waited for this moment − anticipated it since I first met the Harris family al- most two years ago − now that it’s here, I feel overwhelmed. I was up all night agonizing over what I should say to you this morning. It has been a long road, a long time that I have had the responsibil- ity of being Bobby’s lawyer. At times it has seemed a heavy burden. But being Bobby’s lawyer, knowing that I was doing something truly important − working to try to secure a future for a broken child
But under our legal, ethical, and moral system, he is responsible for the damages he caused. Well, without meaning to trivialize what has happened to Bobby by equating it to a dented fender, Dr. M figured that he could make it − that the statistics were with him. He had gotten away with it before. But this time he was wrong and this time he caused damage. And under our legal, ethical, and moral system, he is responsible for the damages he caused.
“The problem is that he took a chance with something that was not his to gamble.”
about diving seals, or rhesus monkeys, or mouse pups that can be submerged in a saline solution for 40 minutes. It is not about a statistical sampling of children done by various neonatologists spread around the country. It is about Bobby Harris − a little boy who grew and developed normally in his mother’s womb for nine months. A little boy for whom no evidence of any other problem to account for his brain damage other than the 35 minutes that he was suffering from severe fatal distress − 35 minutes of inadequate blood and oxygen getting to the brain. Do they really expect us to believe it is just a coincidence that this human child is born with brain damage after 35 minutes of seriously reduced oxygen to his brain? This case is about the standard of care
− is something I have been proud of; it has meant a great deal to me. Now, after almost two years, that road is coming to an end. Soon, when these closing state- ments are concluded, that responsibility will no longer be mine. It will be passed to you. And so I agonized. What can I say in
these last few precious moments to see that justice is done for that little boy? By 2 a.m., I was no further along than I had been at 10 last night, and I felt overwhelmed. I ended up jotting down a few notes and praying that the right words would come to me, so that I did not fail him. Let me start by telling you what
this case is not about. It is not about whether Dr. M is a criminal. It is not about whether he is an incompetent or uncaring physician, or whether this ever happened to any of his other patients before. What this case is about is respon-
sibility. We are all responsible for the consequences of our actions. The driver of a car at a stop sign sees another car coming, but figures he can make it through. He has done it before and got- ten away with it, but this time he causes damage to the other car. He did not do it on purpose. It does not necessarily mean that he is an incompetent driver.
44 The problem is that he took a chance
with something that was not his to gamble. He might have made it on other occasions, but in this case he was wrong, and Bobby Harris must live with the consequences for the rest of his life. Rest assured that what you do here as a jury will affect no one’s license to practice medicine. What you do here, however, will make a statement about and therefore have an impact upon the quality of medical care we all deserve and should be able to expect. The defense lawyer mentioned it in
his opening statement at the start of this case, so let me say it straight out. What this case is also not about is sympathy or pity. The Harris’ are proud people who do not want or need your pity. They have more pity from others than they can deal with already. Pity when people hear that they have a brain-damaged child. Pity when people whisper: “What will hap- pen when they are no longer around to care for him?” Pity when people see that Bobby is no longer a cute four-year old in a stroller, but a spastic 13-year old in a wheelchair. No, they don’t want pity − they want justice; because justice is the respiratory of human dignity and Bobby Harris deserves dignity. Let me tell you a few more things this case is not about. This case is not
Trial Reporter
for a doctor − an obstetrician handling a high-risk pregnancy. Dr. C (one of the defense experts) testified that there was no need for the defendant to have taken any special precautions, despite the high-risk nature of this pregnancy. That was his opinion as a paid expert for the defendant in a medical-malpractice case. But when I visited his medical office in Boston to take his deposition, I saw what hung prominently on the wall where he practices medicine as a doctor, and I copied it down. It was a quote from the great jurist, Oliver Wendell Holmes: “The woman about to become a mother should be the subject of trembling care whenever she bears her tender burden, or stretches her aching limbs. God forbid that any member of the profession to which she trusts her life − doubly precious at that eventful period − should hazard it negligently, unadvisedly or selfishly.” And finally, this case is about the
damages that Bobby Harris has suffered and will continue to suffer through the remainder of his life. His honor will instruct you on the elements that you are to include in your verdict. They include expenses and lost income for Bobby. You heard the life care planner, and you saw the figures. She told us that those numbers assume Bobby continues
Spring 2008
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