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

by A. Turk

  Boxer knew the preliminary instructions by heart. What he couldn’t remember word for word, he was able to ad-lib. “Ladies and gentlemen of the jury, you’ve been approved by the parties to decide all factual questions in dispute in the Estate of Rosie Malone vs. Plainview Community Hospital, Dr. Charles English, and Dr. Lars Herman.”

  Boxer introduced all the attorneys and the parties, even though the jury already knew each of them. “You’ve been selected to determine the facts of this case. As the judge, I’m the finder of the law. Fortunately, this isn’t my first rodeo, so I should get that part right. Another part of my job is to control what goes on in the courtroom. I will not let two people talk at the same time. I will try to be respectful to the attorneys, their clients, and the witnesses, but so there’s no misunderstanding, I’m in charge of this courtroom and this trial. I may have to assert myself during this trial. Don’t think that the increased level of my voice indicates any preference for either party’s position. I’m an equal opportunity yeller.”

  He explained that it was the jury’s job to weigh the evidence, the testimony from the stand, and the documents entered into evidence. He also instructed them that they could believe all, part, or none of a witness’s testimony.

  Judge Boxer explained bias; the parties were biased because they had a financial interest in the outcome, but he made it clear that other witnesses could be biased as well.

  Davis mused, All witnesses who testify are biased to some extent, but usually they aren’t blatant liars. They have at least convinced themselves that their testimony is true.

  The judge continued, “Expert witnesses are hired because of their knowledge in a particular field. In a medical malpractice case, the plaintiff must prove liability through expert testimony because the defendants are doctors or hospitals. You don’t practice medicine, so you’re not familiar with what constitutes the standard of care. You don’t know what constitutes a breach of that standard. The law requires expert testimony because you are not a doctor. You should not completely discard an expert’s testimony because he or she is paid to read documents, give an affidavit, give a deposition, or testify at trial.

  “Expert witnesses render opinions as to liability, negligence, and breach of the standard of care and do so after the fact, based upon documents, scientific journals, and accepted standards within their field of study. Expert witnesses are paid so they do at least have the bias of compensation.”

  The hospital retained two experts, but neither Dr. English nor Dr. Herman could convince another physician to testify on his behalf. Davis retained Sister Carson, Dr. Adams, and Dr. Swanson as the plaintiff’s experts.

  “The witness’s job, both fact and expert, is to swear an oath and tell the truth. If you, the jury, find that a witness has been untruthful on one subject matter, then you are free to disregard the testimony as to other matters. You decide what proof introduced into evidence is accurate and truthful.”

  Davis was prepared to hear plenty of lies from the witness stand during this trial.

  Boxer explained that the attorney’s job was to ethically represent the client and present the evidence in the best possible light. He predicted that there would be many objections by both sides. “If I agree with the objecting party, I sustain the objection. If I disagree with the objecting party, I overrule the objection.

  “From time to time, the lawyers and I will have bench conferences following an objection. We’re not trying to keep a secret from you. What the lawyers say is not evidence. Remember, nothing said in the opening and closing statements is evidence. Only the witnesses’ testimony and documents let into evidence should be used by you to determine liability, and if you find liability, then damages.”

  Davis thought, Boxer’s instructions about the procedure of a lawsuit were clear and straightforward. He’s a good judge, but he’s also a politician.

  He then instructed them about the law: “The burden of proof is on the plaintiff, Mrs. Malone. Thomas Malone represents the estate of his mother, Rosie Malone. She can’t testify. According to the plaintiff, she died in 1992 because of the negligence and recklessness of the hospital and the doctors present.”

  Boxer ruled in a pretrial motion that if the state found either doctor liable for recklessness, that finding would be admitted into evidence in the Malone case. He still hadn’t ruled on how he would explain the dismissal of the charges against English. Anything Boxer did would become an issue on appeal. Davis, defense counsel, and Boxer knew that.

  “Mr. Malone, on behalf of his mother, is alleging that first the doctors provided medical care below the standard of care of a doctor providing similar medical services in the same or a similar community.

  “Second, Mr. Malone is asserting that the hospital, through its employees, provided substandard care and that it failed to properly monitor the doctors in their care and treatment of the patient.

  “Mr. Malone must prove negligence or substandard treatment against each defendant, separately, by a preponderance of the evidence. He must tip the scales of justice just slightly, more than fifty percent.

  “The plaintiff has alleged comparative fault. In determining what percentage of liability is collectible by the plaintiff, if you find liability, negligence, or recklessness, then you must assign a percentage liability to each of the defendants and, if appropriate, to the plaintiff. Think of the liability of the lawsuit as a pie. Each party can be assigned his or her piece of the pie and is responsible for only that piece of the pie. For example, if you award one dollar in damages, the whole pie is one dollar, and you must divide that award of one dollar among the parties. If you find that the plaintiff is more than fifty percent liable, more than half, then there is no recovery.

  “In a professional negligence case, the plaintiff must prove a breach of the standard of care or negligence by expert testimony. In the case of a doctor, that testimony must come from a doctor of the same medical subspecialty from the same or a similar community. That expert must testify that the defendant doctor was below the standard of care. In the case of the hospital, the plaintiff must prove that the hospital failed, through its employees and doctors, to provide reasonable care and treatment within the standard of care. If the care and treatment were below the standard, then you can find that the hospital is liable for a percentage of the comparative fault.”

  The judge informed the jury that the plaintiff alleged not only negligence but also recklessness. He explained that recklessness was when a defendant disregarded the consequences of his actions to the detriment and safety of others. He emphasized that recklessness must be proven by clear and convincing evidence, not a mere preponderance, more than fifty percent. If recklessness was proven, the jury could award punitive damages.

  “Compensatory damages are to compensate, while punitive damages are to punish the defendants. If you find recklessness, you may consider an award of punitive damages. Remember, you will not consider any amount of damages unless you find negligence. If you find recklessness, then I will instruct you on punitive damages.”

  Davis had heard preliminary jury instructions more than fifty times, but the comparative fault instruction was new. The Tennessee Supreme Court decision in 1992 significantly changed the law and what juries were told at the beginning of a trial. Davis thought that Judge Boxer had done a very good job in explaining the law to the jury.

  “After the parties close their proof, the court will give closing jury instructions. Those words of wisdom will be the last information provided to you prior to your deliberation.”

  Davis was excited. Morty had heard Davis’s opening statement before. Davis wouldn’t rely on notes; instead, he would watch the jury and, based on their reactions, modify his presentation. Davis learned from the master.

  CHAPTER FORTY

  PLAINTIFF’S OPENING STATEMENT

  TUESDAY, AUGUST 9, 1994

  After the preliminary instructions, Judge Boxer broke for an early lunch. It was only ten thirty, but it wouldn’t be
fair to interrupt an attorney during the opening statements.

  The Davis team exited the courthouse, went to their car, and retrieved sandwiches and soft drinks from an iced-down cooler in the trunk. The restaurants meant contact with reporters, jurors, defense counsel, insurance company representatives, or defendants, except Dr. English, who would be eating lunch in his jail cell. They needed their privacy to talk freely. Despite their efforts, the press was persistent, and Davis had to chase away two reporters.

  Davis wasn’t usually nervous in court, but Plainview wasn’t like most cases. He didn’t trust the defense team not to interfere with his opening statement.

  Opening statements were protected from interruption and objection as a professional courtesy under normal circumstances. If a lawyer went too far outside the evidence, then his misstatements would be shoved down his throat by the other side during closing. Boxer was taking no chances. He warned counsel not to object during another party’s opening statement unless there was an obvious abuse by counsel or a perceived reversible error being committed.

  “Mr. Davis, plaintiff’s opening statement, please.”

  Davis stood, jerked his shirt cuffs straight, revealing his monogrammed BAD gold cuff links, and glanced one last time at his notes, which would remain on the table. Most attorneys needed the security of their notes, but Davis learned from Steine that the purpose of an opening statement was to tell the jurors a story. The one your side wanted them to believe.

  He deliberately relaxed his face, neither too serious nor too friendly, a neutral expression. He wanted to build a relationship with the jurors, so he moved slowly toward the jury box. He needed to look them directly in the eyes. His were a piercing, convincing blue.

  Prior to trial, Davis clarified with the judge that he was not tethered to the podium but could wander around the courtroom as long as he remained a “respectful distance” from the jury. Mobility brought Davis both physically and emotionally closer to the jury.

  “Ladies and gentlemen of the jury, my name is Benjamin Davis, and I represent the estate of Rosie Malone. Rosie Malone couldn’t be here today because she died as a result of the negligent and reckless conduct of the defendants. If the defendants had just acted reasonably, within the standard of care, we wouldn’t be here today.”

  Davis walked behind Dr. Herman and Dr. English and raised his right hand, as if to take an oath. “These men, as doctors, took the Hippocratic Oath, and Rosie Malone trusted these men. They repaid her by killing her through their neglect and reckless conduct.”

  Without warning, English stood, quickly turned, and looked hard at Davis. There was murder in his eyes. Boxer yelled for English to sit down. He complied, and Davis walked away from the defense table.

  “Mr. Davis, I want you to keep a respectful distance from the defendants, or there will be a one-foot rule from the podium. Am I understood?”

  Davis moved behind his client, a safe place to stand. He was testing the judge; no damage was done.

  “Thomas Malone has been named the administrator of his mother’s estate. He represents the Malone family, not just his own interests.”

  Davis felt like he was connecting with the jury; he was building their trust. He promised them that each lawyer’s opening statement was being preserved by the court reporter and that during closing arguments, at the end of the proof, he intended to read portions from each lawyer’s opening, including his own. He assured the jury that what the defense lawyers claimed in their opening statements just wouldn’t be proven by the evidence. He’d later poke holes in the promises made during their opening.

  As he spoke, Davis watched the jury’s facial expressions; he was looking for a tell, something that indicated which way each juror was leaning. He thought the first row, with the exception of juror number four, was paying close attention. He decided to focus on juror number four in the hope of winning him over and securing the front row.

  Davis told the Rosie Malone story. How she worked hard at the local bakery and raised eleven kids. He helped the jury identify with the deceased. He apologized that they’d never get to meet Rosie Malone because the defendants killed her.

  He showed the jury a poster-sized photograph of a much younger Rosie Malone in her bakery uniform and a hairnet. She was not an attractive woman, tired looking, even a little worn out, but she was just like any of the jurors. It was important for the jury to have a face to go with a name and to understand that she was one of them.

  He described in detail her medical history through 1991. It was not a pretty picture. She was a smoker almost all of her life and unsuccessfully tried to stop many times.

  “Rosie Malone, in 1991, began suffering from severe stomach pain and went to see her family doctor, Dr. Herman, to figure out what was wrong. Dr. Herman owned an expensive piece of equipment called an ultrasound machine, which was able to take pictures of his patients’ internal organs.”

  Davis showed the jury a poster-sized photograph of Herman’s ultrasound machine. “This machine cost a pretty penny, almost $200,000. How many years would you have to work to purchase this machine? Dr. Herman was able to pay it off in about seven months. After that, the fees paid by the insurance companies were pure gravy.”

  He could tell that the cost of the machine and how quickly Herman paid for it concerned the jury. He pointed at the photo.

  “Looks complicated, doesn’t it? A radiologist, a doctor who specializes in reading X-rays and ultrasounds to help diagnose patients, is required after four years of medical school to study three more years to learn how to use an ultrasound. Not Dr. Herman, though. He trained only three days on the ultrasound machine before, in his office, he began using it to test his patients, such as Rosie Malone. He charged almost $2,000 a test. He did so many that Blue Star of Tennessee is investigating him and refusing to pay for any more tests done in his office.”

  He explained that in the last two weeks of her life, Dr. Herman ordered three ultrasounds of Rosie Malone, two at his office and one at the hospital.

  Next, Davis identified his three experts: “Dr. Swanson will testify that Dr. Herman failed to perform an available test that would have discovered Rosie Malone suffered from irritable bowel syndrome, which should have been treated by medication, not surgery.

  “Dr. Gerald, the hospital’s radiologist, reported no problem with the gallbladder, yet the hospital booked Dr. English a surgical suite to remove Mrs. Malone’s gallbladder. Why would the hospital allow such an unnecessary surgery?”

  Davis explained how Dr. English performed Mrs. Malone’s gallbladder surgery laparoscopically. He showed a picture of a laparoscope and described how the laser and camera were used. He could tell the jury was surprised that the recovery time was two days rather than two weeks after an open procedure.

  “In 1992, Dr. English was the only surgeon performing laparoscopic gallbladder surgery at Plainview Community Hospital. There was no other doctor to verify that he was competent to perform the procedure. All Dr. English did was attend a three-day course in Atlanta, and away he went.”

  Davis argued that the hospital had an obligation to make sure Dr. English was competent to perform that particular surgery by having another surgeon proctor him and observe him perform several surgeries.

  “This didn’t happen. There was no one on the staff qualified to proctor him. Dr. Adams will testify that Dr. English was not competent and that he nicked Mrs. Malone’s bowel.”

  Davis now turned his attention to the hospital. The jury learned that the hospital, under its own Utilization Review Plan, failed to examine Mrs. Malone at twenty-four hours, forty-eight hours, and seventy-two hours after her admission to the hospital.

  “Why didn’t Nurse Perry, who worked for the hospital, ask why Dr. English was performing surgery on a gallbladder with no stones or apparent gallbladder disease?”

  The faces of the jurors told Davis that he had gotten their attention.

  “In a medical malpractice case, the plaintiff, through expert t
estimony, must establish not only the standard of care but also a breach of that standard of care. As to Dr. Herman and Dr. English, the plaintiff is relying on the live testimony of Dr. Swanson and Dr. Adams. Their testimony establishes the standard of care and the defendant doctors’ breach of that standard. Dr. Adams and Dr. Swanson will also testify that Dr. Herman and Dr. English were reckless in their care of Rosie Malone.”

  The jury next learned about the plaintiff’s third expert witness, Sister Carson. She wasn’t there to testify about the Catholic Church. She was a registered nurse and the president and chief executive officer at Saint Francis Hospital in Saint Paul, Minnesota. She served on each of the medical committees at Saint Francis and knew the standard of care required of a hospital to properly credential, proctor, and monitor their doctors. She’d read Plainview Community Hospital’s own rules and requirements and was familiar with the rules promulgated by the Joint Commission on Accreditation of Healthcare Organizations. Davis described JCAHO as an organization that licenses hospitals and regulates what goes on at those hospitals.

  “Sister Carson will testify that Plainview Community Hospital was not only negligent in its care and treatment of Rosie Malone but also reckless.”

  He had tied all three defendants to Rosie Malone’s death and identified for the jury which of his experts implicated which of the defendants.

  Davis described in detail Rosie Malone’s February 1992 hospitalization and how her temperature rose and how her condition deteriorated. Davis insisted that she needed to be transferred to a better-equipped hospital, with a cardiologist, a pulmonologist, and an infectious disease specialist.

  Davis argued that Mrs. Malone wasn’t transferred until February 5th at 6:00 p.m., only after her daughter insisted that she be transferred.

  “It was too little and too late. If it weren’t for Lorraine Burke, Mrs. Malone’s daughter, the defendants never would have transferred Mrs. Malone. They didn’t want outside physicians to discover their negligent care. The failure to transfer Mrs. Malone was reckless.