First Do No Harm (Benjamin Davis Book Series, Book 1)

by A. Turk

Davis was skeptical. “This doctor on staff probably won’t amount to much. She’ll never testify against her employer and fellow doctors. Patel might be a start, but you’re going to have to find an out-of-state family doctor and a general surgeon to testify.”

  Apparently Littleton hadn’t anticipated that problem because he rarely graced the inside of a courtroom. He didn’t consider that Patel’s testimony was tainted. It was equally obvious to Davis that Littleton had never prepared a medical malpractice case for trial, much less actually tried one.

  Littleton confirmed Davis’s suspicions with his next question: “Why do you need expert witnesses from out of state?”

  Davis looked over at Sammie, who was listening intently since none of this was covered in paralegal school.

  “You should know why. It will be impossible to get a Tennessee doctor to testify against another Tennessee doctor.”

  “Why’s that?”

  It was unbelievable to Davis that he had to explain this basic idea to a fellow attorney. At least an explanation will be a teaching moment for Sammie.

  “Brad, there’s about an eighty percent chance that both English and Herman are insured by Tennessee Mutual Insurance Company. Tennessee Mutual insures about eighty percent of all doctors practicing in Tennessee. These doctors are shareholders of the company. That’s what makes it a mutual insurance company. They’re not going to testify against fellow shareholders. It doesn’t matter how egregious Herman’s and English’s actions are. No Tennessee doctor will help get a judgment against his own company. Any verdict would be paid from the doctors’ profits and would increase their premiums. No Tennessee Mutual doctor will agree to testify. You’re dreaming. This Dr. Patel won’t testify against her colleagues. She would have to be suicidal.”

  Littleton slapped the table. “That’s why I need you, Ben. I’ll get the cases, and you get them ready for trial. We’ll make the perfect team, and we’ll split the fee fifty-fifty.”

  Davis laughed and shook his head. “You’ve got to be kidding. I’m not going to do all the work and get fifty percent of the fee. If I’m doing all of the work, ethically I could give you a five percent finder’s fee. If you want a greater fee, you’ll have to work for it. Quite frankly, you don’t know much about this area of the law. Have you ever tried a malpractice case?”

  “No, but I have been practicing law for twenty-five years. I’ve taken plenty of depositions. They may not have been medical in nature, but not all the depositions will be medical. I can do legal research and write briefs. I can argue motions and help you at trial if it comes to that.”

  The next point had to be made. “If you accept a case, you’ve got to be willing to try it. That’s my rule of thumb. If you do twenty percent of the work and pay twenty percent of the expenses, you can have twenty percent of the fee. Do we have a deal?” Davis asked.

  After pausing a moment, Littleton countered, “I’ll do a third of the work and advance a third of the expenses, for a third of the fee. You’ll be lead counsel. We may sign up as many as twenty cases. Imagine twenty cases against two doctors and the hospital. That sounds like a pretty good deal to me.”

  Davis admitted to himself that twenty cases against the same three defendants would be interesting and profitable. And they would never try all twenty. After a trial or two, the balance of the cases would settle. The defendants would be unwilling to risk twenty juries.

  Davis never really believed that Littleton would or could do a third of the work. Maybe he would do twenty percent, and that was probably worth a third of the fee. At least Davis would have help with a third of the expenses. He was sure that the Plainview clients didn’t have the expense money to fund the cases. He knew it was going to be expensive.

  “If we get retained in only ten cases, your share of the expenses could amount to $70,000 over the next two years. If it’s twenty cases, you can double that amount. Are you prepared to make that financial commitment?”

  “Ben, you have my word.”

  “Forget your word. I’ll draw up a contract. It will commit you to a third of the hours and a third of the expenses. The fee will be divided two-thirds/one-third. It will also provide that I’m lead counsel and primary contact with the clients. I will control the cases and make all legal decisions, including settlement recommendations. That’s the deal. Take it or leave it. We’ll use Dr. Patel as an advisory expert to review the medical records, and based on her recommendations, I’ll select the best cases to file suit. Do we have a deal?”

  With a nod, Littleton accepted the deal. “Ben, after Bella types it up, fax it over, and I’ll sign it. This will be an incredible opportunity for both of us. Maybe the cases will settle quickly, and we won’t have to do much work.”

  Davis’s statements hadn’t registered with Littleton. All he could see were dollar signs. Davis should have stopped right there, but greed is a terrible thing and clouds one’s judgment.

  CHAPTER FIVE

  CONFRONTATION

  WEDNESDAY, APRIL 8, 1992

  It was a long day and an even longer night. Dr. Laura Patel had been at Plainview Community Hospital for twenty hours of a twenty-four-hour shift that began at 9:00 a.m. She felt grimy and sweaty and probably smelled a little ripe. There were large sweat stains under each armpit. Being on call was both physically and emotionally exhausting, and she longed for a shower.

  The emergency room had certainly lived up to its name and reputation. Laura had just stitched up a redneck who had been cracked over the head with a beer bottle in a bar fight. A barroom brawl was a dime a dozen on a Saturday night, but unusual for Wednesday. As she finished, she commented to the patient: “You’re lucky. An inch lower, and you would have lost your eye.”

  She turned to the ER nurse, excused herself, and headed for the doctors’ lounge. Only one other doctor was on call. Dr. Lars Herman had recently come off break and was standing in the hall, reading a chart.

  She walked over to him. “Lars, it looks like it’s quieted down. I think I’ll try to shut my eyes for a few minutes in the doctors’ lounge.”

  Herman grunted an acknowledgment without looking up from his chart. Before he could change his mind, Laura hurried to the lounge. In the back room of the doctors’ lounge were three cots and a La-Z-Boy. She fell into the La-Z-Boy and pushed the chair to its fully reclined position. She was only five foot one, and her legs didn’t reach the end of the footrest. Her long black hair was in a ponytail, which she placed over the headrest. At thirty, Laura had an athletic body with small, firm breasts.

  Just as her black eyes shut, she heard screaming from the ER. After taking a few seconds to process the situation, she jumped from the chair and ran to the emergency room. Dr. Herman was struggling with and screaming at a patient.

  “Get out of my hospital, you foul-mouthed animal.”

  A crowd of people was standing around the nurses’ station watching the dramatic events unfold. Laura grabbed the elbow of an ER nurse and asked for an explanation. The nurse said that the patient had driven his car off the road and had arrived by ambulance. The man was intoxicated and belligerent. When Dr. Herman tried to treat him, the man told Herman to “keep his fucking hands to himself.” The nurse recounted that Herman then pushed the patient, who tried to take a swing at Herman but missed. Both men fell to the ground with Herman on top. The drunk cried out in pain.

  “Get the fuck off me, you douche bag. You’ve broken my ribs, you asshole.”

  Laura thought, I better step in. It’s getting ugly, and the patient is injured. She felt that she had an ethical duty to do so. The patient reeked from alcohol, and it was obvious that his intoxication had caused the confrontation. She really didn’t want to get involved, but despite her trepidation, she interjected herself into the deteriorating situation.

  “Dr. Herman, please let the patient up. I’ll treat him. Why don’t you retire to the doctors’ lounge?”

  Both men jumped to their feet. She was amazed at the agility of the drunk. The inebriated m
an spat in Herman’s face. Herman quickly wiped the greenish saliva from his cheek and lunged at the man while yelling, “You goddamned asshole! Get the hell out of my hospital!”

  Laura stepped between them, and because of the sheer momentum of Herman’s body, all three fell to the tiled floor. The drunk screamed again, as if in horrific pain. All three got up quickly, and the drunk vomited on the floor, right next to her feet. Laura, as a doctor, had a strong constitution, but the smell was overpowering.

  Herman turned to her and began shouting, “How dare you put your hands on me? I could have you charged with assault and battery. I was defending myself, and you interfered. Who the hell do you think you are? You’re nobody. That’s who. You’re not even a real doctor. I want both you and this asshole out of my hospital immediately!” Herman was red in the face, and the veins in his neck were bulging.

  Laura thought he was about to have a stroke. She and Herman had never gotten along, but this confrontation was serious and very public. Laura looked around the room for support. All of the ER staff witnessed his behavior and heard him voice his utter disrespect for her.

  “Look here, Dr. Herman, you obviously mishandled this problem. A doctor should never get physical with his patient. Even in the worst circumstances, you call security.”

  He became even angrier, as if that were possible. “Don’t tell me how to practice medicine. If I wanted advice from some dyke, I’d ask for it. Keep your opinions to yourself, you Indian bitch.”

  She was almost speechless as he outed her in front of a room full of people. She had to respond, but she tried to compose herself before she did. In a calm, steady voice she said, “I intend to submit an incident report to the ER Committee today.”

  Dr. Herman glowered at her, but she didn’t back down.

  “I remind you of your Hippocratic Oath and your professional obligation to first do no harm. You’ve certainly strayed from that principle this evening. If you’ll excuse me—”

  He tried to block her, but Laura darted around him and took charge of the drunken man. “This patient needs to be taken to radiology for an X-ray.”

  She looked at the faces of several of the ER staff and felt confident that they would back her up. She was actually proud that she managed to respond to Herman. He had gone way too far. The nerve of that quack, thought Laura. How dare he question my competency? How dare he call me a dyke? My sexual orientation is none of his business.

  As she was helping the patient into a wheelchair, Herman took his parting shot: “We’ll see who gets reprimanded. This isn’t the first time you’ve questioned my treatment of a patient. But let me assure you, it will be the last. I’d start packing my bags if I were you.”

  She couldn’t let the threat just sit there. “Don’t threaten me. I have a contract, and I’m here to stay, despite your best efforts,” she stated evenly.

  He retorted, “You just don’t know who you’re dealing with, but you’ll find out soon enough.”

  She decided it was best to end the conversation. The patient came first. She waited in radiology until the X-ray was taken. The patient was diagnosed as having three fractured ribs.

  Laura worked the remaining hours of her shift. She was tired and just wanted to get home for a hearty breakfast with Maggie and the kids and then take a hot shower.

  Within fifteen minutes of the end of her shift, Laura heard her name over the intercom system. She was to come to the administration office. She wished she had prepared her report and gathered the witness statements, but she had been working since the incident with Herman. Obviously, Herman had run to Woody Douglas and told his twisted version of the facts. It would be Herman’s word against hers.

  At the administration office, Woody Douglas, Dr. Herman, and Dr. Robert Kelly, the medical director of the hospital, were waiting for her. There was also an older, stately gentleman, whom Laura didn’t know, seated next to Herman. This group looks like trouble, she said to herself.

  Bracing herself for what was to come, Laura held out her hand to the unknown person and introduced herself, “Dr. Laura Patel, family medicine.”

  The man responded, “Grayson Stevenson III. I represent Plainview Community Hospital.”

  She was taken aback. She was not expecting the hospital’s attorney to be there. She nervously turned to Douglas and Dr. Kelly and asked, “Why is there a lawyer at this medical meeting? I haven’t filed my formal complaint against Dr. Herman for his unforgivable conduct this morning yet. At this point, this is an internal hospital matter—”

  Dr. Kelly, who was senior of the group, broke in and said, “You’re mistaken about why you’re here. Dr. Herman is not the focus of this investigation. You are, Dr. Patel. Dr. Herman has leveled very serious charges against you.”

  Dr. Kelly handed her the formal complaint signed by Herman, Douglas, and himself. Douglas and Kelly represented two-thirds of the Executive Medical Committee. The investigation was over before it began; a majority of the committee had already found her guilty.

  Laura felt sick to her stomach. The document alleged that she had struck Herman, interfered with his treatment of patients, acted unprofessionally, and brought dishonor to the hospital.

  She reread the document. Herman had stacked the deck against her. He even had the hospital’s lawyer at the meeting. How did they get Mr. Stevenson here so fast? Could my confrontation with Herman have been some sort of setup?

  Dr. Kelly interrupted her thoughts. “What do you have to say for yourself, Doctor?”

  She started to respond, “Sir, I would really—”

  Grayson Stevenson III pulled from his inside coat pocket a small tape recorder. “Let’s keep a record of what’s said here today.” Stevenson turned the recorder on.

  Laura heard the click and hiss of the tape. She was a little intimidated by Stevenson and his tape recorder but pressed forward: “I’ll agree to this meeting being recorded as long as you’ll give me a copy of the tape.”

  Douglas agreed.

  Laura described what happened between Herman and the drunken patient in the ER: “The patient was intoxicated and belligerent, but he was an admitted patient. That patient was entitled to full patient rights under the hospital’s Code of Conduct and the Declaration of Patients’ Rights. Dr. Herman threw the patient to the ground and broke his ribs.”

  “I had a right to defend myself,” interjected Herman.

  “You were totally unprofessional and abusive. You called me an ‘Indian bitch’ and a ‘dyke.’ I find those remarks very degrading,” she fired back at him.

  This time, Douglas interrupted, “Well, are you?”

  She was shocked by Douglas’s question but managed a quick comeback: “My father was born in India. I was born in West Fargo, North Dakota. I’m sure we can all agree that I’m not a female dog, although that’s not what he meant. My sexual orientation is my own business.”

  Herman chirped in, “So you’re not denying that you’re a lesbian?”

  Stevenson whispered something in Herman’s ear.

  Seeing this angered Laura, and she lost her cool. “I thought we were putting this meeting on the record. Why is Dr. Herman whispering? Mr. Stevenson, what is the good doctor hiding?”

  It was Stevenson’s turn to be aggressive. “Dr. Patel, your last statement was a misrepresentation of the events and distorted the record. Dr. Herman didn’t whisper in my ear. Rather I whispered in his. I have no personal knowledge of any of the facts being investigated, so the only thing I could have told him was legal advice. My legal advice to him is protected by the attorney-client privilege.”

  She was shaken. If she wasn’t, she might have pointed out that Stevenson represented the hospital, not Dr. Herman.

  The office felt small and hot, but she managed to regain her composure. “Before I move on from what happened this morning, I want to state for the record that almost every member of the ER staff can verify what I’ve said and can confirm the inappropriate behavior of Dr. Herman. I intend to collect writte
n statements—”

  Dr. Kelly jumped in hard and barked at her, “You’ll do no such thing. No one other than the Executive Medical Committee will investigate these charges. If our investigation is interfered with or hampered by you in any way, there will be serious consequences. Do you understand, Dr. Patel? Do you have anything more to say?”

  She decided that since a record was being made, she might as well be sure it was complete. She decided not to hold anything back and started to give her statement.

  Dr. Kelly immediately interrupted, “If that’s all, Dr. Patel, we’ll adjourn this meeting.”

  The hospital’s investigation is going to be a whitewash. This might be my last opportunity to say my piece. “No, I’m not done, sir. There’s a scam going on, and this hospital is a part of it. Mr. Douglas knows about it. I’ve reported it to him twice and made a formal complaint. A woman died unnecessarily two months ago because of it.”

  Glancing at Dr. Herman, she watched his bright blue eyes turn to steel. “This scheme has to do with laparoscopic gallbladder surgeries recommended by Dr. Herman and performed by Dr. English. In the last two years, the number of gallbladder surgeries at this hospital has increased six-fold. I sat down and reviewed the surgical logs from before and after Dr. Herman and Dr. English arrived at this hospital. Dr. Herman’s purchasing an ultrasound machine and Dr. English’s training in the use of the laparoscope should be obvious evidence of their involvement with the dramatic increase in the number of procedures. Who proctored Dr. English in laparoscopic gallbladder surgery?”

  Dr. Kelly looked at Douglas, and Douglas, back at him. They didn’t have an answer because there was no good answer to the question.

  Laura took their silence as her opportunity to continue: “He took a three-day course, and then he showed up at Plainview Community Hospital and started performing laparoscopic gallbladder surgeries. There are some weeks English removes a gallbladder every day. Who at the hospital made sure that he knew what the hell he was doing? I’ll tell you. No one.”