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On October 10, 1989, a mother brought her son in to the Rusk Institute


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.

The mother stated that on October 9, she left both of the children alone for a short time while she took a shower. She stated that prior to showering, she had placed the infant on his side in his crib. The two year old was playing on the floor near the crib. While she was in the shower, she heard the baby crying. She go out of the shower and observed the older brother inside the crib with the baby. She stated that the baby was no longer on his side, but was on his back and there was a bruise on his face where the older brother had struck him. She stated that the older brother is having a difficult time dealing with all of the attention that his little brother is getting. He is jealous of the attention and has to be watched closely so that he does not snatch toys from him or hit the baby. She said that he has been acting out by hitting the baby and demanding to be held when the baby is being held. She stated that he constantly wants to hold the baby and carry him around the way that he sees his parents doing. The mother brought the spina bifida doctor into court to testify for her. He stated that the circumstances as presented by the mother could very likely be the cause for the child’s injury. He stated that if the two year old brother had grabbed the baby by the arm and twisted it around to make the baby lie on his back, he could likely have caused the twist fracture to the arm.

The Nassau and Suffolk courts reviewed the circumstances of this case and the fact that the weakened state of the bones in a child with spina bifida can cause them to exhibit fractures much more easily than a normal infant. The court decided that the doctor who specialized in spina bifida was more likely to be able to deduce the actuality of the injury than any other doctor. The fact that that doctor believes that the injury could have occurred in that manner is believable and the charge of child abuse as it relates to the cause of the fracture is dismissed. However, the matter of why the mother did not seek immediate medical care for the broken arm is still in dispute. The doctor praised the care that the mother has given the infant in that he states that infants with spina bifida have weakened bone structure because of the paralysis. He stated that most infants with spina bifida exhibit muscle ulcers and sores because of their lack of movement. He stated that the fact that this infant does not have these sores is evidence of the excellent care that this mother is providing this child. He further stated that because of the weakened bone structure, that the injury could have been cause simply by picking him up, or his brother pulling a toy out of the baby’s hands.

The court noted that Family Court had made note of the admirable care that the parents have provided for the baby, while at the same time finding that they are neglectful of the child. The Supreme Court vacated the charges of abuse and neglect and returned the children to their parents.

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