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

by A. Turk

  “All of the plaintiff’s experts will testify that the deteriorating medical condition of Mrs. Malone and the need to transfer her were apparent from the medical records, written by the defendants. Those records, which in the case of Dr. Herman must be translated, prove their negligence and recklessness.”

  Davis took a breath. His allotted time was about up. He pointed out that neither Dr. Herman nor Dr. English could find an expert to testify on his behalf. The defendants were their own experts. He assured the jury that this failure to secure experts proved that their conduct was negligent and reckless.

  The judge gave Davis a stern look. He was out of time.

  Davis quickly closed his opening statement. He thanked the jury, not only on behalf of the Malone family, but also for the citizens of Plains County. He expressed his confidence that after hearing all the evidence, they would find for the plaintiff and do the right thing. He nodded, turned, and walked back to his seat.

  As he approached his co-counsel, Davis saw the pride on Morty’s face. But when Littleton mumbled, “Good job,” Davis thought, I don’t give a rat’s ass about what you think.

  Davis was satisfied. He challenged the defense counsel and told them that if they strayed from the truth in their openings, their clients would be held accountable for their misrepresentations. He thought what he said made good sense, and he hoped the jury would agree.

  “Thank you, Mr. Davis. Ladies and gentlemen, we’re going to take a fifteen-minute comfort break, and then we’re going to hear from the defendants.”

  Davis guessed that McCoy would go first, then Pierce, and then Grayson for the hospital. Morty agreed. Littleton offered no opinion.

  CHAPTER FORTY-ONE

  DEFENDANTS’ OPENING STATEMENTS

  TUESDAY, AUGUST 9, 1994

  Back in the courtroom, Jack Barnes, the local attorney, was standing at the podium to make Herman’s opening statement. Morty looked at Davis and just shook his head ever so slightly, but Davis recognized that it made sense. Barnes knew these people. He spoke their language. Neither Davis nor Morty thought of this possibility because their egos, unlike McCoy’s, wouldn’t have allowed them to miss giving the opening statement. He was the defense’s logical place to start.

  “Ladies and gentlemen, my name is Jack Barnes, and together with Mr. McCoy, I represent Dr. Herman. I won’t be as long-winded as Mr. Davis. Remember, what the lawyers say isn’t evidence. I think we are better served if we just get to the evidence.

  “As Judge Boxer told you, the plaintiff goes first, and that’s a big advantage. Please do not make up your minds until you hear all the proof. That’s what the law requires, and I’m confident that’s what you’ll do. Remember, the burden of proof is on the plaintiff, not the defendants. Dr. Herman doesn’t have to prove anything.”

  Barnes assured the jury that the facts surrounding the death of Mrs. Malone were not as black and white as Mr. Davis had misled them to believe. She was a complicated patient, with a long medical history. He informed the jury that in June 1991, at Lorraine Burke’s insistence, Mrs. Malone began seeing a gastroenterologist, Dr. Randall Sizemore. Barnes emphasized that Dr. Sizemore treated Mrs. Malone for almost five months, and he didn’t solve her problems but rather made them worse.

  “He prescribed various medications and performed various tests, and he couldn’t find out why Mrs. Malone was experiencing abdominal pain. Mr. Davis didn’t mention Dr. Sizemore and his failure to correctly diagnose Mrs. Malone, did he?

  “Another thing that Mr. Davis didn’t mention was that Mrs. Malone was a drug seeker. Dr. Herman knew this. It’s apparent that Dr. Sizemore did not.”

  Davis had to give Barnes high marks. He was placing Sizemore on trial, even though he had not seen the patient since October 1991, months before her death.

  Barnes attacked Sizemore for overprescribing narcotics and not understanding that the patient had a low tolerance for pain. He insisted that Dr. Herman knew the patient and prescribed placebos, such as sterile saline, because most of the pain was psychological, not physical.

  “The plaintiff’s experts from Atlanta weren’t there in February 1992; they never met Mrs. Malone. As Mr. Davis says, all they have to look at are medical records. They didn’t talk to the patient. They didn’t examine the patient.”

  Barnes walked over to the defense table and drank from his glass of water. When he resumed, he was standing very close to the jury. Davis thought he was violating their space, but that was Boxer’s call. Davis secretly wished he dared to get that close to them.

  Barnes convincingly argued that Dr. Herman inherited from Dr. Sizemore a very sick and drug-dependent patient. He assured the jury that Dr. Herman did the best he could, but that Mrs. Malone was an uncooperative patient, who refused to follow her prescribed diet and who continued to smoke two packs a day.

  Davis was concerned that Barnes was so effective that the jury might award damages against Dr. Sizemore rather than Dr. Herman.

  “With due respect to your intelligence, your job as the jury boils down to listening to the proof and the jury instructions, given by the judge, and determining if the standard of care was met. Dr. Herman will testify that he did his best and that he provided care and treatment within the standard of care. These claims of recklessness by Mr. Davis have absolutely no merit and have no basis in the facts. Thank you for your attention.”

  The judge thanked Barnes for his opening statement, and Grayson Stevenson III rose and walked to the podium. His navy suit and white hair were immaculate. He had on his traditional red power tie. Even at a distance, Davis could see his reflection in the man’s shoes. Neither Davis nor Morty liked Stevenson either before or during the Plainview cases. He was pretentious and a part of the Nashville elite.

  Stevenson spoke as he moved toward the jury box: “Ladies and gentlemen, I represent the hospital, and unlike Mr. Davis, I’m not going to tell you what the proof will be. I’ll leave that to your good judgment.”

  Stevenson had chosen to attack Davis himself in his opening. Not an uncommon tactic.

  “Mr. Davis didn’t explain the hospital’s committee system and how it acts as checks and balances to protect the patients. What Mr. Davis didn’t tell you in his opening statement, but that the law requires, is that the minutes of the committees must be kept confidential. The Tennessee legislature passed a statute that requires confidentiality. Sister Carson has no idea what the hospital did because by law, she was not permitted to read those minutes.”

  Davis thought Stevenson might have just made a terrible mistake. The minutes, prior to trial, had not been discoverable because of the law. The judge might reverse his ruling based on Stevenson’s opening.

  “It is also important for you to remember what the judge said about biased witnesses. Several nurses who will testify are former employees of the hospital and have sued the hospital. Mr. Littleton, who is seated at Mr. Davis’s table, represents them. It is the hospital’s position that they have an axe to grind and may not testify accurately.”

  So Littleton’s first contribution to the case has been as a prop for Stevenson. Davis wished that Littleton would simply disappear. He was tired of defense counsel attacking him, but it would break the golden rule to interrupt Stevenson.

  “The hospital’s expert, Dr. Leonard Sparks, will testify that the hospital did nothing wrong and that its employees acted within the standard of care. The hospital must let its doctors make medical decisions as to the care of their patients. The reference by Mr. Davis to the utilization review nurse is misleading. Utilization review has to do with hospital costs, not care. Mrs. Malone was a Medicare patient. The hospital lost money during Mrs. Malone’s February 1992 hospitalization.”

  Stevenson emphasized that Dr. Herman was paid for the two ultrasounds and that the hospital was paid a very minimum dollar amount for the eight days Mrs. Malone stayed at Plainview Community Hospital. “The moment Mrs. Malone was transferred to Saint Thomas Hospital was the moment that Plainview Community
Hospital stopped losing money. It was Dr. Herman who delayed transfer; he was her treating physician, responsible for her postoperative care.

  “The fact that Mrs. Malone died is a tragedy. But tragedies happen in life, and that doesn’t mean anyone was negligent. It certainly doesn’t mean anyone was reckless. We all feel sympathy for the Malone family. But as Judge Boxer will instruct you, sympathy is not to be considered. The plaintiff must carry the burden of proof. If the plaintiff fails, you must not award any amount of money because of sympathy. Thank you.”

  When Stevenson sat down, he smiled at Davis, which Davis found very annoying.

  Judge Boxer asked Pierce, “Should we take a break? It’s four thirty-seven.”

  “No need, Your Honor. I would like the court to explain to the jury the defendant English’s right to reserve opening argument.”

  Judge Boxer explained that a defendant could give an opening argument at the beginning of the plaintiff’s proof or at the beginning of the defendant’s proof.

  “Dr. English’s counsel has elected to wait until the plaintiff closes its proof and to give her opening later in the trial.”

  Davis couldn’t tell whether Morty was as surprised as he was. An effective defense was to keep the plaintiff off balance. Passing on her opening statement threw Davis for a bit of a loop.

  Judge Boxer reminded the jury that they were sequestered and were not to discuss the case with their families, their fellow jurors, or anyone else. He told them to be back in the jury room by eight forty-five the next morning.

  CHAPTER FORTY-TWO

  PLANNED CONTEMPT

  WEDNESDAY, AUGUST 10, 1994

  Sammie was actually enjoying watching the Malone trial. Almost all of her work was done. Her research was finished, and the motions and briefs were written. She helped outline the direct and cross-examination questions for each of the anticipated witnesses and worked on the proposed jury instructions. At this point her job was to watch the jury’s reaction to the proof. The case was now up to her uncle and Morty.

  Morty called the first witness: Celia Perry, the utilization review nurse. Boxer agreed that she was an adverse witness and that Steine could ask leading questions. Morty had Ms. Perry explain her background; the jury was probably surprised that she only had a GED. She read into the record her job description. Morty also discussed with the witness the Utilization Review Plan of Plainview Community Hospital, which was already an exhibit in evidence.

  Morty then specifically reviewed the January 29th hospitalization of Rosie Malone with the witness. Morty asked, “It was your job to look at Dr. Herman’s office record to determine if hospitalization was appropriate?”

  “Yes, sir.”

  Morty handed the witness Dr. Herman’s office record. “What aspect of that record prompted you to allow the admission of this patient?”

  “I can’t read the record.”

  No one could read it.

  “So, on what medical basis did you recommend admission to the hospital?”

  “A conversation I had with Dr. Herman. He told me that he had done three ultrasounds and that he suspected gallbladder disease. He wanted to admit the patient to have a third ultra-sound to be read by the radiologist, Dr. Gerald, and to perform other investigative tests.”

  “Ms. Perry, the patient didn’t have to be admitted to have an ultrasound read by Dr. Gerald, did she?”

  “No, sir.”

  “Wasn’t it your job to admit the patient only if the admission were necessary?”

  Perry insisted that Dr. Herman was the patient’s treating physician for years, and she was just a nurse, not even an RN. She testified she wasn’t in a position to question him.

  Morty reviewed with Ms. Perry the Malone chart from admission on January 29th until right before her surgery. “You were required under the Utilization Review Plan to assess the patient forty-eight hours after admission, right?”

  “Yes, sir.”

  Perry admitted that she could not read the history, the physical, the physician orders, or the progress notes written by Dr. Herman. Morty asked on what medical basis she recommended that Mrs. Malone undergo surgery.

  “I had another conversation with Dr. Herman. He assured me that the patient required the surgery and that Dr. English confirmed the need for the surgery. They were the patient’s doctors, so I concurred.”

  “Ms. Perry, do you realize that you gave up your role as utilization review nurse to Dr. Herman? You did not do an independent review.”

  “I guess I didn’t, but he was her doctor.”

  Morty reviewed Mrs. Malone’s chart through admission till the 5th and how her temperature rose and how her condition deteriorated. “You were required to do a seventy-two-hour review of the status of the patient under the Utilization Review Plan?”

  “Yes, sir.”

  “Did you discuss with either Dr. Herman or Dr. English the transfer of the patient to Nashville after your seventy-two-hour review?”

  “No. They were responsible for the patient and were tending to her.”

  Morty concluded with the witness.

  Then Stevenson asked fifteen minutes of questions. They established that Rosie Malone was Dr. Herman’s patient and that as her treating physician, it was his call as to whether she needed to be hospitalized and what tests he needed to obtain a diagnosis.

  Neither McCoy nor Pierce had questions. Boxer called a fifteen-minute recess.

  When they returned from the break, Judge Boxer asked Morty to call his next witness, and Morty announced Karol Hyde. She testified that she had worked at Plainview Community Hospital from February 1989 through the date of her resignation on July 7th, 1992. She testified that she knew Rosie Malone because she had been admitted several times at Plainview, including January 29th, 1992. Ms. Hyde, an RN, had been the charge nurse for seven shifts during Rosie Malone’s January-February 1992 hospitalization.

  Morty reviewed the chart with her. When they got to February 4th, he directly asked Nurse Hyde if she discussed Mrs. Malone’s deteriorating condition and need to transfer to Nashville with anyone. She became agitated and pointed to Dr. Herman and loudly said his name.

  “I told him that I thought the patient had become septic and should be transferred to Saint Thomas or Vanderbilt. He indicated that they were considering that possibility.”

  “Mrs. Malone wasn’t transferred until the evening of February 5th, correct?”

  “Yes, sir.”

  “You resigned your position at Plainview Community Hospital. Why?”

  “I was concerned for my license. I had made complaints about both Dr. English and Dr. Herman to my supervisor and directly to Mr. Douglas, the hospital administrator. I’d written up six incident reports—”

  Stevenson rose and objected. He argued that the committee process and the incident reports were confidential. Boxer sustained the objection and instructed the jury to ignore that last answer. It was not admissible.

  “Did Dr. English and Dr. Herman continue to have privileges after you complained?”

  “Nothing was done to them.”

  Stevenson objected.

  Boxer sustained the objection and chastised Morty: “Ladies and gentlemen, what the Plainview Community Hospital’s committees may or may not have done is confidential. Move on, Mr. Steine. If you continue with this line of questioning, I’ll hold you in contempt of court.”

  Sammie thought that the judge was being a little hard on Morty, but she was biased in favor of the old man. She recalled what he had told her many times: a judge can reprimand, but the jury can never completely erase either a question or an answer from their minds.

  “Who did you give your resignation to?”

  “I handed my resignation to Mr. Douglas. I apologized for not giving two weeks’ notice, but after witnessing all the negligence, I was afraid of getting sued because my name was in the charts.”

  Stevenson jumped up and turned to Morty. “You’re in contempt of court—”

  Boxer
looked like he was going to blow a gasket. He stood and, in a much louder voice than he had used so far, yelled at Stevenson: “That’s my determination, not yours, sir. Mr. Steine, I hold you in contempt. That will be $500. I again instruct the jury to ignore that last answer from the witness. It is not admissible evidence and cannot be considered by you in your deliberations.”

  Sammie wasn’t concerned. Both her uncle and Morty warned her that they would be pushing the judge and that he might just push back. They specifically discussed the possibility that somebody might be held in contempt. The negative implications of finding Morty in contempt in front of the jury certainly created an issue for appeal. They even agreed that it would be better if the culprit was Morty, not Davis, because the judge and jury were more likely to forgive him than Davis.

  Morty then asked if the witness had filed a lawsuit against Plainview Community Hospital. Morty knew that Stevenson would bring up the lawsuit on cross examination to prove bias. Morty established that Bradley Littleton was her attorney and that she had sued the hospital for breach of contract and for forcing her to resign to protect her license.

  After Morty finished with the witness, Boxer broke for lunch.

  When court resumed at two o’clock, Stevenson began with the witness: “You’ve sued the hospital?”

  “Yes, sir.”

  “But you quit?”

  “I was forced to quit.”

  “Who held the gun to your head?”

  “I had to quit; it wasn’t a safe place. My license was in jeopardy every day.”

  “You believe that if this jury awards a verdict to the plaintiff in this lawsuit, it will benefit you in your lawsuit?”

  “I haven’t thought about it, but I guess you’re right.”

  The witness confirmed that she was represented by Littleton. Stevenson quickly established that Nurse Hyde in less than a month of her resignation got a better job, paying a dollar more per hour. Stevenson did the math right in front of the jury, and Nurse Hyde made $4,250 more working her new job than working at Plainview Community Hospital.