by A. Turk
Amy was excited. Getting five lawsuits was a great first day with a new client.
Davenport said, “I spoke with English, and as you might expect, he’s a basket case. Each case also names Dr. Lars Herman, a family practitioner. It appears that the two doctors hold privileges at Plainview Community Hospital. Herman is also English’s landlord. The hospital has also been sued.”
Amy was taking copious notes, and Davenport gave her English’s telephone number.
Davenport wrapped up the meeting. He had to be in Knoxville for a dinner meeting with PIC’s newly appointed East Tennessee counsel. Davenport promised Thomas and Amy that the lawsuits would be faxed to their office by the end of the day.
After Davenport left, Thomas turned to Amy: “You need to deliver, not just talk a good game. That means winning lawsuits and, when necessary, settling them on the cheap. Davenport is right about one thing. You’d better control these doctors. This surgeon English sounds like he’ll be a good test.”
Assuring Thomas that she could handle whatever these doctors could throw at her, Amy returned to the sixteenth floor and got back to work.
It took all afternoon for the five lawsuits to be faxed. Each lawsuit was almost twenty pages long, and Amy placed each lawsuit in a separate file. She wouldn’t be able to read through them before she would have to leave early for Carter’s birthday party. She decided to return the phone calls she missed when she was at lunch. She would jump into the cases first thing tomorrow morning.
CHAPTER THIRTEEN
OPPORTUNITY KNOCKS
FRIDAY, OCTOBER 30, 1992
Carter’s birthday party at Chuck E. Cheese’s was a resounding success, complete with twenty of his friends. Amy let him stay up past nine playing with his new Nintendo game.
It had been such a hectic week that she neglected to get him a Halloween costume for the school Halloween party. She meant to stop at Toys “R” Us to pick up a Ninja Turtle costume but kept forgetting because she was in a constant rush. She was panicked this morning, rushing around, pulling random clothes together to create a hobo costume. She made a rucksack out of a branch from the yard and attached a handkerchief stuffed with newspaper to the end.
When Carter got up, she furiously applied makeup to his cheeks to further enhance the hobo image. When she was finished, he looked like Emmett Kelly of Ringling Brothers fame.
“But I wanted to be Raphael from the Ninja Turtles,” the boy whined.
“I’m sorry, Carter. I’ll pick up a Ninja Turtle costume tomorrow. You can be Raphael when we go trick-or-treating tomorrow night.”
Carter was not pleased, and he got into the car without saying another word.
Amy arrived at the office just before eight o’clock and dug right into the English lawsuits. She decided to start by reading the notice of charges brought by the state’s Medical Licensing Board. The charges were quite detailed, and it took an hour to read them carefully. The state asserted that English and Herman entered into a conspiracy to perform unnecessary procedures and surgeries. The state claimed a pattern of negligent medical care and treatment of patients at Plainview Community Hospital. The charges concluded by claiming that this pattern constituted recklessness.
As Amy wrote down the charges, a messenger brought two banker boxes into her office.
“Mr. Thomas told me to deliver these medical records.”
Amy looked at the summary sheet that Thomas’s secretary prepared, identifying each of the five Plainview cases. She decided to start with the Rosie Malone death case. She retrieved Malone’s medical records from one of the boxes. They included a three-inch-thick hospital chart, Dr. Herman’s office records, more than two inches thick, and Dr. English’s incredibly thin office records. Knowing this would take some time, she relished the fact that she billed by the hour.
The Malone complaint was sixteen pages long and well written. Davis knew how to draft a pleading. Amy read the complaint and made notes on a legal pad.
The complaints were divided into four distinct parts: “The Parties,” “The Facts,” “The Allegations,” and “The Damages.” Amy’s answers filed on behalf of English would deny each of the parties’ claims. Generally, the strategy of the defense was to initially deny all of the facts, the allegations, and the nature and extent of damages. Other times, Amy would assert she had insufficient information to either admit or deny a specific allegation and would deal with responsive answers another day. She needed to thoroughly read through each case and digest it before formulating the answers.
She opened Dr. English’s office record for Rosie Malone. It contained an admission history, a physical, an operative report, a surgical report, and one physician note. “Not much of a file,” Amy said out loud. English’s records reflected treatment from January 29th through 6:00 p.m. on the 30th.
Next were Herman’s office records. Rosie Malone had been Dr. Herman’s patient from January 1990 until her death in February 1992. During that period Herman had seen the patient at least a dozen times in his office. Herman had provided a lot of care and treatment to this patient. No question that Herman, not English, was Rosie Malone’s primary care physician.
The handwriting in the file was illegible, however. Amy could read only about every fourth word. The handwritten notes would be a nightmare, particularly for Davis. She presumed English and Herman could read them.
The typed records revealed that Rosie Malone was a sick person long before she met Amy’s client. She had been hospitalized at Plainview Community in 1990 and again in 1991 with heart problems, pulmonary problems, and a long history of stomach pain. Mrs. Malone had smoked two packs a day for more than forty years, and according to Dr. Herman’s records, she was an alcoholic and a drug seeker.
Amy thought, Mrs. Malone is far from an ideal plaintiff. Then she grinned. Rosie Malone’s prior conditions would significantly lower any award of compensatory damages.
As she went through the January-February hospital records, it was apparent how quickly Rosie Malone deteriorated after her surgery. Fortunately, English left for vacation the day after the Malone surgery, transferring the responsibility of postoperative care to Dr. Herman. That explained why English had written only one postoperative note. The patient should have been transferred long before February 5th.
The death certificate signed by Herman cited “cardiac arrest.” Her heart stopped. Well, everyone’s heart stops when he or she dies. Even from her brief reading of the Malone file, Amy recognized that Mrs. Malone died of septicemia, not cardiac arrest. Herman had to be kidding.
She was glad that her client hadn’t falsified the death certificate. At some point during the case, her strategy would be to shift the comparative fault to Herman. She would try to hold off accusing Herman as long as possible to secure and maintain the cooperation of McCoy, Herman’s lawyer. Davis needed to be the common enemy of the defendants.
Just as Amy was strategizing, Thomas buzzed her on the phone: “Morning, Amy. Have you begun work on the answers?”
“I’m about two hours into it.”
“How does it look?”
“I don’t want to jump to conclusions, but based upon the Malone case, Davis could argue that the surgery was unnecessary. The postoperative care was negligent, but English left town the next day. We can push the responsibility of postoperative care on Dr. Herman. He treated her for years. He’ll take the fall, not English. The compensatory damages should be minimal as the plaintiff had no income and poor health.”
Amy could tell even over the phone that Thomas was processing what she just told him.
He responded, “Have you read the Supreme Court decision of Hodges vs. Toof?”
“Of course I have. But I can’t give you a definitive answer on recklessness or punitive damages. What I can tell you is that we’re going to make a fortune trying to figure it out. We need to coordinate with McCoy on these cases. The longer we can maintain a common front, the better. If we stand together, Davis’s job will be much more difficult.
There will be plenty of time to shift blame onto Herman and the hospital.”
“You’re on track. Keep focused, and make us big money.”
“Don’t worry, Lowell. I’ve got everything under control.”
“Keep me in the loop.”
Thomas hung up, and Amy returned to the Malone case. After she finished reading the other four complaints, she decided she needed to introduce herself to her client.
She dialed the number Davenport had given her the day before. The receptionist put her through to English.
“Dr. Charles English, can I help you?”
“Dr. English, my name is Amy Pierce, and I’m with Dunn, Moore and Thomas, a law firm in Nashville. I’m your attorney. I believe Mr. Davenport of PIC told you that you’d be hearing from me. I’ve read the five complaints—”
English interrupted and in a loud voice proclaimed, “What a bunch of bullshit! Dr. Herman and I gave the best possible care. Medicine is an art, not a science. There is no guarantee in life. Every one of those patients signed a consent form, and each consent form identified the known risks of surgery. Did you say you read the five lawsuits? I was served with another one today. The total now is six.”
Amy asked him to fax over the sixth lawsuit. She then tried to take charge of the situation: “Doctor, I don’t want you discussing these lawsuits with anyone other than Mr. Davenport and me. Anything you say to anyone else is admissible in court. I particularly don’t want you discussing these lawsuits with Dr. Herman or any other hospital employee. If Dr. Herman tries to discuss them, just blame me. For now, all your communications need to come through me—”
He interrupted again and began a tirade about Ben Davis and the unfounded lawsuits.
She let him rant. He needed to vent, and Amy was the only one who could listen without English injuring his defense. But after fifteen minutes, even though she was billing PIC $200 an hour, she heard enough.
Amy politely interrupted. “I apologize, Doctor. I have a four o’clock appointment,” she lied. “My secretary tells me they are waiting in reception. Can I call you tomorrow? What would be a good time?”
“I have a laser gallbladder surgery in the morning. I should be back in the office before noon.”
She looked at her calendar. “Why don’t I call you at twelve thirty, and we can pick up where we left off?”
They said their good-byes, and Amy hung up. Thinking about what just transpired, she picked up the phone and punched in Lowell Thomas’s extension: “Do you have ten minutes?”
“If we can both bill for it, I’ve got thirty minutes till my next appointment. Come on by.”
Within two minutes, Amy was knocking on Thomas’s door. As she walked in, he asked, “What can I do for you? More important, who are we billing for the next half hour?”
Amy gave Thomas the twenty-minute version of the English lawsuits. She brought in one of the complaints and quoted from the pleading. Thomas silently took in his associate’s words until she paused for a breath.
Thomas jumped in: “Six lawsuits and counting. This could be a gold mine. You’ll never try all six, but if you try one or two, the fees will be close to half a million. PIC will become one of our biggest clients. Thank you, Dr. English.”
Despite the fact that Thomas was her boss and a named partner, Amy interrupted, “That’s why I’m here. This is my big opportunity. And I want some guarantees before I bust my ass and make this firm and its partnership wealthier. Lowell, I’ve worked hard, and I’ve turned in results. If I deliver in these Plainview cases, I want your promise of partnership.”
“Now, don’t be too effective and resolve this matter quickly. We want to milk this situation awhile. You bill, say, at least six hundred hours and then settle them cheap. The new Supreme Court comparative fault and punitive damage opinions should be good for at least a hundred hours of research and briefing alone in these cases,” he told her.
“Lowell, stop seeing dollar signs for a second and answer my question. If I deliver on these Plainview cases, do I get my partnership?”
Thomas again avoided the question and mentioned that she’d be working with Grayson Stevenson’s firm, which would be representing the hospital. He then said, “We need to feel out the other defense counsel. It’s important we present a united front. Eventually the hospital will turn on the doctors and their insurance companies. These two doctors are pretty much attached at the hip, at least until trial. It sounds like Herman should take the brunt of the fall. In that death case, it was Herman’s patient, and our client smartly left on vacation immediately after surgery. It’s hard to blame English for the postoperative care if he was more than nine hundred miles away.”
Amy was becoming annoyed at Thomas for avoiding the most important question of her life. She needed his commitment, or she would quit right here and now. Why do all the work and just let Thomas and his partners make the money? She wanted a partnership from this opportunity. If not, then she had no doubt that she could easily get a job at another Nashville firm. She was a real asset wherever she went and knew she could eventually earn a partnership anywhere. However, it might be years before she was handed another opportunity like the Plainview cases. Most associates never were offered a partnership on a silver platter, but Plainview was most definitely silver.
She needed to be somewhat diplomatic with Thomas and not blow her opportunity. It was still his firm and his firm’s client. Davenport and PIC would stay with DMT if she decided to leave. So she took a slightly different approach: “In each case the plaintiff is seeking punitive damages based on recklessness. The Tennessee Supreme Court opinion in Hodges vs. Toof will, as you say, guarantee a hundred hours of research and briefing. I suspect the six cases will require at least a hundred depositions. The depositions, for the most part, must be taken in Plains County, and I’ll charge $200 an hour to travel back and forth for each deposition and court appearance. I’ll be billing a fortune over the next eighteen months. I can stretch these cases out for at least three years.”
Thomas was getting more excited by the moment, as if he was watching a pole dancer at a strip club. However, his available half hour was up, and his secretary buzzed to say that his appointment was waiting.
Amy stood her ground. “I need an answer right now. I’m not leaving your office without your promise of a partnership.”
She folded her arms across her chest and waited for Thomas’s next move. He clearly didn’t like her ultimatum. But the single mother was convinced that the best move was to press the issue.
Thomas stared at her hard; she’d cornered him and was insisting on an answer.
Amy was both excited and scared by what he might say next.
“You deliver on these Plainview cases, and you get your partnership.”
“That’s two points, Lowell. I’ll send you a confirming memo when I get back to my office.”
CHAPTER FOURTEEN
FLIP OF A COIN
THURSDAY, NOVEMBER 12, 1992
Davis was tired. He had slept only two hours the previous night, worrying about the scheduling conference before Judge Boxer.
Morty had always told Davis that the judicial system was supposed to have a predetermined order, but it was flawed and almost never worked the right way. The goal of the scheduling conference was to set deadlines. Deadlines meant that the cases were moving toward trial. Plaintiffs wanted cases to get to trial while defendants rarely wanted to see the inside of a courtroom. A trial carried the risk of a jury verdict. Generally, delay was a defendant’s friend. In the case of the Plainview lawsuits, Davis needed the order of the trials to be set so he knew on which case to focus his time and money.
It was a beautiful November morning in Middle Tennessee, and the temperature was mild. Davis and Morty were in Davis’s black Eldorado convertible. Davis didn’t let Sammie attend the meeting with defense attorneys, held the day before. She spent the day at the office with Bella, while Morty and Davis met with Stevenson, Pierce, McCoy, and Barnes.
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Morty scolded Davis that not including Sammie was a bad decision. “How do you expect her to learn if she doesn’t observe what happens in the real world and how we handle it? You’re a schmuck. She’s my responsibility. I’m making the call next time.”
Davis was forced to be defensive: “Look, she’s got skills, but she’s a distraction. She takes up my time and energy.”
“It’s no longer your problem,” Morty shot back.
Davis changed the subject. “How long do you think this damn hearing will take?” he yelled over the howling wind.
Morty hated that the top was down in November. Davis also had annoying habits, which included playing music too loud, without the courtesy of headphones.
Morty expected the hearing to last a few hours. That is, he said, “unless Boxer takes immediate and absolute control of his courtroom. I doubt he will. There are a lot of strong personalities, and they’ll be long-winded.”
Davis didn’t like that answer. He figured that Morty included himself as one of those strong personalities and, jokingly he thought, long-winded. There were at least four defense lawyers for four defendants, and he represented only one party in each case. The process could easily turn into a free-for-all, which would not be in his clients’ best interest.
Davis decided to put in his two cents. “I don’t think it will take that long. The parties’ counsel got a lot of hard work done yesterday. We spent four hours together. We just haven’t agreed on the order of the cases. It’s our choice. We filed the lawsuits, so we get to decide the order. I wish we had found case law to support that position.”
Morty said, “We can assume the defendants didn’t find anything favorable on the point either, or they would have argued it yesterday and included those citations in their brief. The judge should be pleased with all that was accomplished by the parties before this hearing.”
