Life Support (48 page)

“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

T
o 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.”

When he finished, Pinchot asked, “Given this information, what is your opinion about Baxter's chances of recovery?”

“We can only wait and see. He could wake up tomorrow, or we might lose him. I can't predict the future, but at this time he remains in critical yet stable condition.”

“What is your recommendation about continuing life-sustaining measures?”

“To maintain the current treatment regimen. It has worked thus far.”

Pinchot paused. “That's all from this witness.”

Alexia had sparred with many types of witnesses, but the distinguished, yet kindly, doctor presented a unique challenge. The judge motioned toward her.

“Ms. Lindale, you may conduct your cross-examination.”

Alexia decided to start out simply.

“Dr. Kolb, do people die from focal head injuries?”

“Yes.”

“How long would Baxter Richardson have lived if he hadn't been airlifted to a hospital for medical care?”

“There is no way to answer that question. It was a close call. Probably hours. Not days.”

“Even after a person with a serious head injury receives medical care, is it often difficult to predict what will happen?”

“Yes. It is not an exact process. Anytime the central nervous system is affected, the outcome can vary considerably from one patient to the next.”

“Has Baxter improved more or less than you originally hoped?”

“Less.”

“Why?”

“Once again. It's not clear.”

Alexia, who had been standing in front of the counsel table, stepped forward.

“Besides his brain, what other part of Baxter's central nervous system was injured in the fall?”

“As I mentioned previously, his spinal cord was damaged in the cervical or neck area, and at present, he is paralyzed.”

“Has the portion of the spinal cord that controls breathing been damaged?”

“Possibly. Baxter was breathing on his own when he came into the hospital and placed on a ventilator to help him stabilize. We don't know his current capability.”