Interview Dr. Jon Thogmartin
A board-certified forensic pathologist, he's the chief medical examiner for Florida's District Six, which covers Pinellas and Pasco counties. During his tenure thus far, he reversed two child death cases handled by his predecessor. He says of one case: "They imagined injuries that weren't there." This is the edited transcript of an interview conducted on May 2, 2011.
What are the challenges of doing an autopsy on a very small child? Why are these difficult cases?
I think mostly it's because those that are involved in the investigation -- the parents, even the agency, if there's positions caring for the child -- they're emotionally charged. … People tend to get a lot more upset with the loss of a baby or a small child because there are so many years of life lost, so much potential squashed. I think that's really the hardest thing is to objectify and remember what you're doing. You're trying to find out what happened to the kid.
Some doctors tell us, look, compared to stabbings, compared to gunshot wounds, compared to car crashes, child death cases pose a lot of complex medical issues.
I think that's true, because it takes a lot less to kill them. … Adults are generally tougher and harder to kill than a small child, particularly an infant. So you're looking for very subtle signs of trauma or pressure or small amounts of bleeding that could potentially cause a kid severe illness or death.
Do you spend more time doing child cases than the typical adult case?
It depends on the case. A lot of times with a child, you're going to slow down; you're going to take your time. A lot of times, adult cases are typically more routine. So I tend to slow down and probably spend two, three times more on a child. Plus, you're dealing with smaller structures, so it's a lot harder to handle, a lot harder to see. So the practical nature of it makes it slower.
Well, it's exactly like it is if you're going to get your gallbladder out and your surgeon's board-certified or your trial attorney is board-certified. It's a board of colleagues that has basically laid down a predicate of standards of excellence for the person you qualify: Are you good enough? Do you have the qualifications to even make an application to sit for the test? Then you take a test, you'd make a score, hopefully you pass. And after that, you're board-certified.
And getting your boards in forensic pathology shows the world what?
Well, it shows that you have the necessary training and knowledge to practice in the field to a certain level of competence.
And why would you want to have special training in forensic pathology as opposed to just being a general practitioner and a general doctor?
Well, it would be like me, if I want to open my own private practice, which I guess I could and try to care for the living, it wouldn't go well. It wouldn't go well at all. I only diagnose things. I don't treat things. It's the same thing with a general practitioner or pediatrician trying to apply their knowledge to forensic pathology. What they do is they treat the sick; they fix things. …
I know that practicing on a living [person] is really beyond my realm of expertise. I never fix anything. Nobody I ever see survives anything. With the difficulty in that is understanding the difference and accepting the limits of your expertise [in] your own field. I think that's the hardest thing about being a doctor in general, knowing your limitations. …
In Ontario, Canada, there was a scandal where people were wrongly convicted in child death cases, and the government did a review, and they found at least a dozen cases that were problematic, questionable cases. A justice began reviewing those. And Judge Stephen Goudge, he made a lot of recommendations, and one of his chief recommendations was, in cases where you're looking at possible criminal activity, the person doing the autopsy should be a board-trained forensic pathologist. You think that's a good recommendation?
That's bare minimum, yes. … If you're doing this line of work, you should be boarded. That's just my opinion. I think that, and that's a very basic thing. And I think there's enough of us to go around where you could, at least, you know, have one in every office.
… Is that the standard in the U.S.?
It's known as the standard of excellence. It's not a requirement. But if you're going to have NAME accreditation -- National Association of Medical Examiners accreditation -- your chief medical examiner has to be boarded, has to be. …
Another thing that Justice Goudge recommended in child death cases is that doctors review all relevant medical records before doing the autopsy. Is that done here in the U.S.? Is that something that people are required to do when they're doing autopsies in these cases?
In Florida, it's part of the guidelines of practice that you are to review all pertinent medical records, and luckily, we have the legal authority to get them. It's funny: If someone was to deny me the medical records, they could be arrested for first-degree misdemeanor, which I think is great. We don't have any trouble at all getting those. …
On some of the delayed child deaths, a day delayed, two days delayed, maybe even weeks delayed, the autopsy is not going to be as helpful as those medical records.
The more delayed the death, the more time between the initial hospitalization and the death, the more it becomes important, and the less important the autopsy becomes. So I'd say it would be important even if it was an hour. But if you're talking two weeks, it really is the case. The medical records, the laboratory test, the results of the various radiological tests, what the physicians have to say, that's really more important than the autopsy.
Why is that?
Well, if let's say I have a young child that was injured years and years ago and they survived with a palsy … for 19 years, what I'm going to have when they're 19 years old, I'm going to have basically what looks like a 19-year-old with cerebral palsy. All the original injuries are going to be healed. There's not going to be much in that autopsy other than for me to find maybe a source of infection or something that caused their premature demise. But as far as being able to describe the original injuries, I won't be able to do it. I'll have to go to the old medical records. And that's an extreme example.
But our most typical example, two or three days, maybe a week, they may even have had their organs removed for donation. A lot of time, you know, one of the surviving parents will give permission, and the actual infant you're getting doesn't have a liver, doesn't have kidneys, doesn't have a heart. Those are working in some other child. So not only do you have the injuries partially healed or completely healed, but you may not even have all the organs. So again, you know, as the days go on, the autopsy just gives you nothing but artifact and healing.
And if you're a doctor and you're doing an autopsy on a child who was hospitalized for a day or two days or a week, and then passed away, and you don't look at those lab reports, you don't look at those medical records, what's the risk of possibly getting a wrong diagnosis, getting the cause of death wrong?
Oh, it's high-risk. You're putting yourself out there. It's almost like doing it with a blindfold on. You're asking for it. You may be able to get by with it for a while, but eventually, maybe 20 cases down the road, you're going to miss something.
And you think doctors should review the records before doing the autopsy, after the autopsy? When should they review?
Ideally before. But a lot of times you won't get them before. A lot of times there's a lot to copy. A lot of jurisdictions, I understand there may be logistical difficulties with distance that doesn't allow that. But here we're able to have it beforehand, and you want to review the best you can before, and that's typically what occurs.
Another thing that Justice Goudge recommended was he said the M.O. [modus operandi] of the coroner's office here in Ontario is to think dirty. When you look at child death cases, assume that the child was murdered. He said you need to think through, because not all children are murdered. And if you have that kind of bias, it's going to throw off your forensic work. What do you think of that?
I think that's a good thought, and I think that you need to approach the cases with objectivity first. You walk in, you're not trying to find the murderer; you're not thinking all child deaths are murders until proven otherwise. You walk in with, "Let's see what the child has to tell us on their own," and you compare it to the circumstance. The suspicion comes up where the circumstances don't [fit] the injury. That's when you get suspicious. I'm not suspicious until that occurs.
He also recommended that forensic pathologists consult with doctors from different disciplines on particularly difficult cases; that they talk to other experts if they are encountering something that's challenging in an autopsy. What do you think of that recommendation?
I think that it's good to do that. We routinely do that. It can be expensive, and it's oftentimes hard to find the right person, but once you do find the right person, you can approach them with confidence that they're going to help you. And a lot of times they can turn you in a particular way or give you a clue that will strengthen your opinion, and to try to do it isolated, particularly if you're alone. A lot of my colleagues are completely alone without even another forensic pathologist in the office. In that case, it would be essential. …
… Are you required in child death cases to be a board-certified forensic pathologist in the U.S.?
Are you required to have any peer review of child death cases?
Are you required to review the medical records in child death cases before or after doing your autopsy?
Are you required to consult with specialists in the field on difficult child death cases?
Do you think these would be good recommendations to adopt nationally or implement across the country?
It would be good. I don't know exactly what organization would implement them. NAME -- National Association of Medical Examiners -- is a good one. I don't know exactly how those could be implemented nationally and by what organization and how well that would work. That's a tough one to answer exactly how you would do it and how you can get people to comply.
Right. And that's sort of an ongoing issue in the field of forensic pathology is how to oversee it, how to provide regulation that works, how to have professional standards that work from jurisdiction to jurisdiction that are actually there, right?
Right. And then, you know, every one of these cases, if it's something like a wrongful conviction, I mean, the ones where you're missing [the child], you're missing the homicide, those who disappear and a kid never has his day in court. The ones where you have the wrongful convictions, most of the time it's the attorney is not doing their due diligence, particularly on the defense side. Anybody who's doing an autopsy on a kid [who] is not board-certified in the field, they should be blown out of the water. I don't know how they make it when they're not. Anyone who's not consulting the specialist, not getting the medical records, are not doing like, say, full-body X-rays, I don't see how they make it. I don't see how they make it on a day-to-day basis. I don't see how they're not running [out of] town on a rail. But they make it because nobody bothers to ask. …
So after hearing these recommendations from Judge Goudge, do you think these are the sort of things that we should try to implement in the U.S. and places where we're not doing this?
… NAME [National Association of Medical Examiners certification] has a standard-of-practice accreditation standard. If it became much more public, which offices were and were not accredited, you ask the question, why is your office not accredited? The accreditation has been available for years; why are you not accredited? Have them explain it. Have it explained publicly.
If an office is able to make it through NAME accreditation, their office is going to have standard operating procedures. They're going to do certain things like we're talking about with the child deaths. You're going to have the board certification [of] at least the chief. I think most of the problems would be addressed. …
So if it was expected that coroner/medical examiner offices were accredited in the same way that we expect hospitals and clinics and labs to be accredited, you think that we could improve this system greatly.
Oh, it will be [a gigantic] leap forward, a huge leap forward if it was required in some way. A lot of times the federal government or the state governments can incentivize this to make it financially worthwhile to go through it. …
Do you think that medical examiners are looking closely enough in child death cases at alternative explanations other than child abuse, at the diseases that can mimic child abuse?
I think most of us are. And I think that's why you're not, you know, having a four-hour miniseries on it. There's so many child deaths; most all of them are fine. You'll have those in occasional statistical outliers that are pretty hard to miss. I think that probably the majority of my colleagues are really hardworking, competent people, and they do a really good job. But if you find a case that looks bad, it's usually a non-board-certified person, not trained in forensic pathology or is extremely politically weak and has no spine to say, "No, I don't think so."
How important is mind-set for a forensic pathologist when dealing with child death cases? How important is it to be independent?
Well, you have to make your own decisions. You have to be at least relatively isolated. The best system is one where the person is at least somewhat politically isolated. They can't acutely be pulled by a mayor or a board of county commissioners right away. We in Florida, we're reappointed every three years by the governor upon recommendation of a commission. They get surveys from everyone. So if you have one person that doesn't [like] your call on a particular case, they have an opportunity to put "Unfavorable" on your survey and say why. …
You have to be independent. You have to be able to make the tough calls, and you have to be able to have time to explain it. …
I think the biggest thing is, [the] most common emotion is anger. Everybody seems to be angry. Let's say someone says they found retinal hemorrhages, like a clinician says, "I looked in the eyes," says retinal hemorrhages. Child abuse alarms have already gone off in the hospital. The kid [is] still alive but really so brain-injured they expect the child to die. By the time the child comes here, a lot of people are really, really, on the bandwagon of "This is child abuse" purely because of the retinal hemorrhages that were seen by the clinician.
I don't walk into the back with the idea that I'm going to find retinal hemorrhages because the clinician told me. We're going to remove the eyes. I'm going to make microscopic slides, and I'm going to see for myself, because a lot of times those will not actually be there. If there is no subdural hematoma on the CT scan that was done when they're alive, I'm going to be very careful that I'm going to look for that subdural hematoma.
But you have to have the spine to say: "Look, yes, I know the doctor saw retinal hemorrhages, but here are the slides. There are none. I know that you suspected child abuse, but look, here is the brain; there is nothing wrong with it." You've got to have the spine to be able to do that.
But that's not such a hard thing to me. The real hard thing is when you find the subdural hematoma, you find the injuries, and you're asked, "Could this be some alternative explanation?" For me, [you'll] be ending up [in] a situation where you say, well, more likely than not this was inflicted. But standard for court is different. It's beyond a reasonable doubt.
And so tell me about that. This is a field -- I think one thing that makes people uncomfortable on these discussions is that there's uncertainty that you can encounter a case or you're not sure if this was a child who was abused or a child who was sick.
Correct. You can have cases where there may be a reasonable possibility [of an] alternative explanation, … and you have to own up to that. The pressure comes in not owning up to that.
Do you think all of your colleagues in this field do that?
Oh, not all of them. I've seen some where, you know, they start [at] child abuse. I likened it to … a snowball. It gets bigger and bigger and bigger as it rolls down the hill. And eventually somebody has to try to stop it if it's wrong. And sometimes it just gets so big that you can't stop it.
So the child abuse theory start rolling, starts rolling, and the forensic pathologist's one step is --
A lot of times they are not strong enough and powerful enough to stop it, and they feel helpless, and they just get caught up in it. And I have seen, actually, exculpatory information, you know, that hey, this is definitely not [the cause of death]. They keep it rolling. I've seen people imagining things that weren't there.
You've seen doctors who ignore evidence that the child wasn't harmed?
Absolutely, yes. Yes. Absolutely I have at least one case where retinal hemorrhages were seen grossly, but microscopically there's none. There were none there. They even showed there was none. Microscopically, there just wasn't any, but they went ahead and said: "Yes, we saw them with our naked eye. But oh, they're not visible with the microscope." That's impossible.
You know, in Canada they have a dozen questionable cases coming out in one province that prompts a whole review of the system and 168 recommendations on how to improve the system. We've seen different jurisdictions in the U.S. where you have multiple wrongful convictions based on a forensic pathologist's work in Mississippi; questionable cases in Texas; questionable cases in different jurisdictions. Has it provoked that kind of review?
There [are] colleagues of mine that know -- we know where the jurisdictions are where there's problems. And a lot of those jurisdictions where things come up, they come up on a chronic basis, mostly because of the reputation. I don't know if local government officials really understand how bad they've got it. They think that if I have Dr. X, Dr. X has been shown to not be competent. I will get rid of Dr. X, and I'll go with Dr. Y, but Dr. Y never shows up because everybody knows this is not a good place to be. Or they hire the first warm body. And actually, Dr. Y is [worse] than Dr. X, a lot worse, 10 times worse, but they don't [realize] the problem is not the physicians they're hiring; the problem is they need to look in the mirror.
The problem is themselves and the way they hire and how their thought process [is] regarding it, and how they value the office. A lot of jurisdictions just want the office to be quiet, go along, and then they have the bomb go off. And there's no systematic review of the old cases. They just go to another doctor, and the problems persist.
So you've seen it when something goes wrong. There's a case that's bungled; somebody goes to jail wrongly. There may not be a full, thorough review of that doctor's work.
Correct. You know, you have to go back and look. The fortunate thing, though, is I tell people always, I like this field because mostly it's common sense. This is a common-sense field. I'm not doing tumor markers and trying to diagnose which chemotherapy regimen is best. And basically you have to understand human behavior in order to do this job. You have to have life experience. If you understand human behavior, most of the causes of death that we come by, even child deaths, are relatively common sense. I know what kids would do on a day-to-day basis.
If you ask yourself, can a 2-year-old climb to a height that could cause a fatal head injury? Yes, they can. The thing is where were they, and is there an object they could have climbed and nosedived off of? This is the common sense. And regarding the injuries, what's there and what's not there, [in] a bungled case, blood goes into the water, and everybody comes to feed on this one forensic pathologist. Fortunately, even the most incompetent person is going to be right most of the time. So most of the cases reviewed have overwhelming drama that doesn't present a problem and cause a manner of death, because most of it's common sense. …
When you looked into the case of Rebecca Long, a girl who was 7 months old and was supposedly murdered by her father, and the medical examiner in this office before you were running the show [Dr. Joan Wood, who served as chief medical examiner in District Six from 1982 to 2000] said this child was murdered, you had a totally different conclusion.
[Editor's Note: In 1999, David Long was charged with first-degree murder in his daughter's death based on an autopsy performed by Thogmartin's predecessor, Dr. Joan Wood. Prosecutors later dropped the charges after Thogmartin concluded that Rebecca had died of pneumonia.]
What was it?
I think she died of basically complications of her prematurity. She had really, really bad pneumonia, really bad reactive airway disease, and even though she had been on a respirator for a while, the pneumonia was so unbelievably widespread, I think she basically had her cardiac arrest in her crib because of that pneumonia.
And the previous medical examiner said this child had bleeding in the eyes and bleeding in the brain, but when you looked at the evidence, you didn't see that?
Well, the previous medical examiner had been told that child had retinal hemorrhages, and that's what caused the whole child abuse snowball to start rolling down the hill, [but it] was shown at [an] autopsy there was no retinal hemorrhages at all. But it just kept going. It just kept going, and it would not stop.
And so this guy lost his daughter and was prosecuted on how much evidence?
Well, basically, it was 100 percent the medical examiner, 100 percent, no doubt about it. There is nothing else that drove it other than the one pediatric ophthalmologist saying there were retinal hemorrhages that didn't exist.
And was there any real evidence to put this man in jail?
The evidence presented by one expert witness.
Was it real?
No. No, there was nothing there. Like I said, once the child abuse bandwagon is going, once it's rolling, it's really tough to stop, and that unfortunate gentleman had his life turned upside down. First his daughter died; his life was destroyed. …
So you [then] began looking into the death of John Peel Jr. What did you find when you looked at his case?
[Editor's Note: John Peel Sr. was charged with shaking his son to death in 1998 based on an autopsy performed by Dr. Wood. He was sentenced to 10 years in prison and served four before State Attorney Bernie McCabe asked a judge to throw out the conviction based on Thogmartin's findings. Peel was freed in October 2002.]
Well, his was worse, because he did not really have medical intervention. He was pretty much, you know, fresh dead, no artifacts, and that ball got rolling because his death was a similar circumstance to most all the deaths of infants that we have. It was a co-sleeping-type death where two parents are co-sleeping with the kid on a twin bed, and they are exhausted, and they're doing the nightly feeding, and then in the morning, they wake up and the kid is not in bed with them; he is on the floor. So this is not really an unusual thing for me. A lot of times, they wake up on top of the kid.
So the thing that got that one rolling was the kid, they initially said, "Well, he was lying there on its side, and the chief medical examiner here said, 'Well, children of that age can't lay on their sides.' And that's a pretty flimsy excuse, but that seems to be the excuse that got the thing rolling.
And when you looked at the autopsy of the baby Peel, was there anything wrong with this child?
Well, no, there wasn't. Probably if we experienced [his case] today, we would have ruled out everything. We certainly would have not -- they imagined retinal hemorrhages on the eyes, grossly. …
They imagined injuries that weren't there?
They imagined injuries that weren't there: the subdural hematoma that wasn't there; retinal hemorrhages that weren't there, aren't there today, still aren't there. The slides still aren't there. They are just not there. …
When you looked at the Peel case and the Long case, what did you tell prosecutors?
I told them that basically the injuries that are described here aren't here, and Rebecca Long, there is an alternative cause of death anatomically, an explanation for it. In the Peel case, circumstantially, it's the most typical cause of death we have in infants, a co-sleeping type of case where there [is] an unsafe sleeping environment. But I didn't have an anatomical cause.
But you didn't see anything that caused that child [to die]?
No, no, there is actually pictures of the brain. They're just completely normal. I sent the brain to a neuropathologist. She was also actually on the ME Commission, Medical Examiner[s] Commission of the state at that time. She couldn't see anything. I looked at the eyes. I looked at every slice of eye tissue, the residual ocular tissue; there is no retinal hemorrhages there. There never were. I don't know what they were seeing -- wishful thinking, bias. I am not sure what was going on. …
What's the problem?
The problem is an objectivity problem; that's the problem. There was a lack of objectivity, in my opinion.
And what was her bias?
I think there was a prosecutorial bias, I think that "Go get him" kind of thing. As a forensic pathologist, I don't testify for the state. I don't testify for the defense. I testified for the decedent. They are not able to talk, so I tried to talk for them. You have probably heard that cliche many times, but it's true. I don't care if the case is lost or won by the prosecution; I can't care. I treat the defense and prosecution the same. If they call and want to prepare, I prepare with both. You can't care, and that way you're able to walk into court or not. If you say objectively that this is not a homicide, chances are you will never walk into court, but if you're saying it's a homicide or the person died of automobile accident, have to [consider a] manslaughter case, DUI manslaughter case, you will be in court. But I don't care if they get convicted or not; I don't care how long they go to prison. I never follow up, and that's on purpose.
[Editor's Note: We attempted to contact Dr. Joan Wood for comment, but our attempts were unsuccesful.]
Do you think everybody in your field shares that outlook?
No, absolutely not. No, they don't. Do I think they should? Yes, they should, because if you act otherwise, you have a bias toward the defense for any reason or toward the prosecution for any reason or toward plaintiff attorneys and civil suits or vice versa, you're not performing your official duties; you are committing malfeasance. …
Are there people who don't have the expertise doing the work that you do?
And what are the consequences?
Well, the consequences would be, let's say 95, 99 percent of the time, they're fine, but then the 1 to 5 percent that require some expertise, they end up being wrong, and there is some huge repercussions from that. Not only are those cases called into question, but every case they touched over the years is called into question. It causes major turmoil in the community, civil liability and turmoil, and they may never recover.
And in real simple, blunt terms, what happens when a forensic pathologist gets it wrong?
... People are let out of prison or sent to prison. That's probably the worst thing. …
Most of the time, my testimony is not absolutely critical. Probably the most critical thing I do in court maybe or people in my field is saying there is a dead person that the person is dead and this is who it is. Everybody knows they were shot. So it doesn't matter.
But those cases, like I said, you know, 1 percent maybe where a testimony is critical, then you need somebody that knows what they are doing, somebody that can stand up to scrutiny, somebody that's not going to let you down and somebody that's going to tell the prosecution and the defense and the judge what they think without any bias.
We have had a number of wrongful conviction cases in the U.S. involving child deaths. You have been involved with some. We have had them in multiple different states. Do you think that we should be having a national review or a national discussion of how to handle these cases?
I think a discussion would be good with a prominent role to be played by the National Association of Medical Examiners would be an excellent idea, and if an office is named, accredited, or at least practicing to the NAME standard, you're going to cut your chances of those kind of problems happening by quite a bit.
And we have had quite an evolution in the thinking about shaken baby syndrome. You are a prominent doctor who says, "I just don't believe in it." Do we need to have a look back at the cases of people who have gone to prison based on that theory?
Yeah. The problem is that you don't have anything to look at. A lot of those cases, they are still alive. You can only look at the records. And, you know, I am not saying that shaken baby doesn't exist; I have never seen one. Anatomically, I would love see to one, but I have never found [it] necessary to diagnose it. And I have seen more lightning strikes than shaken babies. I've seen, you know, more fatal bee stings, even more shark attacks, more dog attacks. I just don't see it. After a while, you start becoming a little cynical about it and skeptical about its existence.
I really don't see the necessity when I have a bruise on the scalp and a broken head, so there needs to be some sort of look at those cases, but most of them, it's a question of nomenclature. Those actually have skull fractures and pretty bad bleed, so they are describing a mechanism and shaking. When you are talking to someone and asking them questions, they are much more likely to admit to shaking the kid than slamming that kid's head on a kitchen counter.
And that's more likely to be the mechanism?
Yeah. You are dealing with people, and when they're confessing, "I just got real mad and shook him," as opposed to "I took his head and bashed him against the wall," you will have a lot of confessions that aren't exactly the right thing. …
Do you think that forensic pathologists are backing away from that diagnosis?
Oh, yes, and in droves, yes. I think the ones that [have] called it, a lot of them have been basically -- they're done. Their career is done. They went too much with it. And now it's mostly blunt-head trauma, closed-head injury is used instead. …
Should we be looking like Canada is, to require doctors to have more training, more certification, if they are going to be doing these sensitive child autopsies?
You could easily roll that into an approved forensic fellowship program and make it more of a formal rotation. It will be easily done. Most of the accredited locations where you do fellowships would have that available.
So you could build that training into the fellowship that forensic pathologists go through?
Right. I think it would be good to build that in. The thing is, you wouldn't want to take away from the practical nature that you see everyday, but you could easily build that in, particularly [in] Miami and some of these other places that have large teaching hospitals linked, easily get your experience.
But again, a lot of the pediatric experience comes in your regular pathology training. So it really depends. I don't think your problem with pediatrics is so much the training. I think it's more of a mind-set than a training problem. It's a mind-set problem.
And what's the mind-set?
The mind-set is prosecutorial -- homicide until proven otherwise. They get caught up in the anger, the emotion, the despair, and can't do that.
What do you need?
You need objectivity. You need to separate yourself and objectify the person that you are working on and do your best to find what killed them. And don't be afraid to admit you don't know. Don't be afraid to admit to reasonable possibilities of alternatives. That's where the truth lies. …