Motherisk scandal highlights risk of deferring to experts without questioning credentials

For the people whose lives were ruined by the flawed forensic work of pediatric pathologist Charles Smith nearly a decade ago, the recent Motherisk scandal at Toronto's SickKids Hospital is another painful reminder of the risks of deferring to "experts" without questioning their credentials.

Lab's flawed hair testing echoes Charles Smith scandal, with similarly devastating effects

Ron Charles CBC News Posted: Feb 08, 2016 5:00 AM EST | Last Updated: February 9, 2016

'Expert' testimony given in court by physicians and scientists has a powerful, persuasive effect, and the credentials of the people giving it are often not questioned as rigorously as they should be. A 2008 inquiry into the work of the discredited pathologist Charles Smith, above, found that he made false and misleading statements in court and exaggerated his expertise.

The scene plays out daily in courtrooms across the country. An expert witness in forensics is sworn in. Their often lengthy resume is entered into the record. A lawyer and maybe the judge ask a few questions about qualifications. Then, in almost all cases, that expert is good to go, considered qualified to testify about a wide range offorensic evidence from autopsy results to blood splatter patterns.

But a recent review of the Motherisk scandal at Toronto's SickKids Hospitalhas highlighted just how flawed that deference to "experts"can be.

The review looked into hair analysis done at theMotheriskDrug Testing Laboratory, whose hair strand testing wasused to back upallegations of drug and alcohol abusein thousands of child protectioncases in several provincesand even some criminal cases. Itfound that neither the lab's director, clinical toxicologistGideonKoren, nor his staff had the qualifications or expertise to do that kind of forensic work, and those findings have now thrown 16,000child protection casesand six criminal cases into doubt.

Gideon Koren, the former head of the Motherisk Drug Testing Laboratory at SickKids Hospital in Toronto, was a clinical toxicologist but had no training or experience in forensic toxicology. Nevertheless, he testified in court on several occasions as a forensic expert. (CBC)

Itis the second time in adecade that a doctor at SickKids Hospital who had been serving as a forensic expertturned out to haveno forensic experience or credentials that would qualify him to give expert testimonyin court or analyze forensic evidence.

In the previous case, a lack of "basic knowledge aboutforensic pathology" and faulty analysis of autopsy results by Charles Smith, the former director of the hospital's pediatric forensic pathology unit,led to at least 12 wrongful convictions of parents or caregivers for the deaths of children, according to a 2008public inquiry.

Systemic failure

So, how did two spectacularly unqualified individuals end up as respected forensics experts working atone of the world's most renowned pediatric medical facilities?

"It's a failing across the system. It's a failing of prosecutors, defence and, in some occasions, the judiciary," said James Lockyer, senior counsel to the board of the Association in Defence of the Wrongly Convicted.

Smith's testimony was so influential that lawyers would convince innocent clients to plead guilty because they were so sure his testimony would result in conviction, says Harold Levy, who covered Smith as a reporter for the Toronto Star. (Adrian Wyld/Canadian Press)

"Smith made himself into anicon despite warning signals. No one picked up on them. Korenhas a terriblehistory."

While there are significant differences between the two situations, the similaritiesare striking:

Both Smith and Koren werecharismatic physicianswhose charisma seemed to overshadowthe fact that they wereout of their depth when it came to doingforensic work, work that in both cases contributed to parents losing custody of their children orlosing their own freedom and serving jail time.
Officials ignored warning signs about both men. Early in Smith's career, ajudge in a murder trial admonished him for his poor work and faultyautopsy conclusions. In Koren's case, he had a publicspat with his colleagues overresearch intoan experimental drug in the 1990s,sent them nasty, anonymous letters, then lied about it,resulting in a one-weeksuspension. Both Smith and Korenneverthelesswent on to become the go-to forensics experts on certain types of cases.
In both instances, the hospital that housed their labswasfound to have exercised scant oversight to ensure the labs were run byqualified experts and met international standards for forensics.

Name recognition played a part

Retired Ontario Appeal Court judge Susan Lang completed her exhaustive reviewof Koren's MotheriskDrug Testing Laboratory (MDTL)last December and was struck by the similarities to theSmith case.

"ThatSickKids failed to exercise meaningful oversight over MDTL'swork must be considered in the context of the hospital'sexperience with Dr. Charles Smith," Lang wrote in herreport.

Richard Brant, left, pleaded guilty in the death of his infant son after Smith falsely testified that he died of shaken baby syndrome. Brant was acquitted a few months after Smith was stripped of his medical licence. (Pat Hewitt/Canadian Press)

She also pointedout how in both situations, the association with the hospitalbolstered the doctors' reputations and others' assumptions about their qualifications.

"Just as the SickKids name assisted in positioning Dr. Smith to become a leading expert in pediatric forensic pathology, that name likely gave credibility to thework of MDTL,as well," Lang wrote.

Lawyer and retired newspaper reporter Harold Levysaw firsthand how Smithavoided scrutiny throughout his 15-year career by exuding charisma and confidence while testifying.

When Smith walked in, thelegend walked in.- Harold Levy, lawyer and former reporter

"He created such a powerful, holy, godly image of himself that people acceptedhim for what he held himself out to be," said Levy, who now writes a blog named after the disgraced pathologist thattracks examples of flawedforensicscience.

"When Smith walked in, thelegend walked in. And very few lawyers challenged him.Sometimes,innocent people, innocent parents, would plead guilty because theywere told by their lawyers that his testimony was so powerful and influential thatthey would be convicted even though they were innocent."

Making conclusions based on preliminary results

Koren's testimony had similar heft and in 2009helped convict a Torontoarea mother accused of feeding her toddler cocaine of several seriouscharges, includingadministering a noxious substance with the intent to endanger life.

Lockyer first crossed paths with Koren while representing themother during herappeal of the cocaine-relatedconvictions.

Lockyer said hehad never dealt with a case involving hair-sample testing before anddecided to have the results fromKoren'slablooked over by a certified forensic toxicologist in Alberta.

A lack of oversight by the world-renowned Hospital for Sick Children, known as SickKids, was cited as a contributing factor to a breakdown of accountability in both the Smith and Koren cases. The hospital says it has instituted new measures to ensure staff who will be working within the justice system receive adequate training. (CBC)

The forensic toxicologist found the original test resultswere notnearly good enough to have been used in court.

Lockyer says Koren argued his lab's testing methods were "gold standard," but it turned out the lab's work wasn't even worthy of a bronze.

Lang's review found the lab was drawing definitive conclusions about the presence ofdrugs andalcohol based on hair samples tested with a preliminary screening test thatwas meant to be used only as a first step to weed out negative results. Positive resultswere supposed to be confirmed with amore robust test and not passed directly on to authorities.

The lab used the test for five years between 2005 and 2010 even thoughthe testing kits, as Lang writes in her report, "included an explicit warning for theuser about the preliminary nature of theresults."

Lang's review notes that even when the lab began doing more robustconfirmation tests in 2010, lab workers didn't conduct those tests properly,rendering the results inaccurate.

New oversight measures in place

Lang writes that both the Smith and Koren debacles at SickKids"highlighted thedangers associated with having a laboratory within the institution that routinelyprovided a forensic service yet was led by individuals who lacked any forensictraining."

In an emailed statement, hospital spokeswoman Matet Nebres said SickKids nowhas mandatory training for any staff who have dealings with the justicesystem. Subpoenasand summonses now have to be reviewed by thehospital's legal department.

The hospital shut down the Motherisk lab last spring, andKoren hasretired from SickKids. But the ordeal is not over for parents who may have lostcustody of their children based on the lab's faulty work. The province of Ontariohas appointed a commissioner to look back at 25years'worth of cases todetermine which ones need to be re-examined.

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