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

by A. Turk

  “Absolutely.”

  “So, if you were the judge faced with these cases and all this extra work, would you want to travel ninety minutes, forty-five each way, to court to preside over these trials? Or would you prefer to roll out of bed and walk to your courtroom? What does human nature tell you? And where do you think Judge Boxer lives?”

  Davis smiled and said, “Hewes City, the seat of Hewes County.”

  Davis’s tone turned serious. “Morty, I need your help. These Plainview cases are overwhelming. I’m ignoring my other clients.”

  Before Davis could even ask the question, Morty reached his hand across the boat to shake Davis’s hand and said, “Give me a dollar, Ben.”

  Davis reached for his wallet and pulled out a one-dollar bill. He handed it to Morty.

  Morty put the dollar in his pocket and said, “Say hello to your new senior associate. I want to mentor Sammie, and unlike when I taught you, I’ll have the time to do it right.”

  “I don’t think you did such a bad job.”

  “There’s always room for improvement,” Morty said with a grin.

  Davis was forced to give Jake a dollar too and agreed he could be his new “junior associate.”

  The disappointed fishermen decided to call it a day, and Davis rowed them to the bank. They rarely ended their outing without bringing in at least a couple of good-sized fish. Jake was the most disappointed of all.

  Looking confused, Caroline met them and asked, “Dad, where are the fish?”

  He replied, “Well, Morty decided he wanted to take us to the Loveless Café for supper tonight. What do you think?”

  Excited, she ran to tell her mother and Sammie.

  At the café about an hour later, the family had their favorite dishes, including the house specialty: fried chicken, biscuits, and jam. They talked about everyday family things, not a word about law or legal cases. Jake told silly jokes that kept everyone laughing. It had been a good family day for all of them.

  Davis decided to wait to tell Liza and Sammie the good news about his “new” senior and junior associates until they got in the car for the ride home. He knew they would be pleased; he certainly was.

  CHAPTER NINE

  A SISTER’S HELP

  FRIDAY, SEPTEMBER 11, 1992

  Laura arrived at Davis’s office ten minutes early. She had made arrangements for him to contact her mentor, Sister Leslie Carson. Davis was to place a conference call and interview Sister Carson as a potential expert witness. Sister Carson’s testimony would criticize the hospital’s credentialing of Herman and English. She would also speak to the failure of the Plainview committee system to stop the repeated acts of malpractice by Herman and English.

  Laura had worked closely with Sister Carson during her residency at Saint Francis Hospital in Saint Paul, Minnesota. Carson was the president and administrator of Saint Francis and reported directly to the Board of Trustees as to hospital matters and to Mother Superior Paula Nash as to spiritual matters.

  Saint Francis was a 250-bed, not-for-profit hospital. Because Sister Carson also sat on each of the medical committees that supervised the various functions of the hospital, she worked very closely with the medical staff. She was also responsible for the credentialing of all new physicians. She was an active member of the American Association of Hospital Administrators and the American Association of Healthcare Executives. With her background, Sister Carson’s testimony would be very damaging against Plainview Community Hospital for its part in the conspiracy.

  When Laura arrived at Davis’s office, Bella greeted her with a Diet Coke and sat across from her in reception. Bella was almost six feet tall and had an ample bosom. Laura guessed she was in her early sixties.

  “Are you a native Nashvillian, Ms. Rosario?”

  “Please, call me Bella. No, I’m originally from New Jersey. I moved to Nashville in fifty-nine with my husband, Tony, and our three children. It has been a great place to raise a family.

  “I’ve been Mr. Steine’s secretary for thirty-three years, long before Mr. Davis joined us in 1975. I suppose you know that Mr. Steine is a legend in his own time. He has a marvelous reputation as a lawyer, not the least for his leadership in the civil rights movement and in helping singers gain power from the recording companies by becoming their own publishers. But even before he started the practice of law, he made his mark as a fighter pilot, first for the RAF and, then after Pearl Harbor, for the US Army Air Corps. He still flies today.”

  Changing the subject, Bella asked, “Where are you from, Doctor?”

  Laura felt right at home with this woman who was everyone’s mother personified. She took a sip of her Diet Coke and explained her background and heritage.

  “I’m from West Fargo, North Dakota. My father emigrated from India with his brother in 1948. My mother is American. My parents, with my uncle and aunt, own a Howard Johnson motel and restaurant. My dad and uncle run the motel, and my mother and aunt run the HoJo’s restaurant. My three cousins and I took turns as waitresses, maids, and laundresses. I didn’t think I’d miss home when I moved to Tennessee, but I do.”

  Laura was surprised by how much she opened up to this stranger. It was not in her nature to openly discuss her life with such a new acquaintance, but it felt right.

  “Did you move here with any family, Doctor?”

  Laura hesitated only a moment. “I moved here with my life partner, Maggie. We have two daughters, Kim and Lee. Maggie’s from Nashville. Her parents and two sisters are the reasons we moved to Plainview. It’s only fifty-nine miles away.”

  “Bella, please bring Dr. Patel back,” Davis’s voice boomed from the intercom.

  Davis extended his hand and gestured for Laura to take a seat. Although she had only met him briefly at the library meeting, she had been working with him closely via phone for the past six weeks. Laura had assisted Davis and Littleton in selecting the ten cases that best demonstrated a pattern of malpractice. Most were gallbladder cases, but Davis insisted that they pick a couple of other acts of malpractice to prove to the jury that the negligence wasn’t limited to gallbladder surgery. She was impressed by his dedication; Ben Davis was a serious man on a mission. Laura couldn’t testify as an expert witness because her litigation with the hospital rendered her far too biased.

  After she completed her evaluations, the selected patients’ charts were sent to Dr. Harlan Swanson and Dr. Ralph Adams. Davis retained these physicians to testify against Herman and English. Dr. Swanson was a board-certified family practitioner with an active medical practice in Connors, Georgia. Dr. Adams was a board-certified general surgeon who also worked out of Connors and had performed more than one hundred laparoscopic gallbladder surgeries in the last seven years.

  These expert witnesses were ideal because Connors’ demographics were very similar to those of Plainview. Tennessee law required that expert witnesses practice medicine in a same or similar community as the defendant doctors, and the experts had to be from Tennessee or from a contiguous state. Within four weeks of receiving the ten patients’ charts, Drs. Adams and Swanson generated detailed reports in each of the ten cases. In their professional opinions, Drs. English and Herman had been not only negligent but also reckless.

  Laura felt that the reports were very comprehensive and detailed. On more than one occasion, she expressed that opinion to Davis. He assured Laura that he would be able to draft the complaints based on those reports.

  Davis picked up the phone and dialed the number for Sister Carson. He hoped the Sister was able to at least skim the twenty reports he faxed to Saint Francis six days ago. Once the phone started to ring, Davis hit the speakerphone button.

  “Sister, this is Ben Davis. Dr. Patel is here with me on speakerphone.”

  “Hello, Laura. So this is the famous Ben Davis that you’ve been raving about.”

  “It’s a pleasure to meet you by telephone, Sister. Have you read Dr. Adams’s and Dr. Swanson’s reports?”

  “I’m about halfwa
y through them. It’s a lot to digest. I’ve read ten reports on five of the cases. I was particularly impressed with Dr. Adams’s criticism of the surgical proctoring procedure at Plainview. I’m amazed at how lax the hospital was in its credentialing.”

  Laura spoke up, “There’s no real credentialing procedure. It’s a matter of what the physician applies for. I could have requested procedures that I was unqualified to perform, but that would have violated my Osteopathic Oath. Herman and English clearly violated their Hippocratic Oath and took on procedures and surgeries that they were not qualified to perform.”

  Carson got right to the point: “Why didn’t the Surgical or Pathology Committee expose these scoundrels?”

  Laura almost flew out of her seat to answer the question: “The Executive Committee is composed of Dr. Kelly, the medical director; Woody Douglas, the hospital administrator; and the chairman of the pathology department. The Executive Committee controls the whole process. The individual committees rubber-stamp whatever the Executive Committee finds.”

  Davis broke in: “Is that the standard of care, Sister?”

  Carson explained that at Plainview, the roles of the Executive Committee and the department committees were reversed; the departments, not the Executive Committee, should investigate.

  “Plainview Community Hospital isn’t following the standard of care set by its internal bylaws and regulations or by the standardized rules of the Joint Commission on Accreditation of Healthcare Organizations.”

  “Sister, I must ask you if you are willing to testify to that.”

  “I’m inclined to testify, but I must get permission from Mother Superior. What exactly would I be agreeing to do, Mr. Davis?”

  Davis replied, “I will need a report in each of the ten cases. Ninety percent of the reports would be identical because they all generally address the hospital’s same breach of the standard of care.”

  He wanted Sister Carson to know what she was getting into. “The defense counsel will want to take your deposition after they’ve had an opportunity to read your reports. The deposition will probably take place in Nashville. They’ll fly you down and put you up in a hotel room. The defendants will pay you an expert witness fee to take your deposition. I will also pay you for your time, reviewing the records, writing the reports, and testifying in court. The whole process will take maybe forty to sixty hours of your time. How much do you charge?”

  “I’ve never been asked to be an expert witness before. What’s the customary charge?”

  “Experts charge by the hour. The dollar amount is based on your profession and level of experience. How much is your time worth?”

  “Mr. Davis, my time is God’s time. My salary as president and administrator of Saint Francis Hospital is nominal. I live with my order and have very little need for cash.”

  “Sister, you’ve got to charge for your services. You can donate your fees to the church if you want, but I can’t let you work for nothing. How about $100 an hour? You can do with the fees as you see fit.”

  “All right by me, but I’ll still have to get permission from Mother Superior. I have your contact information, and I’ll get back to you. You’re doing important work, Mr. Davis. God is looking down on you and wants justice to prevail.”

  “Thank you, Sister. I look forward to working with you.”

  When the line went dead, Davis turned to Laura. “She’ll be great. She’s got no ulterior motive. She simply wants justice to be served. The jury will love her. The fact that she’s donating her fee to charity removes the prevailing bias of all experts. She has no financial gain.”

  Laura took a deep breath and changed the subject. “Ben, I need your help. Will you join my defense team and take the lead from Littleton?” It was apparent to Laura that Davis was the much better lawyer. He was personable and poised.

  “Laura, I can’t. If I became your attorney, it would reduce my credibility as the attorney in the Plainview malpractice cases. It’s a matter of conflict of interest. It would be ethically improper to damage the interests of my clients. I’m sorry.”

  Laura got up without another word and left Davis’s office. She wasn’t mad at Davis. She understood, but she didn’t like being stuck with Littleton. As she walked past Bella’s desk, she was crying.

  CHAPTER TEN

  COUNTRY GIRL

  WEDNESDAY, SEPTEMBER 16, 1992

  Sammie was responsible for scheduling the appointments with the Plainview plaintiffs to go over the draft lawsuits that her uncle prepared. She was the firm’s contact person with the clients during this initial stage.

  Morty worked his magic with the press; he was very well connected. He played poker twice a month with two television station managers and for the last twenty years had a regular golf game with the editor of the Banner, Nashville’s afternoon paper. As soon as the lawsuits were filed, he’d have no problem getting press coverage.

  Edith Easter and her children, Allie and Howard, had a ten o’clock appointment. They were about fifteen minutes early, and Sammie led them to the conference room. She offered them Cokes or coffee.

  Sammie had read the draft complaint, so she had a good idea of what happened to Edith Easter at Plainview Community Hospital. Her gallbladder surgery was unnecessary, and she suffered complications.

  “How are you feeling, Mrs. Easter?”

  “I’m feeling much better, thank you. I’m here ‘cause Allie signed me up at your library meeting.”

  Allie broke in, “Dr. Herman urged Momma to have surgery, and then Dr. English screwed it up. She was sick for months because they wanted to make some insurance money.”

  At that moment Davis entered the conference room. He exchanged pleasantries but soon got down to business.

  “Ms. Easter, based on your interview with Sammie, you executed a medical authorization, and I got copies of your mother’s medical records. A medical doctor and I have reviewed them. These are the records.” Davis pointed to a stack of documents six or seven inches thick.

  “Based on my review of those medical records and an in-depth discussion with the medical doctor who reviewed your charts, I’ve prepared the draft complaint that I sent to you last week. Did you read it and make notes in the margin like I asked?”

  Allie replied, “Mr. Davis, we don’t understand it.”

  “Well, that’s why we’re meeting today. This document must be accurate, and you need to understand as best you can what it alleges. Do you know what the complaint is?”

  “Not really,” responded Allie.

  “Well, let’s start with that,” Davis said.

  Sammie was impressed with how at ease and patient her uncle was with these country folk. Davis, despite his Yankee background, had learned to communicate with his southern clients quite well. With Morty’s help, he learned to talk slower and to enunciate his words. He was comfortable dealing with all types of persons, from Edith Easter to a client who was the president of a company.

  He explained what a complaint was and how it functioned in the legal system. Then he said, “The law requires a person who brings a lawsuit, known as the plaintiff, to put in writing what you claim the hospital and the doctors did wrong. The doctors and the hospital, the parties being sued, are known as the defendants.

  “This is a medical malpractice case. We are claiming that the hospital and the doctors made wrong decisions. We are claiming that the hospital and the doctors acted unreasonably and that the medical care you received was substandard, below what you were entitled to. That’s called negligence. When a doctor and a hospital are negligent, that’s called malpractice.”

  Sammie didn’t think the Easters would ever understand the intricacies of the lawsuit, but she knew her uncle had to at least try to explain. Sammie pointed to the medical records on the table. “You don’t understand those medical records, do you, Mrs. Easter?” she asked.

  Edith Easter hesitated, choosing her words carefully, “Well, Miss, I dropped out of school in the sixth grade, so I don’t
read real good.”

  Sammie handed Mrs. Easter her copy of the complaint and pointed to a paragraph. “Can you read this?”

  “I broke my glasses several months ago, and I can’t read very good even with them.”

  Sammie pointed to Edith Easter’s name in the third paragraph. “Do you recognize your name, Mrs. Easter?”

  “Yes, but the rest of the paragraph don’t mean nothing to me.”

  Davis turned to Allie and asked, “Do you read better than your mother?”

  “Yes, sir, I can read, but I don’t understand much.”

  “Well, we’ve got our work cut out for us today, but I have plenty of coffee and plenty more Cokes. So, we better get started.”

  Davis explained in the most basic terms what Mrs. Easter’s medical records showed, interjecting the opinions of the experts he hired to review them. He explained that her surgery was unnecessary and that Dr. English messed up the surgery.

  “The hospital’s radiologist, Dr. Gerald, agrees with our expert that your gallbladder should not have been removed and that Dr. English perforated your bowel when he performed surgery.”

  Davis spent the next two hours reading the complaint and explaining each paragraph to the Easters. Allie asked a few questions, but basically Davis read and explained the document with little interruption.

  “Mrs. Easter, if a jury finds that those tests and surgeries ordered by Dr. Herman and Dr. English were unnecessary and that the hospital knew or should have known that, the jury could award not only compensatory damages but also punitive damages. Compensatory damages are to compensate you for your injuries, while punitive damages are to punish the hospital and the doctors.”

  Finally, for the first time, Howard spoke up: “How much will the jury give Momma?”

  Davis replied, “No one knows the answer to that question. It depends on how much a jury determines that your mother has lost as a result of negligence of the defendants. She’s retired, so she has no lost wages. The amount of the award would vary from one jury to another. Juries are unpredictable. That’s why most cases settle, because of the uncertainty.”