The Grey Zone - A Death’s Door Story
An oppressive air of musty rectitude filled the wood-wainscoted chamber, conveying upon all within it an ineluctable sense of unyielding formality. Court clerks busied themselves like obsequious ants shuffling papers into engorged document wallets. Their movements were both furtive and practiced suggesting they knew the score and the penalty for incompetence. If nothing else, the English legal system, and specifically trial-by-jury, is a well-rehearsed pantomime sans sticky confectionery and febrile shouts of “he’s behind you!”
With his Lordship Justice Quentin Abuthnot-Dilby seated upon high in his oaken earie, the trial could commence. The Crown’s case would begin with an address to the jury delivered by Her Majesty’s Counsel for the Prosecution, Jacob Smythe QC. Our much-respected barrister rose to his feet, clad in the traditional attire of the part he would play in the case. His pale blue eyes met those of every member of the jury, silently asserting his unimpeachable authority over their feeble minds. If he must condescend to such a grubby mob, he would do so with the relish of an eagle lusting for bowel-loosening fear in its prey’s impuissant eyes.
His stentorious baritone began, his eyes growing eerily darker as his words assailed his defenceless audience.
“Ladies and Gentlemen of the Jury, I will begin the case for the Crown by addressing the very matter that must, of necessity, sit at the centre of your thoughts as we navigate these proceedings together. I am of course speaking of death. More pointedly, I am referring to that which constitutes death. Your oath to this court demands that no judgement is reached without a full appreciation of the matter before you. I will ease such a burden without further delay.”
“When is a person to be considered dead? The Greeks and Romans struggled with this thorny question. The early Greeks refused to commence burial proceedings until the intended subject of such affairs had literally begun to putrefy. Three days were allotted for this decomposition as an irrefutable proof of death. The Romans, ever lusty for gore did much the same, adding to the ritual the severing of the corpse’s little finger by way of an incentive for said corpse to decry its fate.”
“By Medieval times, more biologically savvy measures had been adopted. An assumed to be deceased body was checked for signs of a pulse; a mirror held in front of its mouth to seek signs of respiration. Wars and pandemics precluded such prudent practices, with the consequence that some of those buried in haste rose from their premature graves having been buried whilst alive. Such was the horror of this possibility that by the nineteenth century, many facing the imminent prospect of death requested that they be interred within a safety coffin.”
“A coffin with a string for the deceased to pull, was attached to a bell over their grave should they disagree with the coroner’s pronouncements. New patents for such life saving devices were still being registered as late as the 1950’s.”
“Developments within the medical profession shifted the locus of understanding. Now with the advent of life support technologies made possible during the 1960’s, our medical friends concerned themselves not with signs of death, but with their antithesis. A concomitant of this technological advancement was a considerable muddying of the pathological waters.”
“Machines were now able to restart hearts no longer beating and allow lungs to function that were incapable of doing so without medical intervention. Again, scientific advancement surfaced yet another dilemma. Is a person who cannot live independently of an artificial respirator oxygenating their blood alive? Is the same question equally applicable to a person entirely dependent upon any form of life-sustaining apparatus carrying out any of our autonomic functions?”
“Ladies and Gentlemen of the Jury, I hear you object to these questions. You may well be considering those with amyotrophic lateral sclerosis, spinal cord injuries and indeed those dependent upon kidney dialysis. Such unfortunate souls would surely claim to be alive, despite their reliance upon medical intervention. More pointedly, they might passionately object to being considered dead. I would ask that you bear this point in mind during our proceedings!”
“Now we have a truly tricky enigma to resolve. If medical science can restart the heart and artificially perpetuate its function, how long should we persevere with such a seemingly pointless endeavour?”
Dear reader, I should point out that Jacob Smythe QC knew full well that his statement would disturb his audience. His sophistry depended upon such subtle manipulation. Barristers never play with a straight bat and Smythe’s own piece of willow was particularly malformed for such fair play.
“In 1997 a US Institute of Health report pronounced that death becomes official five minutes after a patient’s heart has ceased to beat. In 2013 the much-venerated American Heart Association strongly advised its members to continue cardiopulmonary resuscitation for thirty-eight minutes after a patient’s heart had stopped, before pronouncing the patient dead.”
“Our medical friends keen to escape the moral complexities occasioned by such advice and ever loyal to their Hippocratic oath, shifted the metaphorical goal posts. If the artificial perpetuation of both heart and lungs failed to satisfy the necessary and sufficient conditions required for a morally defensible pronouncement of death, then what would do so? The answer they arrived at was brain death.”
“Studies at Yale University in 2019 succeeded in reanimating a dead pig’s brain four hours after its heart had ceased to beat. Those same studies categorically established an important fact. The pig’s brain whilst technically functioning, could not be restored to its pre-death state or achieve any meaningful semblance of functionality. Modern science now tells us that death must be pronounced at the point where irreversible cessation of the functioning brain, including the brain stem has been identified as being beyond the point of no return.”
“Enigma resolved. Not so. Whilst a patient can legally sign a Do Not Resuscitate Order, thereby defining the definition of their own death, medical science continued to argue with itself about the matter.”
“Now to the heart of our deliberations, if you will forgive the pun. Let us turn to patients who have fallen into a comatose state as was the case in respect of Mr Benjamin Grey … the man at the centre of our search for justice. Firstly, let me define our terms. A coma patient is medically defined as being completely still, entirely unresponsive to external stimulus and incapable of communication. Such unfortunate souls face three possible outcomes. They may die, recover full consciousness, or transition into a state of disturbed consciousness.”
“This disturbed consciousness may take the form of a vegetative state, or that of Unresponsive Wakefulness Syndrome. In both states common factors are present. Minimal brain activity is present and therefore the patient appears to be technically brain dead.”
“Appears”. Jacob Smythe QC let the word hang in the air until it had osmotically penetrated the psyches of those he toyed with, pipetting his logic drop by drop into the sponge-like minds of his audience.”
“Ladies and Gentlemen of the Jury, the Crown seeks to prove beyond all reasonable doubt that the accused, Dr Stanley Bellmont, is guilty of the charges registered against him. Namely that the accused committed an act of gross medical negligence in the case of Mr Benjamin Gray by misdiagnosing his condition and erroneously pronouncing him dead. Further, Dr Bellmont did so with malice aforethought in that he knowingly allowed the possibility of misdiagnosis and in breach of the Hippocratic Oath chose to end Mr Grey’s life according to personal inclination, not medical practice.”
“I put it to you, Ladies and Gentleman of the Jury, that Dr Bellmont is not only grossly incompetent, he is guilty of manslaughter, a heinous crime of the most severe magnitude. As such I intend to help you reach unanimous agreement with me in the name of justice. Together we can bring this man both his just deserts and protect countless others from suffering at his callous, life-endangering hands.”
Dear reader, I will not trouble you with the Counsel for the Defence’s opening statement. Suffice to say Natasha Bloom QC made a decent fist of casting doubt upon her opponent’s conclusions, and if not actually landing a decisive blow, she did indeed succeed in the execution of her primary objective…to give flight to the frail wings of doubt. Given the murky nature of the case’s subject matter, such a task did not overly tax the machinations of her fine, bone-dry mind.
I will however bring you the next episode in Jacob Smythe’s valiant battle with the forces of injustice. It should be mentioned that well lunched, our prosecutor had maintained an adamantine will to liberate the jury from the burden of their ignorance, and in so doing to adopt his thinking as their inviolable truth. Let us return to the proceedings anon …
“My Lord, I call Dr Rowena Cheetham FRSM as the Crown’s witness for the prosecution.”
Dr Cheetham took to the stand, her newly acquired two-piece blue suit giving the appearance of a creditable member of the medical profession’s upper echelons. She took a sip of water from the glass provided and calmed herself in preparation for questioning.
Our prosecutor coldly surveyed the jury and theatrically cleaned his horn-rimmed glasses before replacing them on the bridge of his aquiline nose. The puppet master was ready.
“Dr Cheetham, would you be so kind as to give us your definition of Pseudo coma ?”
With that, Counsel for the Plaintiff shot to her well-shod feet and shouted, “Objection My Lord! My learned friend, Counsel for the Prosecution, is seeking to lead the jury. Our concerns do not sit with esoteric medical obfuscation of the facts as they pertain to the defendant’s case.”
Our esteemed judge responded …”Overruled. I have read the same documents as you, Counsel, and find this line of questioning to be both germane and of considerable interest. Whilst I may not enjoy pontification, in this instance I find myself oddly sympathetic to your colleague’s line of enquiry. Not a legal precedent, but certainly a pleasant surprise!”
With his egotistical wings clipped, Jacob Smythe QC puffed up his chest and sallied forth, undaunted by his Lordship’s subtle insult. Ex-lovers seldom remain friends.
“You may answer Counsel’s question Dr Cheetham, though please avoid speculative rhetoric as this should not be the mantra of those engaged in our profession.” His Lordship rested his weary eyes on Jacob Smythe and allowed himself a miniscule smirk. Dr Cheetham began her testimony…
“Pseudo coma is a medically recognised term and is also known as Locked In Syndrome. In such a state, a patient can’t move a muscle, with the rare exception of an occasional twitching of an eyebrow. Sleep cycles observe circadian rhythms and to all intents and purposes such patients maintain fully functioning consciousness. The patient is for emphasis, fully conscious, though there is no external signalling of such a state…without appropriate investigation.”
Our prosecutor ranged the jury for their response, allowing his gaze to punctuate the point with an invisible exclamation mark. He returned to the fray.
“I see. Please enlighten the court as to what you mean by signalling.” Dr Cheetham sipped her water and proceeded to share her expert testimony.
“Adam Owen, the world-renowned neuroscientist, has proven beyond all doubt that even patients in an apparently vegetative state may indeed be fully conscious and as such, fully aware of their surrounds and in possession of their full mental faculties. This state has been classified as The Grey Zone…
Kate Bainbridge had entered a supposedly vegetative state in 1997 after a viral infection had rampaged her body’s organs. Dr Owen used his pioneering Positron-Electron Tomography, now known as PET brain scanning technique to establish that Ms Bainbridge’s brain was not only firing neurones within its central cortex, but displaying results entirely consistent with that of a normal, undamaged human brain. He’d found that her brain was not dead and ipso facto, nether technically was she.”
Jacob Smythe once again gave the jury the benefit of his prolonged gaze and asked his witness to elaborate, which she duly did…
“After years of extensive rehabilitative treatment and communication therapy, Ms Bainbridge made a full recovery and wrote to Dr Owen expressing her gratitude for being rescued from the hell of virtual imprisonment within her own body. More movingly, she thanked him for saving her from the near certain probability of a death certificate being issued following the planned removal of her life support system.”
Our prosecutor sensed victory and pressed on with both contrived elan and narcissistic vigour...
“Dr Cheetham, did the physician responsible for recommending the issue of a death certificate in respect of Ms Bainbridge, prior to the intervention of Dr Owen, receive any censure for misdiagnosis?”
Dr Cheetham paused and recalled her pre-testimony rehearsals.
“No. As the use of PET as a technique had not become accepted practice, no malpractice suit followed. Indeed, that physician had become a leading research fellow such was his desire to help other practitioners avoid the mistakes he made. He has pioneered near-infrared spectroscopy, although the field is led by Dr Niels Birbauer of the University of Geneva. Dr Birbauer developed software in 2012 able to map a patient’s electrocardiogram signals and neurological activity. This has enabled binary communication in the form of ‘Yes’ and ‘No’ to be elicited from a comatose patient in response to verbal questions put to them under clinically controlled circumstances.”
Our prosecutor reacted to the testimony as though his witness was sharing something previously unknown to him. He turned to the awed jury.
“Fascinating! At least to me, though I am not a medical man, as is also the case in respect of those individuals composing our Jury. Given that a venerated member of the global medical community established a clinically proven basis for determining full consciousness whilst a coma patient appeared to be in a vegetative state, would Dr Bellmont be reasonably expected to have known of this course of exploratory action?”
The witness turned to the judge who met her with his weighted gaze, having recognised her reluctance to condemn one of her own and said, “You may; indeed you must answer learned Counsel’s question Dr Cheetham.”
Collecting herself she replied though her eyes did not leave the judge’s - “Yes. Dr Bellmont would have been able to draw upon such a technique. He would have been ethically obliged to do so before arriving at pronouncement of death regarding a vegetative state patient.”
Dear reader, we must leave the courtroom for the briefest of moments whilst I share with you some simply scintillating contextual detail. Our trial, riveting at it may be as it disinters what constitutes medical death in our modern world, can offer us yet more intrigue! Events relayed by myself to you, my reader, take place approximately seven years after Dr Bellmont’s alleged misdiagnosis of Benjamin Grey.
You may well wonder what should have occasioned this bothersome and apparently inexplicable delay? Concern yourself no further with such a question, for I will enlighten you, though without the odious contempt shown by Jacob Smythe QC.
Benjamin Grey, much as with Kate Bainbridge, was able to receive a full PET analysis after his family challenged his physician’s recommendation to terminate life support and issue a death certificate. He has since made a near full recovery and with the exception of some minor mobility issues, Mr Grey has regained the life he nearly lost. Six years after his re-birth, Mr Grey revealed certain facts to his family, who, in turn, passed these onto Her Majesty’s Constabulary. Our trial is in fact the consequence of these revelations.
We now return to the proceedings where we left off. Jacob Smythe QC has called Mr Benjamin Grey to the witness stand and after some considerable effort, our witness is ready to testify on behalf of the Crown.
“Mr Grey please share with the court your understandings of June 23rd 2015 as relayed to Her Majesty’s Constabulary. Whilst I recognise such a testimony will be both unsettling and painful for you, I must insist that you tell us what you told the police in respect of Dr Bellmont’s last words to you on that day.”
Mr Grey, thin and pallid with his thinning hair swept back across his abnormally pronounced skull riddled with ugly scars and mottled blotches, took a shallow breath and responded thus – “Dr Bellmont came into my room…did that most days. He looked at the machines and made notes. On that day, the last time I saw him before Dr Peterson took over my care, he sat on my bed. He never sat on the bed before. He patted my head and…”
Smythe urged on his witness…
“He looked directly into my eyes. He told me he had no love of vegetables. He grinned. He told me that when his laptop stopped working, he’d bin it, not preserve it or maintain it in a useless state. He said what can’t be fixed must be destroyed. He laughed…”
Smythe once again mercilessly urged his emotionally disturbed witness on…
“Dr Bellmont told me he’d issue a death certificate the next day and pull the plug on my life support systems. Said the hospital would be saving electricity as there was too much being used to keep a vegetable alive. He said I was already dead, so he was actually doing me a favour. He said there was no point waiting for a potato to speak. I heard every word. Every word. He had decided to kill me.”
Dear reader I will not trouble you further with the court’s proceedings. Scores on the doors though - you may be unsurprised to learn that Dr Bellmont was struck off the medical register and the charge of medical negligence was indeed successful. Counsel for the Defence successfully argued in mitigation that Dr Bellmont was exercising his professional judgement and as such concluded that PET scanning was unnecessary in his medical opinion. He was legally entitled to make such a judgement and as such though subsequently found to have been guilty of failing to diagnose Locked In Syndrome, the court did not have the power to punish him.
As for the Manslaughter charge, our canny defence barrister was able to entirely undermine the prosecution’s case as hearsay without evidential corroboration beyond the witness’s own statement. A court-appointed psychiatrist decimated Mr Grey’s testimony and shed sufficient doubt upon the charge to have it successfully rejected, thereby acquitting the accused of the charge. Mr Grey had been an appalling witness, persistently falling into tears when under cross-examination and at one point pointing to the accused and screaming, “Murderer!”
Dr Bellmont became Mr Bellmont several weeks later and filed an appeal, instructing Natasha Bloom as his Counsel. His case for unfair dismissal from the medical register looked watertight so long as he could justify his medical opinion and offer up a convincing observation of the Hippocratic Oath. He welcomed the prospect of reinstatement and the salary that would accompany it even if he might have to practice in some forgotten cess pit outside of the UK.
The two doctors entered his clinically sterile room, snatched up the chart hanging limply at the end of his bed and noted the time. Machines wheezed as robotic bellows executed a Sisyphean waltz - up, pause, down. A shrill chorus of beeps rhythmically counterpointed a flashing array of gaudy LEDs. Tubes flexed and became soft again, their ugly waves the tentacles of a malevolent octopus lazily pulsating through calm waters in search of prey.
An ECG monitor burped out a line of digitised peaks and troughs each line moving steadily across a screen before beaching itself, and disappearing only to repeat the dance endlessly. The catheter bag dangled forlornly from its stand, its muddy yellow contents catching the fluorescent light, lending it the ghoulish impression of being a sentient creature clinging onto life with weak, but tenacious desperation.
The room spoke of detached technology attached to immobile organic material, possessive and malfeasant. The entire life support system had the character of a cybernetic entity slowly sucking the fragile life force out of a paralysed victim, serving no other purpose than to give its murmurings significance.
Dr Nazir Habib spoke quietly into his digital Dictaphone. “No change in the patient’s vital signs, heart and lung functioning with minimal efficiency. Patient remains entirely nonresponsive, brain activity consistent with complete neurological decay. Autonomic functions entirely dependent upon clinical intervention. In view of all available empirical data and with no objection from the patient’s family and in the absence of a DNR order, I pronounce death as being 7:00 pm as of today’s date. All life support will be discontinued at 7:38 pm. A death certificate will be applied for in consultation with the Pathology Department and Coroner’s Office post termination of the patient’s care.”
Mr Stanley Bellmont, the unlucky victim of a frenzied aggravated assault leading to his entering into a comatose state six weeks earlier, screamed…silently. He continued to scream silently for another thirty-eight minutes…then even the noisy machines fell silent, unpowered and dead.
The End (literally ).