Jay Simmons


Shaken baby syndrome (SBS)’s shortcomings include the debatable science behind SBS theory and diagnosis—the questioning of which has grown more vociferous—and the arguably biased, discriminatory treatment of the accused. Professor Deborah Tuerkheimer notes that the evolving SBS skepticism and contentious debate has resulted in "chaos" in many SBS adjudications and within the medical and biomechanical fields, with the same SBS proponents and opponents continually crusading for and clashing over their beliefs. The issues surrounding the medical and biomechanical components of SBS diagnoses have been repeatedly examined and discussed, and are not the focus of this Note. This Note recounts those issues primarily to evidence the substantial tension surrounding SBS in the context of misdiagnoses and the treatment of the accused parties. The solution proposed here is to remove the qualified immunity clause in each state’s reporter statute and provide automatic reimbursement for economic damages incurred if any investigation is deemed "unfounded" (meaning the CPS investigation concluded there was no evidence substantiating child abuse). Each state has a reporter statute, which requires medical providers to report child abuse, and these statutes provide qualified immunity if the reporter acted in "good faith." If the medical provider, law enforcement, or CPS personnel acted in good faith, they would not face civil liability and the damages would be strictly limited to reimbursement for economic damages. However, this Note also propose that if there is evidence any medical provider, law enforcement, or CPS personnel acted in bad faith or engaged in ethically suspect behavior, any wrongly accused party may pursue non-economic damages. If there is evidence of manipulation or intentional nondisclosure of medical evidence, or unethical or other forms of unscrupulous treatment of the accused, the strict economic damages cap should be voidable and the medical providers, law enforcement, and CPS personnel would become exposed to non-economic damages claims. This should be determined on a case-by-case basis.