by Jodi Picoult
“It meant seamlessly integrating himself with nature . . .”
While his wife waited up for him.
“It didn’t mean lying in a hospital bed, unconscious, unable to breathe on his own, with no presumptive hope for recovery. Your Honor, you’re the one who said that we should be making a decision in line with what Luke Warren would want.” As I pause, I meet Edward’s gaze. “Luke Warren,” I say, “would ask us to let him go.”
During the first fifteen-minute recess, Edward and I head to the restroom. “Do you believe it?” he asks, while we are both standing at the urinal. “What that lawyer said?”
“You mean about all those people who recovered from brain injury?”
He nods, flushing and then heading to the sink to wash his hands. “Yeah.”
“I don’t know. But I’m sure as hell going to ask the neurosurgeon about them,” I say. I finish up and find Edward staring into the bathroom mirror, as if he cannot place his own face. “Look,” I tell him. “Today you don’t have to make any decisions about your father. You just have to win the right to make that decision.”
We leave to grab a soda before we have to go back to the courtroom. In the vending machine area, Zirconia and Georgie are seated at the small industrial table across from Cara.
“Ladies,” I say. I wink at Cara.
She looks down at the table, nursing a Coke.
“How’s your dad doing?” I ask. I know that Cara had asked to visit Luke before coming to court today.
She narrows her eyes. “As if you care.”
“Cara!” Georgie draws in her breath. “Apologize to Joe.”
“In the grand scheme of things, I think he owes me one first.” She picks up her Coke and stands. “I’ll wait upstairs.”
But before she can leave, Edward blocks her exit. He pushes a pack of Twizzlers toward her, candy from the vending machine. “Here,” he says.
“What makes you think I want these?”
“Because you used to,” Edward tells her. “You used to beg me to buy them for you when we were on the way home from school, and I stopped off at a gas station to fill up. You’d bite off the ends and stick one in the milk carton you saved from school, like a straw. Said it was a strawberry shake that way.” He looks at Georgie. “We kept it a secret from Mom, because she said you were a sugar addict and you’d lose all your teeth before you hit puberty.”
Holding her soda, she can’t grab the package; she only has one hand free. “I forgot about that,” she murmurs.
Edward tucks the candy into a fold of her sling. “I didn’t,” he says.
The hospital attorney, Abby Lorenzo, begins by calling Dr. Saint-Clare to the stand. He’s sworn in and rattles off his neurosurgeon credentials, looking the whole time like he could be doing something so much more important, such as saving lives. “Do you know Luke Warren?” she asks.
“Yes. He’s one of my patients.”
“When did you meet him?”
“Twelve days ago,” the doctor says.
“Can you tell us about Mr. Warren’s condition, when he arrived at the hospital?”
“He was brought in after a motor vehicle accident,” Saint-Clare says, “where he was found outside the vehicle. The EMTs on the scene assumed that he had a diffuse traumatic brain injury, based on the circumstances. He was given a five on the Glasgow Coma Scale, and came into the hospital presenting with an enlarged right pupil, left-side weakness, and a laceration on his forehead. When a CT scan revealed severe swelling around his brain and a periorbital edema around his eyes, I was called in.”
“Then what happened?” the lawyer asks.
“Mr. Warren was again tested on the coma scale and still scored a five—”
“What does that mean exactly?”
“It’s a neurological scale to measure responsiveness, or lack thereof, after head injury. The scale ranges from three to fifteen, with three being a person in the deepest coma and fifteen being a normal, healthy individual. For patients who test between five and seven after twenty-four hours, fifty-three percent will die or remain in a vegetative state.”
Lorenzo nods. “How did you treat Mr. Warren?”
“The emergency CT scan suggested that he had a temporal lobe hematoma and subarachnoid hemorrhage, an intraventricular hemorrhage, and hemorrhages in the brain stem in the medulla, extending into the pons.”
“In layman’s terms?”
“Mr. Warren came in with blood around his brain, blood in the ventricles of his brain, and hemorrhages in the parts of his brain that affect breathing and consciousness. We put him on a drug called Mannitol to reduce pressure in the brain, and performed a temporal lobectomy—a surgery that would give room inside the cranium for his brain to expand, so that the swelling could go down. We removed the hematoma, as well as part of the anterior temporal lobe. After his surgery, he was still not breathing on his own and did not wake up; however, his right pupil became reactive again, which suggests the swelling did indeed go down in the brain. The temporal lobectomy means that Mr. Warren would probably lose some memories, but not all; however, since consciousness has been so severely compromised by the injuries to his brain stem, it’s unlikely that he’s ever going to be able to access any of those memories.”
“So he’s not brain-dead, Dr. Saint-Clare?”
“No,” the surgeon replies. “His EEG shows cerebral cortex activity.
But none of it’s accessible, because he can’t regain consciousness.”
“How is Mr. Warren being kept alive?”
“A ventilator is breathing for him, and he’s being nourished via feeding tube.”
“What’s your professional opinion regarding Mr. Warren’s chances of recovery?”
I look at Cara while the surgeon answers. Her eyes are narrowed, her jaw set firmly, as if his words are a bracing wind. “We’ve done a repeat CT scan every two days. Although we know the pressure in his brain has gone down, the hemorrhages in the brain stem have become a bit larger. He’s still unconscious, he’s in a vegetative state. In my opinion this is a serious brain injury from which we do not expect recovery.”
Cara flinches.
“Even if there was a chance, which would be extremely unlikely, the best-case scenario for Mr. Warren would be life in a long-term care facility with limited function, never regaining consciousness.”
“How certain are you of your professional opinion, Dr. Saint-Clare?” Lorenzo asks.
“I’ve been a neurosurgeon for twenty-nine years, and I’ve never seen a patient recover from a brain injury as traumatic as this one.”
“What’s the hospital’s position with respect to Mr. Warren’s care and recovery?”
“He’s a patient, and will receive the best care we can possibly give him to ensure his comfort. However, because we don’t expect improvement in the quality of his life functioning, a decision needs to be made. Either Mr. Warren will have to be moved to another facility to provide round-the-clock care, or if the choice is made to terminate life support, he is a candidate for organ donation.”
“If Mr. Warren isn’t brain-dead, how can he be a candidate for organ donation?”
The neurosurgeon leans back in his seat. “You’re correct, he doesn’t meet the medical criteria for brain death. However, he does meet the criteria for donation after cardiac death. Patients who have a severe brain injury and who aren’t breathing on their own can still be organ donors, if they’ve made their wishes known. The hospital connects their families with the New England Organ Bank. After the decision is made to terminate life support, the ventilator is effectively turned off and the patient stops breathing. A countdown is started, and after five minutes the patient is declared dead, brought into an OR, and the organs are harvested. In Mr. Warren’s case, the viable organs would be liver and kidneys, possibly even his heart.” The doctor pauses. “For many families who are faced with this kind of no-win situation, knowing that their loved one can help save someone else’s life through organ donati
on is a great comfort.”
“Thank you, Dr. Saint-Clare,” Abby Lorenzo says. “Nothing further.”
I get up, ready to cross-examine the neurosurgeon. “Doctor,” I begin, “are you familiar with the case of Zack Dunlap?”
“I am.”
“You’re aware that Mr. Dunlap was in an ATV accident, declared to be brain-dead, and then spontaneously recovered, correct?”
“That’s what people think.”
“What do you mean by that?”
“The medical community believes that Mr. Dunlap was never actually brain-dead but misdiagnosed,” the doctor replies. “If he had been brain-dead, he wouldn’t have recovered. In fact, I was part of a national group that was going to look into Mr. Dunlap’s case—review the records and give an official public statement about what really happened—but the family didn’t want us to.” He shrugs. “They preferred to call it a miracle.”
“What about Terry Wallis?”
“Again, Mr. Wallis was diagnosed to be in a vegetative state for nearly two decades, but he wasn’t. He was in a minimally conscious state, which is quite different. Patients who are minimally conscious have some degree of awareness of self and environment but can’t communicate their thoughts and feelings. They may respond to painful stimuli, or follow a command, or cry at the sound of a loved one’s voice. Minimal consciousness can be a chronic condition, but there is a better chance of recovery than there is for someone in a vegetative state.”
“Is it possible that Mr. Wallis moved from a vegetative state to a minimally conscious state?”
“Yes. There’s a range of consciousness, from coma to vegetative state to minimally conscious state. Some patients move from one state to another.”
“So isn’t it possible that the same might happen to Mr. Warren?”
“Terry Wallis’s recovery was a remarkable and unexpected one, but his initial trauma was markedly different from Mr. Warren’s. He had a diffuse axonal injury, which occurs without intracranial pressure, and which doesn’t damage the neurons—just the axons. Your neurons are in your brain’s cortex. Then there’s gray matter. The axons go from there into the white matter. A head injury that leads to a DAI means that the cells in the gray matter are intact but aren’t connected to anything, because those connections—the axons—have been sheared away. It’s a very bad form of head trauma, but it’s one that spares the cells, the neurons. Mr. Wallis’s recovery came about through regrowth of the axons. Mr. Warren’s injury is caused not by severed axons but rather by damaged neurons. And unlike axons, once a neuron is destroyed, it can’t regenerate.”
For all of the other lucky individuals mentioned by Zirconia in her opening argument, Dr. Saint-Clare has a medical reason why recovery was possible. “So let me get this clear,” I recap. “Each of the people Ms. Notch mentioned recovered either because they were initially misdiagnosed or because their injuries were substantially different from what Mr. Warren suffered?”
“Exactly,” the neurosurgeon says. “No one is debating the fact that Mr. Warren’s EEG shows signs of activity. It’s possible he’s retained the same verbal and motor ability he used to have, in the frontal lobes of his brain. But with injuries to his brain stem, it doesn’t matter what happens in the frontal lobes. He can’t plug into it, so to speak.” Dr. Saint-Clare looks at the judge. “It’s a little like going on vacation and seeing your destination from a plane, when all of a sudden a tornado blocks your landing. You might still be able to see the most beautiful resort—with a gorgeous beach and five-star service—but there’s no way you’re going to get from where you are to where you want to visit.”
“Will Mr. Warren always be dependent on a ventilator for breathing and tubes for feeding?” I ask.
“In my opinion, yes.”
“Can you predict how long he’ll live if that treatment is continued?”
“Most patients with this sort of injury die within weeks or months of pneumonia or some other complication.” The doctor shakes his head. “All these machines, they really just prolong the dying process. We’re sustaining a life, but it’s not much of one.”
“Thank you,” I say. “Your witness.”
Zirconia Notch frowns at the neurosurgeon as she approaches. “Who’s paying for Mr. Warren’s care?”
“From what I understand, he does not have health insurance. He’s a guest of the state.”
“A guest who’s costing you approximately five thousand dollars per day, excluding doctor fees.”
“We don’t consider that when we’re providing health care—”
“Isn’t it true that your hospital lost two million dollars last year?”
“Yes . . .”
“So isn’t it possible that part of the hospital’s motivation to force a decision about Mr. Warren’s welfare is so that you can free up a bed for a paying patient?”
“That’s not my concern as a physician.”
“Doctor, you said that Mr. Warren is a candidate for donation after cardiac death?”
“That’s correct. A man in his physical condition would be an excellent donor.”
“Isn’t it true that a quarter of DCD cases don’t go according to plan?”
He nods. “Sometimes when the ventilator is turned off, the patient breathes sporadically on his own. If it doesn’t stop within an hour or so, the donation is called off and the patient is left to die.”
“Why is the donation called off?”
“Because the patient won’t have enough oxygen in his bloodstream to keep the organs viable, but he’ll have too much oxygen to lead to cardiac cessation—which is the criterion for death.”
“So,” Zirconia says, pursing her lips. “You basically wait for the heart to stop, and then count off five minutes, and then you harvest the organs?”
“That’s correct.”
“Have you ever heard of Dr. Robert Veatch?” she asks.
Dr. Saint-Clare clears his throat. “I have.”
“Isn’t Dr. Veatch a renowned medical ethics professor who questioned DCD?”
“Yes.”
“Can you summarize for the court what Dr. Veatch’s position is?”
Dr. Saint-Clare nods. “Dr. Veatch points out that a heart that stops can be started again—in fact, that’s exactly how a heart transplant is done. In his opinion the cessation of cardiac function and circulation is not irreversible in DCD patients—which means it doesn’t meet the accepted standard of determination of death.”
“So basically, you’re telling me that Mr. Warren can be declared dead once his heart stops. But it can then be donated to someone else . . . and start beating again.”
“That’s right.”
“Then isn’t it a little hasty to consider Mr. Warren dead in the first place, given that his heart technically could be defibrillated into action again while still inside his own body?”
“The circulatory determination of death is a standard medical practice in the developed world, Ms. Notch,” the doctor says. “The five-minute waiting time is meant to ensure that the heart doesn’t start beating again by itself, without medical intervention.”
Zirconia nods, but you can tell she’s not buying it. “Is Mr. Warren in any pain in his current condition?”
“No,” the doctor says. “He’s unconscious; he can’t feel anything. We’re doing our best to keep him comfortable.”
“So he’s not currently suffering?”
“No.”
“He’s not in distress?”
Dr. Saint-Clare shifts in his seat. “No.”
“And he could continue in this state, not suffering, for how long?”
“If he didn’t contract an illness that further compromised his bodily systems, and was sent to a long-term care facility, it could be several years.”
Zirconia folds her arms. “Now, you’ve told Mr. Ng that the five people I listed initially who had severe brain injuries were misdiagnosed, which is why they eventually recovered?”
“Yes. Disorde
rs of consciousness are notoriously hard to diagnose accurately.”
“Then how can you be sure Mr. Warren won’t be the next case study of so-called miraculous recovery?”
“It’s possible, but highly improbable.”
“Are you aware of total locked-in syndrome, Doctor?”
“Of course,” he says. “LIS is a condition in which the patient is aware and awake but can’t move or communicate.”
“Isn’t it true that evidence of a brain stem lesion and a normal EEG are both symptomatic of LIS?”
“Yes.”
“And doesn’t Mr. Warren’s brain injury reflect brain stem lesions and a normal EEG?”
“Yes, but patients in classic locked-in syndrome have pinpoint pupils and other signs that lead to its recognition. Most neurologists consider it as a diagnosis when a patient appears to be in a coma, and test for it by asking the patient to look up and down.”
“But not in total locked-in syndrome, correct? Total LIS patients can’t look up and down voluntarily, by definition.”
“That’s right.”
“So wouldn’t it be extremely difficult, without that voluntary eye movement, to know if a patient has total locked-in syndrome or is in a vegetative state?”
“Yes. It could be hard,” Dr. Saint-Clare says.
“Are you aware, Doctor, that LIS patients often communicate with assistive devices, and some of them may go on to lead long lives?”
“So I hear.”
“Can you tell this court with a hundred percent degree of certainty that Mr. Warren doesn’t have locked-in syndrome?”
“Nothing in medicine is a hundred percent,” he argues.
“Then I guess you can’t say with one hundred percent certainty, either, that Mr. Warren won’t progress from a vegetative state into a minimally conscious one, and maybe even into consciousness?”
“No. But what I can tell you is that the treatments and interventions we’ve tried have not been successful in altering his state of consciousness, and I have no medical reason to believe that would change in the future.”
“You must be aware, Doctor, that people who suffered spinal cord injuries and were told they would never walk again have, in some cases, been able to walk due to advances in medicine.”
