by A. Turk
Morty rose and said four words: “Objection, Dead Man’s Statute.”
In Tennessee, the Dead Man’s Statute prevented a witness from testifying about a conversation with a dead person because the deceased could not refute it.
Judge Boxer looked at McCoy and Barnes. They did not say anything, so Boxer sustained the objection.
The judge broke for lunch. It was past twelve, and they hadn’t had a morning break.
When they returned, Davis reviewed the Malone chart with Herman. Herman knew the chart, but he did a poor job of explaining why the patient wasn’t transferred when her condition deteriorated. He admitted that there was no pulmonologist, cardiologist, or infectious disease specialist at Plainview and that the patient needed those medical subspecialties.
Davis had him spinning by the end of the examination. It was almost four o’clock when he asked his last question on direct: “Doctor, you filled out Rosie Malone’s death certificate, correct?”
Herman squirmed in his seat. “Yes.”
Davis continued, “But you were not the attending physician at the time of Miss Rosie’s death in Nashville. The law and medical ethics require that the attending physician fill out the death certificate. Why did you violate the law and your ethics?”
Barnes objected, stating that the question called for a legal conclusion. The judge overruled the objection. Davis repeated the question.
Herman hesitated and then said, “Because it was mailed to me, and I didn’t know the law.”
Davis responded, “Doctor, everybody knows that ignorance of the law is no excuse.”
Davis handed Dr. Herman the Medical Licensing Board finding that he was negligent and reckless in his care of Rosie Malone. Dr. Herman cringed because he knew what was coming.
“The board that found you reckless in your care of Mrs. Malone consisted of three doctors?”
“Yes, sir.”
“And the state had its own expert that asserted you were reckless, right?”
“Yes, sir.”
“And the state’s expert testified basically the same as Dr. Sizemore and Dr. Swanson?”
“I’ve not compared their testimonies.”
“They’ve each testified that the surgery was unnecessary and that it was reckless not to transfer before the 5th?”
“I guess so.”
Davis sat down, convinced that the jury saw Herman for what he was.
Pierce asked only one question: “The same panel that found you reckless dismissed all claims against Dr. English for his care of Rosie Malone?”
Herman choked out, “Yes.”
Herman’s face filled with fury. He wasn’t sure who he hated more, Benjamin Davis or Amy Pierce.
Judge Boxer broke for the day.
CHAPTER FORTY-EIGHT
THE HOSPITAL’S LIABILITY
WEDNESDAY, AUGUST 17, 1994
Sister Carson and Dr. Laura Patel spent Tuesday night at the Davis home preparing the Sister’s testimony. She was to take the stand the next day. She felt stressed, but Laura sat with her, and Davis guided them through the depositions, the plaintiffs’ strategy, and the hospital’s liability as well as the liability of the doctors.
From their conversations, Laura knew that Sister Carson had already read her own deposition six times, though in good conscience, she had charged for only three. She explained to Laura that she had been questioned thoroughly at her deposition in January by the defense team: first by Stevenson, then by McCoy, and finally by Pierce. Davis hadn’t asked her any questions, so the deposition was taken from the defendants’ perspective. Davis explained that there was no need to question her because Sister Carson agreed to testify live at trial.
Although she no longer lived in the house, Sammie stayed the night working on the Plainview cases and drove Laura and Sister Carson to the Hewes County Courthouse. Davis had to go to the office to read and sign documents in an unrelated case before leaving for court.
Laura, Sister Carson, and Sammie were seated in the first row when the lawyers began to arrive. Laura recognized McCoy, Stevenson, Barnes, and Pierce. She couldn’t forget Stevenson, who pulled out the recorder the day she was suspended from the hospital. She knew Sister Carson’s testimony was damaging to all the defendants, but it was most critical of the hospital.
The courtroom filled up quickly. It must have been very close to nine when Davis and Morty entered the courtroom.
Dr. Herman came in and sat between Barnes and McCoy. As Laura was staring at Dr. Herman, an officer and Dr. English entered the courtroom.
The trial began almost immediately after the judge entered the courtroom. The judge’s clerk swore in Sister Carson, and Morty began with the Sister’s background. She had been a nurse in Vietnam and joined the order in 1965. She held various positions and worked in the Congo. Sister described her rise in the ranks at Saint Francis and her move from nursing into administration. She detailed her duties as president and CEO of Saint Francis, including her dealings with the board and the various medical committees. She was a member of the American College of Hospital Executives, and she was the keynote speaker for the group in 1993.
Laura was proud of her mentor, an amazing woman whose life focused on medicine and God.
Sister Carson then described in detail the role of the Joint Commission on Accreditation of Healthcare Organizations, JCAHO. She made it clear that there were different levels of hospitals, but within each level the standard of care was the same throughout the country. She confirmed that both Plainview and Saint Francis were about the same size, 225 beds, and were at the same level within JCAHO. The Sister testified that the standard of care at both hospitals was, or should have been, the same.
Morty announced that he offered Sister Carson as an expert witness.
Sister Carson, through Morty’s questioning, described the standard of care at a community hospital such as Plainview and the hospital’s responsibilities in credentialing its medical staff.
She took up the responsibilities of the medical committees and the Executive Committee of the hospital. She emphasized the difficulty of the hospital administrator’s job because the administrator had to be an advocate for the patients, the nursing staff, and the medical staff while also protecting the administration.
Morty asked her to look at her affidavit; it was her résumé. He made that ten-page document the next exhibit. He then asked her to look at the next exhibit, the list of materials she reviewed. The first document was the complaint in the Malone case, which was more than an inch thick. He laid the document on the table where Thomas Malone and the plaintiff’s counsel sat. He identified the next document on the list, asked if the Sister reviewed it, and then placed it on top of the other document. He spent the next ten minutes repeating the process and creating a pile. Within no time, the stack of documents was as thick as two telephone books.
Based on their expressions, Laura could tell that the jurors were intrigued and were paying close attention to Morty’s theatrics.
Stevenson broke in with an objection, arguing repetition.
Morty was prepared for the objection: “May I please address the objection, sir?”
“Of course, Mr. Steine.”
Boxer respected Steine, despite his earlier finding of contempt, and afforded him great deference. He was the type of person who commanded every room he entered. Morty had not taken the lead in the Plainview cases, but his presence was always there. Boxer also obviously recognized his contribution.
Stevenson argued that Mr. Steine had already introduced the list of documents and that he was wasting valuable time reviewing each document with the witness: “It’s highly prejudicial, and any good from identifying these documents is outweighed by the prejudice. It should be excluded in accordance with Rule 4.03.”
Morty countered with the obvious: “In order for the jury to weigh Sister Carson’s testimony, they need to know how extensive her investigation of the records was.”
Boxer agreed and allowed Morty to
continue to build his pile. By the time he finished, it was four feet high, and the jury was watching it carefully to see if it would topple over. Morty was quite a showman; he held the jury’s complete attention.
“You’re pretty busy running Saint Francis Hospital. Is that a forty-hour-a-week job?”
“No, sir. I’m on call twenty-four, seven, and I work about sixty hours a week.”
“So, when did you read all this material?”
“Well, these documents have been sent to me over an almost two-year period. As depositions were taken, Mr. Davis would send me a copy. I worked at night and during my free time.”
“Have you been paid for your time?”
“Yes, I have been paid $100 an hour for my time, but I did not charge for every hour.”
“What do you mean?”
“Well, for example, I’ve read my deposition at least six times. I think I charged for only three. That is true of many documents.”
“How much have you been paid in total?”
“I’ve received $11,400, but I donated every cent I was paid to the church. I didn’t agree to testify because of the money.”
“Why did you testify?”
“Because it was the right thing to do.”
The judge decided it was a good time to stop for lunch. Within an hour and fifteen minutes, the Sister was back on the witness stand.
Sister Carson testified that a hospital owed certain obligations to its community and patients, according to the JCAHO manual. For instance, JCAHO required that the hospital secure an informed consent for all tests and surgeries performed at the facility.
“JCAHO requires that the hospital only issue medical privileges to their medical staff for which they are competent, and the hospital must maintain an adequate Quality Assurance Plan to protect the patients.
“I am of the professional opinion that the governing boards of Plainview Community Hospital, its Board of Directors, Board of Trustees, Executive Committee, and the various other committees, breached the standard of care and breached their obligations to patients, including Rosie Malone.”
There was fire in Sister Carson’s eyes as she spoke: “I am of the opinion that Plainview Community Hospital permitted members of its medical staff, Dr. Herman and Dr. English, to provide substandard medical care as described in the testimony of Dr. Adams and Dr. Swanson. Plainview Hospital did not establish and enforce an adequate quality assurance of its patients.”
Sister Carson testified that she reviewed the credentials of both Dr. Herman and Dr. English and that Plainview Hospital had not followed the standard of care in its credentialing of those physicians.
Sister Carson was critical of Dr. English’s training in laparoscopic surgery: “He only performed surgery on a pig.” She testified, “There was no proctorship. The hospital just let him loose to perform surgery; it was a breach by the hospital of the standard of care.”
The Sister quoted specific sections of the JCAHO manual that the hospital violated. She also quoted specific sections of the hospital’s own bylaws that it violated. She concluded her direct testimony: “I have carefully reviewed all the testimony, and I am of the professional opinion that the hospital’s, Dr. Herman’s, and Dr. English’s treatment of several of their patients was in reckless disregard of the safety of their patients’ lives. If the hospital acted within the standard of care, both Dr. English and Dr. Herman would have been suspended long before poor Rosie Malone was admitted to Plainview Community Hospital on January 29th, 1992.”
Morty sat down, and Grayson Stevenson walked to the podium.
Laura didn’t dislike many people, but everyone she hated was in this courtroom, and Stevenson was among them.
“Sister, does your order know that you’re giving expert testimony in this case?”
“Absolutely, my Mother Superior notarized my expert statement, and as you well know, Dr. English threatened her.”
Pierce was on her feet within two seconds.
Laura knew exactly what happened. Stevenson figured that English’s threat toward the Mother Superior increased Dr. English’s portion of the liability pie, thereby reducing the liability of the hospital.
Stevenson tried to get the witness to testify that her nurses at Saint Francis didn’t practice medicine and followed the doctors’ care plan. The Sister fought back hard and didn’t let Stevenson put words in her mouth.
“I expect my nurses to bring to my attention anything a doctor does that they seriously question. If the treatment is below the standard of care, they’re required to bring it to the doctor first, and if he’s ignoring them, then to me.”
“But these nurses aren’t doctors. They’re not familiar with the appropriate standards.”
“Says who? The standard of care is what a reasonable doctor would do under similar circumstances. They watch doctors treat patients every day. They know what to expect, and if they see substandard care, they better speak up. In fact, Nurse Perry’s job as utilization nurse was to question whether or not the orders of the doctors were appropriate.”
Stevenson shut up and sat down. The witness had gotten the better of him.
Pierce got up next. “You’ve testified that all three defendants were negligent and reckless in their care of Rosie Malone?”
“Yes.”
“You’re not a medical doctor or a surgeon?
“That’s right. I’m a registered nurse and certified hospital administrator.”
“Are you aware that a medical panel of three doctors dismissed all claims against Dr. English for his care and treatment of Rosie Malone?”
“I read the hearing. They did, but they didn’t want to.”
“Move to strike that answer.”
“Stricken,” Boxer proclaimed.
“I need a yes or no?”
Sammie thought that Pierce was being unfair and trying to mislead the jury. Why am I surprised? Maybe the jury will see through her deception.
CHAPTER FORTY-NINE
THE CHILDREN ARE HEARD
THURSDAY, AUGUST 18, 1994
Sammie spent days preparing two of the Malones to testify: Thomas and Lorraine. They were the oldest. Thomas was the court-appointed administrator of the estate, and Lorraine insisted on the transfer. Sammie told her uncle that Lorraine was the stronger witness, so he called Thomas first.
Davis quickly established how Thomas was related to Rosie Malone and how he had been elected administrator as the oldest living child. He testified that after his daddy died, his momma raised them the best she could. He talked about her work at the bakery and the deterioration of her health that forced her to retire.
Plainview was a small town, and most of the residents knew most of the Malone clan. But this was Hewes City, so Thomas’s testimony was new to the jurors.
Sammie went shopping with Thomas and helped him pick out his blue blazer. But Davis and Morty agreed: no tie. Thomas would have looked out of place with a tie.
He was a mechanic and had to take off a lot of work to be the administrator, including two weeks for this trial. “Someone in the family had to step up. I’m the oldest. It was my responsibility to do it.”
Davis went through all of Rosie Malone’s medical problems up to February 1992.
“I thought she was in good hands with Dr. Herman. It was my sister, Lorraine, who made Momma go to see the specialist in Nashville.”
“Dr. Sizemore?”
“Yes, sir, he was a stomach doctor.”
“Was your mother addicted to narcotics?”
“I don’t know if she was addicted, but she liked her pills. She was in a lot of pain, and they made her feel better.”
“In February, did you visit your mother at Plainview Community Hospital when she had her gallbladder out?”
“Not until after the surgery, when her temperature was high. Lorraine called me and told me the surgery didn’t go well and that Momma was real sick.”
“Did you talk to either Dr. English or Dr. Herman after her surgery?
”
“I’ve never met Dr. English. I was standing there when Lorraine begged Dr. Herman to transfer Momma to Nashville. Dr. Herman told her that he had everything under control and that Momma shouldn’t be moved.”
“Did you believe him?”
“Yes, sir. I’m no doctor. If you need someone to work on your Chevy truck, I’m your man. But I don’t know anything about medicine. He’d been her doctor for years. I know Momma trusted him.”
“If the jury awards your family money, what will you do with it?”
“We’d split it into two parts. The first part we’d divide up eleven ways. Momma had eleven kids, but Melvin’s dead. We’d give his share to his two kids, Bubba and Kimberly. The other half we’d put in some kind of trust for the education of all the grandkids and great-grandkids. Momma would’ve liked them to get educated.”
“What would you do with your share?”
“First thing I’d do is put an angel headstone on Momma’s grave. Depending how much there was, second, I might put a down payment on a house in Plainview with a few acres.”
Sammie thought that he gave a good, honest answer. A juror could identify with it. The education trust was Lorraine’s idea, and it was a good use of the money.
McCoy crossed first. “You say that your mother trusted Dr. Herman. If she had lived, do you think she would have sued him?”
“Momma didn’t believe in lawsuits—”
“But you obviously believe in them, right?” McCoy interrupted.
“It was a family decision. Lorraine convinced my brothers and sisters that it was the right—”
“So Lorraine Burke, your sister, is behind this lawsuit?”
Sammie didn’t think McCoy was giving Thomas time to answer, and she wished her uncle would object.
“She’s a teacher. She understands more than the rest of us about—”
