Читать книгу Who's Killing the Doctors? - Alex Swift - Страница 11

Around the time when Judge Good had given his advice with judicial sense and experience to Dr. Nora Phillips to extricate herself from the State Health Department -by moving out of state before the axe fell on her neck- he, himself, began to handle another tricky case potentially contentious for his own position. It was spring.

His judicial duties were commonly tangled with medical professionals as were the many issues brought to his attention by his wife, a physician, and by his friend Dr. Phillips:

Judge Good’s new case indeed had to do also with medical issues: It was the case of another doctor, a family practitioner in his area, Dr. Anthony Lennox, already charged by a Grand Jury with 2nd degree murder for the death of his infant daughter, a 3 month old infant. Apparently the local D.A. who was taking care of the prosecution himself, had plenty of evidence, very graphic, colorful, bloody and goring photos of the dead child’s brain at autopsy and plenty of other doctors’ opinions, pediatricians from Buffarin General ER, all pointing to the poor Dr. Lennox as ‘a murderer.’

The injuries to the child’s head, with a large bleeding, an acute subdural hematoma on the surface of the brain under the skull and meninges, meant that someone, had hit her head in the middle of the night using a large force or throwing her against a hard object like the sink or the tub. The explanations Dr. Lennox, her father, gave to the hospital doctors did not add up; there was no way that the child having ‘slipped off his hands’ when he was cleaning her diarrhea in the middle of the night, could have caused the massive bleeding and brain herniation that killed her so fast.

“She would have had to be dropped from a 3rd story window to suffer such an injury to her brain,” the pediatrician-expert-in-child-abuse said. “He is lying!”

The grand jury had been shown the bloody photographs and easily charged him with 2nd degree murder. They couldn’t charge him with ‘First Degree’ as they did not have a motive, and apparently the couple, her parents, were not fighting. But of course in Grand Jury Hearings, only the state prosecutor, the DA, shows the jurors all the evidence he has and the defendant or his attorneys are not present… If there is then no admission of guilt by the defendant, then a trial is scheduled with all the evidence for both sides and witnesses and experts.

In this case, with so much evidence, and the ER doctors and one outside pediatrician, an expert in SBS (‘Shaken Baby Syndrome’), all against Dr. Lennox, plus presumably his lying about what had happened, the charge was nearly irrefutable. In a settled negotiation (that would lead to some imprisonment, plus later to his wife divorcing him) between the prosecutor and the doctor’s lawyer, the issue was resolved without jurors; judge Kenneth Good presided but did not decide. The doctor was firm in his being innocent, but was convinced by his lawyer that accepting a Plea Bargain, the down-graded charge of ‘Guilty of Manslaughter’ (or negligent homicide) instead of ‘Murder,’ was the best possible outcome for him in view of all the evidence and experts the D.A. had. Basically the D.A. handled his ‘conviction.’ The poor fellow Dr. Lennox, frightened, accepted it instead of fighting in court in front of a judge and jury.

The accepted guilty verdict of ‘negligent homicide’ was negotiated not on the ‘severity’ of the somehow inflicted injury to the child’s head (as the ER doctors and the pediatrician had insisted, but still denied by him), but because Dr. Lennox had not taken his daughter to the ER immediately upon the fall he had described. It was decided that ‘the delay’ had killed the girl and he admitted to such delay. He had waited a good 10 hours till she was vomiting at home and his wife had interrupted him ‘while seeing patients in his office like if nothing had happened.’

In the negotiated settlement, at the end, even Dr. Lennox begged the judge to begin his confinement right away to get it over as soon as possible. Thus the doctor was taken immediately to serve his 2 years in the county jail, instead of in a state prison. His lawyer assured him that “eventually you will only do 15 months or so, perhaps even less.” He did not tell him that after that he would have in all likelihood several years of probation as a convicted felon for child abuse… and that he ‘might’ lose his license…

But his troubles with the system would not end there. Yes, the State Health Department (OPC) would for sure step in immediately upon the accepted guilt of homicide, (even if just on ‘negligence’ basis) to remove his medical license also for some years-‘plus.’ And additionally, upon his release, he would also be given a probational limited license, very humiliating, to practice only as a helper in some clinic, sort of as a med student, under strict supervision! At least his case was for now legally over – both for the poor doctor and for judge Good.

Or was it?…

Judge Kenneth Good, the weekend that followed the ‘accepted’ verdict without a trial -that for sure would have been pumped up by the Media- had in his backyard a friendly gathering for a picnic of several of his professional friends, mostly doctors; his wife had prepared for them abundant food and drinks. Among other guests and family, those included Dr. Nora Phillips the neurologist, herself also in legal trouble with the Health Department, Dr. Roger Newman, a neurosurgeon, and a French-Canadian child neurologist from across the border Dr. François Elan; he had been judge Good’s acquaintance through his court for a few years and was an odd, published but hardly read guy, controversial but with solid basic principles; he often clashed with the US medico-legal establishment but easily got away with it as he practiced in Toronto; well known in the legal system he was often called as an expert on both sides of the border.

Right after his court’s half-liked, half-hated negotiated, easy verdict, Judge Good, through his law clerk, and his wife Barbara, made copies of the court file, the ER and pathology reports-plus photos, and of course Dr. Lennox’s statement and explanations, all now available to his guests. He did not think that disclosing them now broke any HIPAA laws or constituted inappropriate revelations of court material since the case was in essence over for him and for the accused and convicted doctor. The friendly doctors in the picnic had already browsed through all that material in the Goods’ living room, each having been given plenty of time before the actual gathering by the pool side, outdoors. Some had also seen the headlines and reports issued by the press and television, all with an obvious indicting tone against the doctor.

So by the time those guests and judge Good began their exchange all had a good idea of the case. As the judge, for the most part, all believed that the condemned doctor had told the truth, that he had not thrown his daughter against the wall and, furthermore, that he was actually innocent. They felt bad for him: Just the victim of an unfortunate accident where the circumstances had piled against him.

A leading voice in their exchange was that of Dr. Elan, the guy from across the border:

“I believe his daughter did have some sort of a gastrointestinal bug with diarrhea, and that Dr. Lennox was actually nice to have volunteered in the middle of the night to clean her as she cried, letting his wife remain in bed as HE was busy with her mess in the bathroom.”

“And” said Barbara Good “I don’t think that the pathologist who did the autopsy even addressed that issue of the kid’s illness, amid so much in her skull. The pathologist looked just at ‘all that trauma,’ and admitting that her skin, all over, had no other signs of impact and abuse as neither did her ribs and long bones; plus the X-Rays and the clinical assessment in the ER had revealed no signs of trauma whatsoever except for her skull. The pathologist does not even mention anything about anything else like her heart, lungs, abdominal cavity or her muscles!”

“Right,” agreed the Canadian guy. “And one cannot determine for sure by just an autopsy -no matter how much blood it shows inside the skull- whether the bump that caused her acute subdural was inflicted by her slipping from his hands up in the air while cleaning her, and falling hard on the floor, OR whether, enraged, he tossed her against something hard as the initial charge of murder had presumed. This has to be answered in favor of the first of those two possibilities, that is, that the child simply ‘slipped off.’ First, because of the doctor’s gentle and kind disposition never having hurt anyone or anything, and not having had prior complaints against him as assured by his staff and the hospital’s; and second, by the absence of body or limb bruises or fractures.”

“Why couldn’t Dr. Lennox have been cleared of wrong doing completely” asked Nora Phillips.

“Because there was too much, a lot of hard evidence against him -all that blood- that would have moved jurors easily towards a harsh conviction” said judge Good; “then there were the opinion of the attending physician in the ER, of the pediatrician supposedly an expert in SBS, so hard and adamant against Dr. Lennox, plus the report of the pathologist… What do you think, Dr. Newman? YOU are a neurosurgeon and deal with fresh red blood more than anybody else in this group and more than most physicians.”

“All I can say is that indeed there was a massive acute subdural hematoma caused by some sort of a hard impact; a large accumulation of blood between the meninges and the brain, not directly touching the skull.” He said. ‘But I can’t say how the impact happened just from these photos and from the autopsy report no matter what the pathologist says. Actually, I can advance with confidence that such hematoma did not grow so big too quickly, but only over several hours, perhaps over 8-10 hours, especially knowing that when Dr. Lennox went to work in the morning, his daughter was breathing normally, was not vomiting and her soft spot -her ‘anterior fontanelle’- was not bulging or tense as he said. Only by mid morning when she first vomited and was taken to the ER her intracranial pressure was beginning to build up.”

“That is interesting,” Dr. Elan, the Canadian child neurologist broke in. “Because if she was beginning to show signs of distress when both parents rushed her to the ER, the ER doctor who sent her for full body X-Rays and a CT scan of her head, wasted very valuable time, at least two hours, and she was indeed dead by the time they brought her from the X-Ray Department back to the pediatric ER…” Then he addressed himself to the neurosurgeon of the group: “Dr. Newman, couldn’t they, or a neurosurgical resident as soon as they saw her, have tapped her subdural space right there in the E.R. instead of sending her for X-Rays, CT scan, etc.?”

“Yes,” Dr. Newman said. “They obviously were in a great hurry to prove the father guilty of abuse or murder – as in suspected SBS, where so often pediatricians are in a big crusade against a parent. In doing so, they may forget to help the kid first and ASAP. Had they thought of the immediate danger the child was in, they could easily have tapped her on one corner of her fontanelle, as it was by then bulging and tense. They could have done it with any regular IV needle to confirm their diagnostic suspicion and THAT could have saved her life right then and there!”

“Roger”, then commented Dr. Phillips, herself also a child Neurologist, “that means that, had the ER exercised proper judgment and speedy action, the little girl might still be alive today regardless of what her father’s other charges of negligence -for not having taken her to the ER earlier- may have ended up with.”

“Yes,” said again the neurosurgeon. “In fact she was not REALLY killed by the impact or fall that happened at home some eight hours earlier in the presence of her father, but by the Hospital, by its ER doctors! They are the ones who exercised bad judgment and carelessness with their delay. Not her father who did not take her to the hospital immediately, at dawn, or before going to his office; she was stable through the night and early morning and her fontanelle was for hours soft!” Then he added, “His was a reasonable judgment call. Theirs killed her.”

“Along the same lines, Roger,” added Dr. Elan, “I have heard another neurosurgeon mention how you don’t need a very hard impact to cause such bleed; that his own 5 month old boy, sitting at a play-pen, happened to fall back against the stiletto of one of his wife’s shoes which gave him also a good bump and a similar hematoma inside the skull! And I can add of myself that when we were building a high deck in the back of our second story, before we had finished the railing, our 2 year old boy fell down a good 10 feet. I checked him out myself -that was also MY judgment call-, I did keep a close eye on him for the next several hours as here Dr. Lennox did, and we did not take him to the ER. I did not consider myself then guilty of negligence, perhaps just a bit too self confident!…”

There was a long pause with disbelief in those in the group.

“Wow” said the judge. ”It seems to me now that the best course of action is for me to sit down with the D.A. and bring all this to his attention. Perhaps we can work out some changes to the verdict and sentence…” He did not tell his friends that he was recording the whole friendly and enlightening exchange. He had been looking for some sort of exculpatory conclusion along these lines when he had arranged the gathering of five friends, though not quite a flip-flop of whose was the guilt.

“But Kenneth,” added his wife Barbara, an MD and a specialist in trauma herself reading his mind, “wouldn’t THIS mean that ‘the culpa’ changes dramatically from Dr. Lennox -the convicted, the guilty one now- to his accusers, the Hospital ER staff? So Tony should go free immediately and may even have basis to sue them, not just for slander but also for medical malpractice, negligence and wrongful death?”

“Well… yes… This dramatically changes things,” said the judge. “But it makes things very complicated legally and for sure there will be a need for a REAL trial OR trials if the D.A. does not buy this. The poor girl’s medical course probably will also have defenders and accusers on both sides… And Tony may need a new lawyer…”

“Will you be able to get the doctor out of jail soon without bringing the case back to court?” Asked Dr. Phillips.

“Yes. I am pretty sure that THAT will be the easiest part. I will have to bring all this to the attention of the DA to arrange an immediate release of the doctor since there is at least now a strong ground for ‘sufficient doubt’ of guilt; so we throw out the existing conviction. Perhaps the DA, even if shocked and unwilling, will give a limited Press release explaining to reporters that fresh new evidence, not available initially, sheds enough light to put the doctor’s guilt in doubt for now. The doctor’s lawyer will have to be present of course and then go to get his client out. “

“So, will Dr. Lennox have now a case against the hospital ER?” asked Barbara.

“He will definitely have a case against them. But HE will have to think it all first and then hire probably more aggressive, personal injury lawyers. His case against the hospital may be a long road, as I am sure, with their own doctors and defense-liability lawyers, contesting it vigorously. Then his lawyers will also have to pursue a case against the DA and the State for a wrong conviction and incarceration.”

The friendly gathering had indeed been more than interesting. It turned out an eye opener. Those around the table in the backyard were noted, observing one another, to fluctuate between attentional tightening of their facial muscles, and repositioning themselves in their seats with nearly catatonic stares, every so often taking big gulps of their drinks.