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

by A. Turk

  The remaining panelist, Dr. Bernard, a urologist, had recently begun practicing and teaching at Vanderbilt University, which was partially self-insured with the excess coverage with Lloyds of London.

  The law required that their peers, other MDs, judge Dr. Herman and Dr. English. Sammie thought it was impossible to find three doctors as incompetent as Herman and English. She was convinced that Herman and English were criminals with medical licenses.

  The judge called the hearing to order. McCoy, Pierce, and Dillingham agreed to waive the reading of the charges.

  Davis whispered to Sammie: “That’s Dillingham’s first mistake. Those charges are so extensive and serious, reading them would have set the right stage and mood.”

  The first witness was an internist, Dr. Ernie Larson, from Columbia, Maury County, Tennessee. Dillingham reviewed Larson’s background and the nature of his practice. Larson explained that there was a tremendous amount of overlap between the subspecialty of family medicine and internal medicine and that the two subspecialties performed the same services for their patients. He had privileges at two local hospitals. He confirmed that each of the tests and surgeries referenced in the charges were tests he had ordered or surgeries he had recommended with the consult of a general surgeon.

  Larson proceeded to review each patient’s chart referenced in the charges. He was careful not to mention the patient by name, referencing only initials. In each case, Larson testified how Dr. Herman’s actions breached the standard of care of a family practitioner and/or an internist.

  After three hours of testimony, the judge adjourned for lunch. Dr. Larson testified as to twenty-six patients by then, but his testimony was unremarkable.

  After lunch, Larson testified about the remaining cases cited in the charges. By two o’clock, he reviewed the chart of R. M., a sixty-seven-year-old woman who died after an unnecessary laparoscopic gallbladder surgery.

  Larson’s direct testimony ended with Dillingham asking, “In each of those dozens of cases, are you of the professional opinion, with a reasonable degree of medical certainty, that Dr. Herman breached the standard of care and was negligent?”

  “Yes, sir, I am of the opinion that Dr. Herman was negligent.”

  Dillingham smiled because he made his point. “Based upon your review of the patient charts identified in the charges, are you of the professional opinion, based on clear and convincing evidence, that Dr. Herman was engaged in a pattern of gross negligence and acted recklessly in the care and treatment of his patients?”

  Larson didn’t hesitate: “Dr. Herman was negligent in the care and treatment of each and every patient identified in the charges. There were dozens of acts of negligence. These were not isolated occurrences, and there was a definite pattern of gross negligence. Dr. Herman is also guilty by clear and convincing evidence of recklessness. He recommended to patients unnecessary tests and permitted Dr. English to perform unnecessary surgeries on his patients.”

  Dillingham closed his proof as to Dr. Herman, and the judge adjourned for the day.

  The next day, Morty, Bella, Sammie, and Davis were in the front row. The entire day involved the cross-examination of Dr. Larson, first by McCoy and then by Pierce. Sammie didn’t understand why Pierce got to cross-examine the witness since Larson’s testimony was only directed at Dr. Herman. At the end of the day, the consensus among them was that Larson’s testimony held up.

  The morning of the third day began with Dillingham putting on the stand a general surgeon from Murfreesboro, Rutherford County, Tennessee: Dr. Kenneth Gayle. Davis whispered to Sammie that Dillingham was rushing through the witness qualifications of general surgery.

  Dr. Herman and Dr. English didn’t have to take the witness stand, as in a criminal trial, because they had nothing to prove. However, in most cases the defending doctor did take the stand.

  Dillingham completed his direct examination of Dr. Gayle by one o’clock. It was sloppy, even to Sammie’s untrained eye, an abbreviated examination of Gayle’s background and qualifications. Neither Pierce nor McCoy had questions for the witness. Dillingham looked dumbfounded. He closed his proof expecting both Herman and English to take the stand.

  Pierce stood up and approached the podium. “May it please the court and the panel, the only proof introduced into evidence that Dr. English was negligent and/or engaged in a pattern of gross negligence was arguably the testimony of Dr. Gayle. Judge, I had the court reporter print out the portion of Dr. Gayle’s testimony that dealt with his background and qualifications. It’s pretty short, and with the court’s permission, I would like the court reporter to read it back verbatim right now.”

  Dillingham objected, but Pierce argued that if the court permitted this, the hearing would be shorter by at least a day. Pierce convinced the court that it was worth a fifteen-minute investment.

  The court reporter read that portion of Dr. Gayle’s testimony.

  When she finished, Pierce took over. “If Your Honor please, there is a fatal problem with Dr. Gayle’s testimony. At no time during his testimony does he state that he’s familiar with the standard of care in Plains County or that the standard of care in Rutherford County is the same as in Plains County. Your Honor, Tennessee Code Annotated Title 62, section 17, requires such testimony be introduced into evidence as a prerequisite to a finding of negligence and/or a pattern of gross negligence. Mr. Dillingham has failed to prove that Dr. Gayle is a qualified witness to testify as to Dr. English’s negligence.”

  Sammie glanced at Morty and her uncle, and they silently agreed. Dillingham committed a fatal mistake that disintegrated his case against English, and because he closed his proof and English elected not to put on any proof, no further evidence against English could be introduced.

  Pierce went on: “I move for all charges against Dr. English to be dismissed with prejudice.”

  The judge turned to Dillingham and asked, “What do you say to that, Mr. Dillingham?”

  Dillingham just stood there as if he had been hit upside the head with a brick. Regaining some sense of his duty, he responded, “Your Honor can take judicial notice that the borders of Plains County and Rutherford County are only twenty miles apart and that Plainview Community Hospital and the two hospitals where Dr. Gayle practices have about the same number of beds.”

  The judge gave Dillingham a look of disgust and stated, “Mr. Dillingham, those were facts that you should have introduced into evidence. This court cannot and will not take judicial notice of facts that you were required to introduce into evidence, but didn’t. If you have nothing further, I will rule on Ms. Pierce’s motion to dismiss.”

  Dillingham was obviously so embarrassed that he almost began to cry.

  Sammie did begin to cry. Dillingham’s extreme malpractice wouldn’t help the Malone case or the other Plainview cases.

  Dillingham finally said, “In light of Your Honor’s remarks, nothing further, Your Honor.”

  The judge squirmed in his seat. He was clearly organizing his thoughts before he said, “Whether or not Dr. Gayle qualified as an expert witness in general surgery is a legal question for the court, not a factual determination for the panel. I am very familiar with the TCA section cited by Ms. Pierce and the case law that applies to that statute. Any attorney who asserts or defends against a claim of malpractice is. Apparently, Mr. Dillingham is not. That is most unfortunate for the citizens of this state. The state went to great expense to bring charges against Dr. English and to conduct this hearing. Because of the failure of Mr. Dillingham to introduce into evidence the required proof, the charges against Dr. English must be dismissed. Ms. Pierce, your motion is granted.”

  The audience, which included at least fifteen Plainview plaintiffs, became loud and angry. Even the three panel members looked upset by the judge’s ruling.

  After a good five minutes and threats to clear the room, the judge got control of the hearing room. He turned to McCoy. “Call your first witness, Mr. McCoy.”

  McCoy stood and made t
he same motion to dismiss as Ms. Pierce successfully made. He argued that Dillingham failed to prove that the standard of care was the same in Columbia, Maury County, and Plains County. He argued that Dr. Herman and Dr. Larson were of different subspecialties and that therefore, Dr. Larson couldn’t pass judgment on Dr. Herman.

  McCoy was eloquent, but the judge lost all patience. “Mr. McCoy, I distinctly remember Dr. Larson comparing Columbia to Plainview, and he did specifically testify that the standard of care in the two communities was the same. I also remember him testifying that internal medicine and family medicine overlap and that he had either ordered or recommended all of the tests and surgeries that are the subject of the charges. Your motion is denied. Now call your first witness.”

  McCoy didn’t have an expert witness. Davis explained to Sammie that despite all of McCoy’s efforts, no qualified doctor was willing to come to the state hearing and testify that Dr. Herman provided his patients treatment within the standard. McCoy advised the court that he had no proof and that Dr. Herman rested.

  Dillingham’s closing argument was short, just fifteen minutes. He was still shaken by the English dismissal. McCoy was equally brief.

  The panel deliberated until six o’clock when it announced it reached a verdict. The panel reconvened in the hearing room, and Dr. Dean read the verdict: “We, the panel, find on each count of the charges that Dr. Lars Herman was guilty of negligence. We, the panel, find that Dr. Lars Herman did engage in a pattern of gross negligence by clear and convincing evidence. We, the panel, find that Dr. Lars Herman was guilty by clear and convincing evidence of recklessness in the care and treatment of patients R. M., H. H., T. P., F. K., B. D., D. C., K. O., R. U., T. D., and M. M. As to the other patients listed in the charges, we find negligence only.”

  That first set of initials stood for Rosie Malone. If Boxer was a man of his word, the jury in the Malone case would at least be told that the state of Tennessee had found by clear and convincing evidence that Dr. Herman was reckless in his care of Rosie Malone. Sammie wasn’t sure what the jury would be told about Dr. English’s care of Mrs. Malone or about the dismissal of the charges against him.

  The judge asked Dr. Dean if the panel set a punishment for Dr. Herman.

  Dean indicated that they had, and he began to read: “We, the panel, set the penalty and punishment of Dr. Lars Herman as (a) a fine of $85,000; (b) the suspension of his medical license for one year; (c) prior to reinstatement, the completion of a family medicine residency at a certified US medical school; and (d) that if Dr. Herman returns to the practice of medicine in this state after his suspension and completion of the residency program, he be proctored for his first year as to all tests and procedures he orders. This verdict is signed by each of the panel members.”

  Dr. Dean turned to the judge and asked if he could make a statement for the record. The judge said that as a panel member, it was appropriate.

  McCoy and Pierce objected to the statement. Dillingham remained silent, not knowing what to do.

  “I am a general surgeon who practices in Nashville. I have never been in Plains County, although I have briefly driven through on my way to Atlanta. I have never been to Plainview Community Hospital nor have I been to either of the two hospitals where Dr. Gayle maintains privileges. However, I know the standard of care for a general surgeon in Tennessee, and Dr. English’s conduct fell well below that standard of care. I hope the appellate court reverses the travesty that has occurred here today.”

  The audience actually applauded, but Dr. Dean’s speech was a waste of time. The appellate court would apply the law, and as set forth by the Tennessee legislature, Dr. English’s dismissal would be upheld.

  Outside the hearing room, several Plainview plaintiffs approached Davis. Peter Mueller, elected spokesman, asked, “What does today mean to our cases?”

  “As to Dr. Herman, it’s an admissible finding of recklessness. As to Dr. English, I’ll do a much better job than the state.”

  Sammie was sure he would.

  CHAPTER THIRTY-SIX

  PARTNERSHIP

  FRIDAY, FEBRUARY 11, 1994

  Amy Pierce bought a new suit for the party to celebrate her promotion to partnership. She bought her son, Carter, a new suit as well. She had invited her aunt and two cousins to the party held at the elegant Hermitage Hotel, a gathering place for the rich, the powerful, and the influential.

  Lowell Thomas sent around a memo to all partners, associates, and staff announcing her partnership. The memo complimented Amy’s achievements and contributions to the firm. Everyone at the firm was aware of the Plainview cases and Amy’s recent victory before the Medical Licensing Board.

  The young woman was clearly on a high and on the rise. She had been aware of the partnership decision only a few days, yet she had already contacted Montgomery Bell Academy for Carter’s fall semester, 1995, admission. She would now be able to afford the prep school, which would allow Carter to get the best possible education Nashville had to offer. It was the beginning of their new life together. Work would still be demanding, but the financial rewards would be worth it.

  The firm invited most of its clients, including Jim Davenport of PIC, who was driving in from Memphis to attend. McCoy and Stevenson RSVP’d.

  Jack Barnes sent his regrets in a personal note:

  Dear Amy,

  There’s no question that you’ve worked hard on the Plainview cases and your defense before the Medical Licensing Board was an outstanding result, which will be upheld if appealed. But you played outside the rules. Dr. English, with your help, will simply move to another state and terrorize another community with his incompetence and dishonesty. I am disappointed in the system but not surprised. I will not be attending your partnership party.

  I remain, Jack Barnes.

  Amy was shocked by Barnes’s note. Barnes was as experienced a litigator as there was. He represented murderers and the worst white-collar criminals. When she showed the note to Thomas, he just shook his head.

  “Barnes has lost it. He’s lost sight of our role in the system. If anyone failed in the process, it was Dillingham and the state. Your job was to represent your client. You did that brilliantly. I wouldn’t give Barnes’s note a second thought.”

  Yet she couldn’t get that note out of her head. It tormented her. She couldn’t shake Barnes’s disappointment in the system and more particularly in her.

  At 7:00 p.m. the party began with a short statement by Lowell Thomas, the managing partner: “Ladies and gentlemen, it is with the greatest pleasure that we at DMT have brought you here tonight to honor Ms. Amy Pierce Esquire, our newest and only female partner. Amy has worked hard and successfully to earn her partnership. She’s determined and resourceful. Our clients have benefited from her legal skills and abilities. I am proud to call her partner. Thank you, Amy.”

  The crowd of about a hundred applauded loudly. Someone called for a speech, and then dozens of others followed suit.

  Amy had waited eleven years, since she got out of law school, for this day. She cleared her throat and said, “I want to thank Lowell and the other partners for this beautiful reception. I’m sure Sid from accounting will deduct the cost as an operating expense.”

  Several people laughed, and Sid piped up: “You’re damn right, Amy. Just make sure some of you lawyers talk to your clients tonight, so I can justify tonight as a business expense.”

  Now everyone in the room laughed, and Amy continued: “I want to thank my son, Carter, who’s gone without a lot, including me. It has not been easy being an attorney and a single mother. I love you very much, Carter.

  “The American judicial system is imperfect, but it’s the best judicial system in the world. Our part, as attorneys, is to represent our clients to the best of our ability. That I’ve always done. It’s the judge’s job to determine the law. It’s the jury’s job to determine the facts and the dollar amount of damages, if any. That’s how our system works, and I’m proud to be a part of it. Thank you.
”

  The crowd broke into applause again. Several partners, associates, and clients came up to Amy to shake her hand. It was a great night for both her and DMT. But Amy could not stop thinking of Barnes’s note.

  CHAPTER THIRTY-SEVEN

  A LONG-AWAITED DEPOSITION

  MONDAY, FEBRUARY 14, 1994

  Davis had been looking forward to this day for quite a long time. Judge Boxer was about to hold Dr. English in contempt in the Malone case. Dr. English’s deposition had been set twice in December and twice more in January. On each occasion, English failed to appear. A solid record existed, and Boxer had the right to award a default judgment against English in the Malone case. It troubled Davis that he showed up only after the slides were stolen. He was convinced that the doctor’s reappearance was tied to the return of the missing slides. According to Pierce, Dr. English materialized to defend his good name at the Medical Licensing Board hearing.

  Dr. English was still a guest of the Hewes County jail, serving his contempt sentence in the proceeding brought by his ex-wife Susan. Davis first learned of English’s surrender and availability when Pierce called him on Friday, January 28th, and informed him that Dr. English would be at the hearing before the Medical Licensing Board and that his deposition in the Malone case could be scheduled at the Plains County Courthouse after the hearing. Pierce also informed him that she had spoken to Judge Boxer, who selected the location and indicated he wanted to attend the deposition.

  Although Morty and Sammie wanted to attend, they were busy with other matters. Davis had not prepared for this deposition because he could take it in his sleep. English had been on the run for almost five months, and Davis was dying to know where he had been, who had helped him, and who he’d been in contact with. This deposition would be more about English’s life on the run than his care and treatment of poor Rosie Malone.