Melissa Prentice showed how the MSBP “profile” has gradually been used to help judges and juries “believe the unimaginable.” (84) Prentice looked at 37 cases from the late 1990s where the diagnosis was introduced in a trial context, and then followed each of these cases from trial to appeal (when there was an appeal).  Her conclusion was that there was a “clear trend” in more than a dozen states in these years to recognize MSBP as a valid diagnosis in courtrooms.  In fact, in all 19 cases she studied where MSPB was in play and child protective services requested removal of the child from the home, the court granted prosecution motions for removal. (85) Though not many cases concerning MSBP reached the appellate level by the late 1990s, “recent appellate decisions in Connecticut, New York, Ohio, George and the federal Second Circuit also show a growing acceptance of decisions by family court judges endorsing the reliability of MSBP diagnoses.” (86) The evidence adduced in trial was circumstantial in most cases (61%); in the 39% of cases in which direct evidence was available, it came mostly through covert surveillance video, confessions and autopsy results. (87) Though she recognizes the existence of defense-oriented expert witnesses and even the group “Mothers Against Munchausen Syndrome by Proxy Allegations,” she confidently closes her article with the point that MSPB diagnoses have firmly established themselves in the legal field.

(84) Prentice, Melissa A., "Mothers Who Maim and Kill:  A Profile of Munchausen Syndrome by Proxy Litigation in the Late 1990s," 28 American Journal of Criminal Law 373, 375 (2001).

(85) Ibid., p. 397.

(86) Ibid., pp. 398-399.

(87) Ibid., p. 405.

(88) Ibid., pp. 410-412.

 

As if to confirm Ms. Prentice’s observation, the most recent exhaustive treatment of child abuse issues in legal literature gives an extensive and positive review of MSBP. (89) Because this article is a survey article, it doesn’t either critically examine the diagnosis or the “profile” of the MSBP “mom.”  Rather the author simply assumes, as does much of the legal literature, that the intellectual foundations of the diagnosis are pretty sturdy and are growing sounder all the time.

(89) Wright, Nancy, "SOS (Safeguard Our Survival):  Understanding and Alleviating the Legal Legacy of Survival-Threatening Child Abuse," 16 American University Journal of Gender, Social Policy and Law 1, 74ff (2007).

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