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

by A. Turk

  Davis waited for English to catch his breath. “How many open procedures did you do after October 1991 through January 31st, 1992?”

  “I don’t know, but it wasn’t many. Nobody wanted the open, the pain, the scar, and the longer recovery time.”

  “The answer is none, Doctor. Remember, I have the surgical logs.”

  Davis was glad he had those surgical logs; he wished he still had the pathology slides so he could prove that most of the fifty-one gallbladders removed by English were healthy. Unfortunately, the jury would never know the truth.

  Davis decided not to pull out the surgical logs. The jury believed him.

  “You botched the surgery, didn’t you?”

  “That’s your opinion, and you’re not a surgeon.” English led with his chin.

  “Well, I may not be a surgeon, but my expert Dr. Adams is a general surgeon with twenty-five years of experience, and he claims that the surgery was unnecessary and that your conduct was reckless.”

  “He would say anything you asked him to say. He’s on your payroll.”

  “So you’re telling this jury that you weren’t the cause of Rosie Malone getting septic and then dying?”

  “I don’t know why she became septic, but that’s a well-recognized risk of laparoscopic gallbladder surgery.”

  “It could have been an open procedure, right?”

  “She didn’t want a scar. She was very vain.”

  “You’re telling this jury that Rosie Malone, age sixty-seven, insisted on a laparoscopic procedure rather than an open one because she didn’t want her scar to show when she wore her bikini to the beach?”

  English turned red in face, he was so angry. That’s what Davis wanted.

  He asked the next question: “You say she didn’t want a scar, but was that worth risking her life? You did nick her bowel with the laser, didn’t you?”

  “I don’t know. That’s a possibility.”

  Davis was wearing English down. He was sweating, and he was about to explode.

  “What other explanation is there?”

  “Spontaneous combustion!”

  Davis let that answer hang in the air. The smart-ass answer wouldn’t sit well with the jury. Davis suggested to the court that it was a good time to break for lunch. The judge agreed.

  When they came back from lunch, Davis went through the Malone chart with English. It was a little boring, but it was essential. Morty taught him that before you put your experts on the stand, the patient’s medical records, which were what your experts relied upon, had to be in evidence.

  Davis reviewed the only two progress notes that Dr. English made. “Why did you only make two progress notes, and there’s no indication in the records that you saw her after the first day postoperation?”

  “You know I went on vacation with my family the day after the surgery to Nassau, in the Bahamas.”

  “Did you tell Mrs. Malone before her surgery that you wouldn’t be around to help with her postoperative care?”

  “I don’t think so.”

  “So she thought her surgeon would be around if there were complications?”

  “She was Dr. Herman’s patient. He had treated her for years.”

  Davis got English to admit that Mrs. Malone was a complicated patient with a long medical history. He also admitted that Dr. Herman’s office records reflected that history and those problems. Davis handed English Dr. Herman’s records and asked him to read from the first page. He couldn’t. Davis then handed him Dr. Herman’s admission note for the January 1992 hospitalization of Rosie Malone. He couldn’t read that note either.

  “Doctor, if you can’t read Dr. Herman’s handwriting, how did you communicate about the care of your patients, such as Rosie Malone?”

  “By telephone or in person.”

  “Doesn’t that defeat the purpose of medical records?”

  Davis didn’t get an answer to that question, and the lack of response suited him just fine.

  They used the transcribed version of the medical records, since no one could read Dr. Herman’s handwriting, not even Dr. Herman. Davis kept asking English why Mrs. Malone wasn’t transferred to Nashville in light of her persistent fever over 104. English kept insisting that he wasn’t there and that Dr. Herman was in the best position to make that call. After much badgering, Davis got him to admit that maybe Herman should have transferred her sooner.

  “Rosie Malone died because of your recklessness and the recklessness of Dr. Herman, didn’t she?”

  “Dr. Herman was trying to figure out the problem. You weren’t there. Your paid experts weren’t there.”

  “All we have is your and Dr. Herman’s version of what happened, right? Rosie Malone is dead?”

  “Yes, she’s dead.”

  “Wait! We do have the medical records, including your operative report, which you, Dr. Herman, and the nursing staff of the hospital created?”

  “Yes.”

  “That’s the best evidence of what happened, the written record, right?”

  English didn’t respond.

  “That’s what the plaintiff’s experts are relying upon. No further questions.”

  Boxer ordered a fifteen-minute break and left the bench.

  CHAPTER FORTY-FIVE

  SUBSEQUENT TREATING PHYSICIAN

  FRIDAY, AUGUST 12, 1994

  The hard rain on this Friday morning cooled the courtroom by at least ten degrees. August in Middle Tennessee was usually brutal and the humidity unbearable.

  The courthouse square of Hewes City opened early, about six. Davis refused to eat out of his car, as they did on the first two days of the trial. Today the four (they had to include Littleton) dined at Mother’s, a greasy spoon on the square.

  Davis was feeling pretty confident. He wasn’t afraid of the jury, and they were no longer wary of him. The problem really was that he was no Jack Barnes. Davis quickly made friends with the jury; Barnes was a lifelong friend, who’d helped family members and friends out of serious problems and jams. Davis knew the defense’s saving grace, as disreputable as the defendants were; Jack Barnes sat at their table. Barnes was connected to both Plainview and Hewes City: he maintained a one-room office in Plainview and had his main office on the court square of Hewes City.

  Davis sat at the table at Mother’s, trying to finish proofreading his proposed closing jury instructions. Each side was required to submit to the court what it purported the law was. Sometimes, the answer was clear, and what both sides submitted on a particular issue was identical. Other times, the answer was unclear, subject to interpretation or by conflicting precedent from past cases.

  Frequently, Tennessee law didn’t have the answer, and both parties cited law from other jurisdictions. Morty taught Davis to avoid citing California law. You were better off citing the law of Mars in a Tennessee court. Interestingly, New York or Delaware law, particularly in business cases, carried extra weight.

  The big problem was the doctrine of comparative fault and the new law on recklessness and punitive damages because there were no clear answers. Davis inserted his interpretation of the two cases in his proposed jury instructions. He admitted to himself that Boxer would have an even more difficult job of choosing whose interpretation to follow. He might even go in his own direction. Davis struggled with the proposed instructions for days, but he had to meet the deadline at the close of court today so the judge could read them over the weekend.

  Davis was worn out. He had stayed up till one every night, either preparing for trial the next day or dealing with office problems that Bella brought to him. For all intents and purposes, Bella was running the office and practicing law. At best, she would steal Davis’s attention for thirty minutes every day. He stood at her desk at seven each night and signed letters and pleadings that she prepared (often asking for an extension of time) and reviewed telephone messages. Bella called the client or adversary counsel the next day to convey information or extend an apology. Davis knew how amazing Bella was, and he a
ppreciated everything she did. She was keeping his law practice afloat singlehandedly.

  After breakfast, Davis and his group walked over to the courthouse and settled in for the day. The jury, led by the judge’s clerk, came into the courtroom.

  Boxer entered the courtroom and was all business: “Call your first witness, Mr. Davis.”

  “The plaintiff calls Dr. Randall Sizemore.”

  Dr. Sizemore had gone to the University of Tennessee on a football scholarship and then on to medical school at Davis’s alma mater, Vanderbilt. Davis examined him thoroughly to establish his credentials. He wasn’t about to have a Dillingham fiasco.

  Sizemore explained that he was a gastroenterologist, a medical subspecialty that dealt with ailments of the stomach. They established that he had treated Rosie Malone on three occasions and that his diagnosis was irritable bowel syndrome. Sizemore confirmed that in each of his three office notes he documented that she was suffering from irritable bowel syndrome and that the proper course was medication.

  “So, if Dr. Herman in October 1991 had simply looked at your office records for Mrs. Malone, he would have seen that you were treating her for irritable bowel syndrome?”

  “Yes, it was clearly reflected in my records. Dr. Herman never requested them.”

  “Is that a breach of the standard of care, Doctor?”

  “It’s my practice, and it’s good medicine. I don’t think it’s required by the standard of care, but information helps you better diagnose and treat your patients.”

  “What is the treatment for irritable bowel syndrome?”

  “I would recommend a restricted diet and medication.”

  “Was that your treatment of Miss Rosie?”

  “Yes, she was placed on a bland diet. I prescribed nicotine patches so she could address her nicotine addiction. Cigarettes were a serious health issue because of her history. Her smoking was causing respiratory, heart, and stomach problems.”

  Dr. Sizemore conceded that Mrs. Malone had a low tolerance for pain and used narcotics daily.

  “Was Mrs. Malone’s pain psychological or physiological?”

  “Both. It was physiological, but it also had a psychological component. She exaggerated the pain in her mind. To her, the pain was unbearable.”

  “Doctor, have you ever given a patient sterile saline and misrepresented that it was pain medicine?”

  “Absolutely not. That would be unethical. The only time that would be appropriate would be a drug study.”

  When Davis first learned that Dr. Herman provided sterile saline to address Rosie Malone’s pain, Davis was amazed. It seemed dishonest to him, even if Herman’s motives were allegedly good. Davis strongly believed that a professional, either medical or legal, should never intentionally deceive his patient or client.

  “Have you reviewed Mrs. Malone’s hospital record from February 1992 and Dr. Herman’s office record?”

  “Yes, I have.”

  “Did you ever do an ultrasound of Mrs. Malone’s abdomen to make your diagnosis?”

  “Yes, sir, on June 15th, 1991, I did an ultrasound in my office and determined that Mrs. Malone’s gallbladder was functioning fine and that she had no gallstones. I also reviewed the sixteen medications that she was on and decided to discontinue five of them. This lady was on a tremendous number of medications, many of which contradicted the others in cause and effect. There is no way to know how each of those drugs impacted the other fifteen. The first thing I did, in June, was to start weaning her off certain drugs that I thought were contradicting. When I reviewed Herman’s office records in October, he put her back on four of the medications that I had deleted and added three more.”

  Dr. Sizemore confirmed that he reviewed Mrs. Malone’s February 1992 hospital records. He testified that the admission to the hospital was unnecessary and that rather than surgery, Mrs. Malone should have been treated with medication, a bland diet, and nicotine patches to help her stop smoking.

  “Doctor, you are a gastroenterologist, specializing in the stomach. Have you reviewed Mrs. Malone’s ultrasound done in Dr. Herman’s office and at the hospital taken before her 1992 surgery?”

  “Yes, I have reviewed all three and Dr. Gerald’s report. There were no significant gallbladder disease, no gallstones, and no reason for the surgery performed by Dr. English. I can’t imagine why English did the surgery and Herman allowed it. She was Herman’s patient. He had an obligation to protect his patient.”

  “Was the surgery a breach of the standard of care?”

  “Absolutely. It was negligence of the worst kind.” Davis read the legal definition of recklessness to Sizemore and asked, “Doctor, in your professional opinion was the surgery reckless?”

  “Mr. Davis, any medical student who reviews Mrs. Malone’s chart would not allow that patient to have undergone that surgery. The most basic training and understanding of medicine are all that was necessary to question the surgery. These doctors knew better. They did disregard the medical information and, in a gross deviation from the standard of care, went forward with that surgery. It was reckless.”

  Davis waited for the testimony to sink in before continuing; the silence was deafening, particularly for the defendants. Dr. Sizemore, without looking at the chart, discussed the specific details of Mrs. Malone’s final days at the hospital. He indicated that it was apparent that Dr. English nicked the patient’s bowel during her surgery. Sizemore insisted that the antibiotics weren’t working, and her temperature remained over 104 after the 2nd.

  “She was septic. Bile was flowing through her bloodstream, literally poisoning her from within.”

  Davis discussed with Sizemore the failure to transfer Mrs. Malone from the hospital to Nashville until February 5th. The doctor cited several reasons why transfer no later than the 3rd was required under the standard of care. He indicated that by the time the patient was transferred, she had a less than ten percent chance of survival because she was too far gone.

  Davis asked, “Was it recklessness to wait until the 5th to transfer the patient?”

  Sizemore didn’t answer right away. He was choosing his words carefully and said, “This patient should have been transferred on the 2nd, no later than the morning of the 3rd. Their decision to keep her at Plainview was a conscious decision. The utilization review nurse also looked at the chart on the 2nd. There had to be a discussion about transfer on the 2nd or 3rd. The patient’s temp was 104.7. That discussion is not reflected in the hospital record. They all failed to document that discussion. The decision not to document the reasons for keeping the patient was also a conscious decision. The failure to transfer under these circumstances, with no pulmonologist, no cardiologist, and limited facilities, was a gross deviation from the standard of care. It was reckless conduct on the part of Dr. Herman and the hospital; Dr. English had left the country.”

  Davis sat down, and Boxer took a break.

  When court reconvened, McCoy was at the podium. He was wearing a royal blue bow tie with a beige suit. His hair was salt and pepper, which gave him an air of experience and respectability. McCoy was ready to cross-examine the witness.

  As soon as the jury was seated, Boxer nodded to McCoy, and he went after Dr. Sizemore. He got the witness to concede that he treated Mrs. Malone for irritable bowel syndrome for four months and was unable to improve her condition.

  “Mrs. Malone didn’t stop smoking, did she?”

  “No, sir, she didn’t.”

  “She didn’t stick to that bland diet, did she?”

  “She was not compliant.”

  Dr. Sizemore admitted that Mrs. Malone was a difficult and complicated patient, who was on too many drugs, and that it was impossible to understand the interaction of so many drugs.

  “If you had cured Mrs. Malone’s problem in October, she never would have seen Dr. Herman in January?”

  “I can’t say that.”

  “Mrs. Malone stopped seeing you in October because she didn’t get better under your care?” />
  “I don’t know why she stopped seeing me. She decided to go back to Dr. Herman.”

  “You spent three office visits with Mrs. Malone, right?”

  “Yes, sir.”

  “Maybe you treated her for a total of forty-five minutes?”

  “That sounds about right.”

  “Who do you think knew this patient better, you, who spent less than an hour with her, or Dr. Herman, who treated her for years and saw her more than twenty times?”

  “Dr. Herman.”

  Dr. Sizemore was excused, and Judge Boxer broke for lunch.

  In the afternoon, Davis called two nurses who still worked at the hospital. Both described in detail how Rosie Malone deteriorated during her last days at Plainview Community Hospital. Davis turned and saw Thomas Malone’s swollen eyes. He hoped the jury saw them as well.

  Stevenson returned to his old theme: the doctors, not the nurses, practiced medicine. It reminded Davis of the defense of the Nazis at Nuremberg: “We were just following orders.”

  At the end of the day as Davis was leaving the courthouse to take a well-deserved Saturday off from Plainview, Lorraine Burke and one of her sisters approached him. “How do you think it’s going, Mr. Davis?”

  “So far, no major surprises, but it’s far from over. Remember, they haven’t gotten their turn yet. I know you’re ready to testify. Sammie gave you very high marks.”

  “What a sweetheart she is. She’s very patient. She’s been working with both Thomas and me to get us ready.”

  “Lorraine, all you need to do is tell the truth. You saw firsthand how these so-called doctors dragged your mother through an unnecessary surgery, then couldn’t figure out what went wrong and let her die to cover up their incompetence.”

  “I just hope I don’t get too nervous.”

  “The members of the jury are just like you. They expect you to be a little nervous because they would be. Go have a nice weekend with your family. You’ll probably testify on Tuesday or Wednesday.”

  On the ride home, Davis shared his conversation with Lorraine Burke with Morty and Sammie.