On October 10, 1989, a mother brought her son in to the Rusk Institute for his regular evaluation for spina bifida. While they were at the institute, the medical staff noticed that the child had pain in his arm. A medical examination revealed that the child was suffering from a spiral fracture of his upper right arm. The mother stated that the child had not shown any signs of pain or injury prior to appearing at the institute for his check up. She stated that she thought that the child’s one and one-half year old brother must have caused the injury. The medical staff contend that it is beyond unlikely that such a small child would have the strength or ability to cause a spiral fracture of an upper arm. The medical experts also contend that the injury could not have been caused by the child’s spina bifida. The medical staff stated that the child would have been in extreme pain at the time of the accident and for several days following the injury. The medical staff stated that at the time that the mother brought the child to the institute, the injury was obvious and included swelling, bruising, lack of movement, and pain whenever anyone touched the arm. The medical staff contend that the injury was obvious to them and that it should have been obvious to the parents. The contention is that the parents were responsible for neglecting the child to the point of child abuse in that they did not take the child to the hospital for treatment before his appointment on October 10th.
The history of the family is that the woman was notified while she was pregnant that her child would likely be born with birth defects. She chose not to abort the infant. The infant was a little over five months old at the time of the injury. The child was born in Puerto Rico, but the family moved to New York in 1989 so that the child could have care at the spina bifida clinic at the Rusk Institute. On the regular appointment for the child on October 10, 1989, the doctor who was examining him noticed that the right arm was swollen and yellowish-green in color. He arranged for the infant to be taken to the emergency room immediately. The doctor testified at trial that a side effect of spina bifida is a propensity for fractures and that when they occur, there is minimal trauma noted. However, this is usually only below the area where the spina bifida is located on the child. The arm is above this location and the doctor stated that he had never seen a fracture associated with spina bifida in the upper extremities. The doctor stated that he could be relatively certain that the fracture was not associated with the spina bifida and that it would have required a larger amount of force to cause the fracture than what another small child could exert.
The x-rays of the child showed corner fractures in both of the baby’s knees in addition to the spiral fracture of the infant’s arm. The knee fractures were associated with the spina bifida. The arm was the result of a twisting motion that is more commonly seen in child abuse cases. The hospital social worker also observed a bruise on the infant’s cheek that the mother stated had been caused by the little brother as well. The mother told the social worker that she had noticed the swelling on the baby’s arm the day before she took him for his appointment. The social worker filed a report of child abuse because of the nature of the injury and the fact that the mother stated that she had noticed the injury the day before and had not taken the child for treatment.