Inside the restroom, she cupped her hands and filled them with water. She dried her face with a rough paper towel and studied her reflection in the mirror. The depths of her eyes contained a reservoir of pent-up sorrow. She stared at herself, and whether from a moment of genuine self-reflection or as a result of the enormous emotional pressures in the courtroom, honest tears burned hot in her eyes. Immediately, she fought to suppress them and pressed the damp paper towel tightly against her closed eyelids. In a moment she felt the warmth of her tears through the paper towel and against her fingertips.
She took two deep breaths. Rena had to win this battle. Loss of control would mean loss of her life. She pressed harder against her eyes until they hurt. The pain helped stem the flood of self-pity, and she calmed down. After correcting the flaws in her makeup, she returned to the courtroom.
Alexia walked over to Dr. Berman and interrupted his conversation with Dr. Draughton.
“Dr. Berman, could I speak with you for a few minutes before the judge returns?”
“Are you wondering whether I disagree with Dr. Draughton about maintaining life support for Mr. Richardson?”
Startled by the physician’s directness, Alexia said, “Well, I had a few other questions, but that’s the most important one.”
“You are about to find out that there are three opinions in the courtroom,” Dr. Berman said as he patted Dr. Draughton on the shoulder. “His, mine, and Dr. Kolb’s. In this case, I think there are many factors favoring termination of life support, but there are not enough present for me to recommend it as the next step.”
Alexia glanced over her shoulder at Dr. Kolb, who was still talking to Ken Pinchot. “What does Dr. Kolb think?”
Dr. Berman looked at Dr. Draughton. “How would you describe his position?”
“As wrong. He can’t be so confident that the patient doesn’t have significant damage due to hypoxia. The readings are clear—”
“Not the ones taken last week,” Dr. Berman interrupted.
“You heard my testimony,” Dr. Draughton retorted. “Those were the least accurate in the entire series. I had a virtually identical situation with an eighteen-year-old woman in Washington, D.C. The neurosurgeon refused to face the facts, and three weeks later the girl died anyway.”
The doctors’ debate wasn’t getting her anywhere, and every minute was precious. Alexia felt her stomach churning. She interrupted.
“What factors do all of you agree support termination of life support?” she asked.
Dr. Draughton answered. “The readings from the left side of the brain, where he suffered the primary trauma to the skull, have been uniformly abysmal. Even Dr. Kolb has to admit it.”
Dr. Berman shrugged. “That’s a factor; however, it’s not right to pull it out of context. You’re doing the same thing you accused me of doing. We don’t know what effect—”
The judge returned, and the sound of the bailiff calling the court to order ended further debate. Alexia gave up and returned to her table. Rena joined her seconds later.
“What did Dr. Berman say?” Rena whispered.
“Not much. Apparently, none of the doctors agree. We’ll find out in a few minutes.”
“Proceed, Mr. Pinchot,” the judge said.
Ken stood. “I call Ezra Richardson.”
Because the judge was already familiar with Baxter’s condition, Pinchot could take the opposite tack from Alexia. His client would testify first with the medical evidence to follow. Alexia suspected that Pinchot considered Dr. Kolb his strongest weapon and wanted to end on a convincing note.
As Ezra Richardson solemnly took his place in the witness chair, Alexia replayed her confrontation with him in the ICU waiting room. Her cross-examination questions were designed to uncork Ezra’s rage and create suspicion in the judge’s mind about his true motivation for keeping Baxter alive. However, after Judge Holcomb summarily shut down Pinchot’s attempt to portray Rena as a gold digger, Alexia wasn’t sure the judge would let her implement her plan.
Pinchot began by asking Ezra questions about his background and business activities.
“Mr. Richardson, how long have you lived in the Santee area?”
“All my life. My parents and grandparents on both sides of my family lived in Santee.”
“Is your wife still living?”
“No. She passed away several years ago. I have many cousins and relatives, but the only immediate family I have are my two sons, Jeffrey and Baxter.” Ezra looked at the judge. “And I love both of them very much.”
Pinchot let Ezra’s statement linger for a second before continuing.
“Mr. Richardson, how are you employed?”
“I am the CEO of Richardson and Company, a real-estate development and holding firm started by my father. I also own a small company that manufactures golf equipment.”
“What is the name of the company that manufactures golf equipment?”
“Flight Right. We make golf balls and a line of specialized putters.”
“What role do your sons take in the business?”
“They own a minority interest, and my intent was to groom the boys to take over the business within the next few years so that I could retire.”
Before Pinchot could ask another question, Judge Holcomb spoke up.
“Move on, counselor,” she said. “I accept the fact that Mr. Richardson is a businessman who has two sons. I don’t need to hear a lot of detail unless it’s relevant to establishing the witness as an expert on the issue to be decided.”
Ken cleared his throat. “My purpose is to show that Mr. Richardson is the type of person who should be allowed to exercise the powers granted to him by the durable power of attorney.”
Judge Holcomb hesitated and then said, “Proceed, but make it succinct.”
Buoyed by his modest victory, Ken pressed on.
“Please tell the judge about your involvement in the Santee community.”
Ezra sat up straighter in his chair. “I’m on the board of directors for our oldest, locally owned bank, and over the years I’ve been the chairperson for various fund-raising committees. I was recognized as Santee citizen of the year by the chamber of commerce about ten years ago.”
Pinchot showed the durable power of attorney to Ezra, who identified it.
Holding the document in his hand, Pinchot asked, “Why did you ask Baxter to sign this power of attorney?”
“It was something I did for both of my boys,” Ezra answered. “Baxter had turned eighteen, and it was a safety net for his protection while I brought him into the family businesses.”
“Did Baxter receive an ownership interest in any of your companies at that time?”
“Yes, even while he was in college. It was my way of training him by slowly giving him more responsibility.”
Rena whispered to Alexia. “Baxter said it was all for tax reasons. He didn’t do much at the office, even after he graduated from college and we were married.”
“Have you read the power of attorney?” Pinchot asked Ezra.
“Not until this came up. I told the lawyers to prepare the papers, and Baxter went by and signed it.”
“When did you become aware of the provisions in the power of attorney regarding your son’s medical care?”
“After Baxter was injured, I spoke with Ralph Leggitt in your office, and he informed me of the medical care aspects of the power of attorney.”
“As the person designated by your son to exercise control regarding health care, why are you opposing your daughter-in-law’s request to terminate life support?”
Ezra turned toward the judge. “Because I love my son and don’t want to give up trying to help him until everything has been done to save him. There is disagreement among the doctors, and it wouldn’t be right to deny Baxter the chance to wake up. I’m not a medical expert, but if competent physicians believe there is even a slim possibility for recovery, I want to hold on to that hope.”
Mr. Richardson had answered
with the level of sincerity Alexia had hoped to coax from Rena. Alexia watched Judge Holcomb’s face for a reaction but couldn’t discern any response. Pinchot sat down. It was Alexia’s turn. She stood up.
“Mr. Richardson, did I understand your testimony correctly that you weren’t present when your son Baxter signed the power of attorney?”
“That’s right. He met with the lawyer himself.”
“Do you know whether Baxter read the document before he signed it?”
“No.”
“Did you ever discuss it with him later?”
“Not that I recall. He never had a question about it.”
“Where was the power of attorney kept?”
“At the lawyer’s office. I don’t know whether Baxter had a copy or not.”
“Did you discuss it with your son after he graduated from college and returned to Santee to work in the family business?”
“No.”
“What about at the time of his marriage to my client?”
“No.”
Alexia knit her eyebrows together. “How many times did you use the power of attorney while Baxter was in college?”
“None. Nothing came up that required it.”
“What about after his return to Santee to work with you and your other son, Jeffrey?”
“No.”
“Does that mean that Baxter never gave you any reason to believe he was irresponsible in the way he conducted his business affairs?”
“He was a good son.”
“Were you in favor of his marriage to my client?”
“Objection,” Ken interrupted. “That’s irrelevant.”
“Sustained.”
Alexia returned to the previous line of questioning.
“So, was there ever a need to use the power of attorney for the reason you originally asked him to sign it?”
“No.”
“If Baxter had asked you to tear it up the day before he went on the hike with Rena, would you have done so?”
For the first time, Ezra hesitated. “Because of what has happened, I’m glad we didn’t talk about it.”
“It might have lessened your ability to control your son’s life, wouldn’t it?”
“I’m not trying to control his life.”
Alexia moved closer to the witness. “Isn’t that what you’re asking the court to do today? To let you, rather than the woman Baxter chose as his wife, decide whether he continues to lie paralyzed in a coma, artificially kept alive by machines?”
It was a potent question, but Ezra didn’t flinch.
“Because of the disagreement among the doctors, I don’t believe it is a decision either Rena or I have the right to make. If all the doctors told me there wasn’t any hope, I’d tell Baxter good-bye and let him go. That hasn’t happened, and I’m not changing my mind.”
Alexia turned quickly in another direction. It was time to pin Ezra to the wall.
“How many times have you used the power of attorney since Baxter and Rena were married?” she asked.
Ken was on his feet. “Objection, Your Honor. The only issues in this hearing for this witness are whether Baxter Richardson signed the power of attorney freely and voluntarily and my client’s right to exercise the medical care provisions. During the testimony of the petitioner, you ruled that any other motivations are irrelevant.”
Alexia responded. “Your Honor, the witness testified that he asked Baxter to sign the power of attorney in order to protect his son until he could take his place as a mature adult in the family businesses. By Mr. Richardson’s own admission that contingency occurred prior to Baxter’s accident, and the reason for the power of attorney no longer exists. I also intend to offer evidence that Mr. Richardson has used the power of attorney for reasons other than those already stated, and his recent actions call into question his ability to exercise sound judgment.”
“What type of actions?” the judge asked.
Alexia looked at Ezra as she answered. “Mr. Richardson used the power of attorney to transfer money from a joint checking account in his son and daughter-in-law’s name.”
“Which he later returned,” Pinchot added. “It was Mr. Richardson’s desire to put the money in a trust for the benefit of both his son and daughter-in-law.”
“We don’t know that,” Alexia shot back. “Nothing was ever said—”
The judge banged her gavel. “I’m ruling this entire line of questioning irrelevant. Removal of the original basis for drafting a duly executed power of attorney is insufficient reason to revoke it, and any transfer of funds does not bear on the issues before me today.” She looked at Alexia. “Am I correct in understanding that this is a durable power of attorney without any built-in termination clause?”
Alexia had no wiggle room. “Yes, ma’am.”
“Then I’m going to sustain the objection and direct you, as I did Mr. Pinchot, to limit your questions to whether the power of attorney was voluntarily executed and the rationale behind Mr. Richardson’s request that the court consider his wishes in ruling on the petition.”
Alexia didn’t want to take either road offered by the judge. She had no proof of coercion when Baxter was eighteen and didn’t want Ezra to repeat what he’d already said about the reason he opposed the petition.
“Your Honor, nothing further from this witness,” Alexia said and sat down.
Ezra left the witness stand unscarred. Alexia didn’t like it, but in the midst of the battle she didn’t see any alternative.
“What are you doing?” Rena asked in a sharp whisper. “I thought you were going to make him look bad!”
Alexia shook her head. “Not today. Not with this judge.”
39
When we deal with questions relating to principles of law and their applications, we do not suddenly rise into a stratosphere of icy certainty.
CHARLES EVANS HUGHES
To Alexia’s surprise, Pinchot didn’t call Dr. Berman. Instead, he summoned Dr. Kolb to the witness stand. The older neurosurgeon was an impressive figure with his neatly combed white hair, square jaw, and deep brown eyes that looked as alert and intelligent as if he were a recent medical school graduate. He confidently took his seat in the witness chair and answered background questions about his educational and professional qualifications.
“How many years have you practiced medicine in Greenville?” Pinchot asked.
“Thirty-eight this December,” the doctor answered as he glanced up at the judge. “In fact, Judge Holcomb’s husband was one of my patients prior to his death, and we have known each other socially for many years.”
Alexia gulped. This was going to be ugly. Everything that had happened in the courtroom up to that moment had been a colossal waste of time. No wonder the judge wanted to move the case along as quickly as possible. The only testimony that mattered would come from the distinguished doctor who had treated her dying husband and spent time chatting with her around the dining room table.
Pinchot knew he had found hidden treasure and asked Dr. Kolb to repeat much of the information about Baxter’s condition. However, there was a difference between their perspectives that became more and more apparent as the doctor continued talking. Dr. Draughton spoke of Baxter as a comatose patient whose condition should be analyzed. Dr. Kolb saw him as a person with a life worth fighting to preserve. It was the difference between a scientist and a healer.
“It was almost miraculous that Baxter was alive when he arrived at the hospital,” the doctor said. “Fortunately, I was already in the trauma center examining another patient and assisted the emergency personnel who brought him into the treatment area. Because I was on the scene, I was able to immediately set up the protocol. His condition was very critical, but we didn’t lose him.”
“Dr. Kolb, what can you tell us about the type of skull fracture suffered by Baxter?”
Once again, the evidence was repetitive, and Alexia wanted to object, but the judge was listening closely and any effort to cut off the testimony
would have been doomed. There was nothing Alexia could do but sit back and hope for a blunder. The doctor spoke in a level voice as if mentoring a new resident.
“As Dr. Draughton indicated, it was a focal injury to the left side of the brain, not a diffuse, axonal injury that would affect the entire brain and be more likely to cause irreversible damage. With focal injuries we often see other parts of the brain begin, over time, to assume some of the functions of the damaged region. This is not an absolute remedy, but it frequently occurs and increases the level of recovery.”
“What other factors point toward improvement in this case?”
“He did not suffer total loss of oxygen to the brain, a condition called anoxia. The brain can only function for a couple of minutes without oxygen. After that, the rate of deterioration is dramatic, and any chance of recovery lessens considerably. Even after suffering his injuries, Baxter was able to breathe on his own, and there is no indication of either total or partial oxygen deprivation to the brain. The damage he suffered is due to the specific trauma to a limited section of the brain. Of course, the longer he remains in a coma the greater the time period for recovery.”
“What is your opinion about the EEG and evoked potential testing performed by Dr. Draughton?”
Dr. Kolb rubbed the side of his face. “I respect Dr. Draughton, and we often work together, but we have a difference of opinion about EEG and evoked potential testing. The tests measure what is taking place at the moment in time they are administered and are valuable as diagnostic tools; however, they do not have prognostic value.”
“What do you mean by prognostic value?”
“They are not a valid basis for predicting the future. Only for patients with no discernable brain wave activity, commonly known as ‘brain death,’ are these type of procedures definitive in deciding whether to maintain life-sustaining measures. Fortunately, Baxter does not meet those criteria, and Dr. Draughton’s data proves it.”
“Please explain.”
The doctor looked at Alexia. “Could I see the chart you prepared?”
Alexia reluctantly retrieved the chart and handed it to Pinchot. There were few things worse than having an adverse witness use your own exhibit to torpedo your case. Dr. Kolb proceeded to show why the numbers did not indicate an absence of brain activity sufficient to categorize Baxter’s condition as “brain death.”
Life Support Page 37
