I received a phone call last week from Samantha Corbin, one of the producers of the television program "The Practice." Corbin had visited my website and read several articles I had written about Munchausen's Syndrome by Proxy (MSBP) and she had some questions. MSBP is considered by experts to be one of the least understood forms of child abuse and least understood forms of mental illness. MSBP is a disorder which involves care givers intentionally harming children (or elderly people) so that they can bask in the attention they receive for taking care of the very person they are harming.

Corbin was trying to write a segment of "The Practice" which dealt with MSBP. In the proposed plot, a husband's negligence lawsuit against a doctor was turned on its head by the discovery that the man's wife had MSBP and was making the child sick herself.

Fortunately, when I received Corbin's telephone call, I had been following a Munchausen's case being tried in Florida, and I had just watched the second trial of a day care owner in South Carolina (Gail Cutro) who was accused of having murdered two infants and shaking another causing brain damage because she had MSBP. I was able to tell Corbin a number of things that I had learned recently about Munchausen's that might make an interesting background to anyone interested in viewing the program when it eventually airs.

First, having the father as the central character in the plot is problematic since in most cases of MSBP the father is either physically not present in the household, or he travels a great deal, or he is emotionally unavailable. The theory is that this is one of the reasons why women with MSBP are in such desperate need for attention that they will harm their own children.

Second, a medical malpractice suit based on a doctor's failure to make a diagnosis is also problematic. Just because a doctor doesn't find anything wrong with a patient, it does not necessarily follow that s/he is negligent. The attorney for any doctor involved in such a lawsuit would merely argue that try as s/he might, giving his/her best effort, the doctor simply could find nothing wrong with the child.

Third, even though MSBP is listed in the Diagnostic and Statistical Manual of the American Psychological Association, it is not listed in the main body of the manual. It is instead in an appendix of the manual relied on by mental health professionals. Since there is still a lack of consensus on the existence of this syndrome, and therefore controversy about its existence, it is not a recognized mental deficiency or illness. The lawyer in the South Carolina case called MSBP "junk science."

Fourth, because MSBP is not considered to be "recognized" as a valid diagnosis in mental health circles, judges often consider evidence of its existence suspect. In many cases, such as the South Carolina case, the judge allowed into evidence behaviors that might indicate MSBP and testimony about what behaviors might characterize a person with MSBP. The judge would not, however, allow experts to say whether the defendant (Gail Cutro) had or did not have MSBP. The judge left that determination up to the jury.

Fifth, unlike many other mental defects or illnesses, MSBP cannot be diagnosed without the act. A mental health professional can diagnose schizophrenia, for example, or paranoia, but in order to diagnose MSBP, the act of making another person ill must be proven. There is no test for MSBP. The determination that someone is suffering from MSBP comes through a process of elimination, i.e., the expert can't find any other mental defect or illness causing the problem. And, no matter what characteristics are apparent in the defendant, MSBP cannot be diagnosed without demonstrable evidence that s/he (and it is usually a she) has caused the illnesses of a dependent person. But, whether or not that is the case, is up to the jury.

Sixth, MSBP has most often been used by defense attorneys to argue for a kind of diminished capacity. The argument is that the defendant who has MSBP cannot help making the child (or the elderly person) ill, and is not in total control of her behavior. In the South Carolina case of the day-care center operator, however, the prosecution used MSBP as motive. Legally, the prosecutor has no obligation to provide a motive for a crime, just evidence beyond a reasonable doubt that the crime was committed by the person accused, but juries almost always want some explanation of why the defendant would have committed the crime. In the South Carolina case, the prosecution wanted some explanation for why the day care center operator would have killed two children and brain damaged a third. What they put before the jury was that the woman suffered from MSBP and therefore was seeking the attention and sympathy that came to her from these deaths and injuries.

"How did you get so interested in this?" A friend asked me as I was rattling off these new discoveries about MSBP. "I don't really know." I answered. I suppose part of the reason is that it is such a shocking crime - women who sometimes cause their children to go through unnecessary 200 surgeries. And, it seems that MSBP is increasingly showing up in the court system and the legal questions it raises are interesting. A civil attorney told me that he had seen cases in which employees were suing employers over illnesses that were caused by stress in the workplace and the employers charged that the illness were not real but factitious, caused by the employees themselves. This is called simply Munchausen's Syndrome, since there is no proxy.

Keep a look out for the program on Munchausen's by Proxy scheduled to appear on "The Practice" this fall.