by Jodi Picoult
Parents’ right to recover is based on the defendant’s negligent deprivation of the parents’ right not to conceive a child or to prevent the child’s birth.
Medically negligent.
Defendant failed to exercise due care.
Plaintiffs suffered injury or loss.
I had never been sued before, although, like every other obstetrician, I had medical malpractice insurance. On some level, I’d known that my lack of lawsuits was sheer luck—that it would happen sooner or later. I just hadn’t expected it to feel like such a personal affront.
There had certainly been tragedies during my career—babies that were stillborn, mothers whose complications during childbirth led to excessive bleeding and even brain death. I carried those incidents with me, every day; I didn’t need a lawsuit to make me revisit them over and over, and wonder what could have been done differently.
Which disaster had precipitated this? My eyes scanned to the top of the page again, reading the plaintiffs’ names, which I’d somehow missed the first time around.
SEAN AND CHARLOTTE O’KEEFE v. PIPER REECE.
Suddenly I couldn’t see. The space between my eyes and the paper was washed red, like the blood that was pounding so loudly in my ears that I did not hear a nurse ask if I was all right. I staggered down the hall to the first door I could find—into a supply closet filled with gauze and linens.
My best friend was suing me for medical malpractice.
For wrongful birth.
For not telling her earlier about your disease, so that she would have had the chance to abort the child she’d begged me to help her conceive.
I sank down onto the floor and cradled my head in my hands. One week ago, we’d driven down to Target with the girls. I’d treated her to lunch at an Italian bistro. Charlotte had tried on a pair of black pants and we’d laughed about low-rise waistbands and how there should be support thongs for women over forty. We’d bought Emma and Amelia matching pajamas.
We’d spent seven hours together in close quarters, and not once had she managed to mention that she was in the process of suing me.
I pulled my cell phone out of the clip at my waist and speed-dialed her—number 3, outranked only by Home and Rob’s office. “Hello?” Charlotte answered.
It took me a moment to find my voice. “What is this?”
“Piper?”
“How could you? Everything was fine for five years, and all of a sudden out of nowhere you slap a lawsuit on me?”
“I really don’t think we should be talking on the phone—”
“For God’s sake, Charlotte. Do I deserve this? What did I ever do to you?”
There was a beat of silence. “It’s what you didn’t do,” Charlotte said, and the line went dead.
• • •
Charlotte’s medical records were back at my office, a ten-minute drive from the hospital birthing pavilion. As I entered, my receptionist glanced up. “I thought you were at a delivery,” she said.
“It’s over.” I walked past her, into the records room, and pulled Charlotte’s file, then headed back outside to my car.
I sat in the driver’s seat with the file in my lap. Don’t think of this as Charlotte, I told myself. This is just any other patient. But when I tried to bring myself to open the manila folder with the bright tabs on the edge, I couldn’t do it.
I drove to Rob’s practice. He was the only orthodontist in Bankton, New Hampshire, and pretty much had a monopoly on the adolescent market there, but he still went out of his way to make the dental experience something kids would enjoy. In one corner of the office was a projection TV, where a generic teen comedy was currently playing. There was a pinball machine and a computer station where patients could play video games. I walked up to his receptionist, Keiko. “Hi, Piper,” she said. “Wow, I don’t think we’ve seen you here in a good six months—”
“I need to see Rob,” I interrupted. “Now.” I grasped the file in my hands more tightly. “Can you tell him I’ll meet him in his office?”
Unlike my office, which was all the colors of the sea and designed to put a woman at ease, in spite of the plaster models of fetal development that dotted the shelves like little Buddhas, Rob’s was luxurious, paneled, masculine. He had an enormous desk, mahogany bookshelves, Ansel Adams prints on the wall. I sat down in his tufted leather chair and spun it around once. I felt small here. Inconsequential.
I did the one thing I’d wanted to do for two hours now: burst into tears.
“Piper?” Rob said as he came in to find me sobbing. “What’s the matter?” He was at my side in a second, smelling of toothpaste and coffee as he folded me into his embrace. “Are you okay?”
“I’m being sued,” I managed. “By Charlotte.”
He drew back. “What?”
“Med mal. For Willow.”
“I don’t get it,” Rob said. “You weren’t even at the delivery.”
“This is about what happened before.” I glanced down at the file, still on the desk. “The diagnosis.”
“But you did diagnose it. You referred her to the hospital when you found out.”
“Apparently, Charlotte thinks I should have been able to tell her earlier—because then she could have had an abortion.”
Rob shook his head. “Okay, that’s ridiculous. They’re die-hard Catholics. Remember that time you and Sean started arguing about Roe v. Wade and he left the restaurant?”
“That doesn’t matter. I have other patients who are Catholic. You counsel termination no matter what, if it’s an option. You don’t make the decision for the couple, based on your own assumptions about them.”
Rob hesitated. “Maybe this is about money.”
“Would you ruin your best friend’s reputation as a doctor just to get a settlement?”
Rob glanced down at the file. “If I know you, you documented every last detail of Charlotte’s pregnancy in there, right?”
“I don’t remember.”
“Well, what does it say in the file?”
“I . . . can’t open it. You do it, Rob.”
“Sweetheart, if you don’t remember, it’s probably because there’s nothing to remember. This is crazy. Just look through the file, and turn it over to the malpractice carrier. That’s what you have insurance for, right?”
I nodded.
“Do you want me to stay with you?”
I shook my head. “I’m okay,” I said, even though I didn’t believe it. As the door closed behind him, I took a deep breath and opened the manila folder. I started at the very beginning, with Charlotte’s medical history.
Not to be confused, I thought to myself, with our personal history.
HEIGHT: 5'2''
WEIGHT: 145
Patient has been trying unsuccessfully to conceive for a year.
I flipped the page—lab results that confirmed pregnancy; the blood tests for HIV, syphilis, hep B, anemia; urinalysis that screened for bacteria, sugar, protein. All had been normal, until the quad screen, and the elevated risk for Down syndrome.
The eighteen-week ultrasound had been part of routine pregnancy care, but I’d also been looking to confirm Down syndrome. Had I been so focused on that one task I never thought to look for any other anomalies? Or had they simply not been there?
I pored over the ultrasound report, scrutinized the pictures for any inkling of a break that I might have missed. I stared at the spine, at the heart, at the ribs, at the long bones. A fetus with OI might have had breaks at that point in time, but the collagen defect in the bones would have made them even more difficult to see. You couldn’t really fault a physician for not red-flagging something that appeared, for all intents and purposes, normal.
The last image on the ultrasound report was of the fetal skull.
I flattened my hands on either side of the page, pinning down a picture of the brain that was sharp and focused.
Crystal clear.
Not because of the quality of our new equipment, as I’d assumed at the time, but b
ecause of a demineralized calvarium, a skull that had not ossified correctly.
As physicians, we’re taught to look for things that are abnormal—not things that are too perfect.
Had I known back then, long before I knew you and your illness, that a demineralized calvarium was a hallmark of OI? Should I have known? Had I pushed down gently on Charlotte’s belly, to see if the fetal skull gave way to the pressure? I couldn’t remember. I couldn’t remember anything, except telling her that her baby didn’t seem to have Down syndrome.
I couldn’t remember if I’d taken measures that I could point to, now, that could be used to prove this wasn’t my fault.
I reached into my pocketbook and took out my wallet. Buried in the very bottom, among the gum wrappers and the pens from pharma companies, was a rubber-banded stack of business cards I had accumulated. I shuffled through them until I found the one I was looking for. Picking up Rob’s phone, I dialed the law firm’s number.
“Booker, Hood and Coates,” the receptionist said.
“I’m one of your medical malpractice clients,” I replied. “And I think I need your help.”
• • •
That night, I could not sleep. I went into the bathroom and stared at myself in the mirror, trying to see if I already looked different than I had when the day had begun. Could you see doubt written on a face? Did it settle in the fine lines around the eyes, the bracket of the mouth?
Rob and I had decided not to tell Emma what had happened, at least not until there was something concrete to tell. It occurred to me that Amelia might mention something now that school had started up again—but then, maybe Amelia didn’t know what her parents were doing, either.
I sat down on the toilet seat and looked at the moon. Full, orange, it seemed to be balanced on the windowsill. The light spilled into the bathroom and across the tile floor, pooling in the bowl of the tub. It wouldn’t be long before dawn, and then I would be expected to go to work and take care of patients who were pregnant or trying to become pregnant, when I could no longer be sure of my own judgment.
The few times I’d been so upset that I couldn’t sleep—like after my father died, and when my office manager stole several thousand dollars from the practice—I’d called Charlotte. Although I was the one who was used to being phoned in the middle of the night for an emergency, she hadn’t complained. She’d acted as if she’d been expecting me to call, and even though I knew she had a thousand things to do the next day with Willow or Amelia, she’d stay up with me for hours, talking about everything and nothing, until my mind stopped racing long enough for me to relax.
I was licking my wounds, and I wanted to call my best friend. Except this time, she was the one who’d caused them.
A daddy longlegs was crawling up the wall. It left me almost breathless. Everything I knew about physics and gravity told me that it should be tumbling to the ground. The closer it got to the ceiling, the more I was riveted. It tucked two legs around the curl at the top of the wallpaper, where the strip had begun peeling off.
I’d asked Rob to fix it a thousand times; he’d ignored me. But now that I was looking at it—really looking—I realized I didn’t like this wallpaper at all. What we needed was a fresh start. A good, new coat of paint.
I stood on the lip of the tub, reached up with my right hand, and in one swift pull, tore away a long tongue of wallpaper.
Most of the strip, though, was still affixed to the wall.
What did I know about removing wallpaper?
What did I know about anything?
I needed a steamer. But at three in the morning, I wasn’t going to get one, so I turned on the hot-water faucets in the bath and the sink, letting steam cloud the room. I tried to curl my fingernails under the edges, to scrape the strip free.
There was a sudden rush of cold air. “What the hell are you doing?” Rob asked, bleary, standing in the doorway.
“Stripping the wallpaper.”
“In the middle of the night? Piper,” he sighed.
“I couldn’t sleep.”
He turned off the taps. “You have to try.” Rob led me by the hand back to bed, where I lay down and drew the covers over me. I curled onto my side, and he fitted his arm around my waist.
“I could redo the bathroom,” I whispered when his even breathing told me he was asleep again.
Charlotte and I had spent one day last summer reading every kitchen and bath makeover magazine in the Barnes & Noble racks. Maybe you should go minimalist, Charlotte had suggested, and then, turning the page, French provincial?
Get an air tub, she’d suggested. A TOTO toilet. A heated towel rack.
I’d laughed. A second mortgage?
When I met with Guy Booker at the law firm, would he take inventory of this house? Of our mutual funds and retirement accounts and Emma’s college savings and all the other assets that could be taken away in a settlement?
Tomorrow, I decided, I would get one of those steamers. And whatever other tools I needed to strip wallpaper. I would fix it all myself.
• • •
“I think I dropped the ball,” I admitted as I sat across from Guy Booker at a gleaming, imposing conference table.
My lawyer reminded me of Cary Grant—white hair with a raven’s wing of color at the temples, tailored suit, even that little divot in his chin. “Why don’t you let me be the judge of that?” he said.
He had told me that we had twenty days to file an answer to the complaint I’d been served—a formal pleading for the court. “You say that osteogenesis imperfecta can be diagnosed by a woman’s twentieth week of pregnancy?” he asked.
“Yes—the lethal kind, anyway, by ultrasound.”
“Yet the patient’s daughter survived.”
“Right,” I said. Thank God.
I liked that he was referring to Charlotte as “the patient.” It made it feel more clinical. It was one step farther away.
“So she’s got the severe type—Type III.”
“Yes.”
He flipped through the file again. “The femur was in the sixth percentile?”
“Right. That’s documented.”
“But it’s not a definitive marker for OI.”
“It can mean all sorts of things. Down syndrome, skeletal dysplasia . . . or a short parent, or the fact that we took a bad measurement. A lot of fetuses with standard deviations like Willow’s at eighteen weeks go on to be perfectly healthy. It’s not until a later ultrasound, when that number falls off the charts, that we know we’re dealing with some abnormality.”
“So your advice would have been to wait and see, regardless?”
I stared at him. Put that way, it didn’t seem like I’d made a mistake. “But the skull,” I said. “My technician pointed it out—”
“Did she say to you that she thought there might be a medical issue?”
“No, but—”
“She said it was a very clear picture of the brain.” He looked up at me. “Yes, your ultrasound technician called attention to something unusual—but not necessarily symptomatic. It might have been a technical issue with the machine, or the position of the transducer, or just a damn good scan.”
“But it wasn’t,” I said, feeling tears claw at the back of my throat. “It was OI, and I missed it.”
“You’re talking about a procedure that isn’t a conclusive test for the presence of OI. Or in other words, had the patient been seeing another physician instead of you, the same thing would have happened. That’s not malpractice, Piper. That’s sour grapes, on the part of the parents.” Guy frowned. “Do you know of any physician who would have diagnosed OI based on the eighteen-week ultrasound of a demineralized calvarium, a shortened femur, and no obvious skeletal fractures?”
I glanced down at the table. I could nearly see my own reflection. “No,” I admitted. “But they would have sent Charlotte for further testing—a more advanced ultrasound, and a CVS.”
“You’d already suggested further testing once to th
e patient,” Guy pointed out. “When her quad screen came back with a greater chance of having a Down syndrome baby.”
I met his gaze.
“You advised amniocentesis then, didn’t you? And what was her response?”
For the first time since I’d been handed that little blue folder, I felt the knot in my chest release. “She was going to have Willow no matter what.”
“Well, Dr. Reece,” the lawyer said. “That sure as hell doesn’t sound to me like wrongful birth.”
Charlotte
I started lying all the time.
At first it was just tiny white lies: responses to questions like “Ma’am, are you okay?” when the dental receptionist called my name three times and I didn’t hear her; or when a telemarketer phoned and I said that I was too busy to do a survey, when in fact I’d been sitting at the kitchen table staring into space. Then I began to lie in earnest. I’d cook a roast for dinner, completely forget it was in the oven, and tell Sean as he sawed through the blackened char that it clearly was the shoddy cut of meat the market had started stocking. I’d smile at neighbors and tell them, when they asked, that we were all doing well. And when your kindergarten teacher called me up and asked me to come to school because there had been an incident, I acted as if I had no idea what might have upset you in the first place.
When I arrived, you were sitting in the empty classroom in a tiny chair beside Ms. Watkins’s desk. The transition to public school had been less divine than I’d expected it to be. Yes, you had a full-time aide paid for by the state of New Hampshire, but I had to argue every last right for you—from the ability to go to the bathroom by yourself to the chance to interact in gym class when the play wasn’t too strenuous and you weren’t in danger of suffering a break. The good news was that this took my mind off the lawsuit. The bad news was that I wasn’t allowed to stay and make sure you were doing all right. You were in a classroom with new kids who didn’t know you—and who didn’t know about OI. When I asked you after your first day what you did in school, you told me how you and Martha played with Cuisenaire rods, how you were on the same team for Capture the Flag. I’d been thrilled to hear about this new friend and asked if you wanted to invite her over to the house. “I don’t think she can, Mom,” you told me. “She has to cook dinner for her family.”
