Today In Court – Wednesday March 23, 2016

The Crown closes its case

Defense opens theirs

The Crown closed their case today with their final witness, Dr. Gamble, who they first called yesterday. Defense counsel began their cross-examination late yesterday and concluded today.

Dr. Gamble is responsible for writing Ezekiel’s death summary. He was the doctor that took over his care from Dr. Burkholder on March 14, 2012. He is also the other of two physicians that performed the brain death examination. It takes two over a period of 12-24 hours. The doctor acknowledged that Ezekiel’s heart improved when stimulus drugs were reduced, and that his other vital organs likely had not been too severely injured. The type of death he pronounced was “Brain Death”. So the big question is this: If Ezekiel’s brain suffered a hypoxic injury sufficient to cause brain death during the 8 ½ minutes of oxygen depravation, would he be alive today if the EMT/Paramedics had been equipped with the standard emergency airway devices necessary to get oxygen into Ezekiel? His mother was performing mouth to mouth when the ambulance arrived. No one performed mouth to mouth in the ambulance. That’s what the missing devices were for.

The Crown presented a series of symptom hypotheticals to the doctor, with their version of the facts. Of course, the doctor opined an ever-dire prognosis as the Prosecutor piled on symptom after symptom into this hypothetical story. When Defense counsel offered these same facts in clarified and reasonable scenarios, more inline with what Dave and Colette say actually happened, the doctor’s concerns for this hypothetical patient dropped from “dire”, to “no concern”, to “maybe a concern”, except for the obvious day when Ezekiel stopped breathing. The doctor was like an “Etch A Sketch” toy; who ever turns the knobs creates the picture. When the Crown turns them the “Etch A Sketch” says: Symptoms present as Meningitis. When the Defense turns the knobs the “Etch A Sketch” said: Symptoms present like a common cold or flu!

To the doctor’s credit, he was objective and honest in his opinions when presented with the two versions of facts. He also restated what all of the doctors have agreed: Meningitis is difficult for doctors to diagnose. In addition, he agreed that if Ezekiel’s diaper pulling was seizure activity related to meningitis, and the stiffness an ascribed symptom of meningitis, they both would have continued to increase in frequency and severity. The fact that these symptoms ceased all together questions any diagnosis going forward. Remember, it is the Medical Examiner’s Report (the autopsy) that has doctors projecting backwards the diagnosis of meningitis. There never was a spinal tap performed, and the CT Scan showed diffused swelling of Ezekiel’s brain consistent with Hypoxic Injury (no oxygen).

Defense Opening Statement included a request of the jury to attentively weigh the evidence Defense will present. What witnesses will be called was reviewed, as well as the anticipated evidence those witnesses will present. An acknowledgment was made to the fact that details of this Defense case will be familiar to the jury. However, jurors were asked to pay close attention to the clarifying of those details and the presentation of events from the Stephan’s actual account. Counsel usefully stressed the nature of the law as follows:

  1. A failure to provide charge must be weighed against the Reasonably Prudent Parent Test. Basically, what would a reasonably parent have done?
  2. The test must be objective not subjective, given the differing opinions generations and cultures can create. You might not see things as others do.
  3. Whatever that Reasonably Prudent Parent expectation, is the action of the accused a Marked Departure from the expectation. Would, for example, a reasonably prudent parent call 911 if their child stopped breathing? If the answer is yes, then is it a marked departure from the test if a parent does not call 911? Most would say it is. However, what if the parent lives in a rural area and chooses to rush the child to the hospital instead of waiting for the 911 processes and ambulance to respond? Is that a Marked Departure from the test?
  4. Were the needs of the child observable? Was what was urgent clear to the reasonably prudent parent, or are degrees of uncertainty reasonably common?

Court was adjourned at the end of today until 10 am April 11, 2016.