When Brenda Waudby pulled up the article on her cellphone, she could barely process what she was reading. She can no longer remember the headline, but the words took her back to the most horrifying time in her life. The Hospital for Sick Children. Evidence. Unreliable.
“I felt like throwing up,” she said. “It was like, ‘Oh my God. Here we go again.’”
In 1997, Waudby was a single mom in Peterborough, Ont., recovering from cocaine addiction and the violent death of her 21-month-old daughter, Jenna Mellor, when SickKids pathologist Charles Smith ran a bulldozer through her life. Smith’s flawed opinions led police to charge Waudby for Jenna’s murder. It took years to regain custody of her two other children, clear her name and bring the real killer — Jenna’s 14-year-old babysitter — to justice.
Smith’s faulty autopsy analyses tainted more than a dozen cases, including that of William Mullins-Johnson, who was jailed for 12 years after being wrongfully convicted in the 1993 death of his niece.
In late April 2007, the province launched the Goudge Inquiry into pediatric forensic pathology in Ontario and Smith. In the months that followed, Waudby was a regular in the public gallery on the 22nd floor of a grey office tower on Dundas St. West, as the evidence untangled a knot of systemic failings at some of the province’s most trusted institutions, including SickKids.
“I was really hopeful that they’d learned,” she said. “I was hopeful that the systems had corrected their issues.”
That hope faded with news of Motherisk, another scandal involving a SickKids doctor, flawed forensics, marginalized parents and families torn apart.
“It’s like we were disregarded. All we went through, that didn’t matter,” she said. “How could they forget so quickly?”
Ten years after the Goudge Inquiry got underway, an investigation into what went wrong at SickKids with Motherisk reveals missed opportunities to contain the scandal brewing in its corridors.
While Motherisk was actively marketing its drug and alcohol tests to child protection agencies across Canada, SickKids was cashing the cheques but didn’t seem to appreciate that what was being sold was a forensic test, used in legal cases to help determine parental substance abuse.
From 2005 to 2015, Motherisk performed its hair-strand tests for 16,000 individuals at the request of Ontario’s child protection agencies — 54 per cent of whom tested positive for drugs or alcohol. Motherisk’s tests were also used in thousands of cases in B.C., Nova Scotia and New Brunswick.
Between January 2007 and March 2015, the lab’s revenues topped $11 million, $6.8 million of which came from children’s aid organizations, according to information released by SickKids through freedom of information legislation.
Then in late 2014, an Ontario Court of Appeal ruling raised doubts about the accuracy of Motherisk’s hair-testing evidence in a criminal case. Concerns were warranted.
In her blistering December 2015 report, retired Court of Appeal Justice Susan Lang, appointed by the province to review the reliability of Motherisk’s tests, eviscerated virtually every aspect of the lab’s operation.
The lab did not double-check results before August 2010, until which point it reported screening-test results despite “an explicit warning” that the results were preliminary and must be confirmed. All the while, staff lacked the forensic training needed to meet the high bar for evidence presented in court.
Lang also found SickKids failed to provide “meaningful oversight” or draw “clear lines of accountability”— both factors identified in the $10-million inquiry into Smith led by Justice Stephen Goudge.
Goudge’s 169 recommendations dramatically improved expert medical evidence in pediatric death cases, but SickKids did not see the red flag with Motherisk, Lang found. “I am confident that the hospital will reflect deeply on what went wrong at (the lab) and within its own institution, particularly because it appears that the hospital has not adapted and implemented the lessons to be learned from the Goudge report.”
In the beginning, SickKids had vehemently defended the lab, pointing to international proficiency testing the hospital said verified Motherisk’s results could be trusted. But in the spring of 2015, it was discovered that, for several years, Motherisk was submitting results to the international hair-testing body that had been obtained in a different lab. SickKids closed its Motherisk lab.
The lawsuits SickKids now faces include a proposed class-action seeking $200 million in damages for negligence and $250 million in punitive damages. Dr. Gideon Koren, the founder and long-serving director of the Motherisk program, and Motherisk lab manager Joey Gareri are also named in the lawsuit.
In their joint statement of defence, SickKids and Gareri refuted the claims, and said that if a custody decision was made based on a Motherisk test, which they denied, children’s aid societies were responsible. Koren, in his statement of defence, also denied the claims. He said the tests were “accurate and reliable for their intended purpose” of providing clinical information “relevant to the medical care and safety of children,” and claimed “no knowledge” that the Goudge Inquiry or report “were relevant to his role” as director of the Motherisk lab.
A prominent clinical toxicologist and magnet for grant money, Koren retired from SickKids in 2015. He is being investigated by the College of Physicians and Surgeons of Ontario, after SickKids shared findings from an internal probe of Motherisk, which also confirmed undisclosed conflicts of interest in the program’s still-operational research arm.
His involvement has reignited old grievances about the hospital’s response to his proven dishonesty and research misconduct in a high-profile dispute with whistleblower colleague Dr. Nancy Olivieri 20 years ago, which pitted concerns about patient safety against the Canadian drug company Apotex.
SickKids doctor Brenda Gallie, who publicly defended Olivieri at the time, traces the roots of the current scandal to the hospital’s decision to stand by Koren, who was suspended, fined and stripped of a research chair by the hospital in 2000, but retained control of Motherisk.
“SickKids learned nothing from that. That set the stage perfectly for this,” she said. “It was just a matter of time until this emerged.”
The hospital declined to comment on past scandals, personnel issues or specific cases, citing ongoing litigation.
In a recent interview, SickKids CEO Michael Apkonsaid that following the Lang report and after “our own deep reflection,” the hospital has given consideration to any of its work “that could have interaction with the justice system,” and introduced guidelines requiring experts to notify the general counsel’s office and receive training before interacting with the justice system. It has also “refined” its conflict-of-interest policy “given concerns the public has raised about Dr. Koren’s research funding,” he said.
“We’ve put new programs and policies and procedures in place to ensure that the chances of anything like this happening again are as low as humanly possible,” Apkon said.
Notably, the hospital has hired Justice Goudge, who retired from the bench in 2014, to review its Suspected Child Abuse and Neglect (SCAN) team of doctors and nurses, who often provide expert opinions in abuse cases. SCAN’s diagnostic expertise came under fire during the Goudge Inquiry into Smith. Apkon said this review is proactive, and “is not because we have any specific concerns.”
Goudge declined to comment on specifics of the SCAN review, but commended the hospital for reaching out to him.
“Certainly what I’ve seen is they are wanting to learn, and they are wanting to do better,” he said in an interview. “I have no doubt about that at all.”
Goudge said Motherisk is another example of the challenge the justice and health-care systems face in overseeing the varied skill sets in a complex hospital setting.
“Even with the best intentions, it’s not easy,” he said.
Criminal lawyer James Lockyer, who has acted in several wrongful conviction cases involving Smith and was instrumental in exposing the Motherisk failings, said the hospital’s status as a public institution means “we need to know how they could have gone so wrong.”
“There’s a sense that it will go away if they avoid it, but that’s not the way these things happen,” he said. “They keep coming back to bite you.”
An Ontario mother known as C.R. to protect the identity of her children produced dozens of clean urine tests over several years leading up to her 2009 child-protection trial, attempting to disprove what she claimed were inaccurate Motherisk drug tests, which the lab said showed she used cocaine.
Her two daughters, who were removed at birth, were adopted into other families.
“I don’t think any of us want this to have happened for nothing,” she said. “They didn’t clean it up the last time (after Smith), so obviously whatever they were doing, it didn’t work.”
The Motherisk scandal is the product of failings across multiple systems, including child protection and the courts. But the story of how a world-class hospital missed the warning signs holds key lessons for an institution that can’t afford to get it wrong again.
Participation in Lang’s closed-door review of Motherisk was voluntary, there were no cross-examinations and interviewees approved the summaries of their statements before being quoted in the final report.
But Lang is unequivocal on a few key points: the hair-testing service Motherisk sold to child protection agencies and law enforcement was “a forensic one” and therefore needed to meet a high bar to be evidence in court. And since at least 2005, the hospital had the information it needed to know Motherisk’s high-stakes operation warranted much closer scrutiny.
The Motherisk Program was founded in 1985 under the umbrella of the hospital’s Research Institute, but by the late 1990s, its lab’s focus had morphed from studying drugs in hair to selling services, Lang found.
In 1998, Motherisk hosted an international workshop that discussed “the application of hair analysis in Canadian criminal and civil law.” Koren and other Motherisk scientists had authored articles that highlighted the pioneering use of the lab’s tests in Ontario courts, as early as 1999. Lab managers marketed its hair testing to child protection agencies in more than 160 presentations, beginning in the early 2000s.
However, SickKids told Justice Lang the hospital did not become aware the lab was routinely performing hair tests for use in child protection cases until 2005.
At that point, SickKids claims it viewed this as a shift “from research toward clinical practice,” which is related to the diagnosis and treatment of patients, rather than to forensic work.
Koren did not respond to emails requesting comment for this story and declined to be interviewed for the Lang review. In response to Lang’s written questions, he said believed the hair tests were providing “clinical information.” The fact that only a minority of cases went to court, he said, meant “the vast majority served as a treatment tool of therapeutic drug monitoring.”
The term “forensic” was never cited by lawyers or judges, Koren said, or by anyone at SickKids, “including risk management or the executive team,” although “all of them were well aware of our activities with (children’s aid societies) and the court.”
The Merriam-Webster Dictionary defines “forensic” as “relating to or dealing with the application of scientific knowledge to legal problems.” Lang breaks it down like this: “What distinguishes a clinical test from a forensic test is the purpose behind the test. If the test is carried out or is used for a legal purpose, then it is a forensic test.”
According to Lang, the only person in Motherisk’s management who acknowledged the lab was doing forensic work was lab supervisor Dr. Bhushan Kapur, who was hired in 2009, and did not perform the hair tests or interpret results.
Kapur, a toxicologist, told the Star in an interview that he shared his view with Koren, but his argument didn’t get traction.
“All you can do is you can tell the people once, twice, and then you stop. I made my feelings known,” said Kapur, adding that Koren “is a very strong personality.”
Kapur said he was aware that the Motherisk test was marketed to child protection agencies, but, “I had fortunately nothing to do with that, because I didn’t want to be part of that. I was strictly a scientist.”
Lab manager Gareri’s lawyer declined to comment for this story. The Star was unable to reach former lab manager Julia Klein. (Other lab employees named in the report either could not be reached or declined to comment.)
Lang said the failure of its managers to appreciate that Motherisk was providing a forensic service was “exacerbated” by the lab’s marketing efforts — and was inconsistent with its own statements.
A business plan from 2006-07 describes the lab as performing “tests for forensic purposes.” In a booklet in 2012, Motherisk said the lab “has translated established forensic toxicology methods (e.g. hair analysis) and applied them to children and (newborns).” And a presentation to Lang and her team at SickKids in December 2014, obtained through freedom of information, includes the logo for the Society of Forensic Toxicologists.
“Given the manner in which (the Motherisk lab) operated, Dr. Koren, Mr. Gareri and Ms. Klein should have appreciated that (Motherisk) was carrying out forensic, not clinical, work,” Lang concluded.
Lockyer, who represents a Toronto mother whose criminal appeal ignited the Motherisk controversy in late 2014, said the hospital’s position that it didn’t view Motherisk’s tests as forensic “makes absolutely zero sense” and is “simply not a credible statement.”
Toronto criminal lawyer Mark Sandler, who was special counsel to the Goudge Inquiry and was consulted by the Lang review on the use of Motherisk’s tests in criminal proceedings, said the hospital’s view of the lab’s work is “very hard to understand.”
“It had such an important impact upon child protection proceedings that oversight and accountability should have been a central feature of the SickKids approach to Motherisk,” he said.
The hospital had several chances to put Motherisk’s operations under the microscope, including in 2008, at the height of the public reckoning on Smith.
SickKids was not the main player in the Goudge Inquiry, which focused primarily on oversight gaps at the Ontario coroner’s office, which was responsible for the autopsies Smith performed at the hospital.
But SickKids, where Smith was a staff pathologist for more than 20 years, was a party with standing, and witness to hours of testimony that detailed the dangers of untrained experts performing a forensic service.
“There’s no doubt that the Goudge Inquiry was a very big red flag for the Hospital for Sick Children to think about units under its umbrella,” Sandler said.
After Goudge, he said it would have been his “expectation” that SickKids perform an “audit or evaluative process” to make sure the accountability and oversight gaps that plagued the unit where Smith worked “did not exist for others doing similar work in the hospital.”
It appears this did not happen.
In an email to the Star, the hospital said it has “no information to suggest that an audit about the extent to which forensic activity was ongoing at SickKids was done.”
SickKids said there were improvements within SCAN, including developing certification criteria and networking regularly with colleagues across the country “to address concerns about working in isolation,” the hospital said.
In 2006 and 2008, the hospital chose not to bring Motherisk into its clinical accreditation process, which is not as stringent as forensic accreditation but ensures basic standards are being met.
SickKids told Lang that Motherisk was not included in this process in 2008 because “it was recognized that (accreditation) may not be achieved, and sights were set on the December 2010 accreditation inspection instead.”
Motherisk was not accredited as a clinical lab until 2011.
Motherisk’s tests were in the spotlight in the 2009 criminal trial of Tamara Broomfield, who would be dubbed Toronto’s “cocaine mom.”
In what appeared to be a horrendous case of child abuse, Broomfield was charged with administering cocaine to her 2-year-old son, Malique, based largely on Motherisk’s evidence. Koren testified that Motherisk’s tests of Malique’s hair showed he had regularly ingested large amounts of cocaine over 14 months leading up to his near-fatal 2005 overdose.
Broomfield was convicted for administering the overdose and for other child-abuse charges related to her son, and sentenced to seven years in jail.
At the time, the media coverage of the case did not trigger warning bells at SickKids.
In October 2014, the Appeal Court overturned Broomfield’s cocaine-related convictions based on expert evidence from a forensic toxicologist, who criticized Motherisk’s methods, interpretations and the reliability of the test.
After that decision, the list of concerned parties quoted in the Star included family lawyers, criminal lawyers, child protection agencies and a judge, demanding answers on Motherisk’s testing.
However, emails between senior SickKids managers at that time, obtained through freedom of information, suggest the hospital leadership put winning the public relations battle ahead of addressing these concerns.
In an email to SickKids CEO Apkon on Nov. 11, 2014, Jeff Mainland, executive vice-president of corporate strategy and communications, wrote: “Had some challenges on strategy by (Senior Management Committee) members this morning (why aren’t we doing external review?) but they largely understood the complexity of the issue and the tunnel vision of the reporter. (This refers to Star reporter Rachel Mendleson.)
“After I walked them thru the facts and the strategy, they seemed to have more confidence in our approach,” he said.
Two days later, on November 13, the Star published a front-page story featuring three provincial ministries with oversight of Motherisk or responsibility for the effects of its hair tests and the headline, “Why won’t they act?”
The tone shifted.
“If there is a decision to review, we will need some messaging,” Mainland wrote in an email to Apkon and Marilyn Monk, executive vice-president of clinical operations. “If we are truly ‘confident’ in (Motherisk), we may lean towards having the government order the review. They can set scope, be accountable for outcome and cover costs.”
Apkon responded: “Seems like the best insurance is to do this in conjunction with the (government). They can give the review credibility and if there are positive findings we will be viewed as at least somewhat more proactive.”
The next day, Apkon wrote to deputy health minister Robert Bell, asking for “a brief conversation” about the Motherisk lab.
“The Star reporter is continuing to push this story and raise new concerns. I do not have concerns about the issues the reporter has raised and I believe she has all the information necessary to develop a clear picture of this domain,” he said. “However, with mounting pressure, there may be value in an external review.”
At the same time, the hospital continued to reassure stakeholders. On November 19, Koren, with the hospital’s approval, delivered a presentation for the Ontario Association of Children’s Aid Societies (OACAS) standing behind the reliability of Motherisk’s testing.
The slide deck, obtained by the Star, states that Motherisk “adheres to the highest professional and ethical standards of laboratory practice,” trumpets the now-debunked proficiency testing results and described the screening test it used to test drugs until 2010 as “highly specific.”
“We were told all the way up the line that there was not a problem,” OACAS Executive Director Mary Ballantyne said in December 2016. “We believed it because they (the hospital) brought their experts in to prove (it) to us.”
The attorney general announced the review on Nov. 27, 2014. Motherisk’s hair-testing continued for another four months, until SickKids learned it had been misled about the proficiency testing, and suspended operations.
In a recent interview, Apkon said that when questions first surfaced about Motherisk, the hospital was considering “two decisions.”
“Do we continue to operate the lab and offer the service? And how do we collaborate to address the past testing? That’s what drove the decision-making at that time,” he said.
Apkon said he viewed assessing the reliability of past tests as a “shared responsibility” between the lab and the judicial system, adding there was “no way” for the hospital to independently assess the impact of a particular test on a proceeding.
The decision to keep the lab open until March 2015 was based on “the best data we had around day-to-day operations at that point in time,” he said. “As new data emerged and we began to question the credibility of the lab, we shut it down.”
However, the emails suggest that in the interim, another red flag was raised.
In a message to SickKids risk manager Janice Campbell on Nov. 24, 2014, lab manager Gareri asked if there was “any legislation that provides clear requirements; particularly considering the common use of our results as part of child welfare proceedings?”
Gareri explained that Apkon advised that he get guidance on “an appropriate retention policy” for the lab’s testing samples, which at that time were being retained for up to one year, time frames he said were “deemed appropriate at our last inspection.”
Campbell responded: “Did you have standards you based the current (standard operating procedures) on? As it seems to me extraordinarily short given other retention periods we have outlined in the hospital wide policy.”
This policy stipulated holding on to patient records and other material for a minimum of 33 years, she said. “Also in many of your cases you would also have to consider the medical legal standard . . . the sample and all related documents should be maintained until the matter has been finally resolved . . . and all applicable appeal periods are exhausted.”
Apkon said recently that due to “pending litigation” he could not comment on “the processes the lab used at the point it was still operating.”
Following the interview, the Star asked SickKids again why it appears Motherisk’s retention policies were so out of line with the rest of the hospital, how the hospital justifies its decision to keep the lab open following this revelation, and whether a hospital-wide audit has been conducted as a result.
“Clinical tissue samples are stored in the Department of Paediatric Laboratory Medicine in accordance with hospital retention policies,” the hospital replied.
A few months before Lang released her findings, the hospital issued a public apology.
“We deeply regret that the practices in the Motherisk drug testing laboratory didn’t meet the high standard of excellence that we have here at SickKids, and we extend our sincere apologies to children, families and organizations who feel that they may have been impacted in some negative way,” Apkon said in October 2015.
He recently told the Star the hospital has used the events of Motherisk “to refine a number of important practices” regarding the hospital’s interaction with the justice system and its approach to conflict-of-interest management.
“I’m really proud of the care that SickKids delivers and the research that we do here. I think we have a well-deserved reputation. At the same time, it is extremely valuable, and sometimes painful to see how we perform — our impact through other people’s eyes,” he said. “I do think it’s made us a stronger organization going forward.”
Gallie, the doctor who spoke out during the Olivieri affair, attended the mandatory town hall meetings where Apkon informed SickKids employees of changes the hospital imposed following Motherisk. But she said she has not yet seen evidence that the hospital and its governing board of trustees recognize the need to address deeper issues.
“I want to hear them say, ‘I’m sorry. We made a series of errors and we are examining everything in our whole structure,” she said. “I wouldn’t say they intend these harms, but to admit that they made a mistake, they can’t do.”
Led by retired judge Judith Beaman, the Motherisk Commission is weighing the various factors that influenced the outcome of affected child protection cases in Ontario. Out of the 674 cases reviewed so far, the commission has determined in 36 cases there was a “substantial reliance” on Motherisk hair testing.
Toronto lawyer Julie Kirkpatrick, who acted for Waudby in her appeal of her child abuse conviction and has represented C.R. since 2016, said a common thread is marginalized women, “shouting from the rooftops.”
Waudby was exonerated in 2012 — 15 years after Smith’s flawed opinions set off a devastating chain of events.
When Waudby returned home in January 1997, Jenna was dead at the hospital. Smith wrongly said Jenna’s horrifying abdominal injuries were inflicted before her mother left her with the babysitter, and Waudby was charged.
In a desperate bid to regain custody of her other children, she pled guilty to child abuse, believing a deal had been made for the Crown to drop the murder charge if she did.
Other medical experts discredited Smith’s evidence but the child-abuser label remained, even after 2005, when Jenna’s babysitter confessed to beating and sexually assaulting her. Although the babysitter, who was convicted and sentenced to 22 months in jail, had said his blows “would have” broken Jenna’s ribs, a typo in the court transcript wrongly said they “wouldn’t have” — an error that was not fixed until 2012. (The babysitter can’t be named because he was a minor when the offence occurred.)
In a recent interview, Waudby, 51, said the Motherisk scandal is yet another reminder that “just because someone is vulnerable, doesn’t mean they shouldn’t be listened to, and treated with respect.”
Rachel Mendleson can be reached at
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