Sea Trial

by Brian Harvey

  “I’ll finish it soon,” I told her. “Really, I will.”

  Experts and Apgars

  Now that the examinations for discovery and their flashes of high drama were out of the way, I turned to the “expert medical opinions” with dread and what I hoped was by now a thick skin. Here was where the “primary data” in the case got filtered through subsequent interpreters, in the same way a pile of “facts” will be confronted and interpreted by a journalist. In this case, the journalists were doctors. What they had to say was drier than the examinations, but deadlier.

  First, I read through the doctors’ reports, the summaries of Billy’s progress that were prepared as part of a doctor’s job, not as an expert opinion for a trial. As I went through them, I had the image of a house in a rainstorm. At first, the water stayed outside. But, as the rain built to a deluge, rivulets found their way over the pristine floor, wobbling and expanding and joining with more incursions from all sides, until the place had become a muddy mess.

  The rivulets were errors, small ones, but they built up, so that by the time the lawyers were paying other doctors to write expert opinions, the muddy water was ankle-deep. Little things like: the kind of meningitis was incorrectly recorded; or its date of diagnosis was wrong; or a doctor said the shunt was out for weeks, when it was really days. Reduced vision became severe vision loss. One doctor read what another had written, accepted it, and added another layer of opinion. Very few, it seemed to me, went back to the original records — something I was sensitive about, having just ploughed through them myself.

  By the time the paid experts came along, I could see they would fall into two camps: “damage at birth” and “damage by negligence.” The first camp couldn’t see why you would ascribe damage to later events when there were perfectly good explanations written all over Billy’s chart from day one. On the other side were the experts who were more comfortable with a flesh-and-blood culprit. For them, what happened on Labour Day was the straw that broke the camel’s back.

  There were three opinions for the plaintiff, Billy’s mother, and four for the defendants. I picked up the first of the defenders, a professor of pediatrics. His analysis was straightforward: Billy was born prematurely, was slow to breathe, had respiratory distress syndrome, jaundice, meningitis, and hydrocephalus. His brain was irreversibly damaged from birth. He had multiple handicaps long before the Labour Day crisis — just look at his Apgar score.

  Apgar score? I went back to the hellish pile of hospital photocopies and found it on page three. I remembered the births of my own children, how their performance in Virginia Apgar’s ridiculously low-tech screening (Apgar stands for appearance, pulse, grimace, activity, respiration) had seemed so important. My children’s scores, like those of most newborns, were both tens. Less than 1 percent of babies score below seven. Billy was a six, a score that quadruples the likelihood of neurologic disability.

  Expert number two for the defence was a pediatric neurosurgeon who had been practising for twenty years. Here were the Apgars again, and a summary of observations on twitching and jerking and abnormal vision even before the first shunt. He too noted all the predisposing factors for brain damage (young mother, prematurity, anoxia). There were poignant reminders of how things had progressed in twenty years: now, a CT scan can tell you far more than a ventriculogram; now, a shunt reservoir can be injected with antibiotics so that you may not even have to remove an infected shunt; now, a CT scan can eliminate the agony of deciding whether or not to do a lumbar puncture. In this neurosurgeon’s opinion, difficult decisions were made with the tools of the day and nobody was negligent.

  Next up was an M.D. specializing in rehabilitation of patients with brain injuries. His report was simply a picture of the child at the time of the trial. He described the eleven-year-old Billy: myopic and falling frequently, having seizures, with learning disabilities and wet underwear. I had an image of all those clinics and rehabilitation centres I’d never had any reason to visit. All those kids, all those parents, struggling with their own little hell of eternal catch-up that will never happen, while the rest of the world worried about their kids making the hockey team, getting good grades, shouldering a backpack for a trip to Europe.

  The last of my father’s champions was a pediatric neurologist. He described a child struggling to keep up in school, still having mild seizures. Billy was “insecure and pathetic,” epileptic, visually impaired, and with an overall mental age, despite his verbal precocity, several years behind what it should be. Based on the Apgar scores, this expert suspected a brain hemorrhage at birth. Billy had been an already compromised baby — but it wasn’t all black and white. There had probably been further damage from the events of “the fateful night.” The rise in brain pressure must have had an effect, especially on vision. There was no way around that.

  ***

  The plaintiff’s champions certainly thought so. For them, no way around it meant there was no need to look anywhere else. The reason for Billy’s constellation of problems was staring the judge in the face.

  The plaintiff’s first expert was another pediatric neurosurgeon. This doctor had treated Billy for five years, so he should know him pretty well. He glossed over Billy’s perinatal problems and got the kind of meningitis wrong, but what mattered to him were the Labour Day events. The LP, he felt, was just wrong; Dr. Beamish, the pediatrician who a different expert described as a life-saver, should instead have done a ventricular tap right off the bat. Maybe Dr. Harvey was called and maybe he wasn’t, but the lumbar puncture caused most of Billy’s problems.

  Billy’s family doctor submitted a confusing pair of reports, the second written after a request from the plaintiff’s lawyers for something stronger. I’d already run across these. The most intriguing thing about the first version was the two missing pages, the ones that my father’s lawyer had finally wrestled from the other side during the actual trial. Comparing the two, it really looked as though she’d switched from one camp to the other, and I doubt if the prosecuting lawyers would have used either of her letters; here was a witness parked firmly on the fence.

  The last expert was a professor of pediatrics, another neurologist, and, as it turned out, the prosecutor’s star witness in court. His opinion was based on his own treatment of Billy for vision problems. Vision was Billy’s “major handicap,” he said. The epilepsy and all visual problems were caused by pressure and so was the cerebral palsy. This was the simplest and blackest condemnation. The expert’s prognosis, which ran to two pages, was grim: Billy would never have a “successful marriage” (I wondered what that could possibly mean — maybe he could at least have an unsuccessful one?), and he couldn’t ride a bicycle (contrary to what his physiotherapist had said). And, like any good speechwriter, this expert knew how to end with a bang:

  “Finally, one has to address the question of how Billy would be today if Dr. Harvey had replaced the shunt earlier. No one can tell exactly, nevertheless, he would not have epilepsy, he would not be visually impaired, his coordination and strength would be close to normal, and he would not have severe learning disabilities.”

  All I could do was write, “Wow. Sunk by a neurologist.” My father had some reservations about neurologists. He felt he could read an EEG as well as anyone and that they had the luxury of sitting back and recommending a surgical treatment without actually having to wield the scalpel. Most of his generation of neurosurgeons felt the same way.

  ***

  While reading all these opinions, the fact that I already knew the outcome seemed unimportant. It was like seeing a movie whose ending has already been hashed over in reviews; if the story’s any good, you watch it anyway. This story was getting better all the time, and the meat of it was in these expert opinions. They were like a doorway to the side of medicine that I had always known my father detested: the politics.

  These experts were all so . . . sure. My father had read them all, of course — what had he ma
de of them? I found his own opinions in the form of six letters to his lawyer, ending with some handwritten notes on a phone call made during the trial. I have an old habit of reading magazines back to front, so I read the last note first: “I doubt if I would be happy with an out-of-court settlement. Important to dispute claims of negligence. Might win.”

  Then the letters, and I read them rapidly, like someone jumping feet-first into a chilly lake. I needed something to get me through this painful little pile, something that would transcend the medical detail and help me understand why, despite not even remembering Billy’s case, my father still wanted to fight.

  And I found it. It was the tone. On page after page, he wrote not like a man fighting to get out of a tight spot, but like a professor facing an avid class: intelligent, open-minded students eager not only for the facts but also for a model upon which to fashion their own lives. He was polite, fair to a fault, and painfully honest. I began to wonder whether he understood how much trouble he was in.

  “Dr. S. might like to reconsider his statement regarding the child’s visual impairment,” he wrote. What planet was my father on, to write this way? Or to say, in commenting on Billy’s “spastic quadriplegia,” that “the term quadriplegia refers, of course, to involvement of all four limbs, whereas the primary involvement here seems to be in the legs. In any event, the ‘plegia’ portion indicates a complete paralysis, which is not present in this child.”

  And that was the edited version! It went on and on like this. Lay out the facts, let the intelligent reader draw his own conclusions. Truth and reason will prevail. I might as well have been reading a handbook for my own upbringing: here’s the info, you decide. My favourite was his including “a scientific paper of mine” from his Ph.D. research in 1951, showing that ten minutes of squeezing the middle cerebral artery in monkeys wasn’t nearly long enough to produce any impairment (Billy’s episode of increased pressure lasted ten minutes). All I could think of was, So that’s what those monkey skulls in the box in my basement were all about! That and, How naïve can you get? But he believed in the written record, so for him it made perfect sense to include a portion of the “voluminous literature” on lumbar puncture and respiratory arrest.

  Nor, in his view, did you have to go any further than the equally voluminous literature on prematurity and a newborn’s lack of oxygen to find a simple explanation for Billy’s disabilities. It just wasn’t logical to ignore all those predisposing factors! Hence, “one might reasonably bring up the possibility of the twitching which was noted by the nurses being an indication of cerebral damage or an inborn tendency later manifested as epileptic seizures.”

  One might, might one?

  “Well, I wasn’t about to tell the lawyer how to do his job, was I?” A bony hand plucked the sheaf of onion-skin copies from my fingers and shook it in front of my nose. It made a noise like rustling leaves.

  “There you are,” I said. “You missed all the excitement. We went around the Brooks Peninsula!”

  “It looked cold,” he said. “And dangerous. The whole thing was irresponsible.”

  “Now you’re going to warn me I could get sued,” I said.

  “That’s not funny.”

  “Sorry. But did you have to admit that” — I snatched the papers back — “that the infant suffered a very significant cerebral insult after the lumbar puncture?”

  “Why not? Anyone can see that he did. The point is he recovered from it. Lots of people do. And anyway, I wasn’t there.”

  “No kidding.”

  “What do you mean by that?” He snatched the papers back again and stabbed at a long paragraph. “I would never have signed this patient off to another neurosurgeon. Labour Day or not, it wouldn’t have made any difference. You know that.”

  I thought about all those years of blood-spattered glasses, the car door in the middle of the night, the holidays cut short.

  “Yes. I do.”

  “Look at this. One of the defendants was just a pediatrician on call! What does he know about this baby’s history? I told the lawyer, my advice to my own family is don’t get sick on the weekend.”

  “That would have gone over great in court,” I said. “Would you have done an LP?”

  “I would not,” he said, jabbing at the pile. “I doubt I was consulted about it either.”

  “So the pediatrician made a mistake.”

  “Well, he wasn’t a neurosurgeon, and it was a neurosurgical problem. But he was quite right to be worried about the infection. He had a dilemma. It took some courage to do that lumbar puncture. Whatever he did could have turned out wrong. Doing a ventricular tap wasn’t such an easy option either, because you’re going back through the burr hole, through an infected area.”

  My father sneezed violently.

  “Look. It was medicine,” he continued. “If I had a newborn grandchild with a horrible problem, I’d still say, get Dr. Beamish.”

  “Should I talk to him? Is he still alive?”

  “I haven’t noticed him around here,” said my father, gesturing vaguely.

  “Maybe he went somewhere different?”

  “I doubt it.”

  I took a deep breath. “The nurses say they called you at ten thirty.”

  “I don’t remember. I just don’t. That’s all there is to it. Maybe they did. Nurses were always leaving messages with the answering service. Sometimes the messages never got to the doctor. Anyway, they should have called again. And again. Until they got me. Instead, she called some interns. The interns should have called me. If I’d got a message, of course I would have gotten in the car. It was only ten thirty. I wouldn’t even have been asleep.”

  He probably wouldn’t have slept much anyway, with a hydrocephalic baby dangling between infection and the effects of rising intracranial pressure. It would be like trying to sleep in your boat, at anchor, in a gale.

  “One of their experts was awfully young.”

  “You saw that, did you? I doubt if he ever had to make a major decision without a CT scan. No wonder he can’t imagine what happened that night. It couldn’t happen now.”

  “What about all those things the mother said? That you’d help her get a normal child?”

  “Impossible.”

  “Told us it wasn’t hydrocephalus?”

  “It was hydrocephalus.”

  “The bit about the shunt being a safety precaution?”

  “Nonsense.”

  “And the shotgun? That’s my favourite.”

  He gave me a crooked smile. “I would have remembered that.”

  The Emperor and the Butterfly Net

  When I managed to extract the anchor from the bottom of Scow Cove the next morning, it was neatly hooked through an ancient loop of rusted cable. No chance of dragging here. We took advantage of a break in the fog to crawl through rock-peppered Gay Passage, which I couldn’t resist looking up. Walbran had named it himself, in 1897, after a character in Charles Dickens’s Dombey and Son — Bunsby was another one. Sometimes it felt as though we were getting an education in English history, not navigation.

  Walters Cove, at the entrance to Kyuquot Sound, was only two hours away, but we played dodge ball with rocks all the way, Hatsumi calling out a new course every ten minutes or so. I kept my mouth shut and did as I was told, speaking up only when I spotted another humpback rolling lazily through the smooth water. There was little Pacific swell along this route, but the fog caught up to us just as we approached the cove that was home to most of the residents of Kyuquot Sound. The last half hour turned into a tiptoe down an obstacle course of navigation buoys and the ghostly forms of shaggy islets before we popped through the final narrows into Walters Cove.

  A cheerful, bearded man in an orange life jacket and a red ball cap waved us toward a spot on the public dock. Horn-rimmed glasses gave him a professorial look. He was seated in the bow of a fourtee
n-foot aluminum skiff, paddling vigorously backward.

  “Helluva party boat you got there!” the professor bellowed. A tiny dog perched on the seat in front of him caught a whiff of Charley and began to bark. It looked like the sort of lapdog you normally see attached to refined, middle-aged ladies.

  “Rufus, for Chrissake!” He swung his paddle at the dog. It barked louder.

  “That’s us,” I said. “Party central.”

  The man dug his paddle into the water and zigzagged off across the cove. We tied up at the public dock, across the water from the First Nations village of Houpsitas, where most of the houses were. There was no road access here; the closest one ended at Fair Harbour, a half hour up Kyuquot Sound and itself three miserable hours by logging road from Highway 19. I’d driven it myself a year earlier, to research a story on a “green” aquaculture facility in Kyuquot Sound. Now I felt absurdly satisfied with myself to have returned the hard way.

  The village of Houpsitas was pretty much all that was left of the Ka:’yu:’k’t’h’/Che:k:tles7et’h’ people, whose traditional territory extends south from Solander Island almost to Nootka Sound. The Ka:’yu:’k’t’h’/Che:k:tles7et’h’ are the northernmost of the fourteen Nuu-chah-nulth First Nations. Decimated by disease and dispossessed by European colonists, they now number around five hundred. In the three days we spent in Walters Cove, it seemed like half of them walked past Vera on their way to and from the store and post office at the head of the dock. And the Uchuck, Dave’s old boat, called in here every Thursday; it would tie up right behind us. We had clearly not picked ourselves a tranquil hideaway. That was fine with us. We needed people around.