The second part (of 5) of the verbatim rendering of the trials of Robert Latimer is presented here. Covered here is dramatic testimony from medical witnesses and others.
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Introductory notes from part 1
All words spoken, except those of the Narrator, are as they were actually spoken, taken from court documents, conversations and interviews, except when a minor change was made for clarity – such as substitution of a name for a pronoun. In no case is there any significant change to the words actually spoken. While much of the trial transcript is recorded here, cuts have been made to avoid repetition, to ensure relevance to the central story and to make the essential points in the document more accessible.
To aid in gaining a feeling for the various proceedings the dialogues here are presented as a play script, with stage directions included.
Suggested staging notes: projections at the back of the stage could be used to create a sense of place, for example scenes of Saskatchewan prairies and grain elevators, the farm in Wilkie, the North Battleford Courthouse, William Head prison, and others. Projections could also show titles of sections of the dialogue, as they appear in the script, and perhaps dates to give a sense of time.
PART 2 – THE TRIALS BEGIN
NARRATOR:
After Robert’s first trial, in which he was convicted of second-degree murder, Laura Latimer was talking to a friend as they watched their children at a swimming pool. The friend mentioned having answered a poll, conducted by the police, before the trial, a poll that asked about religion and about her feelings about mercy killing. It had been orchestrated by Prosecutor Kirkham and been sent to prospective jurors in the region.
The news of this made its way to the Canadian Supreme Court, which was in the process of hearing an appeal of Robert’s conviction in his first trial. The Court immediately ordered a new trial (Feb 6, 1997) and Kirkham was later charged with jury tampering.
The scene changes to a courtroom with Justice Noble and a Court Clerk, Prosecutor Neufeld, Latimer and his lawyer Mark Brayford. The audience is the jury pool. Three actors are seated in the audience and play the roles of prospective jurors. The backdrop now shows the date October 27, 1997.
JUSTICE NOBLE:
Good morning. Now, we are dealing this morning with the case of the Queen versus Robert W. Latimer. I see Mr. Latimer is present. Mr. Neufeld you’re representing the Crown?
PROSECUTOR. NEUFELD:
I am, my Lord.
JUSTICE NOBLE:
And Mr. Brayford, you’re acting for the accused?
BRAYFORD:
Yes, I am, my Lord.
JUSTICE NOBLE:
Now we will arraign the accused. Perhaps Mr. Latimer could stand.
CLERK:
Robert W. Latimer stands charged:
THAT HE, the said ROBERT W. LATIMER, on or about the 24th day of October, 1991, at the Wilkie District, in the province of Saskatchewan, did unlawfully cause the death of Tracy Lynn Latimer and did thereby commit the offense of second-degree murder.
Do you understand this charge, sir?
ROBERT:
Yes.
CLERK:
How do you plead?
ROBERT:
Not guilty.
CLERK:
Thank you, sir.
JUSTICE NOBLE:
Ladies and gentlemen of the jury panel, first let me thank you for coming . . . The next step in the process is that we will attempt to select from among you 12 jurors to try the case. . .. If there’s any amongst you who are closely related to the accused, or any of the witnesses… or who have perhaps personal knowledge of this case, not just knowledge that you may have accumulated out of the papers, or the media, but if you have a personal knowledge I’d like you to stand now so that I can assess whether or not, at the end of the day, you can be impartial.
MR. SEEBIN (in the audience, stands up and speaks):
I’m from Wilkie.
JUSTICE NOBLE:
The mere fact that you are from Wilkie would not be enough for me to excuse you. . . Why do you say . . .
MR. SEEBIN:
Well, I grew up with Bob and his family, and I know a few of the guys on the witness list too.
JUSTICE NOBLE:
I see. How well do you know them though, do you associate with them on a regular basis?
MR. SEEBIN:
I played broom ball with Bob, and worked with Bob for year, or six months, or whatever it was.
JUSTICE NOBLE:
You feel that you couldn’t be impartial? Okay I think I’ll excuse you. (turns to another actor in the audience) Ma’am?
MS. CLARK:
My name is Bonnie Jay Clark. At the time I was a journalist with the Telegraph newspaper here in town, and I interviewed several of the officers, not all of it was on the record, so some of what was said I think will probably bias me. As well I’ve talked to one of the witnesses.
JUSTICE NOBLE:
I see.
MS. CLARK:
Presently I am now a journalist at CJME Radio, assigned to cover this.
JUSTICE NOBLE:
Oh, you’re assigned to cover the case. How did you get on this jury list?
MS. CLARK:
I don’t know. . .
JUSTICE NOBLE:
What you’re telling me is that you have a lot of knowledge on the case that came from other sources?
MS. CLARK:
Yes.
JUSTICE NOBLE:
I think in your case I’ll excuse you. (turns to third actor – male- standing in audience). Yes, sir?
MR. PIKE:
My name is William Pike. My cousin taught Bob Latimer.
JUSTICE NOBLE:
You mean he was a schoolteacher?
MR. PIKE:
Yes.
JUSTICE NOBLE:
Do you know Bob Latimer?
MR. PIKE:
Not personally, but we have discussed this.
JUSTICE NOBLE:
Oh. Well, I would be surprised if there is anybody in this room who hasn’t discussed it with somebody. I think we’ll leave it for now, and you can maybe raise that again with me if your name is called, okay? Anybody else? All right. Okay.
NARRATOR:
The jury was selected and sworn in. During this process, Mr. Pike again appeared before the judge.
JUSTICE NOBLE:
Mr. Pike, are you the gentleman who raised a…
MR. PIKE:
Yes.
JUSTICE NOBLE:
What was the problem again?
MR. PIKE:
My cousin, my first cousin, taught Bob, and taught his sister.
JUSTICE NOBLE:
I see, but you’re not personally acquainted with Mr…
MR. PIKE:
No, but I basically, in my personal opinion, I should be…
JUSTICE NOBLE:
You feel you can’t be impartial?
MR. PIKE:
No, because I don’t think he should be . . . personally.
JUSTICE NOBLE:
I’ll stand you aside for now…
NARRATOR:
The prosecution proceeded first, with opening remarks by Justice Noble and then by Prosecutor Neufeld, followed by witnesses for the prosecution.
Stage darkens and Justice Noble appears alone in a spotlight.
JUSTICE NOBLE (Speaking to the jury – the audience):
Your duty is to try the facts of this case on the evidence presented, and I reemphasize that, because of the very high profile this case has taken on, in the media and in the country.
You must try the issues of fact that you’re going to eventually have to find one way or the other in this matter, without pity for the accused, without passion or prejudice against him. You’re to be governed solely by the evidence that’s introduced, and by the law that I will eventually state to you. The law does not allow you to be influenced in your deliberations by sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. You’re here to try this accused, and both the accused and the crown have the right to believe that you will do so conscientiously and dispassionately, and that you will weigh the evidence and apply the law as I give it to you, that you will be as objective as you are humanly possibly able to be in doing so.
The spotlight on Justice Noble fades out, and another light comes on Prosecutor Neufeld.
Tracy had an affliction known as cerebral palsy, and this is a lifelong affliction. She had one of the worst forms of cerebral palsy, in that she was totally body involved – her total body was involved – from her head right down to her toes, so all four limbs, her brain, her back, everything was involved. She was in the most severe classification that we have for cerebral palsy.
PROSECUTOR NEUFELD:
My role as prosecutor is to present the Crown’s case, and I will do my best to do that in as fair and even-handed a manner as I can, my obligation is, as counsel for the Crown, to try and prove the case – the charge against the accused to your satisfaction beyond a reasonable doubt . . .
TRACY AND THE DOCTORS
Fades out. Lights come back on, courtroom is in session. We can see the judge, witness stand, Latimer with his lawyer and Prosecutor Neufeld. Dr. Anne Dzus is in the witness stand.
PROSECUTOR NEUFELD:
Now, Dr. Dzus, you are a medical doctor licensed to practice currently in this province?
DR. DZUS:
That’s correct.
PROSECUTOR NEUFELD:
And you are a specialist in the field of orthopedic surgery?
DR. DZUS:
That’s right.
PROSECUTOR NEUFELD:
Can you explain, in layman’s terms, what orthopedics is?
DR. DZUS:
An orthopedic surgeon is someone who takes care of bones, and joints, and muscles, fractures, curvature of the spine, hips, joints that dislocate. I try to limit my practice mainly to children.
PROSECUTOR NEUFELD:
Now, during the course of your years in practice, did you come into contact with Tracy Latimer?
DR. DZUS:
I first came into contact with Tracy in 1985 when I was a resident working with my predecessor. We did surgery on Tracy at that time. Subsequent to that, when I started my own practice, I first saw Tracy in 1989.
PROSECUTOR NEUFELD:
And in terms of your seeing Tracy in 1989, do you recall the nature of the visit?
DR. DZUS:
We see lots of children like Tracy, with multiple handicaps, and she came to the orthopedic clinic for me to assess her. There were other members of the assessment team including the physiotherapist.
PROSE CUTOR NEUFELD:
Now, how would you describe Tracy?
DR. DZUS:
Tracy had an affliction known as cerebral palsy, and this is a lifelong affliction. She had one of the worst forms of cerebral palsy, in that she was totally body involved – her total body was involved – from her head right down to her toes, so all four limbs, her brain, her back, everything was involved. She was in the most severe classification that we have for cerebral palsy.
PROSECUTOR NEUFELD:
And you used the phrase, a lifelong affliction?
DR. DZUS:
Right.
PROSECUTOR NEUFELD:
And in that regard, I guess it is progressive, in terms of getting worse…
DR. DZUS:
There has been a one-time insult to the brain – the cause of the original damage – and if you look at the brain as a computer of the body, it has been damaged, and so the signals going out to the body are abnormal, but the manifestation of the disease can change, as the children grow.
PROSECUTOR NEUFELD:
Can you illustrate what you mean?
DR. DZUS:
We know that in totally involved children, like Tracy, 70 to 75% of them will develop scoliosis over time. Scoliosis is an abnormal curvature and rotation in the back. Tracy was one of them that had it. Plus, a similar percent of the totally involved, totally dependent children will also develop a dislocated hip over their lifetime. The hip is originally normal, and in joint, but because of the muscle imbalance, the abnormal signals that are coming from the brain to the muscles, the hips over time will dislocate.
PROSECUTOR NEUFELD:
You saw her in March 1989. At that time was she displaying the scoliosis that you referred to?
DR. DZUS:
She was eight years old at the time, and her scoliosis was measuring 50 degrees, which is a significant scoliosis.
PROSECUTOR NEUFELD:
And the hip situation?
DR. DZUS:
We were worried about the range of motion of her hips at that time.
PROSECUTOR NEUFELD:
Was there a plan at that time for addressing these concerns?
DR. DZUS:
Yes. We actually arranged for her to have surgery, to try to balance some of those muscles around her pelvis, in order to prevent pelvis obliquity, and possibly the hips from progressing into dislocation.
PROSECUTOR NEUFELD:
Was there any planned action, or course being taken, regarding the scoliosis?
DR. DZUS:
Her scoliosis was worrisome and we planned to see her again with another x-ray of her back. I saw her again in March of 1992; she was now 11 years and four months. Her right hip was showing signs of becoming dislocated. Despite some muscle balancing, her hip was continuing to try to dislocate. This is quite common in children with cerebral palsy – despite doing everything you know, sometimes the hip is just destined to go out of joint.
PROSECUTOR NEUFELD:
After the March examination was a decision made on surgery for the scoliosis?
DR. DZUS:
There was. Her curve was now up to 67 degrees. This is a significant increase, and the worrisome part is that, if you do nothing about this back – when the curves reach this magnitude – it will continue to increase, and they can increase quite rapidly. This can be unrelenting, to the point that the rib cage will press on the pelvis, and that can become quite painful. It’s better if we operate when the curves are still relatively flexible and have smaller numbers. 67° is still a big number, but rather than waiting until the curve got to 90 to 100 degrees, surgery was scheduled.
PROSECUTOR NEUFELD:
And the surgery was scheduled for when?
DR. DZUS:
It was scheduled and carried out, by me, in August 1992.
PROSECUTOR NEUFELD:
And how would you describe the results of that surgery?
DR. DZUS:
It was very satisfactory. We reduced Tracy’s curvature. When we saw her in August, and admitted her, the curve was up around 73°, so even in that few months it had increased. At surgery we got it down to about 15 degrees, by using stainless steel rods and multiple wires to put the back straight and to fuse it in that position. This is major surgery.
PROSECUTOR NEUFELD:
Is this the standard way of dealing with scoliosis?
DR. DZUS:
Children who are totally involved cannot tolerate braces, so this is the best way of dealing with it.
PROSECUTOR NEUFELD:
And what were the results?
DR. DZUS:
Her surgery took around 7 to 8 hours, she lost around 3 litres of blood, but the results were good. She was home about six days later, which is very good. This is not to say it was easy on her but, compared to other people, I was happy with how she did. Tracy was lucky and had no complications that were of significance. She had some postoperative vomiting, and she did have some seizures after the surgery, but Tracy has a long history of seizures, so this is not totally unexpected. To put the magnitude of this surgery in perspective, if you have a scale of 1 to 100 where one is the removal of a mole or wart and 100 is a heart transplant, scoliosis surgery on normal adolescents would probably rank 70. Scoliosis on somebody with totally involved cerebral palsy would probably rank in the order of 90 in magnitude, so it is significant surgery.
PROSECUTOR NEUFELD:
When did you see Tracy again?
DR. DZUS:
Surgery took place on August 27th 1992. She was discharged on September 2nd, and I saw her again on September 16th, which is a standard postoperative follow-up. She was doing quite well, she was not vomiting anymore and she was sleeping quite well through the night. She was sitting easily in her chair, and the plan was to have her going back to school within the next few weeks. Her wound had healed. Her back was very straight, and we were able to move both hips through an almost full range of motion, although she was a little tentative about putting her right hip flat, but this had always been a troublesome hip and the x-rays that time were quite satisfactory.
PROSECUTOR NEUFELD:
The next follow-up exam?
DR. DZUS:
Approximately two months later, November 4th, 1992. She was still improving and was able to sit for limited periods of time and that’s an important thing to note, because children that have severe scoliosis with total body involvement will find sitting very, very difficult. One of the goals of the surgery is to increase sitting ability, and sitting time, so it appears that that had happened. She was sleeping better at night, but we were still concerned about her right hip – she was uncomfortable when we moved her hip at that time. At that point in time in November we were already talking about right hip surgery, but we were wanting to wait for her to be fully recovered from the major spinal surgery before we undertook her hip surgery.
When you lose 3 litres of blood, that’s more than somebody Tracy’s size would have had circulating in her own body. Plus, the rods are there to hold the spine straight, but the body itself has to fuse the spine, and that means laying down bone, as a broken bone does when it heals. That takes six months to one year on average. So the worrisome thing about doing another major surgery in a short period of time is that her body would not tolerate it.
PROSECUTOR NEUFELD:
Your next examination by way of follow-up would be when, Doctor?
DR. DZUS:
February 1993. The main complaint at that time was the pain in her right hip. She had not really changed much from the November visit, but her pain was a big concern. She was still having seizures, and there were severe spastic movements, as before. The right hip was dislocated, and we were concerned about it. Reconstructive surgery of the hip was again discussed with the family. We decided to wait the full year as originally planned and I scheduled a visit with her again October 12th, 1993.
PROSECUTOR NEUFELD:
Would you describe for us that visit and how Tracy was at that time?
DR. DZUS:
The biggest thing that I remember from that visit is how painful Tracy’s condition was. She had changed substantially from the visit in the spring to this visit now. She was lying on the examining table when I came into the room, her mother was holding her right leg in a fixed flexed position, with her knee in the air, and any time she tried to move that leg Tracy expressed pain. Her way of expressing pain was to cry out.
PROSECUTOR NEUFELD:
And I take it you performed an examination at that time.
DR. DZUS:
Correct – as limited an examination as you can do without causing more pain. Every time we tried to move the right hip, she was very resistant – resistant to any change of position – we basically got no range of movement at all because it was too painful for her.
PROSECUTOR NEUFELD:
And how was she otherwise?
DR. DZUS:
We were happy with her back. We were a little concerned because she no longer would lie on her right side, so she was always lying on her left side, and there was a concern that her skin on her left side was starting to break down. However, she did not have any colds or sickness over the winter, and that is another important statement, because when children get severely deformed in their back, and they’re now having difficulty sitting, they also have more difficulty swallowing and in clearing secretions. Eating becomes a problem – these things all can end up in the lungs and cause problems there. So it looks like we had been helpful in one way, in keeping her upright, and that she was healthier in her chest area.
PROSECUTOR NEUFELD:
And what was your intention after the examination?
DR. DZUS:
The intention was to arrange for surgery, to help decrease the amount of pain that Tracy was having in her hip. There are many options in this circumstance but none of the options are very satisfactory. We discussed two options. The first was a major hip reconstruction, but that would only be possible if the cartilage on the joint surface was still healthy enough that we could put it back inside the socket. When the head of the femur, or the ball of the ball-and-socket joint, sits out of the socket for too long, the joint capsule and the muscles that are overlying it will rub out here and can change the shape at the head or of the ball part, and can also wear away all the cartilage, which is important to allow the ball in the socket to move freely within each other. If that is worn away, and you put the ball back in joint, you are literally putting an arthritic hip back together, it’s doomed to continue to be painful. The only option then, if the head is worn away, is to create a ‘flail” joint by removing the ball from the ball and socket joint.
This again is major surgery, and the results can be unpredictable, but for the majority of children it is successful in decreasing their pain.
PROSECUTOR NEUFELD:
Did you schedule surgery?
DR. DZUS:
We initially scheduled surgery for November 4th, in a little over three weeks. My waiting period is usually longer than that, but because of the amount of pain Tracy was in, and because I had a cancellation, I thought it was only fair, for her, to try to get this done as soon as possible.
PROSECUTOR NEUFELD:
When you last saw her on October 12th, was there anything that would have, medically speaking, prevented the surgery from going ahead?
DR. DZUS:
Not medically, though if we found something in the workup, for example that her blood level was so low that she would not survive the surgery, then we would have canceled it again.
PROSECUTOR NEUFELD:
As far as her surviving the surgery, what was your opinion on the 12th of October when you last saw her?
DR. DZUS:
Well, my opinion was that she was in too much pain to do nothing. There are always survival concerns when you are operating on somebody with Tracy’s magnitude of disease, especially since she had lost weight, she had seizures, and the anaesthesia part is difficult. There is a chance of increased seizures after the surgery, and pain control after surgery is also a big factor.
Light dims on the Prosecutor and come on to defence lawyer Mark Brayford.
NARRATOR:
Prosecutor Neufeld’s review of Tracy’s condition would later be used to argue that it was not so bad or so unusual. Defence lawyer Mark Brayford, on the other hand, wanted to set the stage for arguing that Tracy’s condition was very bad indeed. Brayford conducts a cross-examination of Dr. Dzus.
BRAYFORD:
Dr. Dzus, first of all, over Tracy’s lifetime from infancy until the time of her death, was the quality of life improving during that period of time?
DR. DZUS:
That’s a difficult question, because Tracy did not have the ability to communicate like we communicate, so we have to rely on her actions and facial expressions to try to understand what she was thinking or even if she was capable of thinking. I knew that in her younger years she would smile in communication. I cannot honestly recall her smiling at me. I know that after spinal surgery her sitting became easier, so maybe that’s one aspect of the quality of life that you can see improved. Her breathing became easier in that she wasn’t congested, and she did not vomit as much, so in those ways her quality of life improved. But now, instead of being a flexible person who can move side to side, forward and back, we have someone who was literally very stiff from the top of her spine down to the pelvis – so she was locked. She now lacks that mobility, so that takes away some of that quality of life. Plus the fact that she’s lost weight in the summer prior to her death, and she was in severe pain from what we believe was her hip. I would say that her quality of life in the last year of her life was deteriorating.
BRAYFORD:
The surgical interventions through Tracy’s life, were they treating the cerebral palsy? Were you going to cure the cerebral palsy?
DR. DZUS:
After you operate on a child with cerebral palsy, the child still has cerebral palsy. We are only addressing the symptoms of the problem. The problem is stemming from an abnormal brain and the signals it is giving to the body. That will remain as severe as it was before the operation, but we hope to have changed the child for the better – for example by making sitting, lying, eating, moving easier.
BRAYFORD:
Are you able to predict all of the ramifications of the surgery?
DR. DZUS:
A good way to describe children with cerebral palsy is that they are spring-loaded – when we release one spring (one muscle) another spring may take over, and some of the children end up with the opposite deformity of where they started out.
BRAYFORD:
What about in Tracy’s case, for instance going back to her first operation in 1985, were there some unexpected effects from that surgery?
DR. DZUS:
Actually the spring-loaded effect did happen to her right hip. Where before it tended to be held close to the body, after muscles were released, it tended to spring out to the side.
BRAYFORD:
The medical intervention was to treat one issue, and ultimately it had some detrimental effect too. Would that be fair to say?
DR. DZUS:
It changed her; it’s hard to know whether that was detrimental in the long run – it’s impossible to know.
BRAYFORD:
With respect to the surgery that was being contemplated in October when you met with Tracy’s mom, Laura, can you anticipate the future for us, would we be able to say with some degree of certainty that would now solve her medical problem and this will be the last surgery she has?
DR. DZUS:
I can say with some certainty that I don’t think that would be the case. We know that she had lost weight, that we had one hip that was dislocated, and the chance of the other hip dislocating is always there. Because of her weight loss, I expect that there may be more surgical interventions in the form of inserting a feeding tube that would bypass her mouth and swallowing mechanism.
BRAYFORD:
She would not be able to swallow on her own in the normal fashion?
DR. DZUS:
Cerebral palsy, to the extent that Tracy had it, affected all her muscles – swallowing muscles, eye muscles, cough muscles, every muscle there. So she did not swallow like the rest of us, so feeding was a very difficult situation.
BRAYFORD:
As I understand it, one of the primary reasons for the immediacy of the operation was pain management. Was there the possibility of managing the pain in other ways through, for instance, the use of drugs? Why or why not was that an option?
DR. DZUS:
Tracy had severe pain. To control it with drugs would mean using fairly powerful drugs. She already was on anti-epileptic medications to control her seizures. Combining drugs can have side effects. She already in the past was having difficulty with swallowing. We know that she had difficulty clearing some secretions from her lungs and nose—these children can gag on their own secretions. If you depress, by using strong drugs, some of these very primitive reflexes, and you put her at risk for getting the contents of stomach food into her lungs, and ending up with aspiration pneumonia, ending up very sick, and depressing the respiratory function that is already depressed.
BRAYFORD:
So I take it that the use of sufficient painkillers, in actual fact, might well, conceivably, kill her?
DR. DZUS:
It might be a suitable short-term solution, under a very controlled environment, but not long-term.
BRAYFORD:
If you’re going to use that kind of pain management, did you pretty well have to feed her by way of tubes, or something?
DR. DZUS:
May have to, yes.
BRAYFORD:
Now I would like to have some fairly conclusive opinions on some points. Would you ever have expected Tracy’s ability to speak would ever develop?
DR. DZUS:
Given the severity of illness, no. There have been some children, though not as severely affected as Tracy, that have the ability to understand but not vocalize. Given the seizure activity that Tracy had, it is an indication that her brain damage was severe.
BRAYFORD:
Would you ever expect her to have any control over her limbs so that she could move them in a meaningful manner, say that she may be able to sit up on her own, that kind of thing, as opposed to being propped up, was that a likelihood?
DR. DZUS:
Highly unlikely. Tracy was totally dependent in all aspects of care, from feeding, to diapering, to sitting up in a chair.
BRAYFORD:
Dealing with children as severely affected by cerebral palsy at birth, as Tracy was, how many of them would you expect to still be alive by the age that Tracy was?
DR. DZUS:
A study that came out of the Mayo Clinic looked at the survivorship of children with cerebral palsy. When they specifically looked at the totally involved child, total body involvement, about 50% of them had died before their 10th birthday.
BRAYFORD:
To return to the operation that was scheduled after the October 12 examination, what was the most likely type of surgery that was going to be performed on her hip joint?
DR. DZUS:
Given the changes we could see on the x-ray, I suspect that the cartilage was worn away and we were talking about a salvage procedure. In simple terms this means taking away the damaged part, covering the end of the bone with muscles, and hoping that it will be enough to take away the painful part of her hip joint.
BRAYFORD:
I take it you’re talking about sawing off the ball part of the…
DR. DZUS:
Actually, more than the ball part. The ball part and about the top quarter of the femur bone – the thigh bone.
BRAYFORD:
The leg was not going to be usable in any conventional sense?
DR. DZUS:
Correct.
BRAYFORD:
In your discussions with her on October 12, what was the reaction of Tracy’s mom, Laura?
DR. DZUS:
We had been leading up to this point basically for years, suggesting that there would be a surgery, but most of the time we were talking about a reconstructive procedure to put the hip in place. This was the first time that I suggested that maybe this hip was now too far gone – that if we got in there and found the ball part to be totally eroded, then it would only cause more pain to put it back in, back in joint. This . . . this was upsetting to her.
BRAYFORD:
Can you tell us about the difficulty you had in examining Tracy?
DR. DZUS:
Examining children with cerebral palsy is difficult at any time, because we take them into a very artificial situation. We take them from their chair onto a cold examining table, and they will often get more spastic just because of the strange environment. And then we come in, trying to move them, and they will become difficult to examine. Tracy was exceedingly difficult to examine because of her pain.
BRAYFORD:
The day after surgery, would that be the end of Tracy’s pain?
DR. DZUS:
No, the postoperative pain can be incredible and difficult to manage. We do have ways of using what we call epidural catheters, where we freeze the bottom half of their body for a period of time, but that’s only good when they’re in the hospital. Eventually the children have to go somewhere, so that is not the end of the pain.
BRAYFORD:
What kind of recovery might be expected for this hip surgery?
DR. DZUS:
A good year, and maybe even longer.
BRAYFORD:
And would this then cure Tracy’s pain for the future?
DR. DZUS:
We are treating symptoms only – we may have alleviated some of the symptoms in her right hip but it’s still not a normal hip, so it’s still at risk of providing trouble of different sorts down the road. Plus, I cannot honestly tell you what was going to happen to her left hip down the road either.
BRAYFORD:
In looking at the care or the treatment Tracy had been given, how would you describe the manner in which her parents had cared for her, based on what you could observe?
DR. DZUS:
I had no concern about the way Tracy was being cared for. I think she came from a very caring, loving environment, that looked out for Tracy.
BRAYFORD:
Did you ever perceive that they had anything but her best interests at heart?
DR. DZUS:
No.
Lights dim and a new witness appears in the witness box
NARRATOR:
The next witness called by the prosecution is Dr. Kemp, the Latimers’ family physician for about 12 years.
PROSECUTOR NEUFELD:
Could she communicate in any way, sir?
DR. KEMP:
She could smile, and she could probably follow objects. Hard to assess how good her vision was – she had a condition whereby the eyes fluctuate backwards and forwards, and if you looked at her she wouldn’t fix her gaze on you, but she had hearing.
PROSECUTOR NEUFELD:
Was she capable of playing with a pet?
DR. KEMP:
I think she probably interacted to some extent with the other children, and she would know that they were there, and she would probably recognize voices of relatives.
PROSECUTOR NEUFELD:
Okay. Would she be able to express pain, for instance?
DR. KEMP:
Yes.
PROSECUTOR NEUFELD:
And how would she do that?
DR. KEMP:
She would probably frown. She cried to some extent.
PROSECUTOR NEUFELD:
How would you assess her cognitive capabilities at her age, as she was, given her condition?
DR. KEMP:
In terms of age of a child, perhaps she’d function as a 3 to 4-month-old baby.
Lights dim briefly.
Lights dim and come back on with defence lawyer Brayford questioning Dr. Kemp.
NARRATOR:
Mark Brayford conducts a cross-examination of Dr. Kemp.
BRAYFORD:
Dr. Kemp, are you familiar with the type of surgery being proposed for Tracy, from other patients you have had?
DR. KEMP:
I have another patient that just had that done.
BRAYFORD:
Is there any suggestion, on the day after the patient had the ball sawed off the leg, that that was the end of the pain?
DR. KEMP:
No, this patient was in a lot of pain, still is. It’s easing now, but he had difficulty moving the leg, the leg was just floppy.
JUSTICE NOBLE:
It really disconnects the leg from the body?
DR. KEMP:
That’s right.
BRAYFORD:
And so I take it that the leg is not attached by bones, but rather by the…
DR. KEMP:
Just the muscles.
BRAYFORD:
And so it more or less can flop then, freely.
DR. KEMP:
Yeah.
BRAYFORD:
And that’s why it’s called a flail joint?
DR. KEMP:
Yeah, just limp, floppy.
BRAYFORD (pauses):
I wonder if you could explain complications with trying to deal with pain management?
DR. KEMP:
Well, Tracy had feeding problems. She, on several occasions, had vomited blood. The main group moderate pain killers are things called non-steroidal anti-inflammatories. The whole range of those medications can cause stomach irritation and bleeding. Most of them are not available as syrups, so they’re difficult to get down sometimes. Tylenol is probably too mild to do any good, and the opiate narcotics might have problems of their own – they could increase seizure activity, and they could cause acute constipation, which would be difficult to manage.
JUSTICE NOBLE:
So the irritation of the stomach is a very common thing in the use of these analgesics?
DR. KEMP:
Yeah, and people can have massive bleeds from them.
BRAYFORD:
Had Tracy ever had stomach bleeds that…
DR. KEMP:
Yes, she had.
BRAYFORD:
And how serious is that?
DR. KEMP:
She was admitted to Wilkie Hospital a year or so before she died, with a kind of stomach flu, and she was having feeding difficulties before that started, she was running a high fever, and we couldn’t get fluids in, she was getting very dehydrated, and she had very difficult veins to get intravenous fluids in. We managed to do it for a few days, but eventually the veins clogged up, and she started throwing up lots of blood, so I transferred her down to University Hospital.
BRAYFORD:
I take it that it would be fair to say that this was a very serious situation if it wasn’t corrected?
DR. KEMP:
Yeah, she had severe electrolyte disturbances, potassium levels were low and that can cause heart irregularities.
Lights dim then come back on.
NARRATOR:
The defence lawyer then reviewed Tracy’s back problem – the scoliosis – with Dr. Kemp, who, like Dr. Dzus, emphasized the seriousness of the back operation Tracy had and the problem with using pain relievers. Brayford then asked about Tracy’s general condition.
BRAYFORD:
Now, other than the manifestations of apparently scrambled messages going to the limbs, and the apparent lack of development of communication skills, was there anything else that was indicative that there had been brain damage, if one was to physically examine Tracy?
DR. KEMP:
She had a very small head size, this is a condition called microcephaly. The brain didn’t develop because large areas were damaged at birth.
BRAYFORD:
And so are we able to say with confidence that Tracy would have never been able to communicate by means of speech?
DR. KEMP:
I don’t think she would ever have spoken.
BRAYFORD:
And with respect to the ability to have her ever grow out of diapers, was that a possibility?
DR. KEMP:
No.
BRAYFORD:
With respect to her ability to have control of her hands to the extent of grabbing at things, that was actually going downhill, was it not?
DR. KEMP:
Yes, I think it was.
BRAYFORD:
And certainly as far as the suggestion that, maybe with work, that she could learn to actually control her hands well enough to feed herself or give herself a drink, that wasn’t going to happen, was it?
DR. KEMP:
No.
BRAYFORD:
Likewise, she was never going to have enough control over her body to be able to sit on her own, unless she was strapped up, is that correct?
DR. KEMP:
Yes.
Lights dim then come back up.
BRAYFORD:
The people in the hospital with cerebral palsy essentially need the same kind of 24-hour care that any young infant would need, is that correct?
DR. KEMP:
More care that an infant. We have a program to try and maintain joint movement and mobility. We have a building in town called the development centre, where cerebral palsy patients go every day for five hours for repetitive exercises, physio and general stimulation.
BRAYFORD:
The ability to live even a moderately pain-free existence would become quite difficult if they became totally rigid—is that the idea behind the exercises?
DR. KEMP:
Yes, yeah. And despite all the exercise programs, they all need surgical releases of tendons.
BRAYFORD:
Would it be fair to say that, as far as the amount of pain that Tracy experienced in her life, that the level of pain that she was having to endure was just increasing on a regular basis?
DR. KEMP:
Yes, I’m sure it was.
BRAYFORD:
And I think it goes without saying, from what you said, the idea of surgery with patients such as Tracy, was that it was not a one-shot deal, but was an ongoing process that was required.
DR. KEMP:
Yes, I think she would have expected many more surgeries.
BRAYFORD:
With respect to the quality of care that Tracy was getting, how did you view the quality of care Tracy was getting from Bob and Laura Latimer?
DR. KEMP:
I thought it was excellent.
TO BE CONTINUED
- PART 1 – The Arrest – published in #HP222
- PART 2 – The Trials Begin – published here, in #HP223
- PART 3 – Laura – coming in #HP224
- PART 4 – Summations & Verdict – coming in #HP225
- PART 5 – Parole – coming in #HP226