Currently before the New York State Committee on Children and Families is a Bill that may provide some measure of relief to families who may find themselves facing accusations of Munchausen’s Syndrome by Proxy, or its latest variant, Medical Child Abuse.
Bill A3365-2013 bears this concise description:
Provides that a child shall not be taken into protective custody based on an allegation that a custodial parent or guardian suffers from Munchausen syndrome by proxy without a family court hearing on such allegations.
The proposed Bill, which would modify section 417 of the State’s Social Services Law, leaves little room for doubt concerning the wrongs that it attempts to set right. Part of the Bill’s text explains:
After 30 years of clinical and legal experience, the definition of MSBP remains controversial. As a result, mothers who present the problem of their children in ways perceived as unusual or problematic have become entangled in legal battles that should have been resolved clinically. Loren Pankratz, PhD, an expert on the diagnosis of MSBP published an article in the American Academy of psychiatric Law provid-ing that the medical literature on MSBP often mentions false accusations or the possibility of false accusations, but does not convey the prevalence of these misunderstandings or the devastating consequences of a wrong diagnosis”. That in case after case “experts disagree about how to define and confirm MSBP.” Consequently, even though there is very little consensus on the diagnosis of MSBP, children are removed from their family homes based upon such diagnosis prior to a formal hearing taking place. This leads to children being separated from their mothers and fathers, in some cases for-long periods of time, which, may be very harmful to the child being removed. This bill would require a formal hearing prior to removal in the case of an allegation of MSBP.
Assembly member Michelle R. Titus – sponsor of the Bill – is the Democratic Representative for Assembly District 31. Prior to her election, Titus served as the Chief of Staff to recently defeated Senator Ada Smith, as well as the Executive Director for the New York State Black and Puerto Rican Legislative Caucus.
Titus was first elected to the State Assembly in a special election held on April 16, 2002. She won the general election that November with 86 percent of the vote, and she ran uncontested in the 2008 and 2010 general elections.
The Bill’s co-sponsors include N. Nick Perry (D – District 58) and William Scarborough (D – District 29). All three representatives serve constituents in the general vicinity served by the former Schneider Children’s Hospital.1
New York State had played host to some high-profile medical proponents of the alleged disorder. A brief history may be in order.
A 1992 New York Times article entitled “When a Mother Is Blamed for Her Child’s Unusual Illness” recounts a story involving a medical diagnosis of Munchausen Syndrome by Proxy at the Schneider Children’s Hospital at Long Island Jewish Medical Center in New Hyde Park.
The article explains:
To Ms. Storck and her supporters, including parents of other medically fragile children, it is all a bizarre and terrible mistake, a witch hunt in which doctors, armed with circumstantial suppositions rather than hard evidence, blame mothers for the unusual medical problems of their children.
“I worked my life around Aaron and his illness,” said Ms. Storck, a 40-year-old single mother with four children. “It took time learning to accept and live with that monitor. Now they are saying I caused everything. This has been a real horror.”
Maggie Webber, a parent of a severely retarded daughter, and a member of a group of parents of chronically ill children, said that the case was terribly frightening to other parents of troubled children because “we all are so vulnerable.”
“Suddenly when you have a sick or disabled child,” she said, “you are under a microscope and everyone starts to judge you as a parent.”
In 1993, the Times ran a story, “Suffolk Mother’s Illness Imperils Son, Judge Rules,” explained that, “The judge, David Freundlich, found that Ms. Storck suffers from a rarely diagnosed psychological illness, Munchausen Syndrome by Proxy, in which parents, mostly mothers, fabricate or induce illnesses in their children, not necessarily to harm them, but rather to get the attention the parents crave from doctors. The case is one of the first to put a national spotlight on the syndrome.” Meanwhile, Stork’s son, Aaron, maintained his mother’s innocence for years to come.
At that time, the public was prone toward believing such accusations. After all, it had uncritically accepted the day-care craze stirred up by the American Professional Society on the Abuse of Children. It had “believed the children” of McMartin, who recounted incredible tales of ritualistic abuse, and of tunnels that were never found. It believed that the Amirault family of Massachusetts was guilty of heinous offenses against children.
Eventually cooler heads prevailed. The ritual abuse and the day-care abuse crazes were exposed as shams. Over time, even Reader’s Digest – hardy a radical news source – investigated the last of the ritual abuse witch hunts in Wenatchee. Dorothy Rabinowitz of the Wall Street Journal wrote a number of critical essays on the Amirault case, in which the accused still remained in prison. There was “A Darkness in Massachusetts,” she explained. That darkness was one of judicial “finality” prevailing over injustice.
As recently as January of this year, North Carolina’s News & Observer called on the Governor to declare the factual innocence of the people accused in the notorious Little Rascals Day Care case, only to have its pleas fall on deaf ears. Clearly the ritual abuse rage was out, and Munchausen Syndrome by Proxy was in. Any hip child abuse professional would either change with the times, or be left behind as the times changed around her. Chanting the mantra of ritual abuse – even at trade conferences – came to be seen as tantamount to dancing the Twist at the local disco.
So, what happened in the Queens borough of New York City? In short, people woke up to what was happening at Schneider Children’s Hospital, and, over time, an increasing number of parents – many of them minorities – found themselves taking longer cab rides with kids with runny noses to avoid the hospital entirely, as it had developed a nasty reputation as an accusation mill for the City’s dysfunctional child protection agency.
A brief legal review is in order. In Matter of Anesia E. 2004 NY Slip Op 50736(U) (July 9, 2004) Family Court, Kings County:
Dr. Esernio-Jenssen opined, with a reasonable degree of medical certainty based upon her education, training, and experience, that (1) Anesia is a victim of Munchausen’s syndrome by proxy (“MSP”), now called “medical child abuse” in the pediatric community; and (2) if left in her mother’s care, Anesia would be at substantial risk for great physical harm. She based her opinion upon various factors and considerations. She concluded that Anesia does not actually suffer from seizures. When doctors at Schneider Children’s Hospital discontinued Anesia’s high doses of powerful anticonvulsant medications during a three day inpatient stay, medical personnel witnessed no seizures and the video EEG documented no seizure activity. CAT scans and all other tests were normal. The referring pediatric neurologist as well as Schneider Children’s Hospital’s medical staff found Anesia to be healthy. However, during this hospital stay, the mother verbally reported and even pushed the video EEG button to record alleged seizures.
Further, when Dr. Esernio-Jenssen explained to Anesia’s mother that Anesia was perfectly healthy and normal, she became very angry and sought to take her child to another hospital. Hospital personnel had to place a hold on Anesia, during which time ACS removed her from her mother and filed the instant petition. Anesia was discharged as a healthy toddler to her paternal grandmother, where she has resided since her removal from her mother, with no seizures.
So far, sounds good. No seizures. Reliable diagnosis. Or – maybe not.
THE BIGGER PICTURE
By some accounts, Dr. Esernio-Jenssen – who, as we shall see, has a well-documented history of “finding” shaken baby syndrome in the face of conflicting opinions from her own colleagues in the medical profession – branched out into the wild wilderness of Munchausen Syndrome by Proxy. It seems also, that by virtue of her position at Schneider Children’s Hospital, she’d managed to overstep some of her professional boundaries.
In V.S. Ex Rel. T.S. v. Muhammad, 581 F.Supp.2d 365 (2008), two cases were consolidated for purposes of an appeal, each involving Dr. Esernio-Jenssen – a pediatrician with Schneider Children’s Hospital who made the initial child abuse diagnoses in both cases. Esernio-Jenssen was alleged to be under contract with New York City’s Administration for Children’s Service “as a consultant who assists and advises the agency in investigating and prosecuting cases of child abuse and neglect.”
In this case, the District Court judge took the unusual step of taking judicial notice of two related prior proceedings, which are well worth citing at some length:
the court takes judicial notice of two recent decisions from other judges in this district that document instances of misdiagnosis by this doctor. In the first case, Dr. Esernio-Jenssen, identified as a pediatric specialist in the Child Protection Consulting Team at the SCH, examined a six-month old infant who was found not breathing by his parents and later died at the hospital in 2002. In Cornejo, she determined that the infant’s injuries were inflicted by [shaken baby syndrome] and did not occur naturally. Dr. Esernio-Jenssen deemed incredible, the father’s explanation that he had “smacked [the infant’s] back” to burp him, and conveyed to an ACS investigator her suspicion that the father had violently shaken the baby. Her diagnosis prompted the removal of the infant’s 18-month old brother to foster care. Despite a preliminary autopsy showing the infant’s rib injuries to be the result of a congenital bone malformation, not fractures from shaking, she refused to alter her shaken baby syndrome diagnosis in her testimony before a Family Court judge. A final autopsy report concluded that the infant’s death was caused not by the shaken baby syndrome but a rare and natural heart defect. Eventually, ACS reached the same conclusion and withdrew the child abuse petitions against the parents in the Family Court. The infant’s brother was separated from his mother for about three months.
In the second case, Dr. Esernio-Jenssen determined in November 2004 that a nine-month infant’s minor wrist fracture was caused by the violent shaking of his arm by one or both of his parents. She reported her suspicions to the Central Register, refused to discharge the child to her parents, cancelled an MRI examination that had been scheduled to test for bone disease, and ordered a skeletal survey to detect for signs of child abuse instead. A radiologist at SCH who reviewed the X-ray refused to characterize the fracture as the result of abuse, and the initial ACS investigation found the injury was accidental. A second ACS investigation, supported by the diagnosis of Dr. Esernio-Jenssen, led to a child abuse petition against the parents in Family Court, which removed the infant and his two siblings to foster care. Ten months later, ACS withdrew the petition against the parents. The parents were separated from their children for more than eight months.2
ODD AND DISTASTEFUL TESTIMONY
The ruling continued on to note what may perhaps be generalized at its best as unprofessional, and at its worst as racially biased testimony in yet another case. The ruling explains:
Plaintiffs’ counsel, in opposing the V.S. City defendants’ motion for summary judgment, referenced a Family Court decision in which the judge questioned Dr. Esernio-Jenssen’s methodology and criticized her unprofessional courtroom demeanor. In that case, an infant taken to the emergency room by her parents on February 19, 2004, was found to have a skull fracture. The parents explained that the infant had been dropped accidentally by their fifteen-year old daughter in the presence of their other children. The other children confirmed this account, but Dr. Esernio-Jenssen was skeptical. She interpreted the CT scan as showing multiple fractures that amounted to evidence of a pattern of child abuse. Another doctor, however, determined that the other suspected fractures were actually a form of a developmental anomaly common among Latin American infants. The parents told Dr. Esernio-Jenssen that a previous ACS investigation of child abuse in their family proved unfounded and that the father used to drink before ceasing the habit when he converted to evangelical Christianity. Nonetheless, Dr. Esernio-Jenssen believed that the father’s alcoholism combined with what she speculated as “economic stressors” on the immigrant family led to prior abuse of the infant. Her belief prompted ACS to gain protective custody over the child. The Family Court found the parents to be very credible and seriously questioned Dr. Esernio-Jenssen’s methodology, including her failure to consider contrary objective medical findings and her focus on the family’s economic and immigrant status. The court found Dr. Esernio-Jenssen’s emphasis on “ethnic and religious issues odd and even distasteful.” She gave the court the impression that once she “had formed an intuitive judgment,” she “would make almost any argument to back it up.” The court found it “odd that Dr. Jenssen so rigidly rejected any alternative to her favored scenario (of child abuse) despite advice given from her own child abuse team.” The Family Court was also disturbed by her combative courtroom presence, contempt for the family’s attorney and “overly dramatic hand gestures.” The ACS petition against the parents in that case was dismissed.
In denying immunity based on “good faith” as a mandated reporter, the Court held that:
plaintiffs also allege that the doctor made the allegedly false diagnosis to “advance her personal agenda.” It is not clear what kind of ulterior motive she had, but this allegation when viewed in the light most favorable to the nonmoving party and combined with other instances of misdiagnosis by Dr. Esernio-Jenssen, creates an inference of plausible bad faith that would preclude immunity. Accordingly, the court finds that both complaints have made a sufficiently plausible showing of bad faith on the part of Dr. Esernio-Jenssen to overcome the good faith presumption accorded to the medical defendants by statute. Their invocation of state law immunity fails.
ACS CUSTOM OF QUESTIONABLE TESTIMONY
The complaint also charged that Social Services Commissioner John Mattingly directed his child protection agency in such a manner as to have allowed a “custom” of relying on questionable medical testimony to have developed. As the Court explained it:
In this case, the allegations in the complaint and other cases of which the court has taken judicial notice in this opinion make it plausible to believe that ACS followed a custom of relying on the child abuse diagnoses by Dr. Esernio-Jenssen, when such reliance may have been unwarranted and may have contributed to the violations of plaintiffs’ constitutional rights in this case and others. Furthermore, it is plausible that Commissioner Mattingly may have been or should have been aware of this custom, given the apparent frequency with which the agency has relied on Dr. Esernio-Jenssen’s opinions, both prior to the initiation of and during Family Court proceedings, and the severity of the consequences that has resulted from such reliance. Therefore, the court declines to dismiss the claims against Commissioner Mattingly at this junction of the litigation.
The cases wound there way to the Court of Appeals, which most unfortunately ruled in V.S.” v. Muhammad that while the doctor in this case allegedly had “repeatedly misdiagnosed child injuries as evidence of child abuse,” the Court of Appeals did not find this a sufficient reason to reject immunity, as:
She based her diagnosis of T.S. on determinations made by another doctor, Dr. Sylvia Kodsi, of retinal hemorrhages, a common indicator of shaken baby syndrome, and her opinion was shared by another well qualified physician, Dr. Shakin. Even if the ACS personnel here involved had been aware of Dr. Esernio-Jenssen’s alleged “reputation” for overdiagnosing child abuse, it still would not have been unreasonable for them to rely on Dr. Esernio-Jenssen’s diagnosis of T.S. in these circumstances.
In December 2008, the law firm of Lansner & Kubitschek announced that it had landed on the front page of the New York Law Journal – rather a prestigious honor. The firm’s writeup explained:
On Wednesday, October 8, 2008, the New York Law Journal ran a front-page story about two of our civil rights cases, V.S. v. Muhammad and Denes Q. v. Caesar. Brooklyn Federal Court Judge Dora L. Irizarry issued a decision covering both cases, which allowed parents and children to sue the City of New York and its child welfare caseworkers, the Long Island Jewish Hospital, and one of its doctors, Debra Esernio-Jenssen, M.D. for illegally separating the parents and their children, and for imprisonment of the children, medical malpractice, malicious prosecution, interference with parental custody of children, and violations of the civil rights of the parents and children. In the V.S. case, the City of New York, based upon Dr. Jenssen’s misdiagnosis of child abuse, separated a two-month-old baby from his mother for more than a year. In the Denes Q. case, the City of New York, again based upon Dr. Jenssen’s misdiagnosis, separated another two-month-old baby from her parents for more than two months.
The announcement continues on to explain: “The Law Journal also mentioned that, in July, 2008, Lansner & Kubitschek had prevailed in a third case, Estiverne v. Esernio-Jenssen, in which Brooklyn Federal Court Judge Nina Gershon allowed a third family to sue the same Dr. Esernio-Jenssen for making a false diagnosis and false accusations of child abuse, which led to the removal of three young children from their parents, and to false accusations of child abuse against the parents, accusations that threatened to torpedo the mother’s nursing career.”3
What happens when you find yourself exposed for generating false allegations, conducting many an improper diagnosis; and developing a reputation even among Family Court judges in New York City as a professional child abuse validator?
You pack up your bags and move to another state where the grass not only grows greener, but where you are welcomed by your fellow professionals with opened arms.
Esernio-Jenssen moved to Florida, and is currently employed by the University of Florida, Division of General Pediatrics, Department of Pediatrics in the College of Medicine. Her biography reads, in part:
Dr. Debra Esernio-Jenssen brings more than 25 years of experience to the clinical services she provides to children in north central Florida, with expertise in the field of child protective services. She is Medical Director of the Gainesville Child Protection Team. She is board certified in both general pediatrics and child abuse pediatrics, and is a member of numerous professional societies, including the Alachua Medical Society, the American Professional Society on the Abuse of Children (APSAC) and its Florida chapter, the Ray Helfer Society, and the Ambulatory Pediatric Association among others
There is no mention of her tenure in New York City to be found in her biography.
Apparently she likes to travel. Driscoll Children’s Hospital presented its Child Abuse Summit 2014, held on April 17-18, at the Omni Bayfront Hotel in Corpus Christi, Texas. Among the presentations set be held was “Medical Child Abuse,” by Debra Esernio-Jenssen, MD.
“Driscoll Children’s Hospital is accredited by the Texas Medical Association to provide continuing medical education for physicians,” the promotional brochure says. However, nurses, CPS social workers, law enforcement personnel, attorneys, and judges were also welcomed to attend the event.
1. Schneider Children’s Hospital was renamed the Steven and Alexandra Cohen Children’s Medical Center of New York in 2010. See associated press release, “North Shore-LIJ Renames Children’s Hospital in Honor of Steven and Alexandra Cohen.”
2. V.S. Ex Rel. T.S. v. Muhammad, 581 F.Supp.2d 365 (2008). For sake of clarity, internal citations have in some instances herein been removed from the quoted text. See also Estiverne V. Esernio-Jenssen, 833 F.Supp.2d 356 (2011) for additional information regarding this particular string of cases.
Related: Stefanak et al v. Muhammad et al, Filing 122, order denying the plaintiffs’ motion to compel discovery.
Child Abuse Summit 2014 conference brochure