YORK – Dr. Janice Ophoven, a pediatric forensic pathologist from Woodbury, Minn., testified for the defense Thursday in the ongoing trial regarding the death of four-month-old Kayley Kozisek.
Although she was never a hands-on doctor in the care of the baby nor was she present for the autopsy, Dr. Ophoven testified that “there is no evidence leading me to the conclusion of abuse with certainty.”
Kayley’s father, Ryan Kozisek of Gresham, is accused of abusing his daughter and inflicting injuries that ultimately led to her death in January, 2011.
Doctors from Children’s Hospital in Omaha, who treated Kayley, have said the baby died from “shaking and/or slamming.” They’ve also termed her death as a result of “non-accidental trauma.”
But Dr. Ophoven says she completely disagrees. She suggested that an older skull fracture “which could have easily been from an accident” could have been silently creating intracranial pressure that was exacerbated by Kayley’s 2-year-old sister falling on her – thereby creating an immediate heighted pressure resulting in cardiac arrest.
“When pressure became suddenly so high, the brain shuts down and life ends quickly. Typically, it evolves over a period of time, but if there’s pre-existing trauma, it’s much faster.”
Dr. Suzanne Haney, a pediatric abuse specialist at Children’s Hospital, has testified that a 34-pound 2-year-old falling on the baby “could never cause the extent of Kayley’s injuries.”
Dr. Ophoven adamantly disagreed.
“That could have been more than enough,” she said.
“Could the 2-year-old falling on her create escalated intracranial pressure?” asked Mark Rappl, Ryan Kozisek’s attorney.
“Absolutely!” Dr. Ophoven said. “It’s common sense. It’s a completely scientific explanation of the findings in this case.”
Dr. Ophoven also classified the theory of “shaken baby syndrome” as “controversial” and an “ongoing debate in the medical field.”
“I do not have evidence this child was a victim of abuse,” Dr. Ophoven said. “There is no physical trauma to indicate why she went south. There is evidence of a pre-existing condition.”
William Tangeman, who is lead prosecutor in the case from the Nebraska Attorney General’s office, pointed out that Ophoven is a paid witness for the defense, who works out of her home and solely does contract work for defense attorneys in these types of cases.
“Isn’t it true that you have to disagree with the doctors who actually attended to the patient or you won’t be hired?” asked Tangeman.
“No!” Dr. Ophoven objected.
“Otherwise, there’s no reason for you to talk to a jury,” Tangeman said.
“I’m here to clarify the key points,” Dr. Ophoven.
“Do you take all the cases that come to you?” asked Rappl.
“No, I take those where I can be of assistance,” Dr. Ophoven said. “I only take the cases where it looks like there may have been a rush to judgment, misunderstanding or misinterpretation. Mistakes can be made and it’s important for someone to point that out.”
Through questioning, it was also established that Dr. Ophoven is paid $4,000 to review a case, another $4,000 to generate a report and then another $4,000 to testify. The doctor also said she makes $180,000 a year doing this type of work.
Years ago, when she was working as a medical examiner, she said she did hundreds of autopsies. Tangeman asked her about a request from a chief medical officer in Minnesota who told her that if she didn’t stop doing “second opinion” testimony for defense attorneys, she would no longer be asked to perform autopsies in that state. While Dr. Ophoven said Tangeman was “mischaracterizing the event” she did admit that “he asked me to stop doing defense cases in Minnesota, so I did.”
“You’ve said that you don’t copy and paste opinions from case to case,” Tangeman said. “I’ve copied a number of your reports from different cases and they all seem very similar.”
“I copy and paste graphics, some backgrounds, but not opinions,” Dr. Ophoven said.
“In your deposition, you said that vaginal birth can cause skull fractures,” Tangeman said to the doctor. “You attributed Kayley’s skull fracture to traumatic vaginal birth?”
It was pointed out that Kayley was born by C-section.
Dr. Ophoven said that when she said that in error, she also clarified it could have also happened during a C-section.
“Dr. Haney said a C-section couldn’t cause this,” Tangeman said.
“Yes, it’s unlikely, but it can happen,” Dr. Ophoven said.
“In a report you wrote in 2007, regarding a little girl from Washington State who had all sorts of head injuries but no retinal hemorrhaging, you wrote that because there was no retinal hemorrhaging there was no evidence of abuse. But when we do have retinal hemorrhaging, you say it means nothing.”
Dr. Ophoven said the logic between the two cases “was not the same.”
“Would you agree that adults who are accused of abuse often blame one of the children’s siblings for falls?” Tangeman asked.
“My opinion is that the person who committed abuse will provide an explanation that’s innocuous,” Dr. Ophoven said.
“Do you know he (the defendant) blamed his 2-year-old daughter and his mentally and physically handicapped sister?” asked Tangeman.
“I wouldn’t characterize it as blame,” Dr. Ophoven said. “That doesn’t change my opinion.”
“The bruising on this baby does not seem suspicious to you?” Tangeman asked.
“Not at all,” Dr. Ophoven responded.
“You cannot rule out abuse entirely, can you?” asked Tangeman.
“No, but the evidence can’t lead me to that conclusion without certainty,” Dr. Ophoven said. “I don’t know what happened. There is no evidence of fatal assault on that day.”