2/7/2014 12:46:00 PM,
Jeff D. Gorman
(CN) - A pathologist must face a malicious prosecution claim after his autopsy prompted a wrongful charge of child abuse, Nebraska's highest court ruled.
Carla McKinney ran a day care out of her home for 21 years. She began caring for a 6-week-old boy in 2007. Two months later, however, the child died in her care.
McKinney explained to police that she fed the baby and put him down for a nap, but he stopped breathing.
Matthias I. Okoye was the pathologist who conducted the autopsy. He said that the child died by a homicide caused by blunt force trauma to the head and asphyxiation.
When police confronted McKinney with these findings, she explained that her hand slipped when laying the baby down on a pillow, possibly causing the child to hit his head on the floor.
McKinney was charged with felony child abuse resulting in death, but the charges were dropped. According to McKinney's pathologist witnesses, the child died of Sudden Infant Death Syndrome (SIDS).
Cleared of the charges, McKinney sued Okoye and Nebraska Forensic Medical Services PC for malicious prosecution.
Dr. Janice Ophoven, one of McKinney's pathologist witnesses, called Okoye's autopsy one of the worst she had seen in 30 years on the job. She said that the child's mouth looked "like every baby mouth" and that Okoye slicing into a fresh brain to take samples for analysis was a "giant no-no."
The second pathologist witness for McKinney, Dr. Robert Bux, said there was "no evidence to support blunt force trauma to the head."
Despite these opinions, a Lancaster County judge ruled for Okoye based on the fact that the doctor had not commenced the prosecution of McKinney. The judge also found that Okoye did not act with malice or reckless disregard for the consequences of his autopsy.
The Nebraska Supreme Court reversed last week, saying McKinney presented sufficient evidence to create an issue of material fact over "whether Okoye knowingly provided false or misleading information in his autopsy report."
"We agree that when experts find statements by a professional in their field not only false or misleading, but grossly negligent, shocking and generally inexplicable, then it may be reasonable to infer that the false or misleading statements were knowingly and intentionally made," Justice Michael McCormack wrote for the court.
McKinney may continue her lawsuit, according to the ruling.
"Because the elements of a malicious prosecution action are difficult to prove, a plaintiff has a steep climb in prosecuting a malicious prosecution," McCormack wrote. "Nevertheless, appellees have not demonstrated as a matter of law that McKinney will not make that climb."