It was pretty clear that the case was going to focus on Labour Day; no matter how provocative the circumstances of Billy’s first few weeks of life, this suit was about malpractice and blame. You couldn’t pin Billy’s prematurity and respiratory distress on anybody, so you had to blame his problems on something else. The lawyers needed something concrete. They chose Labour Day.
I’d read Dr. Beamish’s grudging explanation of why he did a lumbar puncture. How he made that decision was a mystery that might only be cleared up by my father’s examination for discovery, so that’s what I turned to next.
He started out professorial. His lawyer jumped in to remind him not to keep saying, “Right,” while the opposing lawyer talked.
Mr. Thackray: “Just try and wait until he shuts up.”
Dr. Harvey: “Right.”
Billy had “communicating hydrocephalus,” something that could be dealt with by a shunt, that didn’t involve a tricky tumour, that might or might not turn out to be self-limiting. He was pretty clear about the diagnosis and found it “hardly possible” that he would have told Billy’s mother the shunt was temporary. “I can’t imagine anybody saying, ‘He doesn’t need it anymore,’ and taking it out.”
He wasn’t defensive, just confident. And he did go on. Where the other doctors were stingy with information, he tended to expound. Only my father would have described the effect of hydrocephalus on the many bones of the skull this way: “They open out like a flower, you know.” He went on for a full page about shunt complications; I could imagine his lawyer twisting in his seat. He seemed so innocent on those early pages, carefully explaining why you had to wait a few days between the ventriculogram and the shunt insertion:
“If you were to immediately shove a ventricular catheter into that situation, you might be getting just air out, for example, and as you know it is not a good thing to pump air into a venous system.”
As you know — I loved that. I finally felt I was getting to know him. On why he examined the child daily after the first surgery, he said, “I did the plumbing, you might say, and my chief responsibility was to make sure the shunt was functioning properly.”
Why was he being so forthcoming? So entertaining? But once the questions turned to meningitis and sorting out the conundrums of cause and effect (shunt can cause meningitis, meningitis can cause hydrocephalus, a deadly circle), his fuse shortened.
Lawyer: “Was there any additional damage to the child’s brain because of the meningitis that developed after the shunt, that you are aware of?”
Dr. Harvey: “There isn’t anybody who could answer that question.”
I was struck by the elasticity of the division of labour, especially for an infant patient with so many problems and specialists. Here the surgeon deferred to the pediatrician; there, the mechanics took over and it was up to the surgeon to decide what to do. When I read, halfway through the examination, “Dr. Beamish is a far better judge on that than I could have been,” I wondered if, by the end of the examination, that deference would be under a magnifying glass and starting to smoulder.
And so we arrived inevitably at Labour Day. The plaintiff’s lawyer made much of the timing of Billy’s shunt removal (“Could it not have been put off ’till after the long weekend?”), and I wished I could have reached through the pages and into the examination room and said to this man’s face, “He didn’t take holidays. He probably had no conception of Labour Day. Growing up, neither did I.”
Lawyer: “What was your procedure for holidays?”
Dr. Harvey: “Just to be there. I was home. It was like any other time. If I had a very sick child on my hands, the holiday weekend had nothing to do with it.” That was my childhood.
No time for reminiscing, though, because we were into the nasty stuff now. The shunt was out. For how long? My father answered this way: “The longer you can go, the more likely you are to get a clean field.” In other words, once the shunt had been removed, it was a race between dwindling infection and increasing pressure. A race, and for Billy and his doctors, a waiting game while the rest of the city headed for the beach. And so the plaintiff’s lawyer probed, and my father carried imperturbably on, so obviously telling the truth that I wanted to reach in there, give him a shake, and tell him: “You can fudge it a little, you know, everybody else does.”
“What was your normal practice?” they asked. That he would have checked on the child, that he expected the nurses to call him if necessary. That a visit might be recorded or might not. He could so easily have said, “Of course I visited; there’s just no record of it,” but he didn’t. All he would say was, “It’s likely I would have.”
He explained the options (there was only one, a ventricular tap to relieve pressure) and the drawbacks (repeated entry through an already-infected burr hole). But “in the presence of meningitis and septicemia, your hand is stayed.” So, to determine if the pressure buildup might be due to meningitis, you first had to do a lumbar puncture. When the lawyer asked if he would have been considering these questions at midnight, he said, “I don’t even know if I was awake at midnight.”
Did he think he was somehow immune from what a skilled lawyer could do with a statement like that? That he was Harvey Cushing reincarnated? The plaintiff’s lawyer pressed on about increased pressure and whether my father would have been called or attended. Uncertainties swirled like dust devils. “At some point,” my father admits, “the pressure is more important than the possibility of spreading infection by anything you do, so I’ll stick a needle into that ventricle and release some of the pressure.”
Because the allegation was “failure to monitor,” much depended on the understanding between surgeon and pediatricians. The plaintiff’s lawyer was determined to know what my father expected in the way of communication.
Dr. Harvey: “I wouldn’t expect the pediatrician to go and do something to treat it without consulting me if he thought it was increased intracranial pressure.”
Lawyer: “Thank you.”
Dr. Harvey: “With one qualification.”
Lawyer: “Yes?”
Dr. Harvey: “If it is a dire emergency, if he is there and nobody else is there, then he is going to do the best he can.”
There were pages and pages of this. Reading them in this lonely anchorage, where night and fog had now fallen upon Vera like a shroud, made me wonder, How alone had he felt, closeted in that room with two lawyers and a stenographer? Was he still defiant, sure of himself and his training? Reading his testimony, I sensed something I had heard so many times as a child that it had become second nature — the physician’s credo. My father applied it to everything. It was this: “First, do no harm.” He had a horror of making things worse through medical intervention. Dinner-table stories featured ghastly medical disasters where the patient would have been better off left alone. He’d seen too many botched surgeries. “Nature will take care of it,” and “Stay away from surgeons,” were staples of my upbringing. Once, when I was around ten, I broke my arm falling off a metal grid while scraping the hull of one of our boats. It was two days before he reluctantly took me for an X-ray and a cast. He designed the cast himself, though, so I could remove it when I wanted to go swimming off the boat.
The lawyers couldn’t know this; all they saw was a doctor who was content to wait until whichever was worst, the meningitis or the building pressure, showed its hand. He told them clearly: “I was extremely anxious not to interfere. I thought it was absolutely paramount to get rid of that infection. If I did something surgical at that time and the infection blew up again, people would be saying why didn’t you — you should have known. You have difficult choices, and this was a difficult choice.”
The rock and the hard place. Nahwitti Bar and Cape Scott.
The two lawyers sparred, like hockey players fighting in the corner for the puck, while my father skated reluctantly behind them knowing it would squirt loose and he would have to take another swipe at it. When it did, it was the lumbar puncture that slid and hopped over their sticks as the lawyers tried to determine whether this was where the goal would be scored in the only game that mattered to them, in court. Finally, they agreed that, yes, my father would expect to be consulted if another doctor planned to do a lumbar puncture.
He stayed feisty till the end; he wouldn’t give in. A lumbar puncture and stopped breathing “doesn’t mean that the prognosis is terrible.” He just refused to predict, because, “Well, it goes on forever.”
His examination for discovery seemed to have gone on forever too, but it finally ended, with a lame attempt to get him to comment on the mother’s accusations about Billy being a vegetable, Billy being replaceable by another child, the shotgun. The newspapers would love these stories when the trial was opened to the media months later, but my father brushed them off. I can even imagine a little smile. It looked like he was ready for a fight.
When I’d finished his examination, I noticed, inserted at the end, a collection of loose-leaf pages covered in a handwriting I realized was his lawyer’s. Page and line numbers on the left, notes on the right — here was what the lawyer had made of the transcript I’d just finished reading. A few of Mr. Thackray’s notes had stars beside them, all drawn the same: five rapid strokes of the pen to produce a happy and oddly human figure, tilted to one side, one arm lifted to the note it was meant to highlight. Only once does he resort to capital letters, rewriting in full the words of my father: “You have difficult choices, and this was a difficult choice.”