But Thaddeus was already on his feet, turning on his heel and leaving before the man could respond.
As far as Thaddeus was concerned, it had all been said.
42
So now he had a civil case and a criminal case charging ahead at the same time against Dr. Sewell. The civil case was the lesser of two evils, so Thaddeus began concentrating almost solely on the criminal case.
There had been an indictment, so the preliminary hearing was unnecessary. The indictment charged a murder with premeditation, an offense punishable by death in Arizona with certain circumstances. Thaddeus knew that death penalty cases in Arizona came in all stripes and colors. In May of 2015, there was an appeal from a Maricopa County Superior Court death penalty case because twenty-nine pending first-degree murder cases combined to claim that state laws did not clearly limit which murders could result in death penalties. Under law established by U.S. Supreme Court decisions, death was supposed to be reserved for the worst of the worst murders, and statutes were supposed to define those cases. The Arizona appellate attorneys argued that Arizona law contained so many "aggravating factors"—circumstances that made the murder serious enough to warrant the death penalty—that virtually any murder qualified. Knowing this and knowing the ambiguity of Arizona’s death penalty, Thaddeus feared for his client when the judge ordered a jury trial in the case to begin on October nine, the same date that discovery in the civil case was to be concluded.
The two cases running on the calendar in parallel actually helped Thaddeus. Ordinarily in criminal cases, discovery is severely limited and consists of little more than document exchange between prosecutor and defense counsel, plus a list of witnesses. However, the civil case breathed new life into the criminal case because the civil case offered the chance to take depositions ostensibly for the civil case but that really would be used in the criminal case in order to (1) put a freeze on witness testimony so that it became known, and (2) provide a platform—the deposition—to impeach the witness who tried to change his or her testimony at trial from what he or she had already sworn to in deposition. This being the case, Thaddeus and Shep made a list of all witnesses they would depose and set the plan in motion.
They made a file folder for each witness and spread the folders out on the conference room table in Thaddeus’ office. It was a twenty-foot-long table with rounded ends, surrounded by five chairs per side and one chair per end, and hewn out of the same ponderosa pine that surrounded Flagstaff and left to its natural color. Thaddeus had had the table specially built and it allowed room to arrange the witness files three down and five across, for openers. There was a file for Warren Winnzing, the investigator on Nadia’s civil case; Franklin Parsons, M.D., Nadia’s personal physician; Jack Millerton, Nadia’s son-in-law/conservator; Anastasia Millerton, Nadia’s daughter; Albert Millerton, Nadia’s son/conservator of the person; Roy Millerton, Nadia’s brother/conservator; Herbert Constance, City of Flagstaff homicide detective; Eleanor M. Hemenway, City of Flagstaff detective; Francis G. Ellis, M.D., Coconino County Medical Examiner; Louis Rachmanoff, M.D., the anesthesiologist/psychologist hired by Thaddeus to give expert testimony on consciousness; and Emerick Sewell, M.D., physician and defendant in the murder case. Twelve of the files were marked accordingly; three were unmarked, to be added as witness names surfaced.
They started with the detectives’ report of investigation or ROI, as it was known in the Flagstaff Police Department. The ROI was a chronological listing of everything detectives Constance and Hemenway had done since first being assigned to the case. Shep knew the two detectives and told Thaddeus that Constance was the plodder, the mule pulling the plow down track after track; he was known for never giving up. To Constance, there was no such thing as a cold case. There were only cases in varying stages of being solved and closed out. Hemenway was a relative newcomer. She had started life as a patrolman doing traffic surveillance and answering emergency calls. She had had to use her firearm on duty once: a jealous husband had trapped his wife’s lover nude inside the husband’s bathroom and was threatening to shoot him with his hunting rifle. When Hemenway inched down the hallway to talk to the husband, the man suddenly pointed the rifle at Hemenway and worked the bolt action. Hemenway, who had qualified as Expert on the shooting range, fired one round, striking the husband in the right shoulder, disabling the trigger hand and finger. She was awarded the department’s Citation of Merit for her actions and later was sent a spray of flowers by the husband as he recovered in the hospital from his wound. “Thanks for not killing me,” the note said simply. Hemenway made her spurs that day and was now one of “the boys” in the detective bureau. Hemenway and Constance were partners and, as Shep and Thaddeus reviewed their chronology of the detectives’ actions, it became clear that Hemenway took the lead on interacting with the citizenry while Constance took the lead on interaction with physicians, other police agencies, and the crime lab and medical examiner. It looked to be working well and all witnesses had been contacted by the duo and their statements taken.
The two lawyers then reviewed the crime scene pictures. Unlike most crime scenes, there was only one room under investigation—the ICU suite where Nadia Turkenov had spent the final days of her life. Photographs were taken of her bed. The two lawyers only glanced at these and found nothing remarkable. Photographs of Nadia herself were taken, head to toe, with special close-ups of the trachea wound where the ventilator had been inserted into her throat to pump life-giving oxygen to her lungs. The margins of the wound were fresh with blood where the plastic unit had been abruptly pulled free of flesh.
“I think this means nothing to us,” Thaddeus said of the wound pictures.
“Judgment reserved,” said Shep, scratching his head. “You never know in these cases.”
“I’ll put it in the TBD pile then,” Thaddeus said, and he started a stack of photographs that would be returned to as the case developed.
Photographs of her telemetry monitors were taken as they appeared at bedside after her death. The nurses and staff remembered their training in such cases and had touched nothing. Thaddeus and Shep carefully reviewed the instruments. FMC’s telemetry equipment were set up to monitor Nadia’s vital signs including pulse and oxygen saturation levels. The lawyers studied the bundle of wires that had been attached to the patient. They hired an ICU nurse to come into the office and explain what they were looking at.
“Here, she said, are the colored lines. We monitor these at bedside and at the nurses’ station.”
“What machines are these?” asked Thaddeus.
“All right,” she said, using her ballpoint as a pointer over the photographs. “This unit is the ventilator. A ventilator is a large machine that breathes for the patient. Sometimes it is used because the patient is not breathing well enough on their own and other times it is needed because the patient has been given drugs that suppress the breathing. You may have heard the term of a drug-induced coma.”
“Our patient had a self-induced coma.”
“You mean she OD’d?”
“Yes, on purpose.”
“Oh, well. We get those every day. Usually require ventilator support. Now,” moving along with her pen, “there are the IV’s. There are multiple IV’s and they were providing fluids and medications. I can’t say what without seeing her chart. These are two IV pumps here, used to meter the flow of medications. The alarm, right here, is one noise we hear a lot around the ICU as these things are ridiculously inconsistent in their delivery.”
“So the machine comes and you flick the tube with your fingernail.”
The nurse nodded. “Something like that, yes. This independent tube down here is the NG tube. Its real name is Nasogastric tube, which was inserted in the patient’s nose because they were feeding her liquid nutrition. Very common as well where the patient is comatose. Without food, they lose weight and eventually starve.”
“And this? What’s this?”
“Notice it’s further down the bed. That’s your ur
inary cath. The tube connects down here, like in this next photograph, to this bag hung on the bed frame. This carries urine from the patient to the bag. Continuous delivery.”
“Blood pressure this one?”
“Exactly. That’s the new style of blood pressure cuff that’s left on continuously and then the machine kicks on at regular intervals to take the blood pressure automatically. The results at FMC are displayed on the telemetry monitor. Also, they’re recorded and become part of her electronic chart.”
Shep sat back and lit one of his Winston cigarettes.
“Please,” said Thaddeus. “You know we don’t have smoking in here.”
Shep shook his head. “Well, partner, you have me, so you have smoking. If one of us goes, we both go.”
“OMG,” said Thaddeus. He folded his arms and shook his head. “Whatever.”
“Now, Miss,” said Shep through a cloud of smoke. “I need to know what kinds of problems can develop in these patients.”
“You mean other things that can kill them?”
“Yep.”
“Why is that important? Your client withdrew a patient’s life support. That’s what killed her.”
“Humor me, please,” said Shep. He didn’t want to possibly tip-off the prosecutor by telling the nurse that he was going to prove the woman was dead already when Dr. Sewell took action. All processes that might have ended her life, besides the infection ravaging her brain, would need to be sorted. “I just want a full discussion with you. That’s what I’m paying you for.”
The nurse sighed. “All right. Well, a brain infection or injury leaves a person open to some complications. Some are the result of the patient being immobile. Others are because the brain’s control of bodily functions has been compromised.”
“Which might include what?”
“DVT’s or blood clots. The lack of movement leaves the brain injured patient susceptible to Deep Vein Thrombosis, commonly referred to as DVT’s. These are blood clots like I said. The major concern here is that these clots will travel in the body and cause a pulmonary embolism which can be fatal. In this patient’s case, the hospital was using pneumatic compression boots and compression stockings to try to prevent their formation. There’s also a Greenfield Vena Cava Filter that can be surgically inserted into the vein to catch the clots before they travel to the lungs.”
“Whoa. Hold on. Greenfield what?”
“Greenfield Vena Cava Filter. It’s a medical device that is basically a filter. It traps blood clots before they can do damage.”
“All right. Well. Was that used with Ms. Turkenov?”
“No. Evidently it wasn’t necessary. Does the autopsy mention pulmonary embolism?”
“No, it doesn’t.”
“So that wasn’t even an issue. Should I go on?”
“Please do.”
“Seizures are common following a brain injury or disease. So seizure medication is often given prophylactically. The problem is, these have a sedative effect. While you want your patient to wake up, you’re giving them sedatives. Not a good medical scenario at all.”
“What else?”
“Pneumonia. Many brain disease patients on ventilators end up with pneumonia. That’s what kills them. The staff is expecting it as they look out for symptoms and treat it quickly. It can be stopped if caught in time.”
“Go on.”
“Minor stuff—minor regarding life-threatening: ulcers or bed sores. Drop foot. Autonomic functions can disrupt the body’s ability to manage its autonomic functions. Very high temperatures might bring this on.”
“Anything else?”
“Not really, at least not that I’m aware of. I’m an ICU nurse and these are the common disease processes we have to be aware of.”
Thaddeus spread his hands and looked the nurse in the eye.
“So what killed Nadia Turkenov, in your opinion?”
“None of what I’ve been mentioning killed her. She died because she couldn’t breathe without the ventilator. Open and shut.”
“All right. If we called you to testify, that would be your testimony?”
“Please don’t call me to testify. You haven’t paid me for that and I haven’t agreed to it. Won’t agree to it.”
“We won’t,” said Thaddeus. “Not if you really feel that way.”
“I really feel that way.”
“Well, those are all the questions I think we have. Shep, any other?”
Shep scanned over his notes and slowly shook his head. “Not that I can see. Can we call you if we remember something or find something else?”
“Of course. Just remember my hourly rate.”
Both lawyers smiled.
“Of course,” said Shep. “You have to be compensated for your time.”
“Don’t we all?” she said.
“Yep. All right, thanks for coming by.”
“That’s what you paid me for. But you’re welcome. I hope I’ve helped.”
“Definitely.”
The nurse stood and gathered her things.
When she was gone, Shep said to Thaddeus, “Let’s put this in context. None of what she just talked about killed the victim. What our client did is what killed her.”
“Agree. And he’s saying he had Ms. Turkenov’s permission—in fact, was directed—to withdraw the life support.”
“That’s just downright crazy. Hearing voices, bullshit! Can you sell that to a jury?”
“Probably not. We’re going to need experts in the field to do that.”
“Experts in what field? The Hearing Voices Field?”
“No. I’m thinking consciousness studies. Have you read Dr. Sewell’s book?”
“Started to. Then threw it aside. I ain’t buying it.”
“I know. It’s very different. But that’s the same thing they said to the first doctor who said germs are what cause infection. Everyone looked at him like he was crazy.”
“You actually believe these people like Sewell are on the verge of some new discovery here, don’t you? I knew it!”
“I am keeping an open mind. On the one hand, I’ve agreed to defend the guy. On the other hand, the whole inquiry is giving my wife some hope. That’s enough for me to buy-in right there.”
“Well, I can’t be examining witnesses in court on this one. The jury would see right through me.”
“You can handle the legal arguments outside of the jury’s hearing. That was our deal. I’ll do the witnesses.”
Shep lit up another cigarette and blew a plume of smoke at the ceiling.
“All right. I’m in on that basis.”
“Good. Now the next thing we need to do is have someone review the brain scans. We’re going to have to prove there was no brain stem activity. If there’s no brain stem activity, the patient is medically dead.”
“Who do we get for that?”
“I’ve got feelers out to a couple of local neurologists. One of them looks promising.”
“Name?”
“Jack Fielder. He’s new, out of the University of Arizona med school, just spent four years at the Barrow’s Neurological center in Phoenix.”
“Where they treat brain injuries.”
“And brain disease.”
“Right. Sounds good. Well, let’s break for now and then get him in here.”
“Her. Jack is a her. Jacqueline.”
“So be it. Let’s get her in here.”
“I’m on it. She’s meeting with me this later this afternoon.”
“You’re on it. That’s excellent.”
“We’ve already sent her the scans. We’ll know in a couple of hours if she can help us.”
“Fingers crossed, Thaddeus, my boy.”
43
Jacqueline Field was, in fact, writing an article for The Atlantic explaining how doctors test for brain death. So, she told Thaddeus, his timing was perfect. Thaddeus was meeting with her after his meeting with Shep and the ICU nurse. She met him in her office on North San Francisco Stre
et and told him she could give him fifteen minutes. When they were introduced, he was struck by her bright, cheerful manner, and her short blonde hair which she wore pulled to one side and held in place by a daisy barrette. “My dad always called me ‘Daisy,’” she laughed when Thaddeus mentioned that he liked the barrette. “It’s a family thing.”
He didn’t waste any time. “So tell me, Doc,” he said, “how do you decide when a patient is brain dead?”
“Brain dead,” she told Thaddeus, “is now a legal term as well as a medical term. When a person is brain dead, there can be the withdrawal of life support which, if done properly, does not result in legal consequences.”
“What is the difference between someone in a coma, who may or may not improve, and someone who is truly brain dead?”
“Brain death is the irreversible cessation of all functions of the entire brain, including the all-important brain stem that houses the tiny brain function that keeps us awake and alert. It’s called the RAS and it’s the little thing that wakes us up in the morning. The brain stem is the mechanism that controls our breathing. Dead is dead. Brain death isn't a different type of death, and patients who meet the criteria of brain death are legally dead.”
Thaddeus related the facts of the case, putting into context what Dr. Sewell had done. Then he asked, “Was he medically correct in doing this? I’m not asking is he legally correct, just medically.”
“The EEGs showed no brain stem activity at all. Look, how about I do this. How about I tell you how I, as a neurologist, handle these cases when I’m called into to consult.”
“Please do.”
“There are strict criteria for brain death. These are carefully followed before a patient becomes an organ donor or their ventilator is unplugged. First, they must be in a coma with no brain stem or pupillary reflexes. That’s what you had with Ms. Turkenov.”
“Okay.”
“But a formal brain death evaluation takes about twenty minutes. First, I pinch the patient to see if there’s any flinch. Any reflex. Next, I will make sure there are no brain stem reflexes. Maybe I shine a light in their eyes to determine whether there’s pupillary reaction. Last, I might disconnect the ventilator and check to see whether rising carbon dioxide levels in the blood stimulate the brain. If none of these three findings is present, I pronounce brain death. It’s pretty straightforward, Thaddeus.”
The Near Death Experience (Thaddeus Murfee Legal Thriller Series Book 10) Page 20
