Alexia stood and introduced herself. “May I offer an opening statement?”
“That won’t be necessary,” the judge said curtly. “I’ve read the pleadings and know the issues. Put on your proof.”
Alexia quickly glanced over her shoulder. Dr. Draughton was not in sight.
“Your Honor, I intend to present medical testimony from Dr. Vince Draughton, a neurologist who has evaluated Mr. Richardson; however, the doctor has not yet arrived.”
“Is he under subpoena?” the judge asked.
“Yes, ma’am. I spoke with a nurse at his office this morning, and she informed me he would be here at one o’clock. Could we delay the start of the hearing for a few minutes while I try to locate him? It’s possible he’s in the building.”
“Anything is possible, counsel,” the judge responded. “We could wait here all afternoon for a doctor to arrive. Do you have other witnesses?”
“Yes.”
“Then let’s hear from them. The order in which the witnesses testify is not going to influence my decision.”
Normally poised, Alexia felt a momentary wave of fear. “But if something prevents Dr. Draughton from appearing, I will not be able to complete my case.”
Before the judge responded, Ken Pinchot stood to his feet and introduced himself. “Your Honor, the respondent would not object to taking Dr. Draughton’s testimony by deposition and submitting it to the court after today’s hearing.”
Alexia wanted the judge to see her witness, not read a dry transcript. If all the medical evidence presented in person at the hearing went against Alexia and Rena, it would be almost impossible to convince the judge to grant the petition based on a deposition. Rena touched Alexia’s arm, and the lawyer leaned over.
“They’ve gotten to Dr. Draughton and paid him off!” she whispered fiercely.
“Ms. Lindale?” the judge asked. “You can either proceed or withdraw your petition.”
“May I consult with my client?” Alexia asked.
The judge stared hard at Alexia, who felt herself beginning to wilt under the glare. “Very well. The court will be in recess for five minutes.”
Judge Holcomb left the courtroom. Alexia sat down beside Rena.
“We should have paid him more money!” Rena continued. “You told me the doctors could be bought and sold to the highest bidder.”
“Wait,” Alexia said, trying to regain control. “I never said that and there’s got to be another reason why he’s not here. Maybe he had an emergency or an auto accident. Whatever happened we have to decide what to do. If Dr. Draughton doesn’t come, we can offer your testimony, cross-examine their witnesses, and take the doctor’s testimony in the next few days and send it to the judge. Our other alternative is to dismiss the petition, refile it next week, and schedule another hearing.”
“Never!” Rena blurted out so loudly that Alexia saw Pinchot glance in their direction.
Alexia leaned over. “Quiet! We may not have a choice, and it’s not such a bad option. A delay would give me the chance to talk to the other doctors about their opinion and perhaps convince Dr. Draughton to sway them with his assessment. One doctor talking to another doctor can be much more effective than a lawyer trying to persuade them.”
Rena’s face was red. “I don’t want to keep waiting!”
Before Alexia answered, the door at the rear of the courtroom opened. Everyone turned in their chairs. In walked a short, bald man wearing a white shirt with the top button undone and navy pants.
“Dr. Draughton?” Alexia called out.
“Yes,” the man replied.
Alexia hurried back to the door and greeted him.
“Sorry, I’m late,” he said. “It was on my calendar to be here at two o’clock. When my nurse told me the correct time, I left in such a hurry that I forgot my tie and jacket.”
Alexia would have been glad to see him even if he’d worn shorts and sandals.
“It shouldn’t be a problem,” she said.
The doctor nodded in greeting to Drs. Kolb and Berman, who were sitting on one of the benches behind Ken Pinchot and Ezra.
Alexia saw the gesture and asked, “Have you had a chance to talk to them recently about Baxter’s condition?”
“Yes. We were all in the ICU this morning and reviewed his status.”
Alexia’s mouth was suddenly dry. “Are you in agreement?”
“On some matters; however, Dr. Kolb believes—”
The judge’s reentry into the courtroom stifled further conversation. Alexia walked back to the table with the doctor.
“There’s no time now to tell me,” Alexia said. “Can you address it in your testimony?”
“Yes.”
“Then do it whenever it makes the most sense.”
The judge took her seat and looked expectantly at Alexia.
“Your Honor, Dr. Draughton has arrived, so we are ready to proceed with the case.”
“Call your first witness.”
Alexia asked Dr. Draughton to take the witness stand. The judge administered the oath, and the physician took his seat in the witness chair. He smiled at Alexia and the judge. It was Alexia’s first real chance to evaluate his appearance. Dr. Draughton was pleasant and friendly.
“Dr. Draughton, please tell the court your educational and professional qualifications.”
“I received my undergraduate degree summa cum laude from Georgetown University. Then I attended medical school at Johns Hopkins in Baltimore where I completed a residency in neurology. I moved to Greenville nineteen years ago and established my own practice.”
“Why did you choose Greenville?”
“I was recruited by Greenville Memorial Hospital. There was a need for someone with my background in this part of the southeast.” The doctor paused. “Dr. Kolb was on the committee that met with me and asked me to consider moving here.”
“Is Dr. Kolb in—”
“I know Dr. Kolb,” Judge Holcomb interrupted. “And his partner, Dr. Berman. They are neurosurgeons; Dr. Draughton is a neurologist. Move on to the substantive testimony as quickly as possible.”
Alexia wanted to provide more background information and risked the judge’s ire by not abandoning her script.
“Yes, ma’am. Dr. Draughton, are you a board-certified neurologist?”
“Yes, since my first year of eligibility up through the present time.”
“Do you have any particular areas of interest and expertise within the field of neurology?”
“Traumatic head injuries and reflex sympathetic dystrophy.”
“Which condition affects Baxter Richardson?”
“He has a serious, traumatic head injury.”
Alexia turned over the page on her legal pad.
“Dr. Draughton, what are the similarities between a neurologist and a neurosurgeon?”
The doctor relaxed in the witness chair. “Of course, both are physicians. A neurologist completes medical school, a one-year internship, and three years of specialized training. I followed my three-year training program with a two-year fellowship in treatment of patients with severe head trauma at Johns Hopkins. A neurosurgeon completes a one-year internship followed by a neurosurgical residency program of five to seven years. There is overlap in evaluation and treatment of serious head injuries.”
“What are the major differences between the two specialties?”
“A common comparison is that a neurologist is to a neurosurgeon what a cardiologist is to a cardiac surgeon. A neurosurgeon is trained to perform surgery affecting the brain, spinal cord, and peripheral nerves. A neurologist does not perform surgery, but often has greater expertise in diagnostic testing that identifies the nature of problems in the central nervous system.”
“Ms. Lindale,” the judge said dryly. “I have no intention of becoming either a neurologist or a neurosurgeon. I told you to move to the substantive issues. Do you know what that means?”
Alexia remained poised. “Yes, Your Honor. We offer Dr. Vince
Draughton as an expert witness in the field of neurology.”
Ken Pinchot stood up. “No objection.”
Alexia moved from the academic to the specific.
“Dr. Draughton, have you had an occasion to examine Baxter Richardson, a young man who is a patient at Greenville Memorial Hospital?”
“Yes.”
“Who requested that you evaluate Mr. Richardson?”
“Dr. Kolb tried to contact me on the evening that the patient was admitted to the hospital; however, another neurologist from my office was on call, and I was not available during the first twenty-four hours of Mr. Richardson’s care. Thereafter, because of the seriousness of the patient’s condition, I assumed primary responsibility for neurological evaluation. I’ve seen him alone and in consultation with Drs. Kolb and Berman.”
“Would it be accurate to say that although Mr. Richardson has a serious head injury there has not been much a neurosurgeon could do to help him?”
Ken Pinchot stood up. “Objection to leading the witness.”
“Sustained,” the judge replied.
Alexia moved on to make her point directly. “What brain surgery has been performed in this case?”
“None, other than the insertion of an intracranial pressure monitor, a device placed inside the brain through a tiny hole in the skull that lets us know about changes caused by swelling in the patient’s cranium. It’s diagnostic, not corrective.”
“Who recommended the use of the monitor and why?”
“I suggested it to Dr. Kolb because of the seriousness of cerebral edema in the patient’s brain, and he concurred. I was present when he performed the procedure, which took less than an hour. Thereafter, our focus has been on stabilizing Mr. Richardson’s condition in hope that he would improve. No additional surgery has been suggested or performed.”
“What can you tell the court about the nature and location of the swelling in Mr. Richardson’s brain?”
“It was obvious from external trauma that the patient had received a severe blow to the head. He had a stellate skull fracture with multiple linear fracture lines diverging from a central point of impact. By history, we understood that he fell from a cliff and struck his head on a large rock. This was consistent with the trauma observed by examination and plain x-ray films.”
“What effect did this blow have on Mr. Richardson’s brain?”
“He had severe localized swelling in the area of the fracture, and a significant subdural hemorrhage that increased in size during the forty-eight hours after his injury. All of this is documented on successive MRI scans and the readings from the monitor I mentioned.”
Alexia had copies of the scans enhanced by a medical illustrator so that the swelling could be understood by an untrained observer. She took them from her portfolio and handed them to the witness.
Pointing to the pictures, the doctor continued, “Even differences in millimeters can have profound impact on the resulting areas of the brain. The scans taken over the first forty-eight hours show the scope of increased swelling.”
“What was Mr. Richardson’s level of consciousness at the time of his admission?”
“He was comatose—unresponsive to external stimuli.”
“Are there different types and levels of coma?”
“Yes.”
The doctor then explained the Glasgow Coma Scale and the profile developed by the Institutes for the Achievement of Human Potential that assess sensory and motor functions through a forty-two-box grid of brain function.
“What was Mr. Richardson’s reading on the Glasgow Scale?”
“Dr. Kolb assigned an eight, and after examining the patient, I concurred. This reading indicates severe compromise of all three functions evaluated.”
“Has there been any subsequent improvement?”
“No, but not a precipitous drop either.”
Alexia winced slightly at the gratuitous additional comment that didn’t help her case. Sometimes in an effort to appear unbiased, expert witnesses unnecessarily lessened the impact of their testimony. Fortunately, Alexia had saved her best evidence for last.
“What recent tests have you performed to determine Mr. Richardson’s brain activity?”
“Electroencephalogram and evoked potential tests. The EEG is a recording of the electrical activity of the brain similar to an EKG test of the heart. There are three types of evoked potential tests that use computerized EEG analysis of brain recordings of different sensory stimuli, such as visual, auditory, or peripheral sensory stimuli, to provide information about remaining functioning.”
“Who supervised these tests?”
“I did.”
“What was the purpose for the tests?”
“To quantify the reason for lack of improvement in the Glasgow Coma Score ratings.”
Alexia had prepared two charts to illustrate the results of the EEG and evoked potential testing. The raw numbers held no significance without the doctor’s analysis, and she guided him through the data as quickly as possible. Alexia put the charts on an easel, and the doctor used a laser pointer to assist his explanation.
“This row of numbers relates to visual response, the second is auditory, and the third is peripheral. The numbers provide a uniform picture of the patient’s cerebral function. Each test was administered on three separate occasions. As you can see, the findings from the three times the tests were given are very consistent. This is necessary to avoid an aberrant response that would call into question the reliability of the data. Compared to the norms I’ve listed at the top of chart number one, you can see the severe decrease in brain activity for Mr. Richardson.”
“How would you compare the accuracy of the testing performed on Baxter Richardson with other patients?” Alexia asked.
Dr. Draughton clicked off his pointer. “The results in this case are as accurate as any I’ve performed.”
Carefully laying the charts against the table so that the judge could still see them, Alexia put down her notes. She had memorized the last question for the doctor and didn’t want anything to hinder the impact of his response. She spoke in a louder tone of voice.
“Dr. Draughton, based upon the level of response revealed by the EEG and evoked potential testing, do you have an opinion about Baxter Richardson’s current mental status and the potential for improvement in the future?”
The doctor looked up at the judge.
“I regret to say that the initial test results, which have been verified on two subsequent occasions, show that Baxter Richardson is in a persistent vegetative state from which there is no reasonable likelihood of recovery.”
37
A thousand fantasies begin to throng into my memory, of calling shapes, and beck’ning shadows dire.
JOHN MILTON
Alexia sat down, and Ken Pinchot stood to his feet. Even though the scheduling of the hearing had been quick, Alexia knew the older lawyer would have a well-organized line of attack.
“Dr. Draughton, even though an EEG of the brain is similar to an EKG of the heart, are there differences between the accuracy and precision of the two tests?”
“Yes.”
“Could you explain your answer for the court?”
“An EKG tests the electrical activity of the heart with very little interference. The results of an EEG can be affected by the thickness of the skull. The measurements are made in microvolts and in some places the skull may reach one-half inch in thickness. This requires a higher degree of interpretation to reach a conclusion.”
Pinchot held several sheets of paper in his hand. Alexia could see from the title page that it was a medical journal article and suspected it documented the potential deficiencies of EEG testing. However, instead of attacking Dr. Draughton with the opinions of the physicians who wrote the article, Pinchot wisely gave the doctor the responsibility of independently admitting the limitations in EEG and evoked potential testing. If he didn’t give a complete list of problems, the article was there for backup proof th
at the neurologist didn’t have a comprehensive grasp of the subject.
“Would you agree that, in common medical understanding, an EKG test is more accurate in evaluating the heart than an EEG of the brain?”
“As a general principle, I agree; however, the medical community accepts the efficacy of the evoked potential and EEG tests as diagnostically sound.”
Pinchot continued to press forward. “Is there a subjective component to your interpretation of these types of tests?”
Alexia squirmed in her seat. She suspected where Pinchot was going but wasn’t sure. She wished she’d traveled this road with the doctor beforehand.
“What do you mean? The numbers are absolute.”
“By subjective, I simply mean the interpretation of the data is an opinion, an educated guess if you will, taking into consideration your years of training and experience.”
“An opinion, not a guess.”
“But it’s not based upon totally objective data such as an x-ray of a broken bone.”
The doctor’s face became puzzled. “It requires more training and expertise to interpret the tests we’re discussing than to diagnose a severely fractured leg on a plain x-ray.”
“And with these more sophisticated tests could other neurologists reach different conclusions when presented with the same data?”
“It’s possible.” The doctor opened his mouth and then shut it.
Pinchot waited a second before continuing. “Did anyone else interpret the test results?”
“Not at the time.”
“How many other neurologists have subsequently reviewed the test results?”
Dr. Draughton glanced at Alexia. She could tell he was troubled by the line of questioning but couldn’t guess why.
The doctor spoke. “An associate in my office, Dr. Weatherman, provided the initial care for the patient at the hospital. He saw my findings and prepared a memo, which we discussed during an intraoffice staffing review.”
“Do you have that memo with you?”
“No.”
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