In early July 2001 I interviewed attorney number three. Her office was located in Opera Plaza near City Hall. The brother of an old girlfriend, a successful attorney living in Tiburon, assured me that Nina Buchanan was a good lawyer. A principal in the firm Buchanan & Buchanan, she was in her early forties and a native San Franciscan. During our talk, she gained my full confidence, and in her presence my doubts and apprehensions vanished. She had studied law at the University of California, but mainly it was her smile, naturalness of character, and casual humor that won me over. That afternoon I turned over to her our only copy of August’s birth records, a seven-inch-high stack of documents. Three and a half years would elapse before we would have possession of it again. This was a mistake—we should have made our own copy so that we would have had it to consult. But at the time this didn’t seem necessary. Buchanan & Buchanan, we assumed, had a vested interest in winning our case.
Within forty-eight hours of what would be my only meeting with Nina Buchanan, she commenced the discovery process by sending a copy of August’s birth records to a physician to review, someone, she assured us, who wouldn’t know the chief defendant, Dr. Latchesik. This individual would play the crucial role of outside expert for our court case, going meticulously through the birth documents to determine whether malpractice had occurred. Buchanan stressed that it was important for this person to be impartial and that he should have no relationship whatsoever with the defendant. She selected Dr. James Baelish, an OB-GYN and perinatologist who at that time was working at the UCLA Medical Center. Los Angeles being four hundred miles to the south, this should have guaranteed that this outside expert would not have known the defendant. Or so we thought.
Then we waited. As 2001 rolled into 2002, Buchanan delegated our case to a newly hired junior member of the firm, Byron Greyscale. “Byron is extremely good,” she heartily assured us by telephone. “And I will oversee everything he does.” After that we communicated with Byron by phone, mail, and email. Then, in late 2002, Dr. Baelish reported to him that malpractice undeniably had occurred. By then Ilene, August, and I had moved to Jacksonville, Florida, so Byron had to fly across country to meet with us. On an unseasonably warm Sunday in early December, he came to our house. This was our first conversation with him in person. His purpose was to prepare us for the following Monday and Tuesday, which were likely to be two grueling days of depositions. We would be placed under oath.
A product of a prestigious midwestern law school, Byron was in his late thirties. He was tall, slender, and handsome, and he was self-assured in the way trial lawyers often are. He, Ilene, and I sat around a circular table beneath a large umbrella on our deck. Even in its shade we started to sweat.
Byron got down to business. The one thing we knew for certain was that the baby at birth suffered from hypoxic ischemic encephalopathy. Several times, though, Byron inadvertently revealed that he didn’t have a strong grasp of the facts. Ours was a difficult case, he said, and coming up with a successful strategy would be a challenge. “An adverse event occurred,” he surmised, “but the question is, at what point?”
Byron disclosed that Dr. Latchesik had stated under oath in her deposition that it wasn’t until 3:33 a.m. on the day of August’s birth that she first learned a serious problem had developed. At that time the problem had, in her words, “already begun.” The technical term for the problem, he explained, was bradycardia—meaning low heart rate. When bradycardia is detected, doctors have thirty minutes to get the baby out, often by cesarean section.
“You mentioned something in an email about a per diem nurse?” Byron asked. “There’s nothing in the records about this nurse. You say that the hospital brought her in for the day?”
“Yes,” I said. “A temp worker. She’d bused in from Sacramento. On Thursday afternoon—”
“Wait!” said Byron. “She came from Sacramento?”
“Yes. That’s what she told me. She told me she’d boarded a bus early that morning, Thursday morning, March 4th, to take this day job. She said it was a two-and-a-half-hour ride, door to door. She was our main labor and delivery nurse.”
“I remember her,” said Ilene. “She was attentive. She was the one who had me get back in bed when I was walking. That was the night before the birth, Thursday night. The baby’s heart rate had dropped.”
“Exactly,” I said. “That’s when Joanne made a joke about ‘Moonwalk aborted!’”
“A low heart rate may indicate asphyxia, a lack of oxygen,” Byron said as he furiously scribbled notes.
Ilene said, “The nurse showed us the strips.” The electronic fetal monitor (EFM) spat out strips (sometimes called tracings) that provided a record of the fetal heart rate, which was stored in both digital and paper form. The hard copy version was the birth’s paper trail. “The nurse wanted to reassure me,” Ilene continued, “so she held the strips up and said, ‘This is where the baby’s heart rate went down, and this is where the heart rate came back up.’”
“Funny, there’s nothing about her in the records,” said Byron. Then he changed the subject. “Oh, yes, by the way, speaking of the heart rate, you said in an email two weeks ago something that she’d said to you about the fetal heart monitor?”
“No,” I said, clarifying. “The main nurse—the per diem—said something about the monitor to the other nurse, not to me. And she said it early the next morning, March 5th.”
“By the other nurse, you are you referring to the second nurse?” said Byron, wiping beads of sweat from his forehead.
“The tall blond one,” I said. “A slender wisp.”
“I haven’t deposed her yet, so I don’t know what she looks like. What did the per diem nurse say to the main nurse?”
“Wait! No!” said Ilene, clarifying once again. “You have it wrong. The per diem was our main labor and delivery nurse. The blond nurse, she wasn’t the main nurse. She didn’t have enough experience to be the main nurse. She was very young.”
“Okay. This per diem was the main nurse,” said Byron, finally getting the lineup straight. “Boy, doesn’t it seem odd that they’d bring a temp worker in from Sacramento to be the main nurse?”
“They must have been short-staffed,” Ilene speculated.
“So,” said Byron, “the per diem nurse said something very early Friday morning to the blond nurse about the monitor?”
“Yes,” I answered. “I remember her checking the reading for the monitor and saying to the blond nurse, ‘The baby’s heart rate is low.’”
Byron scribbled a note on his yellow legal pad. “That’s interesting,” he said, nodding. Suddenly he seemed excited. “There’s nothing in the records about this. What happened then?”
“Dr. Atropski stepped over and conferred with the per diem and the blond nurse,” I said. “They spoke quietly, but I overheard the doctor tell the two nurses that the reading ‘must be Mom’s,’ meaning Ilene’s. The fetal monitoring device was picking up the mother’s heartbeat, not the baby’s. Then Dr. Atropski stepped out of the room for a moment.”
“Then what happened?”
“While Dr. Atropski was gone, the per diem—”
“And she lives in Sacramento?”
“Yes. That’s what she told me. She’d ridden the bus from Sacramento. She was African American. Short. Maybe thirty-five years old. Maybe forty. The per diem wasn’t convinced about the monitor reading,” I said. “She thought that the reading had to be the baby’s. The blond nurse repeated back to the per diem what Dr. Atropski had just said, you know, ‘must be Mom’s.’ And the per diem said, ‘That doesn’t seem right. These vitals are not reassuring. The baby’s heart rate’s in the eighties.’ Or words to that effect.”
“The eighties is below the acceptable range,” observed Byron. “A normal range runs between 110 and 160 heartbeats per minute. If doctors detect fetal distress, meaning a heart rate above or below the range, they have a maximum of thirty minutes to get the baby out.”
Ilene nodded, and I said, “Check.”
“So, then what happened?”
“Then Dr. Atropski returned to the room, and she repeated to the per diem nurse that the heart rate must be Mom’s.”
“Wow!” said Byron, staring off as if he’d spotted a smoking gun hovering in the sky like a dirigible. “And what happened then?”
“That was it,” I said. “The monitor reading wasn’t discussed again. The doctor settled the matter.”
“Well, did they readjust the monitor to get the baby’s reading?” asked Byron.
“I don’t know,” I responded. “I don’t remember. I didn’t realize at the time that this stuff was so important.”
“There’s not a thing in the records about a per diem,” he repeated. “I didn’t see her mentioned. The hospital didn’t disclose it. I’ll have to go back through the records and look again. When did all this happen, the talk about the monitor?”
“I don’t know,” I said. “It was a blur. At the beginning of the third day. Friday. Early.”
He sipped his cold drink and continued, “Can you estimate a time?”
“Well, no. I don’t know,” I said and thought for a moment. “Forty-five minutes before the birth maybe? Fifty minutes? It wasn’t an hour. I really can’t say. I think it was before 3 a.m. Right before. It was so quick. I didn’t think anything about the heart rate at the time because Dr. Atropski didn’t think anything of it. ‘The doctor must know,’ I thought.”
Byron took a moment to reflect. “Ilene, do you remember any of this?”
Ilene shook her head. “I remember something vaguely. By then I was drugged and uncomfortable. I wasn’t myself.”
“So, I’m the only one who remembers this?” I asked.
“Well, yes, you,” replied Byron, “and maybe the per diem nurse, and the blond nurse, and Dr. Atropski.”
“And Joanne Sasaki,” I added.
“Yes, of course, Joanne,” he said. “I may have to go back to Dr. Atropski and put her under oath again.”
“Do you think that this heart monitor issue is important?” asked Ilene.
“I don’t know,” he said. “Fetal heart monitors are notoriously unreliable. They’re so unreliable, they’re hard to build cases around. I’ve seen more than one crater.”
“The main thing, from my point of view,” Ilene said, “is that they waited two days to induce labor, from March 1st to March 3rd.”
“Yes, I know. I’m looking at that.”
“Why did they wait to induce?” she wanted to know.
“That’s what I’m thinking,” he said.
“The test on February 22nd indicated the baby was already in trouble,” she said. “Waiting so long means he didn’t have the stamina to endure the labor and delivery.”
“No,” he agreed. “Obviously not. But the real question is, how and why did an experienced practitioner fail to detect a major problem in the delivery room? That’s the question we have to answer.” Later, as we were walking him out the front door to his rental car, he said by way of parting, “We’re going to hold these people accountable!”
We gave our depositions on a top story of a high rise, the Bank of America building in downtown Jacksonville. We could see for miles out the big windows. Byron and the Loma Prieta attorney questioned Ilene and me individually, Monday for her, Tuesday for me. Six months pregnant, the poor stenographer tapping away at her machine at the end of our conference table had to record Ilene and me as we recounted the story of our child’s horrific birth.
On Tuesday, my day, Byron was still looking for an angle. Some of his questioning focused on the fetal heart monitor. For the record I repeated my recollections of what the per diem nurse had said regarding it.
Several weeks following the depositions, we received word that a trial date had been set, November 8, 2004, a long way off.
Eighteen months later, a letter from the law firm of Buchanan & Buchanan arrived. It was dated June 28, 2004. Byron was informing us that he and the firm were no longer going to pursue our case. Evidently Dr. Baelish, the outside expert reviewing August’s birth records, had looked at all the evidence again and realized that he had made a mistake. Initially he had thought that the birth had taken place at 4:10 a.m., but now he saw that it had occurred at 3:44. He concluded that hospital personnel had acted quickly enough once they’d determined that our son was experiencing distress. One sentence in the letter baffled us:
Dr. Baelish re-reviewed the heart rate tracing and believes that the heart rate seen on the heart monitor tracing is Ilene’s and not August’s.
We didn’t dwell on this information because of what came next:
With all of the evidence establishing that August was delivered within 10 minutes of the bradycardia, we cannot establish that [the hospital] was negligent in its care and treatment of you and August.
Byron was saying that Dr. Latchesik and Dr. Atropski knew at 3:33 a.m. on the morning of March 5 that August was in trouble, and they got him out by 3:44 a.m. They delivered him in eleven minutes, and that span of time was within the thirty-minute window, so the hospital was not at fault.
Ilene and I were floored. We knew that we were in real trouble. We didn’t have our own copy of the birth records, so we had no documents to consult, just our own imperfect memories. From the letter’s brusque tone, we felt that we could ask Byron only one more question, so we responded by inquiring why the hospital had waited two days to induce labor, from March 1 to March 3. We were fixated on this period prior to induction. We kept going back to the error that we suspected the OB-GYN practice had made leading up to labor and delivery. This was our faulty premise, our own idée fixe, from which stemmed a chain of bad reasoning.
Byron didn’t immediately reply. In fact, it was almost two months before a response came. What we received arrived by snail mail. The letter was dated Tuesday, August 24, 2004. It was his last communication with us, and it was uncharacteristically short:
According to our expert, there was nothing below standard about any of your pre-natal care, including the decision to wait to induce labor. Our expert does not think that any of the tests done before admission required immediate induction.
It was clear now what was happening. Dr. Baelish had tossed so much cold water on August’s case that Byron and the firm were dropping it. The firm obviously didn’t want to risk throwing good money after bad by paying a second outside expert to review the records.
I had not appreciated at the time just how much MICRA was hamstringing August’s case. I knew about the law, but I didn’t take it sufficiently seriously. The popular prejudice that birth-injury lawyers made an incredible amount of money was one I shared. I’d even supported MICRA back in 1975 when Jerry Brown signed the bill. I too thought it was a good idea to clamp down on frivolous lawsuits. The idea that this law might come back to bite our family in the future never occurred to me. Now, in the early 2000s, I just figured that Byron stood to benefit so greatly that he would somehow find a way to win. What I didn’t know was that the limitations this law imposed made Buchanan & Buchanan’s profit margin far slimmer than I had assumed. Byron and the firm had to be absolutely certain of victory or else walk away. Any difficulty at all looked like danger. This was how MICRA influenced August’s case—it drastically cut into what an attorney could earn, and so he or she could not risk losing cases. It was a matter of remaining in business. From Byron’s tone in the letter, it was clear that we should just accept the outside expert’s finding and let the matter go.
After our dealings with Byron, at least with regard to the legal realm, the rest was silence. Silence, that is, except for the holiday cards that arrived every winter for the next seven years from the law firm of Buchanan & Buchanan.
III
“GIVE HIM A SIBLING.”
When Ilene and I asked August’s Loma Prieta pediatrician, Dr. Han, what would be the best thing we could do for our son, this was what he said.
By 2001 Ilene was pregnant. We were booked to fly east early on July 5 t
o move permanently to our new home in Jacksonville. My goal had changed from becoming the next Stephen Greenblatt to securing a tenure-track teaching job of any kind and ASAP, one offering health insurance. Ilene and I would need it to cover August’s enormous medical needs. We couldn’t wait for a settlement to cover these expenses. There weren’t many openings in my field (British Enlightenment literature), and I had to take the first permanent position I could get. It turned out to be at a young school, the University of North Florida (UNF). What it lacked in national profile, it made up in curb appeal.
On July 5, 2001, Ilene, August, and I boarded a plane in San Francisco on the first leg of our journey to our new home. The moment we left, we started referring to California as the old country. Five months pregnant, Ilene had to put up with the intense heat and humidity of the summertime south. The baby was due to arrive on Halloween, and immediately Ilene set to work making contacts to find an OB-GYN practice. She settled on St. Luke’s Hospital, just off Butler Boulevard near I-95, for the birth. Because of August’s disastrous entry into the world, the medical staff there immediately deemed her pregnancy to be high-risk.
A Life Beyond Reason Page 6
