The Appeal

The Appeal Page 36

At ten minutes after eight on Saturday morning, some thirteen hours after being struck by the baseball, Josh underwent surgery at the University of Mississippi Medical Center in Jackson.

Ron and Doreen waited in the hospital's chapel with friends who were arriving from Brookhaven. Their pastor was with them. Back at St. Luke's, a prayer vigil was under way in the church's sanctuary. Ron's brother arrived at noon with Zeke and Clarissa, both as frightened and shell-shocked as their parents. Hours passed with no word from the surgeons. Dr. Treet disappeared from time to time to check on things, but seldom brought back any useful news. As some of their friends left, others came to replace them. Grandparents and uncles and aunts and cousins arrived, and waited, and prayed, and then left to roam around the sprawling hospital.

Four hours after the Fisks last saw their son, the chief surgeon appeared and motioned for them to follow him. Dr. Treet joined the conversation as they walked down a hallway, away from the crowd. They stopped near a door to a restroom. Ron and Doreen clutched each other, bracing for the worst. The surgeon spoke in a grave and weary voice:

"He has survived the surgery and is doing as well as can be expected. We removed a large hematoma compressing the brain. The pressure inside the skull has been reduced.

But there was a lot of brain swelling, an extraordinary amount to be honest. There will likely be some permanent damage."

"Life" and "death" are easily understood, but "damage" conveys fears that are not readily defined.

"He's not going to die," Doreen said.

"As of right now, he's alive and his vital signs are good. He has a 90 percent chance of survival. The next seventy-two hours will be crucial."

"How much damage?" Ron asked, getting to the point.

"There's no way to tell right now. Some of the damage might be reversible with time and therapy, but that's really a conversation for another day. Right now, let's just continue to pray that he improves over the next three days."

Late Saturday night, Josh was in the ICU. Ron and Doreen were allowed to see him for ten minutes, though he was in a drug-induced coma. They didn't manage to maintain their composure when they first saw him. His head was wrapped like a mummy, and a breathing tube ran from his mouth. He was hooked to a ventilator. Doreen was afraid to touch any part of his body, even his foot.

A sympathetic nurse agreed to move a chair to a spot outside his room and allow one parent to sit there throughout the night. Ron and Doreen sent their support team back to Brookhaven, then began alternating between the ICU and the waiting room.

Sleep was out of the question, and they walked the halls until sunrise Sunday morning.

The doctors were pleased with Josh's first night. After an early morning review, Ron and Doreen found a motel nearby. They showered and managed a quick nap before reassuming their positions at the hospital. The waiting rituals began again, as did the prayer vigils at home. The flow of visitors coming and going soon became an ordeal in itself. Ron and Doreen just wanted to be alone in the room with their son.

Late Sunday night, when Doreen was in the ICU and the crowd had left, Ron strolled the corridors of the hospital, stretching his legs and trying to stay awake. He found another waiting room, one for the families of noncritical patients. It was much more inviting, with nicer furniture and a wider selection of vending machines. Dinner was a diet soda and a bag of pretzels, and as he crunched on them mindlessly, a small boy walked by and seemed ready to touch his knee.

"Aaron," his mother barked from across the room. "Come here."

"He's fine," Ron said, smiling at the child, who quickly drifted away.

Aaron. The name brought back a memory. Aaron was the boy struck in the head by the piece of metal thrown by the bush hog. A brain injury, permanent disability, financial ruin for the family. The jury found the manufacturer liable. The trial had a clean record. At that moment, Justice Fisk could not remember why he had so easily voted with the majority in reversing the verdict.

Back then, barely two months ago, he had never felt the pain of a parent with a severely injured child. Or the fear of losing the child.

Now, in the middle of this nightmare, he remembered Aaron in a different way. When he read the medical summaries in the case, he had done so in the comfort of his office, far removed from reality. The kid was severely injured, which was a pity, but accidents happen in everyday life. Could the accident have been prevented? He thought so then, and he certainly thought so now.

Little Aaron was back, staring at the bag of pretzels. It was shaking.

"Aaron, leave that man alone," the mother yelled.

Ron stared at the shaking pretzels.

The accident could have been prevented, and should have been. If the manufacturer had followed established regulations, then the bush hog would have been much safer.

Why had he been so eager to protect its manufacturer?

The case was gone, forever dismissed by five supposedly wise men, none of whom had ever shown much sympathy for those who suffer. He had to wonder if the other four-Calligan, Romano, Bateman, and Ross-had ever roamed the tomb-like halls of a hospital at all hours of the day and night waiting for a child to live or die.

No, they had not. Otherwise, they wouldn't be what they are today.

Sunday slowly yielded to Monday. Another week began, though it was far different from any one before. Ron and Doreen refused to leave the hospital for more than an hour or two. Josh was not responding well, and they were afraid that each visit to his bed might be their last glimpse of him alive. Friends brought clothes and food and newspapers, and they offered to sit and wait if the Fisks would like to go home for a few hours. But Ron and Doreen stood fast and plowed on with a fixed determination, zombielike in their belief that Josh would do better if they stayed close by. Tired and haggard, they lost patience with the parade of visitors from home and began to hide in various places around the hospital.

Ron called his office and told his secretary he had no idea when he might return.

Doreen told her boss she was taking a leave of absence. When the boss explained, delicately, that their policies did not grant such leaves, she politely informed him it was time to change said policies. He agreed to do so immediately.

The hospital was fifteen minutes from the Gartin building, and early Tuesday Ron stopped by for a quick look at his desk. It had accumulated several new piles of paperwork. His chief clerk ran down the list of all pending cases, but Ron was distracted.

"I'm thinking about a leave of absence. Run it by the chief," he instructed the clerk.

"For thirty days, maybe sixty. I can't concentrate on this stuff right now."

"Sure, will do. You were planning to concur this morning on Baker versus Krone."

"It can wait. Everything can wait."

He managed to leave the building without seeing another member of the court.

Tuesday's edition of the Clarion-Ledger ran a story about Josh and his injury. Justice Fisk could not be reached for comment, but an unidentified source got most of the facts right. The doctors had removed a large blood clot that had been pressing on his brain. His life was no longer in danger.

It was too soon to speculate about long-term problems. There was no mention of the doctor who read the wrong CT scan.

However, the online chatter soon filled in the gaps. There was gossip about an illegal baseball bat involved in the accident, and speculation about severe brain damage, and an account from someone inside the Henry County General Hospital who claimed to know that the doctors there had screwed up. There were a couple of wild theories that Justice Fisk had undergone a dramatic conversion in his judicial philosophy.

One rumor declared that he was about to resign.

Wes Payton watched it carefully from his office. His wife did not. She was working hard to distract herself with other cases, but Wes was consumed with the story about Josh. As the father of young children, he could not imagine the horror the Fisks were enduring. And he could not avoid wondering how the tragedy might affect the Baker case. He did not expect a sudden about-face by Ron Fisk, but the possibility was there.

They had only one prayer left, and that was for a miracle. Could this be it?

They waited. The decision was due any day now.

By early Tuesday afternoon, Josh was beginning to show signs of improvement. He was awake, alert, and following commands. He couldn't talk, because of the breathing tube, but he seemed fidgety, which was a good sign. The pressure on his brain had been reduced to almost normal levels. The doctors had explained several times that it would take days, maybe weeks to determine a long-term prognosis.

With Josh awake, the Fisks decided to spend the night at home. This was greatly encouraged by the doctors and nurses. Doreen's sister agreed to sit in the ICU, within fifteen feet of her nephew's bed.

They left Jackson, relieved to be away from the hospital and anxious to see Zeke and Clarissa. Their conversation was about home-cooked food, long showers, and their comfortable bed. They vowed to savor the next ten hours, because their ordeal was just beginning.

But it would be difficult to relax. On the outskirts of Jackson, Ron's cell phone rang. It was Justice Calligan, and he began the conversation with a long-winded inquiry into Josh's condition. He conveyed condolences from everyone at the court. He promised to stop by the hospital as soon as possible. Ron was thankful, but soon had the feeling there was a business angle to the call.

"Just a couple of matters, Ron," Calligan said, "and I know you're preoccupied right now."

"I am indeed."

"There's nothing terribly urgent here, except for two cases. It looks as though that Bowmore toxic case is split 4 to 4. No surprise there, I guess. I was hoping you would concur with me on this one."

"I thought Romano was writing, too."

"He is, and he's finished, as is Albritton. All opinions are ready, and we need your concurrence."

"Let me sleep on it."

"Fine. The other is that nursing home case out of Webster County. Another 4-4 split."

"That's a very ugly case," Ron said, almost in disgust. In yet another nursing home case, a patient was basically abandoned by the staff and eventually found unfed, lying in his own waste, covered in bedsores, unmedicated, and delirious. The company that owned the facility had reported huge profits, which came as a surprise to the jury when it was proven just how little was spent on patient care. Nursing home abuse was so rampant Ron was already sick of reading about it.

"Yes, it is. Very tragic," Calligan said, as if he were capable of sympathy.

"And I guess you want to reverse?"

"I don't see the liability, and the damages are exorbitant."

In the three and a half months Ron had been on the court, Justice Calligan had never managed to see liability in any death or injury case.

He believed jurors were stupid and easily led astray by slick trial lawyers. And he believed that it was his solemn responsibility to correct every miscarriage of justice (plaintiff's verdict) from the comfort of his detached environment.

"Let me sleep on it," Ron said again. Doreen was becoming irritated with the phone call.

"Yes, always a good idea. If we could finish these two cases, Ron, then a short leave of absence might work."

A short leave of absence, or a long one for that matter, was solely within the discretion of each justice. Ron did not need Calligan to approve it. He thanked him anyway and hung up.

The Fisks' kitchen was filled with food from friends, mainly cakes and pies and casseroles.

A buffet was arranged on one counter, and they ate with Zeke, Clarissa, two neighbors, and Doreen's parents. They slept six hours, then drove back to the hospital.

When they arrived, Josh was in the midst of a prolonged seizure, the second in the past hour. It passed and his vital signs improved, but it was a setback in his slow recovery. Thursday morning, he was alert again, but irritable, restless, unable to concentrate, unable to remember anything about the accident, and highly agitated.

One of the doctors explained that his condition was symptomatic of post-concussion syndrome.

Thursday night, the Rockies' coach, Ron's former law partner, drove to Jackson for another visit. He and Ron had dinner in the hospital canteen, and over soup and salad he pulled out his notes. "I've done some research," the coach said. "Win Rite stopped making the lighter bats six years ago, probably in response to complaints about injuries.

In fact, the entire industry went to minus four and nothing higher. Over the years, the aluminum alloys got lighter but also stronger. The barrel of the bat wall actually absorbs the ball upon contact, then launches it when the wall pops back into its original position. The result is a lighter bat, but also a much more dangerous one.

Safety advocates have been bitching about these bats for a decade, and lots of studies have been done. In one test, a pitching machine threw a fastball at 90 miles an hour, and the ball came off the bat at 120. Two fatalities on record, one in high school, one in college, but hundreds of injuries in all age-groups. So, Little League and some of the other youth organizations got together and banned anything above a minus four.

"But the problem is obvious. Win Rite and the other bat makers have a million of the old bats still out there, still being used, and we finally saw one in the game last Friday."

"There was never a recall?" Ron asked.

"None whatsoever. And they know the damned things are dangerous. Their own tests prove it."

Ron was nibbling on a saltine, certain of where this was going and unwilling to help it get there.

"The Rolling Fork team is probably liable, but it's not worth the trouble. The City of Russburg could be held liable because the umpire, a city employee by the way, failed to check the equipment. And the big tuna is, of course, Win Rite. Assets of two billion. Tons of insurance coverage. Very good case of liability. Damages undetermined but substantial. All in all a strong case, except for one small problem. Our supreme court."

"You sound like a trial lawyer."

"They're not always wrong. If you ask me, I say you should consider filing a product case."

"I don't recall asking you, and I can't file a lawsuit. I'd be laughed out of the state."

"What about the next kid, Ron? What about the next family that will go through the same nightmare? Litigation has cleaned up a lot of bad products and protected a lot of people."

"There's no way."

"And why should you and the State of Mississippi get stuck with a million bucks in medical bills? Win Rite is worth billions. They made a lousy product; make them pay."

"You are a trial lawyer."

"No. I'm your former partner. We practiced together for fourteen years, and the Ron Fisk I remember had great respect for the law. Justice Fisk*eems determined to change all of it."

"Okay, okay. I've heard enough."

"I'm sorry, Ron. I shouldn't have-"

"It's okay. Let's go check on Josh."

Tony Zachary returned to Jackson on Friday and heard the news about Josh Fisk. He went straight to the hospital and eventually found Ron napping on a waiting room sofa. They talked for an hour about the accident, about the surgery, and also about Tony's fishing expedition down in Belize.

Tony was deeply concerned about young Josh. He certainly hoped the child would make a quick and complete recovery. But what he wanted to know, but couldn't bring himself to ask, was, "When might you finish up with the Krone appeal?"

As soon as he was in his car, he called Barry Rinehart with the disturbing news.

A week after he arrived at the hospital, Josh was moved from the ICU to a private room, one that was immediately inundated with flowers, stuffed animals, cards from his fifth-grade classmates, balloons, and enough candy to feed an entire elementary school. A cot was arranged so that one of his parents could sleep next to his bed.

While the room at first gave the impression of a lighter mood, things turned gloomy almost immediately. The team of neurologists began extensive evaluations. There was no paralysis, but a definite decline in motor skills and coordination, along with severe memory loss and an inability to concentrate. Josh was easily distracted and slow to recognize objects. The tubes were gone, but his speech was noticeably slower.

Some recovery was likely in the months to come, but there was a good chance of permanent damage.

The thick head bandages were replaced with much smaller ones. Josh was allowed to walk to the restroom, a heartbreaking sight as he shuffled awkwardly forward, one clumsy step after another. Ron helped him, and fought back tears.

His little baseball star had played his final game.