Judge hears ER doctor's argument to dismiss charge that he abused infant daughter

A judge Wednesday declined to dismiss a criminal complaint charging that a pediatrician injured his infant daughter last year.

John M. Cox, 39, was charged last month with felony child abuse after an incident last May when he took his daughter to Children's Hospital of Wisconsin, where he worked as an emergency room doctor.

Cox told a colleague he had fallen asleep with the child, woke to her crying and feared he might have rolled onto her and broken her collarbone. Initial X-rays did not show the break, which was confirmed later, but bruises on the girl's arms prompted a routine referral to a child abuse specialist at Children's.

Days later, Child Protective Services workers removed the girl from Cox and his wife, Sadie Dobrozsi, a pediatric oncologist at Children's.

Staff at the hospital split over how Cox was treated. He eventually quit the hospital and the couple shared details of their ordeal with NBC News, whose story brought national attention to the case.

Cox's attorney, Michael Levine, almost immediately filed a motion to dismiss the complaint.

"The criminal complaint, in this case, is entirely devoid of any factual assertions that would support a finding of probable cause that Dr. Cox intentionally committed child abuse," the motion reads, and doesn't include any of the contrary opinions from defense experts.

"The conclusion the state proffers as a mechanism of injury is a theory unsupported by medical data, but moreover, is not attributed to any specific conduct or actions of Dr. Cox."

In response, Deputy District Attorney Matthew Torbenson said the complaint provides expert medical opinion that the baby's injuries "are consistent with a specific abusive mechanism and inconsistent with the Defendant's account of events."

The state notes that one of Cox's supporters, Dr. Albert Pomeranz, whom he initially consulted about the girl's injury, "felt it necessary and appropriate to defer to the expertise of others," and that Pomeranz had never seen the report of the Minnesota expert who concluded the injuries resulted from abuse.

Both sides reiterated their arguments Wednesday before Circuit Judge Stephanie Rothstein and about 30 people who appeared in support of Cox.

At the hearing, Levine again noted that rather than show bias for Cox, and just sending him home, the first doctor he consulted "did the right thing" and referred the case to the child abuse team and did his own further investigation before concluding the child's injuries were not from abuse.

A criminal complaint need only allege probable cause that a crime occurred, Torbenson said, not the proof beyond a reasonable doubt required for conviction. Cox's own medical experts may disagree, but that is for a jury to weigh, Torbenson wrote.

Levine said the doctors he cited are not "defense experts," but the child's treating physicians.

Without their findings, he said, the complaint presents only a "selective, incorrect and incomplete presentation of the facts."

Torbenson began his argument by admitting he did make a mistake in the complaint — not including that Cox only admitted he had tightly squeezed the girl's arms after the other doctor noted the bruises.

He said the complaint does state how the child was injured — by lateral compression of her shoulders — and said Cox's intent can be inferred from the circumstantial evidence, something prosecutors routinely do in the case of victims too young to explain what happened to them.

Rothstein noted that for the omission of some facts from a complaint to amount to reckless disregard of the truth, the fact must be both undisputed and critical to a finding of probable cause.

Here, she said, the complaint does describe enough that a reasonable person could conclude that a crime was probably committed and that Cox probably committed it.

Cox's next court appearance is for a preliminary hearing Tuesday.

Contact Bruce Vielmetti at (414) 224-2187 or bvielmetti@jrn.com. Follow him on Twitter at @ProofHearsay.