More than one explanation for broken bones

It’s no secret child abuse is a horrifying, deep-seated issue in New Zealand. We hold the ignominious position of being in the top five developed countries for its prevalence.

But what happens when suspected abuse isn’t abuse at all?

In 2012, a Dunedin couple had their 14-week-old daughter removed from them by Oranga Tamariki (then Child, Youth and Family) when doctors discovered the girl had a fractured skull, limbs and six broken ribs.

The parents argued in court the injuries were caused by rickets, a condition created by low vitamin D that leads to weakened bones.

(When skin is exposed to sunlight our bodies create vitamin D, which aids in the absorption of bone-strengthening calcium from food. Children of mothers with darker skin who live in colder countries, or who cover most of their skin when outside, are particularly susceptible.)

Eight doctors debated in the Family Court whether it was abuse or a vitamin D deficiency that had caused the fractures. Symptoms of significant rickets did not show on the X-rays, an issue medical experts did not agree on during the case, but after two years fighting through the courts the couple were given back custody of their daughter and awarded legal costs of $60,000.

The girl’s mother said at the time she hoped the case would raise awareness of the limits of medical knowledge, and that practitioners should test or challenge diagnoses that were inconsistent with a child’s background.

“We can only hope the outcome of this case will encourage the medical community to be able to consider other diagnoses, and to admit that they do not always have all the answers.”

One of the cornerstones of their case was evidence provided from a similar UK trial, in which two parents were cleared of murder charges over the death of their four-month-old son, who had rickets from an undiagnosed vitamin D deficiency.

He died from a head injury in 2009 after a skeletal survey found multiple fractures. It was only because a very experienced paediatric pathologist conducted the autopsy that a diagnosis of rickets was able to be made.

In a more recent local case, an Auckland father was charged with manslaughter over the death of his 11-month-old son in 2018. The father said the boy had fallen and hit his head while he was out of the room, however a doctor from Starship’s Te Puaruruhau child abuse unit said in court the boy’s injury was “extremely more likely” to be one that was inflicted on him.

The jury was unable to reach a verdict and the Crown elected not to proceed with a retrial, so the charge was dismissed. It transpired that police and the Crown had not disclosed crucial information and the man was eventually awarded $175,000 as a result – yet he and his wife are still struggling to have their second child returned to them from Oranga Tamariki.

It is unclear how many cases of misdiagnosed child abuse occur here and globally. What we know is they do happen, and the experts don’t always agree on when it is abuse and when there could be another cause.

During the trial of the couple in the centre of the Fractured case, Starship doctors said in court that of all injuries in young children referred to the child abuse unit Te Puaruruhau, approximately a third fall into an unexplained category, a third are highly concerning or diagnostic of child abuse and just a third involved no concern, meaning if you had a child admitted to Starship Hospital with an injury, there is a 66 percent chance your child’s injury could be deemed to be either caused by child abuse or an unknown cause.

And the effect of getting the diagnosis wrong is catastrophic for families. 

The couple at the centre of this story, Zita and Ravi, have remained steadfast there is another explanation for their baby’s injuries, but the New Zealand authorities disagree.

The trial

The next part of the nightmare for the family began almost two and a half years after their daughter, who we’re calling Baby K, had been taken from them at Starship Hospital as a 10-week-old.

At the time, the parents had brought her to their GP when she began crying loudly. Suspecting meningitis, the doctor called an ambulance and Baby K was rushed to Starship, where a CT scan revealed what doctors diagnosed as a non-depressed linear fracture on the left side of her skull, and subdural haemorrhages (bleeding into the space between the skull and the brain) with possible injury to the brain.

A full body x-ray showed a history of fractures to 18 of Baby K’s ribs and to her left femur and tibia, while blood tests revealed she had extremely low vitamin D and low calcium. She was seen by a range of medical specialists who, in less than 24 hours, determined the injuries were non-accidental.

Baby K remained in hospital for 12 days, after which she was placed in a foster home.

Both parents were arrested and Zita was charged with injuring with intent to injure or with reckless disregard, wounding with intent to injure or with reckless disregard and ill-treatment or neglect of a child. Ravi faced one charge: ill-treatment or neglect of a child.

As the couple awaited their trial, they were allowed separate supervised access visits with their daughter for an hour a week each at a local Burger King. Zita told Newsroom it was always a struggle not to cry when her daughter became sad at the end of each access time.

In court, their legal aid lawyers faced up against four expert witnesses from Starship Hospital, eight police officers and two Crown prosecution lawyers.

Starship medical staff gave evidence of Baby K’s injuries and why they deemed them to be non-accidental. They were unable to say how or why they were sustained other than perhaps a squeezing mechanism to the chest on the first occasion, which they surmised was when Baby K was around seven weeks old, and a brief but violent shaking on the night of Diwali, hours before she was brought into hospital as an eight-week-old.

They said it was not impossible, but extremely unlikely, that the injuries were sustained at birth, and ruled out any underlying bone condition.

Those potential bone conditions could be genetic, such as brittle bone disease, or non-genetic, such as most forms of rickets. Usually, a urine test is conducted to check for rare metabolic conditions such as brittle bone disease; however, in Baby K’s case the medical staff couldn’t get enough of a sample to conduct the test and it was recommended this be carried out at a community clinic. It never was.

Zita says when they got home from the hospital without their baby they requested all the medical reports, “because I’m looking for second opinion on her reports. Then I came to know the test never happened.”

In court, no outside expert witnesses appeared in defence of the Indian couple – no independent paediatric radiologists, endocrinologists or other medical experts. Zita said it was prohibitively expensive to engage an expert from outside the country, “and due to Starship Hospital involved, no one in New Zealand wants to challenge them” she told Newsroom.

The couple’s midwife, Plunket nurse, and GP all testified there was no evidence of injury to Baby K when they saw her in the weeks before she was admitted to hospital.

The Plunket nurse said at her home visit three weeks before Baby K’s arrival at Starship, Zita handled her baby gently, talked to her softly and put her on the scales carefully. The nurse gave the baby a full head-to-toe clinical examination at this visit and noted no abnormalities, and at her next visit, a week before the hospital admission, Baby K again appeared to be in good health.

The Starship endocrinologist provided a statement to court that stated it was unlikely Baby K suffered from rickets due to the lack of radiological evidence.

When diagnosing the condition, doctors look not just at low vitamin D and calcium levels in the patient, but also certain signs of weakening in the bones on x-rays (these signs, like the ends of some bones ‘fraying’, take time to develop from the onset of low vitamin D). The endocrinologist pointed to a global consensus study published in 2016 that referenced a 2009 study of 24 infants with nutritional signs of rickets.

The study concluded that children who did not have severe radiological signs of rickets (for example ‘fraying’) also did not have an increase in fractures, and that those with rickets-related fractures don’t share the same pattern as their non-accidental counterparts.

However, as part of our inquiries for the Fractured podcast investigation, we obtained and examined the study cited by the endocrinologist and found none of the infants included in the study were younger than two months, and only four were younger than seven months.

Newsroom has also obtained a 2014 study published in the Journal of Pediatric and Developmental Pathology that shows rickets can indeed be present without showing radiological signs. 

Circumstantial evidence

It wasn’t just medical evidence brought against the couple in the trial. The Crown launched a wholesale attack on Zita’s credibility based on the nature and extent of her alleged lies, which the Crown relied on as circumstantial evidence of her guilt.

These included the five out of 639 covert audio recordings they deemed had any relevance.

One of those was when the couple discussed deleting from their Facebook account an uncle who lived in India, because they did not want their situation discussed by people over there, bringing shame on their family.

Another related to a trip the couple took when Baby K was just a few weeks old to visit Zita’s sister and brother-in-law in Hamilton – a mini holiday before Ravi started his new job.

In one of her police interviews, Zita was asked about where her baby slept. She had replied “always at home in her baby cot. She has never stayed anywhere else.”

Because Zita hadn’t mentioned the Hamilton trip, this was interpreted as her hiding information. It was compounded by an intercepted conversation between the couple where they agreed not to mention the Hamilton trip out of fear that if Oranga Tamariki believed her sister or brother-in-law could have hurt their baby on that visit, they wouldn’t allow them to look after their baby. They were desperate for Baby K to live with family.

This was seen as the couple “colluding” to mislead authorities.

The most damning circumstantial evidence concerned the text argument they’d had on Diwali, and Zita’s threat to her own life. In Hindi, the word kasam is used a lot in casual conversation.

Translated as to ‘take an oath’ or ‘to swear’ on something, it is common slang used to emphasise or exaggerate a point, and is not considered to be a literal oath. (In the same way ‘I swear to god’ is very different in its literal sense than when it’s used casually.)

During the day when Zita was growing increasingly frustrated her husband wasn’t picking up his phone, she texted him in Hindi that if he didn’t answer she ‘took an oath’ she would drink Janola.

“I know that’s not right. It’s like emotional blackmail. It’s just to get his attention so he can at least check on his phone. If he’s not getting calls, might he get the text and he get, oh, now I will do that. Then straightaway when he check his phone, he see my text and he straightaway call me on a video call and show me that he’s in the temple, he is doing the service. And then he talked to me and daughter, see we are just doing fun with him to just to get his attention,” Zita explains.

Her trial lawyer urged the jury to consider the texts in their surrounding context, that this was just the “childish” way the couple sometimes engaged with each other.

In fact, after the release of episode 4 of Fractured, ‘The Trial and the Crown’, which covered the couple’s argument, we received the following message from one of our listeners:

“I wanted to contact you as I have been listening to Fractured. I am British, but my mum is Indian. I wanted to contact you in regard to the part of the trial where they highlighted the mother’s threat to self-harm. People who aren’t Indian or don’t have Indian mothers won’t know how common this kind of threat is. But they don’t mean they will actually do it!

“Anything I did out of line, no matter how small, would somehow result in my mother’s death, according to her. It’s just them being over-dramatic. It’s a cultural thing. For example if we were playing and my mum was cleaning and nobody was helping, she would loudly mutter, ‘You’ll see how much I do when I walk out into the traffic and get knocked over’.

“Indian mums do this to play the guilt card, the long-suffering mother who nobody appreciates. So when I heard this on the podcast – Zita threatens to drink something which will harm her – it didn’t shock me. Indian mums say stuff like this all the time for attention.”

The verdicts

Throughout the trial the couple held out hope they would be found not guilty, and Zita’s lawyer was optimistic that if she were found guilty she would get home detention and not jail time. Zita and Ravi were still living in their home together throughout this time, which had also been assessed by Corrections staff for its home detention suitability.

Before the trial ended Ravi also says Oranga Tamariki informed him that if he was found not guilty he could have custody of his daughter.

The jury deliberated for six hours before returning its verdict. Ravi was found not guilty of his charge of ill-treatment or neglect of a child.

Zita was found guilty on all three charges: injuring with intent to injure or with reckless disregard, wounding with intent to injure or with reckless disregard, and ill-treatment or neglect of a child.

Even if each individual piece of evidence could have a plausibly innocent explanation, the cumulative effect of the medical and circumstantial evidence had convinced the jury of her guilt.

There was to be no home detention either. The judge sentenced her to two years and seven months in jail.

Zita says she never thought she would come to New Zealand and end up in jail: “I never dream of that in my life.”