by A. Turk
“And you and Mr. Littleton have sued the hospital for $1 million?”
“Yes, sir.”
Stevenson paused and then said, “And you’re telling this jury that you’re not here for money?”
Karol Hyde didn’t know what to say.
Stevenson sat down. McCoy and Pierce had no questions.
Morty thought, The defense really wanted to end on that note, very smooth. Morty planned on calling two more nurses who had sued the hospital and were represented by Littleton. But he asked for, and Boxer permitted, a recess.
During the break, Morty explained to Davis, Sammie, and Littleton that in his opinion, Karol Hyde came off as a biased witness and lost her credibility with the jury. Her suit for $1 million, given her limited damages, made her look like a money-grubber. Littleton tried to defend his lawsuit and the amount of the suit. Davis ended the discussion by concluding, why repeat the same mistake? Hyde’s association with Littleton was probably the most damaging aspect of her testimony. They decided not to put on the stand any of the other nurses that Littleton represented because of the obvious bias.
Davis shook his head, trying to remember why he ever had anything to do with the idiot Littleton and why they were still joined at the hip. Oh, yeah, Littleton’s name is next to mine on the client contracts. Can’t escape that.
CHAPTER FORTY-THREE
THE BUFFOON
WEDNESDAY, AUGUST 10, 1994
Davis looked over at the jury. They were still paying close attention, and he mentally tried to assess who was leaning in his direction. Davis was confident that the young lawyer-foreman understood that the hospital had violated its Utilization Review Plan, but he was less certain of the less-educated jurors. Davis remembered something Morty taught him: a jury is as smart as its smartest member and as stubborn as the last juror who needed convincing. He hoped the foreman learned how to be persuasive in law school.
They elected to call next Nurse Carole Black, who was still employed at Plainview Community Hospital. Nurse Black, under Davis’s direct examination, testified about Rosie Malone’s last three days at the hospital. Davis concluded by asking her who was responsible for determining when or if Mrs. Malone should have been transferred to Nashville.
“Dr. Herman was her treating physician, and he was monitoring her condition closely.”
“Did he wait too long?”
Stevenson objected on the basis that Nurse Black was not a medical doctor and not able to testify as to the standard of care.
Boxer sustained the objection but then asked, “Ms. Black, as a registered nurse, is it your professional opinion that Mrs. Malone should have been transferred sooner?”
“Yes, sir. Her temperature had been over one hundred and four, almost one hundred and five, for several days. She should have been transferred as soon as it hit one hundred and four and the antibiotics couldn’t lower it.”
Boxer looked over at Davis. “Anything further, Mr. Davis?”
“No, sir.”
Davis sat down, and Stevenson tried to undo how Boxer finished the witness. He made little progress, except she emphasized that Dr. Herman was in charge of the patient’s care and that she and the other hospital employees were following his orders. Pierce got up and in a few questions established that English had left town following the surgery and was not at the hospital for Mrs. Malone’s postoperative care. McCoy didn’t ask a single question. No good would have come from it.
Davis next called the hospital custodian of records, Ms. Johnston. Davis knew she would lie, but it needed to be on the record.
“What happened to the gallbladder pathology slides from 1991 and 1992?”
“They were destroyed in the regular course of business the next year.”
Davis pulled out the Joint Commission Rule 301, which required the slides be kept five years.
“We changed that policy after my deposition, after you pointed out that rule to us.”
“So the hospital hasn’t destroyed any slides since your deposition?”
“No, sir.”
You lying bitch, Davis thought. What about the slides that scumbag stole from my office and drugged my poor niece to get? If he still had the slides, he would have impeached Johnston at this point. But she was going to get away with her perjury.
It was late in the day, and the jury was getting tired. Morty suggested to Davis that they let Littleton question the paramedic as their next witness. Davis shrugged in agreement and whispered to Littleton to call the next witness.
Littleton moved to the podium: “Your Honor, Bradley Littleton, for the plaintiff.”
Boxer looked at Littleton strangely. “Yes, we’ve met before.”
A few jurors smiled. The barber, Josh Paulson, showed all of his teeth, and the mailman, Ray Breyer, smirked.
“Who is your next witness, Mr. Littleton?”
“The plaintiff calls Tommy Nelson.”
A young man in a blue uniform went up to the witness stand. He took the oath and sat down. Littleton established that Mr. Nelson was the paramedic who on February 5th transferred Rosie Malone from Plainview Community Hospital to Saint Thomas Hospital. Littleton seemed nervous, but at least the testimony was coming through.
“Isn’t it true that you were in the back of the ambulance—”
McCoy jumped up and objected: “Leading question, Your Honor.”
“Sustained. Please rephrase that question, Mr. Littleton.”
“Weren’t you in the back of the ambulance—”
Pierce jumped up this time: “Objection, leading question.”
“Sustained. Please rephrase the question.”
“Didn’t Rosie Malone—”
With a smile, Stevenson rose and stated, “Objection, leading question.”
“Sustained. Mr. Littleton, please refrain from asking leading questions. Ladies and gentlemen, a leading question implies the answer, such as, ‘Isn’t it true?’ Mr. Littleton needs to ask open-ended questions so the witness, rather than Mr. Littleton, can testify.”
Littleton stood there, his head nodding. He looked like one of those baseball bobble-head dolls. Morty thought that Littleton might lose it. But a moment later, Littleton seemed to regain his composure and stated in a higher voice than before: “My intent is to establish that Mr. Nelson was the paramedic who rode with Rosie Malone to Saint Thomas.”
Boxer looked crossly at Littleton and said, “Just ask him, sir.”
Some jurors found this amusing. Breyer the mailman, who was seated in the front row, openly laughed at Littleton. So did the bookkeeper, Mabel Donner. Davis thought, Littleton is losing the jury that Morty and I worked so hard to win over. The laughter was contagious. Betsy Blue, the waitress who was seated next to Ms. Donner, giggled. Even a few spectators joined in.
Littleton became even more anxious and, in an even higher voice, said, “Your Honor, I ask that you declare the witness an adverse witness so that I may ask leading questions.”
Boxer looked at Morty and Davis and seemed annoyed with them for even allowing Littleton to call a witness. Obviously, in retrospect, it was a bad idea.
Boxer said, “Mr. Littleton, why don’t you ask the witness where he was on February 5th and what he remembers of that date?”
Littleton repeated Judge Boxer’s question, and the witness gave a five-minute answer.
After the witness paused, Littleton asked, “Didn’t Rosie Malone—”
McCoy stood and almost laughingly blurted out, “Objection, leading question.”
Breyer could no longer contain himself. He started uncontrollably laughing in the front row of the juror box. Steve Paine, the assistant manager of Kroger, was laughing so hard that tears came to his eyes. Mabel Donner kept poking Betsy Blue and giggling. The second row of the jury box had better self-control but was close to breaking down.
McCoy, Pierce, and Stevenson snickered. Dr. Herman remained silent. Dr. English found Littleton’s painful situation so funny, he almost fell out of his chair, he w
as laughing so hard.
Littleton looked around the room. He was getting angry. His face was as red as a beet, and he started waving his arms up and down. His body language made the situation that much funnier. At least seventy-five percent of the courtroom was laughing at, not with, Littleton. It was an embarrassing moment, and Davis felt sorry for the man.
Finally, through all the laughter, Littleton yelled, “Your Honor, I ask that you admonish Dr. English for his unprofessional conduct. He’s laughing during my examination of the witness. This is no laughing matter.”
Pierce stood and, in an even louder voice, pointed out, “Your Honor, if you admonish Dr. English, I insist that the court also admonish Mr. Davis, who has been laughing openly at Mr. Littleton since the fourth question of the examination. You’ve got to admit, Your Honor, Mr. Littleton’s examination has been entertaining.”
Judge Boxer did not address the comment and broke for the day after determining that none of the parties had any further questions for the paramedic.
CHAPTER FORTY-FOUR
ADVERSE WITNESS
THURSDAY, AUGUST 11, 1994
Judge Boxer began at nine o’clock sharp. His job was difficult, but at least he was prompt. Some judges let their court and jury function on their own time schedule rather than by the clock.
Davis also appreciated that Boxer made decisions; right or wrong, he wasn’t indecisive. Davis admired that quality, particularly since everyone knew that, in all probability, there would be an appeal.
Boxer also inherited what Davis called the “English factor”—one of the defendants was a fugitive from justice. Dr. English’s disappearance made for interesting drama and complicated the Plainview cases. Even with the surrender of Dr. English, the Malone trial was not a typical malpractice case.
Every morning Sheriff Dudley, who was forced to sit through the trial all day, delivered Dr. English from his Hewes County jail cell to the courtroom.
Judge Lewis was taking no chances with his prisoner. It took five months for Lewis to get his hands on Dr. English, and he wasn’t letting him go until he cured that contempt.
After the parties and the jury were settled in, Judge Boxer addressed Davis: “Call your first witness.”
“Your Honor, the plaintiff calls Dr. Charles English to the stand.”
English walked slowly to the witness stand and was sworn in by the judge’s clerk.
Davis asked the judge to give the jury the adverse or hostile witness instruction.
Boxer said, “Ladies and gentlemen, when a party calls a witness, usually that witness is at least neutral to that side. When a party calls a friendly or neutral witness, the attorney may not ask leading questions. However, if you call the opposing party or a witness that the court deems hostile or adverse, the attorney may ask leading questions.”
Davis had been thinking about getting to question English before a jury for more than two years. He loved his job because of such moments.
“Please state your full name.”
“Dr. Charles English.”
“Do you go by any aliases?”
“I have a nickname. My friends call me Charlie, but you can call me Dr. English.”
Several jurors laughed, and Davis just smiled back at English. Davis went through English’s background. When he asked if Dr. English’s two children lived with him, Judge Boxer gave Davis a stern look. The last thing that Boxer wanted the jury to know about was Dr. English’s alimony and child support problems and where he was staying at night and why.
Davis asked about English’s education, including his medical training at Peterson University. He established that English graduated in 1982, and that in 1984, Peterson University’s accreditation was suspended for issuing false medical licenses.
“I have no information about that, Mr. Davis.”
Davis offered into evidence the findings of the accreditation body and the order of suspension of Peterson University as the next exhibit.
Boxer allowed the documents into evidence under Rule 9.02. Davis figured he had no choice after the exchange. But Davis knew Boxer would be keeping a closer eye on him.
Davis asked English about his medical subspecialty of general surgery, including the types of surgeries he performed at Plainview Community Hospital. What about the credentialing process and how the hospital approved the types of surgical procedures he performed there?
“Did anyone at Plainview Community Hospital ever ask you about Peterson University?”
“No, sir.”
“I guess the Credentialing Committee didn’t look too deeply into your background?”
“I wouldn’t know.”
Davis established that the hospital granted English privileges for every surgical procedure he applied for and then moved on to English’s contract with the hospital. He established that Dr. Herman was his landlord and that the hospital paid his rent for six months and guaranteed his lease. The hospital also guaranteed an income of at least $10,000 per month.
English started to get out of the witness chair. “What the hell are you driving at?”
“My point is that the hospital invested a pretty penny in bringing you to Plainview, and you needed to order tests and perform surgeries for the hospital to get its money back.”
Pierce objected on the grounds of relevancy.
“What’s the relevancy, Mr. Davis?” asked Boxer.
“Your Honor, the financial relationship between Dr. English and Dr. Herman is relevant. If Dr. English’s practice flourished and he performed a lot of surgeries, the hospital didn’t have to pay him $10,000 because he would earn his $10,000 minimum.”
“Objection overruled. Let’s move this along, please.”
Davis moved into the Malone case. He asked English if Dr. Herman was an important referral source to Dr. English, providing most of his income.
Pierce objected, but Boxer overruled, holding that the business relationship between the two doctors was relevant.
Davis pulled the credentialing document he introduced into evidence. “When you were originally credentialed at Plainview Community Hospital, you were not authorized to do laparoscopic gallbladder surgery, were you?”
“No, I was trained in 1991 and began performing that particular procedure in October 1991 at Plainview.”
“Your training consisted of a two-day course in Atlanta, Georgia, at the Southern Laparoscopic Institute?”
“It was a three-day course.”
English, for the second time, rose from his chair. He was obviously getting agitated with Davis, which was exactly what Davis wanted. He loved pushing English’s buttons and having him upset in front of the jury.
Davis knew it was three days, but English would not look any more competent with a three-day course than a two-day course. The defensive correction made English look guilty. Davis was just getting warmed up.
“You didn’t operate on human beings when you trained in Atlanta, did you?”
“No.”
“They were pigs, right?”
“Yes, but pigs are very close to humans in anatomy and are used all the time in training.”
“Doctor, you’re not telling this jury that there is no difference between one of your patients and a pig, are you?”
Several jurors laughed out loud. Judge Boxer was obviously amused.
English didn’t know what to say.
Pierce jumped up. “Objection! What is the relevancy of that question? Mr. Davis is wasting our time.”
“Your Honor, how similar a pig is to a human being is pretty darn relevant since Dr. English’s training consisted of doing laparoscopic gallbladder surgery on a pig only.”
“Objection overruled.”
“Your first laparoscopic gallbladder surgery on a non-pig was at Plainview Community Hospital on October 18th, 1991?”
“That sounds about right.”
“You performed fifty-one laparoscopic gallbladder surgeries between October 1991 and January 31st, 1992, the day you performed
one on Rosie Malone?”
Pierce stood and loudly yelled her objection: “Objection! I request permission to approach the bench!”
As soon as she reached the bench, Pierce could hardly contain herself: “The court has ruled that no evidence of a pattern of negligence may be introduced.”
Davis was ready for that: “Your Honor has ruled that the logs are admissible into evidence to prove the number of surgeries. Therefore, the number of surgeries between two dates is admissible. I intend to prove that Dr. English preferred the laparoscopic procedure to an open one and that beginning in October 1991, he regularly performed the procedure at Plainview Community Hospital.” Tying the proof to Rosie Malone would convince Boxer to admit the evidence.
The judge thought a moment. “Objection overruled. Let’s return to our spots and give the court reporter an opportunity to set back up.”
Davis waited for the reporter to set up. “That was a correct number, fifty-one, in less than a four-month period, about every other day?”
English was quiet. Davis loved the silence, his question hanging in the air.
“Isn’t that a lot of gallbladder surgeries in just four months in a town the size of Plainview?”
Boxer quickly woke up. “Ask your next question, Mr. Davis.”
Davis regrouped. “In an open procedure, a large incision is made, and the surgeon physically removes the gallbladder, right?”
“Yes.”
“In a laparoscopic procedure, three little holes are made and a camera and laser are used?”
English spent the next fifteen minutes describing the procedure and how the laser burns away the gall-bladder. English also described an open procedure. He explained why the laparoscopic procedure was better for the patient. There was a much quicker recovery time: back at work or back to your family sooner.
Davis let English talk. He believed that English was delusional enough to think that he was connecting with the jury. Davis was sure that Pierce had told English to keep his answers short. English had, for the most part, listened until now.
