by D. J. Palmer
“All rise for Judge Trainer!” the court clerk announced as a thin-boned woman draped in a black robe climbed a short flight of stairs to her sacred perch. She had an angular face that enhanced a severe look. Her wavy hair, brindled with a variety of dyes, was graying at the temples. Wire-rimmed glasses dangled from a lanyard draped around her wiry neck.
“Please be seated,” Judge Trainer said as she got settled. “All right, good morning, everyone. I’ve read the DCF affidavit, and I have reviewed some of the exhibits including the DCF 51A and 51B reports and all of the medical records. Is there anything to add before we get underway?”
Ms. Leers stood first. “No, Your Honor,” she said before retaking her seat.
The opposing attorney stood as well. “No, Your Honor,” she said.
And with that, the hearing was underway.
First to go to the witness stand was the DCF investigator, Annabel Hope. She recounted her conversations with various witnesses for the court, as well as her consult with White’s in-house medical experts. From that alone, she had made her decision to file an affidavit in support of the request for temporary custody. In her cross-examination, Leers made the point that Annabel Hope had never spoken to the parents or Dr. Fisher, so her decision did not take into account other critical viewpoints.
“I was obligated under law to act expeditiously based on the information I could obtain. With Dr. Fisher being out of town at a conference, it was not feasible for me to conduct that interview. In regards to the parents, we were concerned the mother might try to”—Ms. Hope cleared her throat—“act in a way that would not be in the child’s best interest.”
And with those final words, Ms. Hope was excused from the witness stand.
The lawyer representing DCF, a young woman who spoke with more confidence than her years or experience should have allowed, called Dr. Nash to the witness stand. Zach noticed Becky tense up as Nash took her seat, but Carl showed no outward signs of hostility toward the woman who for all intents and purposes had kidnapped their daughter. In fact, he showed no real emotion at all. His eyes weren’t red from crying. His jaw was not tense from clenching. He looked strangely relaxed and equally detached from his wife—not even an arm placed in comfort around Becky’s back, no hand holding hers. As far as Zach could tell, there might as well have been an aisle separating the two spouses.
Nash sat primly in the witness box, looking reserved, as if somehow that conveyed her impartiality. She began with the case history, starting with Meghan’s referral from Dr. Fisher’s office.
“She presented with new and unusual symptoms—nausea and blurred vision—that did not fit with Dr. Fisher’s initial diagnosis of mitochondrial disease.”
Nash described those symptoms in more detail for the record. The opposing attorney’s next questions covered Dr. Nash’s growing suspicion.
“In a typical situation, a mother would be relieved to hear that her child might not have a life-threatening disease. It would be akin to a parent thinking a child had cancer, only to find out later the tumor was benign. But Mrs. Gerard was not relieved. In fact, she was extremely agitated and pushed hard for more tests.”
Nash then recounted her contentious meeting with Zach, which had led to her decision to bring Dr. Levine in for his consult. Her testimony took most of forty minutes.
Andrea Leers delivered her cross-examination to a tension-filled room. Across the aisle, Zach spied Dr. Levine gnawing on his fingernails like a beaver takes to a piece of wood.
“Did you know Dr. Fisher was going to be out of town for a mitochondrial conference when you phoned Becky with this request for an emergency exam?”
“Yes, I did.”
“And why didn’t you wait until Dr. Fisher returned before making that call?”
The opposing attorney was on her feet in a flash. “Objection, immaterial,” she said.
“Your Honor, the question shows forethought on the parts of Drs. Nash and Levine in that they knew without Dr. Fisher, it would be easier to lure Becky Gerard to the hospital for that emergency exam. That sort of planning suggests the possibility of bias prior to Dr. Levine’s exam.”
Touché, thought Zach, who was mightily impressed with Leers’s thinking.
“Overruled,” the judge said, directing her attention to Nash. “You may answer the question.”
“I was concerned for Meghan’s well-being,” Nash replied, calm as could be. “And I did not want to wait for the consult.”
“But you waited two days until Dr. Fisher went out of town to make that phone call to Becky.”
The call record had been officially submitted to the court as evidence.
“Dr. Levine’s schedule did not allow for an earlier consult.”
“Even though it was an emergency in your mind, even though you believed Meghan was in immediate danger, did you intentionally wait until Dr. Fisher was away at the mitochondrial conference to call Becky Gerard and request that she bring Meghan to White Memorial for an emergency consult.
“No, I did not,” Nash answered with authority.
Zach did not believe her for one second.
The next person to take the stand was Dr. Peter Levine. He managed to stop fidgeting with his hands long enough to place one on the Bible and swear he’d tell the whole truth and nothing but the truth. The opposing attorney reviewed Dr. Levine’s exam of Meghan in great detail, including the questions he had used to determine she was a victim of medical child abuse. It was here that the opposing attorney introduced the term “Munchausen syndrome by proxy.”
“Did Meghan talk about the brother she lost to SIDS?” the attorney asked Dr. Levine.
A heavy pall settled over the room. Zach saw Becky’s head bow slightly.
Dr. Levine looked uncomfortable on the witness stand. “No, she did not. To be honest, I didn’t know.”
“Now that you do know about the Gerard baby, who died at around four months of age, does that influence your opinion of Meghan’s case?”
Levine glared at Becky for reasons Zach could not understand. If anything, he should have been sympathetic.
“It would make me even more certain of my diagnosis. The loss of a loved one, especially a child, can trigger subconscious fears which can then manifest as pediatric symptom falsification.”
“Could you state that in less clinical terms?”
“In the case of extreme grief, a mother can believe a child is sick, or make the child sick and try to get him or her well, as a way of healing a grievous wound from the past.”
“And is that your opinion of Mrs. Gerard and her relationship with Meghan?”
“Yes. Even more so now.”
To Zach’s ears, Levine’s testimony was like the Titanic brushing up against the iceberg. The ship had not yet sunk, but he knew it was headed in that direction.
When Ms. Leers got her chance to cross-examine, she strutted forward like a lioness coming upon a wounded gazelle.
“Dr. Levine, how long have you been a licensed physician?”
“I finished my residency last May.”
“So, not long?”
“I was a doctor when I graduated medical school six years ago.”
“So again, not a very long time,” Leers said.
“Objection, immaterial,” the opposing attorney announced.
“Your Honor, I’m attempting to show that Dr. Levine’s inexperience is what led him to ask leading, not open-ended, questions of Meghan Gerard, which opens the possibility of misdiagnosis.”
“Objection, that’s an unproven fact purported to be true.”
“If I may, Your Honor, have the opportunity to continue my line of questioning, I intend to show that Dr. Levine’s inexperienced questioning resulted in what I believe to be a misdiagnosis of medical child abuse. It’s my intention to show that the tragic loss of the Gerards’ first child has no bearing whatsoever on the health issues facing Meghan.”
The judge hesitated momentarily before answering. “Overruled. You may
proceed.”
Leers straightened her suit jacket, a reset of sorts. “You spoke at length with Meghan about her views of her mother.”
“Yes,” Levine said.
“In the course of that conversation, you determined that Meghan harbored negative feelings about her mother.”
“I did.”
“You asked, and I quote here: ‘Because your mom makes you do things you don’t want to do?’ Are those your exact words?”
Leers had cited Levine’s statement—documented in Meghan’s medical record—from memory.
“Yes. That’s what I said.”
Again, Zach thought Levine looked and acted extra nervous. Perhaps it was just being on the witness stand, though Zach thought it more likely he knew the attorney had him dead to rights.
“Is that a standard question you would ask?”
“Yes.”
“Do you think that question is a bit leading? I’d go so far as to say unsophisticated.”
“No. I think the question helped me paint a picture of Meghan’s home life. It’s unlikely you find a smoking gun with these sorts of cases. It’s not like if they answer in a certain way, we can say for sure it’s a case of Munchausen by proxy.”
“And you have a great deal of experience determining Munchausen by proxy?”
“No, this would be my first case.”
“But you are sure there’s no smoking gun?”
“It’s called research,” he said.
“But you didn’t know the Gerards had previously lost a child?”
Levine shifted in his seat. “No, I did not.”
Zach resisted the urge to pump his fist in triumph.
“Do you think the leading manner in which you questioned Meghan led her to give you the answer you wanted her to give as opposed to what she was trying to say?”
“No.”
Ms. Leers went over Dr. Levine’s questions to Meghan for the court, taken from the affidavit. The more Zach heard, the angrier he became. There was no doubt in his mind that Levine’s questions had been incredibly naïve, and could have confused Meghan in her fragile state.
“If Meghan had known one possible outcome could be her being placed in DCF custody, do you believe she would have given you the same answers to your questions?” Leers asked.
Dr. Levine’s leg stopped bouncing, and his fidgety fingers went still as a trace of a smile came to his boyish face. Even the opposing attorney looked pleased. A pang struck Zach as he realized Leers might have made her first mistake of the day.
“That’s why we’re careful in how we word the questions,” Dr. Levine replied with an almost cocky grin. “And why my medical training isn’t, as you put it, unsophisticated.”
Becky cupped her mouth with her hands. Carl went rigid. He had to know, as did Becky, that even more damage had been done. The question was, how much?
CHAPTER 26
It was Zach’s turn to testify.
This was not Zach’s first time on the witness stand. He’d been an expert witness in malpractice cases before, but this time felt more nerve-racking, either because his job could be on the line, or because he did not want to fail the Gerards—Becky, especially, whom he viewed as a deeply devoted yet shattered mother. Even Carl, who’d shown him nothing but contempt, had his deep sympathies.
“What makes you think Meghan has mitochondrial disease?” Attorney Leers began.
“The main symptoms of mitochondrial myopathy are muscle fatigue, weakness, and exercise intolerance, also called ‘exertional fatigue,’ which refers to the unusual feelings of exhaustion brought on by physical exertion,” Zach began. “The mitochondria contain DNA with some of the genes needed for mitochondrial function. There are other genes needed for proper mitochondrial function found on chromosomes in the nucleus of the cell. Meghan’s cells have a deficiency in processing mitochondria. Her lack of endurance and declining skills as a soccer player, I believe, are attributed to her cells’ inability to produce the required energy as a result of a genetic deficiency.”
For the record, Zach recounted Meghan’s fainting episode that had led to Becky’s embarrassing removal from the airplane. The opposing attorney had already cited that incident as an example of Becky’s instability.
“How did you come to your mito diagnosis?”
“There are no published consensus-based practice parameters for clinicians to initiate diagnosis or patient management,” Zach said. “Instead, I rely on a set of internally established guidelines and personal anecdotal experience.”
“Which is why this disease is notoriously difficult to diagnose?” Attorney Leers asked.
“Yes.”
“And even if you do certain lab tests, such as a muscle biopsy or electromyogram, or EMG, to detect abnormal muscle electrical activity, many cases still do not receive a specific diagnosis?”
“That’s correct,” Zach said. “This is a very wily disease to pin down.”
“But you have a lot of experience in this area, don’t you?”
Zach listed his credentials: medical school at Case Western Reserve. Residency at University of Massachusetts Memorial Medical Center. Fellowship in pediatric neuro-oncology at New England Medical Center. Board-certified in child neurology. Membership in the Mitochondria Research and Medicine Society. Attorney Leers did not bring up his numerous publications in respected journals.
“And, in your opinion, was there any harm in treating Meghan with the mito cocktail that you had prescribed?”
As Zack looked over at Singer and Nash, a cold feeling swept over him.
“No. But we didn’t give her enough time on the treatment to properly assess the effectiveness.”
“By removing the child from the parents’ care and stopping treatment, it’s your opinion that Meghan’s health and well-being are being jeopardized?”
“It is, strongly,” Zach said.
Strongly.
He guessed what Singer was thinking: Zach felt strongly about every mito case he diagnosed.
“No further questions.”
Attorney Leers returned to her seat as the opposing attorney came out from behind her table to face off with Zach.
“Dr. Fisher, you have a personal history with mitochondrial disease, do you not?”
Zach braced himself. He knew this was coming. He and Attorney Leers had prepped for it. But that was in the abstract. It was different when the question was being asked of him in court.
“Yes, I do,” Zach said solemnly.
“Can you tell us about it?”
You know damn well about it, he seethed.
“My son, William, had the disease. He died from it.”
“How long ago?”
Screw you, thought Zach as he tried to rein in his emotion.
“He died five years ago.”
“That must have been devastating for you.”
Attorney Leers was on her feet in a flash. “Objection, Your Honor. This is not about Zach’s son. This is about Meghan Gerard.”
The judge sent a stern look to the opposing attorney.
“Your Honor,” she said, “I intend to show a predictable pattern with Dr. Fisher of frequently diagnosing cases of mitochondrial disease that may have origins in his tragic past.”
The judge thought for a beat. “Objection sustained,” the judge said. “Limit your questions to the topic.”
“Yes, Your Honor,” the attorney responded demurely. “Dr. Fisher, how many cases of mitochondrial disease have you diagnosed since your tenure at White began?”
“Maybe two, three dozen,” Zach said.
“And is that more or less than the rate of diagnosis at comparably sized hospitals?”
“I don’t know,” Zach said, sensing a tickle of worry dancing at the base of his neck. “Conservatively, I’d estimate the prevalence of mitochondrial disease in children is approximately one case per five hundred. So every minute, there’s a baby born somewhere that will develop the disease by age ten.”
Th
e attorney returned a puzzled look, as if to say Zach’s numbers and her findings did not quite jibe.
“Your Honor, I’d like to move to introduce a document which shows that Dr. Fisher’s rate of diagnosis is double that of hospitals with a comparable patient population.”
The attorney presented the evidence to the judge, who glanced at it before setting it aside to allow the cross-examination to continue.
“Dr. Fisher, have you ever been accused of confirmation bias?” The attorney pulled her lips tight as she waited for an answer.
“Some have expressed concern that my past might be clouding my judgment, but those are accusations I’ve vehemently denied.”
“In Meghan’s case, did you do a muscle biopsy?” The attorney glanced down at her notes, making Zach think she had a laundry list of diagnostic measures to throw at him.
“No. It’s a somewhat painful procedure, and the patient has a severe needle phobia.”
“What about an electromyogram?”
“No, for the same reasons.”
“Did you do cerebral imaging?”
“No. I didn’t see it necessary to subject her to unnecessary radiation.”
“What about blood work?”
“Yes.”
“Even with Meghan’s needle phobia?”
“It wasn’t easy.”
“And the results?”
“Inconclusive,” Zach said regretfully.
Zach could not avoid a long discussion about heteroplasmy, a unique feature of deleterious mitochondrial DNA that was not present in Meghan’s samples, and why that was not a tell-all. He worried about losing the judge in technical jargon.
“Did you order genetic testing?”
“I did,” Zach said.
“And those results?”
“Inconclusive,” he said. “The gold standard here, if it could be called such, is the muscle biopsy, with which we would do additional genetic testing, as well as microscopic evaluation, enzyme testing, and so forth.”