An Almost Perfect Murder (19 page)

“If they’re not able to breathe, I sincerely doubt it.”

“So they might just be able to . . . shrug a shoulder or blink an eye, or something like that?”

“They can try.”

“You had indicated that the gluteus maximus and the tissue around it varies from person to person, obviously . . . and that fat can be displaced. Now, what did you mean by that exactly?”

Mailander explained that the reason the gluteus maximus muscle is used by medical personnel for most injections is because “it’s a good recipient muscle for an injection.” Because everybody has a fairly significant fat pad in the area of their buttocks, it isn’t very difficult—with some pressure—to push a needle through the skin, through the subcutaneous fat and into the muscular tissue, he said. Because the fat is not a constant thickness, it compresses when pushed upon.

“So, if you take someone with an average fat pad and push really hard, you can compress the fat and get a needle through it,” Mailander testified. “We do this all the time in putting in epidurals for pain control for labor and delivery. We have an enormous number of fairly hefty expectant moms, and we have to push on our needles substantially to get them into the target tissues.”

“You had also indicated that for the most part the critical part of succinylcholine is getting it to work . . . its process in getting into the blood flow, is that correct?” Hicks asked.

“That’s correct.”

“Now, if you were to see a picture of a puncture wound on a buttock, and there was blood raised up to the level of the skin from the puncture, would that satisfy you that the succinylcholine had reached the blood system?”

“Not necessarily. Only because you can break a blood vessel going through the skin or into the fat. You can lacerate a capillary and have the needle point well beyond the level of laceration.”

“You had indicated that you have never given a conscious patient succinylcholine,” Hicks said.

“No.”

“And why is that?”

“Well, for three reasons,” Mailander explained. “Every anesthesia textbook advises against it except under emergency circumstances. Every anesthesia instructor I’ve ever had threatened to kill me if I did. And thirdly, it—to paralyze someone with no sedation is a terrifying experience.”

Mailander explained that accounts of patients who were aroused or even awakened under anesthesia while undergoing surgery have been uniformly one of terror.

“Imagine how it would be for someone who has no anesthetics and no sedation,” Mailander said, “being unable to breathe, being unable to open your eyes if they’re closed, or close them if they’re open, and being unable to do anything about that. It’s reputedly one of the most horrifying experiences out there. At least, that’s what they describe in the literature.”

“Mr. Houston had also asked you about a conscious person being stuck with a needle, the amount of struggle that one might expect,” Hicks said. “It sounds to me from what you’re saying is that a conscious person administered succinylcholine unwillingly, if they fight, they’re just making it worse. Is that right?”

“Well, if it’s increasing their circulation, yes, it will help mobilize the medication faster.”

“And the dosage in which he demonstrated for you and the jury is not what is required to affect somebody who has been administered succinylcholine, is that right?”

“Personally, I would think not,” Mailander responded. “That would be, again, those doses—recommended doses are textbook numbers for intubating conditions . . . in a surgical setting.”

With no further questions, Hicks handed the witness off to the defense for recross-examination.

“Doctor, this notion of struggle and fighting, we can’t put a time frame on that in reference to not knowing the time of onset of the amount [of drug] that may or may not have been introduced, correct?” Houston asked.

“If I may, discussing what we call a ‘dose response reaction, ’” Mailander clarified, “we don’t know how much medication was injected, and we have no idea what the response was.”

“And if you inject it IV, certainly you get a faster response regardless of the dosage, right?”

“That would be correct, yes.”

“When you talk about displacing fat with the needle, then hitting a muscle, if we have an autopsy that demonstrates the track ceases, doesn’t go as though somebody pushed it through, that kind of struggles against the notion that somebody pushed it all the way through the muscle, since there’s no physical evidence of it, doesn’t it? Or the fat,” Hicks corrected himself. “I’m sorry.”

“Again, I would have to study the mechanics of fat motion. That’s a bachelor’s degree in biological mechanics.”

“That would be a guess, then?”

“I really don’t have a good answer for that.”

“Okay. In this particular case, if you want to use a needle to push through a large fat pad to get to a muscle, would you agree chances are therapeutically you’re going to use a larger needle than a twenty-five- or twenty-seven-gauge needle?”

“Yes. Absolutely.”

Kathy Augustine’s longtime ob-gyn, Dr. Jerry L. Jones, was sworn in as a witness for the state and took the stand in the courtroom that had poor acoustics. He was greeted by Tom Barb, Washoe County deputy district attorney, who took the witness through the formality of stating his full name and spelling his surname. Dr. Jones’s obstetrics-gynecology practice was located in Las Vegas, and he had been seeing Kathy as a patient for fifteen years, from 1991 until the time of her death in July 2006. He had been involved in his medical practice for about five years at the time Kathy first came to him.

“During the course of her coming to you, was there ever any time when she complained of chest pains or shortness of breath, or anything like that?” Barb asked.

“No,” Dr. Jones replied.

“What was her general physical condition during the course of your connection to her?” Barb asked.

“She was in good health,” Dr. Jones said.

Barb elicited responses from the doctor that indicated that he had last seen Kathy as a patient on June 21, 2006. He reminded Dr. Jones of the poor acoustics in the courtroom and asked him to speak up “so that the lady in the back row at the far end can hear” his responses. Raising the level of his voice a little, Dr. Jones explained that Kathy had come in to his office on that date for her annual examination and a pap test. The examination, he said, indicated that she was in good health.

“Her blood pressure was normal,” Dr. Jones said. “I listened to her heart and lungs. They were clear. Her heart rhythm was normal. And her female organs were all normal.”

“So, generally, she was a fifty-year-old, healthy, happy human being?” Barb asked.

“Yes.”

“Doctor, on the information that you provided, what was her blood pressure on June twenty-first?”

“Her blood pressure that day was one hundred ten over seventy-eight.”

Dr. Jones explained in response to Barb’s questions that there was not anything significant about Kathy’s visit to his office on June 21, and that during the fifteen years that she had been his patient, there had not been any complaints or illnesses of a life-threatening nature to cause him any concern about her health.

“Did you ever prescribe her any medications?”

“Female medications, vaginal yeast, urinary tract infection antibiotics. That sort of thing.”

“Is that all?” Barb asked.

“To the best of my knowledge,” Dr. Jones responded. “I have reviewed all of my records. Yes.”

“Thank you, Doctor. That’s all I have.”

 

 

One of Higgs’s attorneys, California lawyer Alan Baum, gave his client a reassuring glance, stood up from the defense table, and approached the witness for his cross-examination. Baum skipped the usual pleasantries and got right down to business.

“Dr. Jones, is it true that Kathy Augustine had some heart condition that caused you to actually make a referral to a cardiologist?” Baum asked. “Isn’t that true?”

“I’m not sure that I referred her,” Dr. Jones responded. “She may have gone on a self-referral. She did some years before. There’s a referral from a Dr. Keith Boman. But that may have just been a note that he sent to us at her request.”

Baum confirmed by verifying with the witness that Kathy’s routine medical records from Dr. Jones’s office had been submitted to the authorities, and referenced a report of her visit to Dr. Boman’s off ice that was dated October 18, 1995. Baum asked the witness to read the first paragraph of the report to the jury, which prompted an objection from the state.

“Excuse me, Your Honor,” Barb said. “What’s the purpose of this? The doctor has said he has that report. He’s not refreshing any recollection. Could he just ask a question?”

“The doctor testified that he wasn’t certain whether he made a referral for cardiological examination, and this letter indicates that he did,” countered Baum.

Judge Kosach agreed with the defense and overruled Barb’s objection. Dr. Jones was instructed to read the first paragraph of the report aloud.

“Kathy Augustine is a thirty-nine-year-old white female referred by Dr. Jones for evaluation of mitral valve prolapse,”
Dr. Jones read.

“You’re the Dr. Jones he was referring to?”

“I am. But he would have written [it] even if it was a self-referral by Kathy.”

“Dr. Boman would write that she was referred to him by you even if that wasn’t true?”

“As a reference to where he might send a report to, yes.”

“Well, it doesn’t say here that Miss Augustine is being seen by an ob-gyn by the name of Jerry Jones for the purposes of sending you a report. It says here she was referred by you.”

“Okay.”

Baum then took the witness through a series of questions regarding the report of the echocardiogram that was done by Dr. Boman in 1995, as well as its interpretation and the degree to which Dr. Jones had reviewed it.

“Have you reviewed the entire report?” Baum asked.

“It wouldn’t mean anything to me,” Dr. Jones replied. “I’m not a cardiologist.”

“So if you read things about the results of an echocardiogram, you, as a licensed physician, wouldn’t understand what that means?”

“I don’t understand the number. I do read the interpretation. . . yes.”

Baum confirmed with the witness that the report in question, slightly more than two pages long and without charts and graphs, consisted of narrative descriptions that even a layperson such as him would be able to understand. After determining that the witness wasn’t sure whether he had read the report recently or not, the doctor was given a few minutes to read it at that time to refresh his memory of its contents. When he had finished reading, Baum took up the questioning again.

“You just testified that nothing in Kathy Augustine’s medical history or any findings that you made in the entire fifteen years that you treated her ever gave you cause for concern,” Baum stated.

“Correct.”

“Is that still your opinion after reading this cardiological report . . . ?”

“Yes, it is.... To the best of my knowledge, that was Kathy’s only visit to Dr. Boman.”

“Yes, I understand that,” Baum said somewhat testily. “But . . . you received this report shortly after it was written in October of 1995, did you?”

“Sometime in 1995, yes.”

“And I think it’s safe to assume that you read it.”

“Correct.”

“Okay. And this report indicates that ‘the patient has been relatively asymptomatic.’ What did that mean to you?”

“You know, to me, during the past eleven years, Kathy described no symptoms or pain.”

“No, I’m talking about in 1995 when the report was written, after the paragraph that says that she was referred by you for echocardiogram.”

“Right.”

“And it says, ‘For evaluation of mitral valve prolapse.’”

“Okay.”

“So I assume that you knew or suspected that Kathy Augustine, when you made this referral, had mitral valve prolapse.”

“I did not refer her for that reason,” Dr. Jones responded. “I have no recollection that I referred her to Dr. Boman.”

“So when Dr. Boman writes that . . . she was referred by Dr. Jones for evaluation of mitral valve prolapse—”

“Objection,” Barb cut in. “Asked and answered.”

“I’m sorry, Your Honor,” Baum said. “This is very important.”

“It’s asked and answered,” countered Barb. “He doesn’t get to do it four times.”

Judge Kosach sustained Barb’s objection.

“And when you read in this report that ‘she has been relatively asymptomatic,’ what did that mean to you?” Baum asked again.

“You’d have to ask Dr. Boman,” Dr. Jones replied. “I don’t know what he meant by that.”

“You don’t have a common sense understanding of what the phrase ‘relatively asymptomatic’ means?”

“I’d be trying to read his mind [about] what he was saying.”

“Well, no, he wrote it,” Baum argued. “It’s not a matter of reading his mind. My question is: don’t you have a general understanding of what ‘relatively symptomatic’ means?”

“I do.”

“And what would that understanding be?”

“That she came in with maybe some minimal complaints to Dr. Boman’s office. Again, she may have been a self-referral. . . . So she might have even been referred by a friend . . . the way she reached my office.”

“Notwithstanding what he said about your referring her?”

“True. Eleven years earlier.”

“Okay,” Baum said. “And when the cardiologist writes that ‘she was known to have a heart murmur at an early age,’ isn’t a heart murmur some abnormality of the heart?”

“It is,” replied Dr. Jones. “I have a heart murmur.”

Dr. Jones went on to state that he obtains a checkup by a cardiologist every five years or so and that he has had echocardiograms in the past because cardiologists typically order that test on virtually each new patient that they see, and that such a test is ordered as often as the cardiologists think it needs to be done. It seemed that the questions being asked of the state’s witness by Baum were being aimed at unraveling the doctor’s earlier testimony that Kathy Augustine had been in good health. Dr. Jones seemed unshakeable, however.

Baum again read from Dr. Boman’s report:
“Recently she had noticed some mild palpitations. Heart murmur was again confirmed by examination and was referred to this office for evaluation.”

“Heart palp and mild palpitations is not normal in a—” Baum said.

“I’m having those right now,” Dr. Jones stated.

“All right. Listen, I don’t want to be the cause of any event. If you need a break, let me know.”

“No, I’m fine.... It’s a common occurrence.”

Dr. Jones testified that he had asked his cardiologist what he does when he has palpitations, and the cardiologist purportedly told him that he ignores them. Dr. Jones said that heart palpitations were a common occurrence in people with mitral valve prolapse, and he and Baum finally agreed that everybody handles their problems in their own way. Nonetheless, Baum persisted in his attempt to shake the doctor from his earlier testimony that his patient, Kathy Augustine, had been in good physical condition.

“When Dr. Boman writes . . . ‘heart murmur was again confirmed by examination and was referred to this office for evaluation,’ that sounds like someone who made the referral, confirmed a heart murmur, and thought it would be a good idea for her to have an echocardiogram,” Baum said. “Is that a reasonable interpretation?”

“Well, not necessarily heard the heart murmur,” Dr. Jones replied. “But if she had symptoms, [she] would have come in on referral. I did not refer to Dr. Boman as a practice, as a habit, in my practice in the past. So that’s one reason I’m suspicious, sir, or reluctant to admit that I referred Kathy to him.”

“But this report here was part of your medical records,” Baum said.

“It’s in the medical record from twelve years ago.”

“Again, in connection with your opinion that nothing in the history of your professional relationship as the treating ob-gyn for Kathy Augustine gave you cause for concern—that was your testimony on direct examination?”

“To the best of my knowledge, that was the one and only time she ever described that symptom to anyone.”

“Going on your evaluation or your opinion that nothing ever caused you concern, this echocardiogram report states [that] ‘she notes only an occasional extra heartbeat.’ Is an extra heartbeat normal, or is it kind of part of this heart murmur, mitral valve prolapse syndrome?”

“It’s a common thing with mitral valve prolapse.”

“Again, in connection with your opinion that nothing ever caused you concern, the report of the echocardiogram is that it confirmed late systolic mitral valve prolapse, which was definite. Do you understand what that means?”

“I do.”

“And what does that mean?”

“It means that one of the leaflets of the heart valve flaps back into the opposite chamber from where the blood flows.”

“And it was confirmed in the echocardiogram?”

“Dr. Boman described that. He is still alive and well and practicing, by the way.”

“I’m glad to hear that,” Baum replied with a hint of disdain in his voice. “Isn’t an echocardiogram probably the best test or the most frequently recommended test for people that have mitral valve prolapse?”

“I think the invasive tests are more specific. The coronary catheterization tests are more specific,” Dr. Jones stated.

“And when you say ‘invasive,’ that means that you actually have to go into the hospital . . . and then there’s some kind of a surgical procedure?”

“Procedure, right. Put a line in.”

“But in noninvasive, that is, electrical and photography-type tests, an echocardiogram is the recommended test for mitral valve prolapse?”

“The most common test, yes.”

“In connection with the findings of the echocardiogram here,” Baum said, “this doctor also reports, ‘Minimal mitral regurgitation was present.’ Do you understand the difference between mitral valve prolapse and mitral regurgitation?”

“I have that also,” Dr. Jones replied. “Yes, I understand.”

“And what is that difference?”

“It means that some of the blood flows back from the ventricle into the atrium.”

“Would you agree that . . . the regurgitation is somewhat more serious than the prolapse itself?”

“It’s a common finding. You’d have to ask a cardiologist what they think about that.”

“Well, since you have both conditions, hasn’t your cardiologist told you that prolapse is fairly benign and hardly ever causes anything other than an occasional heart murmur or occasional extra heartbeat, that sort of thing, right?”

“Uh-huh.”

“But regurgitation is a little more serious, isn’t it, Doctor?”

“That’s not what they tell me. He tells me I’m in good health.”