He took off down the hall, blasting through the ICU double doors with me in pursuit. He was halfway to the elevator when I grabbed his arm. “This isn’t about what you want, Chris. It’s about Elle. It’s about the family she wanted.”
“Wait, you’re making me feel guilty because Elle fell off the ladder, but you got her pregnant again? Asshole!”
The elevator doors opened and my own mother strode off, looking a bit frazzled. Tendrils of her gray hair fell around her face. “Christopher, honey.” She kissed his cheek, then quickly turned her attention to me. “I found it, Matt. It took me half the night, but here it is.” She passed me a form, a fill-in-the-blank living will, named as such, not titled “An Advanced Directive.”
I scanned it quickly. It actually had boxes to check.
Do you want to have a respirator to help you breathe if you are unable to do so?
Yes
No
Do you want the use of a feeding tube if you are unable to eat?
Yes
No
It had no pregnancy clause. Shit.
Elle’s teenaged handwriting crossed the page with negative responses to every single question. In one simple sentence she wrote, “I do not want to ever be kept on life support unless it is likely I will recover.” Then her signature stretched across the bottom, all the loopy Ls and Es. Making matters worse, Elle had taken the time and the effort to get the document notarized.
I rubbed my eyes and tried to unearth a memory. In the ER after Dylan’s birth, did the hospital ask Elle if she had an advanced directive? It was policy for them to ask. Wouldn’t I have paid attention if she’d said yes? Then again, I was probably too preoccupied by our son’s lifeless body. I’d have to check the medical records. “It doesn’t matter,” I said. “This is too old. Her legal status must have changed when we got married. I’m her husband, her next of kin.”
“Matthew, you have to know a living will isn’t about next of kin and it has nothing to do with marital status. It’s about who she designated, and that’s me,” Mom said.
“What do you mean?”
Mom flipped the paper over and there on the back Elle authorized my mother to make any more specific decisions if Elle could not make them for herself. This document gave Mom Elle’s medical power of attorney.
I held my hand up in an effort to stop her. “Ah, no. Elle’s pregnant. You know how much she’d want a baby,” I said.
“I’m with Linney,” Christopher said.
“We’re not taking a vote here.” I crumpled the living will.
“Give that to me,” my mother said.
I held it tight in my fist, wondering how far this situation might devolve. My mother scolding me as if I were a two-year-old? Me stomping my foot? At some point one would think we could move past these dynamics where she thought she could give me the eye and I would fold.
“We’re not going to keep her on life support. I’m paging the nursing supervisor,” Mom said.
“Why do you need a nursing supervisor?” I asked. Jesus, I didn’t want this to become something which would cause hospital gossip.
“Because Elle picked me to watch out for her, and you are seriously considering keeping her on life support, and that’s not what Elle wanted. It’s just wrong to keep her in this state, as an incubator for something that isn’t even a baby yet. Women are more than vessels for offspring.”
My heart was pounding in my chest so hard I was seeing spots. “She’s not an incubator. She’s the baby’s mother.”
“Honey. Be realistic,” Mom said, her voice noticeably less combative. “It’s barely a fetus, and even if it were further along in its development, God knows what kinds of things happened to it yesterday. The CT? The X-rays of her back? The drugs? You aren’t thinking straight. You’re too upset.” Mom held out her hand, palm upward, waiting for me to pass the living will back to her.
I didn’t.
I was certain Elle had never considered this scenario. “I know all that, and I am worried about the X-rays and medications, but—”
“But nothing,” Christopher said. “Stop it. You’re not going to keep her alive.” He turned and marched off.
My mother touched my arm, and I withdrew.
Elle’s nurse was staring at us as we barreled up to the nurses’ station.
“Get the nursing supervisor. I want to talk to her. I want to talk to the CEO, and the hospital attorneys. I need the ethics committee to convene. I want to talk to the head of Medical Records. Now,” I said.
The nurse paled.
“Never mind,” I said. “I’ll make the calls.”
Five minutes into the ethics committee’s meeting, the hospital chairman, attorney, and pastoral council were embroiled in a heated debate. My mother slapped the crinkled document on the table. “The purpose of the living will is to avoid this sort of thing.”
“In Maine,” the hospital attorney, who was a pudgy guy with ears that stuck out like butterfly wings, said, “whatever a patient states when he has capacity—in other words, when he can speak for himself—overrules anything else.”
I pulled out Elle’s medical records from our son’s birth. “But right here, they asked her if she had an advanced health care directive. She said no.”
“Well, she did. Obviously.” Mom tapped the living will.
“Elle signed that half her life ago,” I said. “She never would have considered these particular circumstances.”
“And how would you know? She wouldn’t even speak to you at that point,” Mom said.
It was true. For a few years, when Elle and I were in college, we were not on speaking terms. “She changed her mind about me, and about a lot of other things, too. It was seventeen years ago,” I yelled.
The hospital CEO stood. “Stop. The hospital is not going to take the liability for this decision, not when it’s in dispute. I don’t know what the legality is on this.”
“It really isn’t about what the family wants or doesn’t want,” the attorney said. “It’s about what this patient wanted. That’s the bottom line. What concerns me is that we have two conflicting documents.”
The CEO drew a deep breath and said, “Get a judge to decide. Get a court order.”
5
Day 2
I pulled out the business card: Jake Sutter, Attorney. The previous spring Elle and I ran into Jake in a movie-theater lobby. He handed me his card and said, “Give me a call. We should get together for a drink soon.” Until yesterday, when I had to search for our insurance information, I’d forgotten I’d stuffed his card in my wallet.
Telling his receptionist I was Jake’s college roommate yielded an appointment in a week’s time. Telling her I was Elle’s husband fared better: one minute on hold, and then straight through.
“Matt? Holy smokes. I heard the news. How is she?” Jake asked.
“Not good.” I lunged into the story and talked for five minutes before I stopped for air. “I’m not sure how to handle this, legally, that is.”
A moment of silence preceded his words. “I do know how to handle it, but first, let me tell you how sorry I am about Elle. Yvette wanted me to reach out to you last night when the news broke, but I thought you’d be at the hospital, and it sounds like you haven’t left Elle’s side.”
“No,” I said, “except when I attended the ethics committee’s meeting.”
“What the hospital’s attorney said is right to some degree. A judge will want to determine what Elle would want under the circumstances,” he said. “This could be tricky, but I know exactly what to do. When can you come to my office? I’ll clear my schedule.” As always, Jake thought he knew everything, and this time I hoped he was right.
“I don’t want to leave her. Can you come here instead?”
“Ah …” He gulped. “This isn’t something we could discuss easily in a hospital room.”
Damn, I’d almost forgotten how much he hated hospitals, and I didn’t have time to deal with his medical phob
ias.
Jake and I landed in the same college dorm room because someone putting freshmen together that year thought geography would give us something in common, but we didn’t have much beyond that. Jake was the son of a former Maine governor, and I was the son of a blue-collar worker from one town over. His neighborhood was considerably more upscale than mine. Nevertheless, we were both ambitious, so although we were never buddies, we were compatible as roommates. We kept in touch for a while afterward, but once I was in med school, I found it difficult to talk to him. If I so much as said the word blood, he turned a little green and he said if God wanted us to see blood, He wouldn’t have given us skin.
“Look, this involves a slew of medical issues,” I said. “If it isn’t something you’re comfortable with, can you give me a name of someone who—”
“Come on, Matt. My job is not at the bedside. I’ll be in the courtroom. Yeah, hospitals set me on edge. All those people complaining and the smells and—When my wife was in labor with Janey … I couldn’t stand to see her like that, suffering. Maybe I’m too sensitive. So no, I don’t like hospitals. I don’t know how you do it. But I can deal with the verbal and written part.”
On a different day, at a different place and time, I would have laughed at the way he characterized himself. He truly thought he was a righteous man, but whenever people told me they were “too sensitive” to take care of someone injured or sick, the hypocrisy drove me crazy. I was a pragmatist with a do-something-about-it approach—help people instead of looking away—but for this situation it didn’t matter if Jake was sensitive or not. I didn’t need him to hold Elle’s hand, or mine for that matter. I needed someone with the expertise to beat my mother in court. “Jake—”
“Shoot, you’re my friend. Under the circumstances I’ll come there. How about this?” he said. “Find a place where we can talk freely—a waiting room—no, an office would be better. I’ll walk you through what you’ll need to know going forward. No obligation. Feel free to consult another attorney. I’ll tell you what questions you should ask, but no one else in Portland has the experience I have.”
Although Jake never suffered from modesty, in this he was understating his platform. I doubted anyone else in Portland, Maine, had argued cases in front of the Supreme Court of the United States. “Okay,” I said.
I arranged for the use of a conference room off the ICU. At ten past seven, he walked in minus his usual strut, wearing a hand-tailored suit, Italian shoes, and a bead of sweat on his upper lip.
“Have a seat.” I laid the photocopy of Elle’s living will before him. “And here’s a copy of her hospital admission record from last winter.”
He positioned himself at the head of the wood-grained laminate table and exhaled. “Last winter?”
“We lost a baby in February. He was stillborn.”
Jake stared at me for a moment before he made what I first thought was a lame attempt to sound sympathetic. “Matt. You’ve been through—”
I cut him off without even looking up. “Elle initialed the box, stating she didn’t have an advanced directive. See here?” I pointed at her scrawled letters on the hospital form. For the first time I really looked at her penmanship. I wasn’t a handwriting expert, but even I could see how weak she was when she’d put her mark there. She was so out of it that night that she might not have known what she was signing.
Jake shifted in his seat and his eyes weighed me. “You doing okay?”
I glanced at him for a second, nodded, and then averted my gaze. I couldn’t cope with another layer of grief even if he was willing to listen.
Respectfully, he moved to the other piece of paper. “Even though this says ‘living will,’ it’s not exactly. A living will is an isolated set of instructions. It falls under the category of advanced directives, but its scope is narrow, a set of instructions the patient wrote with no margin for unforeseen circumstances. Elle gave a set of instructions, yes, but she also gave your mother her durable power of attorney for health care. So this so-called living will falls under the broader category of an advanced directive. The important thing is that Elle made certain choices for herself, but she also designated someone else to make decisions, which were not covered on the form. That says to the court Elle recognized some circumstances could not be anticipated, and she trusted your mother to act on her behalf. Now, I have to tell you some things you aren’t going to want to hear.”
I pulled out a chair and dropped onto it. “You don’t think I have a case.”
“You’ve got a case. A very big case. The thing is you’re a private guy, and this won’t stay private. Reporters have set up camp outside the hospital already, and it will get worse because this could knock the block off Roe v. Wade.”
“How? This isn’t about abortion.”
“Not to you. To you this is about your wife and your unborn child, something that is highly personal. Legally, though, it is about the rights of an unborn baby versus his mother’s, and that will have far-reaching implications. Right to life. Right to die. Rights of the unborn. Roe v. Wade. But let’s put that aside right now.” He leaned back in his seat and chewed on the inside of his lip.
“In this state,” Jake said. “Probate court hears these matters. There’s no jury, only a judge. It’s what’s called a bench trial. If Elle weren’t pregnant, this would be a clear-cut matter of what she expressed in this advanced directive.” He tapped the paper. “It doesn’t matter that this document is old as eight-track tapes or that she was single at the time. She made it pretty clear that she didn’t want to live if she were terminally ill or in a persistent vegetative state.” He lowered his gaze to the documents before him and ran his manicured fingernails against the grain of his five o’clock shadow. “You said you didn’t know about this advanced directive?”
“Not until this morning. But I knew Elle felt that way. Before I found out she’s pregnant, I agreed to take her off life support—” My voice broke hard and I buried my face in my hands.
“It’s okay.” Jake squeezed my shoulder, waited while I collected myself, and then asked if we could continue.
“In a lot of states, this wouldn’t be an issue because pregnancy automatically revokes a woman’s advanced directive, but Maine isn’t one of those states. As long as she has an AD, it stands.”
I was about to ask which states, momentarily thinking maybe we could move her to another hospital in another state, but that probably wouldn’t work. Elle wasn’t stable enough. And my mother would fight me.
“Is it your child?” he asked. “I mean, if they tested the DNA?”
“Of course it’s mine. Elle wouldn’t—”
“That’s not what I mean. I need to know that genetically it’s yours. You didn’t have a sperm donor or anything?”
“Why the hell are you asking me this?”
“Answer the question, Matt. Genetically, it’s yours?”
“Yes.”
“Good, in case that comes up. In the meantime, I’ll need to file papers, which will request the court to adjudicate Elle as incompetent. Here in Maine we use the kinder-gentler term, ‘incapacitated.’ Nicer connotation, but it means she’s incompetent to act on her own behalf. So, I’ll need affidavits from her doctors, explaining her condition.”
I nodded, then he continued on, explaining that he would ask the court to name me as Elle’s guardian. However, that did not mean I could make her medical decisions. He pointed at the document labeled as Elle’s living will. “Once the judge sees this, he may uphold it.”
“You think my mother has the right to turn off Elle’s life support?”
Jake tipped his head side to side as if he were weighing the matter. “We have the hospital records to dispute the validity of the older document, but yes, it’s possible the judge will let your mother make medical decisions for Elle.” He drew a deep breath. “Which is why I wanted to make certain the baby is yours. If we need to, we can go at this from an entirely different angle. If the judge rules in your mot
her’s favor, I want to ask the court to give you guardianship of your unborn baby.”
“Okay. That sounds good. What does it involve?” I asked, sitting up straighter.
“It’s complicated. You know I’ve worked on Pro-Life cases?”
I nodded. “My mother will claim this is about Elle’s right to die. And I swear to let her go after she delivers, but—”
He interrupted me. “I promise we’ll use every legal strategy to make certain your child has a chance to live. Letting Elle go afterward is an entirely different issue, but the most pressing one facing us right now is keeping her on life support until the baby is born, correct?”
“Yes,” I said, answering his rhetorical question.
“Let me explain. You see, the court doesn’t recognize the human rights of babies before they are born—or it hasn’t until recently. And the court will only give guardianship to someone it recognizes as having human rights. The unborn don’t have a voice. So we have that hurdle, but I have a plan. I convince the judge. He rules in our favor. The ruling establishes a precedent—”
I coughed. “Forget precedents. This is about Elle and the baby.”
“Your baby,” he said, almost as if he were questioning the baby’s paternity again.
“Yeah,” I said.
“And trust me, saving this child is important to me, too, but setting a precedent by getting the judge to give you guardianship will be important to the Pro-Life movement. That’s why this is a much bigger case than you realize. Your only concern is your wife and your child, but the entire Pro-Life movement will come to your aid. Lawyers sympathetic to the cause will offer us any help they can. Write an amicus curiae. Research. Anything.”
“Write a what? Forget it; never mind. Why would the Pro-Life movement care? Elle isn’t having an abortion.”
A patronizing smirk simmered behind the finger that touched Jake’s upper lip. I’d seen that expression on his face many times. He was aiming for a posture of sincerity, and he would have fooled me with it if I hadn’t known him since college, if I didn’t know the ambition he possessed.
The Promise of Stardust Page 4