by A. Turk
Sammie commented, “She’ll be fine. She’s a teacher. She talks in front of thirty students every day.”
Davis reminded her that it wasn’t the same. “She’s the authority figure in the classroom, but in the courtroom, Judge Boxer’s in charge.”
They all agreed that they would take Saturday off and work all day Sunday. Dr. Adams and Dr. Swanson were driving in from Connors, Georgia, and were scheduled to testify on Monday.
After dropping Morty off at his farm, where he’d been living since the day after Davis’s beating, Sammie asked if she would be welcome to have a home-cooked meal and to spend the night. Davis put the top down and drove them home to his loving family. Liza was still upset about the mounting bills and the trial’s effect on her husband, but she mentally declared a truce so that he could concentrate and do his best to end the nightmare. The sooner the trial ended, the sooner the family could regain a sense of normalcy.
CHAPTER FORTY-SIX
EXPERT TESTIMONY
MONDAY, AUGUST 15, 1994
Davis spent a relaxing Saturday with his children, his wife, and Sammie. They went to the Cumberland Science Museum, a favorite place of both children, and took a short walk at Radnor Lake on the way home. Sammie left around nine after a gourmet dinner of shrimp scampi over pasta. Davis ate almost the entire loaf of bread by himself. The bread and butter worked just like Valium; they helped calm his nerves.
Sunday morning, the Davis team, except Morty, met Dr. Adams and Dr. Swanson at the office. Morty took the entire weekend off. He was worn out and desperately needed the rest. Bella brought an eggplant Parmesan casserole for lunch. Davis, Sammie, Bella, and the doctors spent most of the day preparing their direct testimony and discussing possible cross. Each expert’s testimony outlined his statement that had been given to the defense more than a year ago, and both doctors had been deposed for several hours by McCoy and Pierce. Davis was pretty sure that there wouldn’t be any surprises.
On Monday morning, Boxer called the court to order and asked Davis to call his next witness.
“Dr. Harlan Swanson,” Davis said proudly.
Dr. Swanson described his background to the jury: undergraduate work at Vanderbilt University, medical school at the University of Georgia, and a fellowship in family medicine at Johns Hopkins. He had practiced family medicine in Connors, Georgia, just north of Atlanta, for the last ten years. Dr. Swanson described his office practice and how Connors was a similar medical community to that of Plainview. Davis wasn’t going to make the same mistake that Dillingham had at the board hearing.
Davis reviewed with Swanson all of the documents and depositions he had reviewed in preparation for his testimony.
Swanson confirmed that he was paid $200 an hour and that he’d been paid a total of $18,000 in the Malone case, for ninety hours of work.
“Have you ever acted as an expert witness before?”
“No, sir, I generally support my fellow physicians. I believe that anyone is capable of making a mistake. Medicine is not perfect. Bad results occur. However, the care and treatment of Mrs. Malone were so far below the standard of care that I felt compelled to testify. This travesty has to be addressed and brought to light.”
Davis needed to bring up the doctor’s fee rather than wait for Pierce or McCoy to do so. All experts charged for their time, but how it was presented to the jury could impact how they viewed the witness’s credibility.
Davis moved on to Mrs. Malone’s office records written by Dr. Herman. Swanson testified that Herman’s handwriting was illegible and defeated the purpose of medical records to communicate between health care professionals. He refused to confirm such handwriting was a breach of the standard of care.
Using the transcribed copy of Dr. Herman’s office record, Davis reviewed Rosie Malone’s chart with Dr. Swanson. After thirty minutes, he asked, “Do you have a professional opinion on what was causing Mrs. Malone’s stomach pain?”
Swanson testified that based upon the records, the patient was suffering from irritable bowel syndrome, and that he would have treated with medication, certainly not with saline.
Davis reviewed the Malone hospital chart with Swanson for an hour. Davis used the overhead projector and flashed several exhibits on a screen while Swanson explained each one’s importance.
“Doctor, in your professional opinion, should Dr. Herman have transferred Mrs. Malone to Nashville before the 5th?”
“By the morning of the 3rd, there’s no question she should have been transferred to Nashville. This patient was obviously septic, with a temperature of almost 105 for two days. She had a cardiac and pulmonary history, and there was no cardiologist, pulmonologist, or infectious disease specialist on staff at Plainview.”
“In your professional opinion, was it reckless for Dr. Herman to wait until 6:00 p.m. on the 5th to transfer Mrs. Malone?”
“It was an obvious move. I can’t understand why he waited so long. I’ve read his deposition three times, trying to figure out what he was thinking. His explanation makes no medical sense. I’m of the professional opinion that he didn’t want the Nashville doctors to examine the patient, discover he had ordered an unnecessary surgery, provided grossly negligent postoperative care, and let her get septic. I’ve read the definition of recklessness several times. In fact, if you’d like, I can quote it to you. Dr. Herman’s care and treatment of Mrs. Malone were inexcusable, and his failure to transfer was reckless.”
Davis sat down, and McCoy jumped up. He practically ran to the podium. He was chomping at the bit to get to Swanson.
“Have you ever been sued, Doctor?”
“Yes, sir.”
The lawsuit was no surprise to Davis or his team. It was disclosed in discovery, and Dr. Swanson had been questioned about it in his deposition.
McCoy established that Dr. Swanson was sued for failure to diagnose cancer in his patient.
“Were you reckless in your care of that patient?”
“Absolutely not. When she came in, I ordered the appropriate tests and made the correct diagnosis. It wasn’t detected early enough.”
“You settled that case, didn’t you?”
“My insurance company insisted.”
McCoy requested an immediate bench conference. He requested that the jury be instructed to ignore Dr. Swanson’s last answer because, under Rule 409 of the Tennessee Rules of Evidence, the existence of insurance is not admissible. Davis argued that McCoy had opened the door by asking the question. Boxer decided that McCoy should move on to the next question rather than try to correct the testimony.
“You’ve made mistakes as a doctor?”
“Everybody makes mistakes. That’s human. I’m not perfect, and neither are you.”
“The fact that you’ve made mistakes doesn’t mean you’ve been reckless, does it?”
“I’ve never been reckless because I’ve never disregarded the safety of one of my patients, like Dr. Herman did with Rosie Malone.”
Davis mentally chuckled as he heard Swanson shove the definition of recklessness, which he had memorized, right down McCoy’s throat.
After lunch, Davis put Dr. Ralph Adams, the general surgeon, on the stand. Dr. Adams’s testimony was directed at Dr. English’s negligence and recklessness. He did a solid job, but after Swanson’s finish, Davis found the testimony less dramatic.
Pierce did the cross. Davis admitted that, despite her limited experience compared to the other lawyers, she was quite effective. Dr. Adams looked a little ragged by the end of her examination.
“You testified on direct, by Mr. Davis, that you thought Dr. English was reckless in his care of Mrs. Malone?”
“I’m certain he was. The surgery never should have been performed. The fact that he nicked her bowel wasn’t negligent. It was a known risk, but the unnecessary surgery was reckless.”
“Doctor, isn’t it true that the Medical Licensing Board dismissed all charges against Dr. English in his care of Rosie Malone?”
“On a techn
icality, he got off.”
“Let me show you the order. Please read it to the jury.”
“The alleged negligent and reckless claims against Dr. English for his care and treatment of Rosie Malone are dismissed.”
“Isn’t it true that the same panel found Dr. Herman negligent and reckless in his care of Rosie Malone?”
“Yes, ma’am.”
McCoy and Barnes wanted to object, but Boxer ruled that both panel findings could be admitted. Pierce’s questions exposed the ruling prematurely. Davis intended to ask Dr. Herman about the finding, but Pierce got there first. She maximized Dillingham’s big mistake to the best interest of her client. She ended on that high note.
CHAPTER FORTY-SEVEN
MEDICINE IS AN ART, NOT A SCIENCE
TUESDAY, AUGUST 16, 1994
Dr. Herman had been dreading this day since a sheriff’s deputy served him with the first Plainview complaint in October 1992. It had been an exhausting twenty-two months. He had been sued ten times, and the board brought charges. Herman swore to himself that, at the bottom of it all, was that bastard Davis. Herman dreamed of Davis, and they were not pleasant dreams. He wanted Davis, Steine, and their clients to disappear from the face of the earth.
Herman sat in the courtroom reflecting on how drastically his life changed. His once busy office and hospital practice was gone. His gross revenue was more than $1.5 million per year. Not too shabby for a sleepy little town like Plainview. After Davis, by January 1994, he had been forced to resign his appointment at the hospital, and his office practice had dried up almost completely. He still had a few loyal patients who, despite the lawsuits and other problems, stuck by him, to their credit and for the drugs.
Last week, Charlie English did a terrible job and was not prepared. Throughout the entire examination, Davis made him look like a fool. Herman knew the Malone chart inside and out. His attorneys, Barnes and McCoy, drilled him on the issues they knew Davis would raise. He was ready, but he was nervous. D-day was less than fifteen minutes away.
The courtroom was filling up. It was a public hearing that anyone could attend, first come and first serve. Most days it was standing room only. Davis’s clients were usually there. The representatives of both insurance companies were in constant attendance. They were footing the bill for the doctors’ defense. Tennessee Mutual and PIC had each invested more than $600,000 in Plainview, and there was a lot more to spend. The insurance companies had a real vested interest in the outcome of the Malone case because seven other cases were behind it.
The hospital had a lot riding on the Malone case. Not only was its reputation in the community on the line, but it had paid Stevenson’s firm more than $500,000. Woody Douglas was in and out; he still had a hospital to run, but Dr. Kelly remained. Kelly was the hospital’s company representative.
Davis and his team arrived only minutes before nine. Several Malone children were with them. Each one of the ten spawn wants a piece of the golden ring, thought Herman. I tried to help their mother. She was a very difficult patient to assess. He kept telling himself that he had done his best and tried to help her, wishing he could believe it.
Davis called his first witness: “The plaintiff calls as an adverse witness, Dr. Lars Herman.”
Herman thought, Davis, you don’t know how adverse I actually am. But you’ll appreciate how adverse by the end of the day. Barnes and McCoy schooled him not to be led by Davis. Pierce told English to give short answers, but Barnes and McCoy told Herman to expound on the medical questions. Obviously, the short answers hadn’t worked for English.
Davis wasted no time. After establishing Herman’s background and the fact that he was born in Germany, after World War II, and had grown up in Argentina, Davis went into his education. He made the doctor’s résumé an exhibit and asked, “Doctor, I notice a gap in your résumé from 1982 through 1986. What were you doing those four years?”
“I was studying.”
“You had already graduated from medical school. What were you studying?”
Herman knew that was coming. That fucking test would haunt him for the rest of his life. He just didn’t test well. That didn’t mean he wasn’t a good doctor. “I was studying for the FLEX exam.”
“That’s the test that foreign-trained doctors must pass in order to practice medicine in the United States, right?”
“Yes.”
Herman knew he was falling into a trap by giving one-word answers, but there really wasn’t any good explanation.
Davis continued, “The FLEX exam only establishes minimum competency, right?”
Herman grunted a “yes.”
Davis then painfully established that Herman had failed the exam eight times. He went slowly; it was brutal.
“Now, on the sixth time you took the exam, you were disqualified. Someone had stolen the exam, isn’t that true?”
“The exam was stolen, so they threw out the exam.”
“But they didn’t throw out everyone’s exam, only some, right?”
“I don’t know.”
“Let me read to you from the deposition of Dr. Allen Foster, who was the president of the division of the American Medical Association that monitors and issues the scores for the FLEX exam. Attached as an exhibit are the results of the fall 1984 FLEX exam, which show that fourteen candidates were disqualified.”
Barnes jumped to his feet. “Objection! The defendant renews his objection to the testimony of Dr. Foster on the grounds of Rule 26. This testimony is not relevant to these proceedings.”
Davis was ready for the objection. “Your Honor, Dr. Herman’s unusual difficulty in passing the FLEX exam is very relevant. Dr. Herman and Dr. English are being offered as the defendant doctors’ only expert witnesses. Dr. Herman’s repeated failures to pass the FLEX exam go directly against his qualifications as an expert witness.”
“Stop right there. I’ve ruled on this before trial. The testimony of Dr. Foster and the exhibit are admissible evidence. Objection overruled.”
Davis established that Dr. Herman couldn’t practice medicine until he passed the FLEX exam and that he was in limbo for more than five years because he kept failing the test.
Davis went back to Herman’s background. He established when Herman came to Plainview. Another topic of questioning was the ownership of his office building and the fact that Dr. English was his tenant. Davis went through his contract with the hospital and his credentialing.
Davis then asked, “So, the hospital is paying Dr. English’s rent to you? Has been since 1991 and has continued to pay his rent since October 1993 when English took a leave of absence?”
“Yes.”
“So, the hospital has stood behind Dr. English?”
Before he could answer, Stevenson ran to the podium, objecting as he went. “Objection, Your Honor, improper question. The hospital simply honored its legal commitment. The hospital isn’t—” Stevenson stopped midsentence and waited for Boxer to rule.
“Objection sustained. The hospital simply honored its contract with Dr. Herman, nothing more.”
Davis plowed on: “Are you familiar with the Hippocratic Oath, Doctor?”
McCoy stood and argued, “The Hippocratic Oath is not relevant. The standard of care is the measure of liability.”
Davis’s quick response indicated he expected the objection. “Your Honor, the Hippocratic Oath is at the heart of the standard of care. I guarantee the court that if I asked ten doctors of different subspecialties what the common denominator of the standard of care was for each of those subspecialties, it would be the Oath. It’s the most basic principle of medicine. The court cannot exclude its overall vision from this trial. These doctors, if they did nothing else, were required to live by its words. It is the Ten Commandments of medicine.”
Even Herman thought that Davis was compelling. The judge directed Herman to read the Hippocratic Oath. Herman tried to read the long text with enthusiasm, but it was not an easy read, particularly because he was forced to do so.
Davis reviewed with Herman Mrs. Malone’s medical history. In 1990, she had a heart attack and was treated by Dr. Herman at Plainview Community Hospital. She was a chronic smoker, and Herman had prescribed nicotine patches. Davis reviewed with him the sixteen medications that Mrs. Malone was on right before her January 1992 hospitalization, and he asked, “Isn’t it true that every medication has side effects, Doctor?”
“Yes, but the benefits outweighed those side effects.”
It took Davis twenty minutes, using the Physicians’ Desk Reference (PDR), to review the sixteen medications that Dr. Herman prescribed to Rosie Malone and their side effects. “Doctor, there’s no way on God’s green earth that you could begin to fathom all the interactions of those side effects, right?”
Herman hesitated and then admitted that it would be difficult. He was committed to regaining points with the jury.
“Mrs. Malone was your patient from January 1990 through June 1991, and then she returned to your care in October 1991, correct?”
Herman took this as his opportunity to turn the tables. “The patient personally told me that one of her daughters made her go to a doctor in Nashville. To the best of my recollection, she told me that she did not want to but that she was forced to. According to her family, he was a GI specialist.”
Herman confirmed that he never requested or reviewed Dr. Sizemore’s records when he resumed treatment of Rosie Malone in October 1991.
“I didn’t need his records. This was a chronically ill patient with almost no tolerance for pain. I would give her placebos, sterile saline, so she would feel like her complaints were being addressed. I tried to wean her off narcotics. When I replaced them with a placebo, she did just as well. I certainly didn’t need Sizemore’s records to deal with the patient. I had a trusting relationship with her. She would call my office, sometimes three and four times a day.”
Herman claimed that, unlike Rosie Malone’s family, he was supportive and comforting, and he tried to help her deal with her pain. “She was a chronically ill person, a hypochondriac with real problems. That’s why she was so difficult to assess. Many of her symptoms were psychological while others were real. She told me that her family members didn’t come to see her. She told me that they didn’t understand and had abandoned her.”
