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

by A. Turk

  “So, it was Dr. Herman’s negligence that resulted in this patient undergoing unnecessary surgery?”

  “She never should have been admitted, and she never should have had the surgery.”

  “Dr. English nicked her bowel during the surgery?”

  “That’s the most likely cause.”

  “Can you think of another, Doctor?”

  “No, sir.”

  “Was the utilization review nurse negligent in not insisting that the patient be discharged prior to the surgery?”

  “She didn’t do a very good job. The hospital lost a lot of money on this patient.”

  “As the chairman of the Davenport County Hospital Utilization Review Committee, what action would you take if your utilization review nurse had done such a poor job?”

  “I would fire her.”

  “It was that bad a job?”

  “Yes, sir.”

  “If the Plainview utilization review nurse, a hospital employee, had done her job, Rosie Malone would be alive today?”

  “I don’t know.”

  Davis sat down after announcing no further questions. The defense lawyers representing the doctors collectively decided not to dig the hole any deeper by asking questions. It was better to get Sparks off the witness stand.

  The hospital also put on the witness stand its head nurse, who explained that her nursing staff had followed the doctor’s orders and that it was near impossible for a nurse to challenge a physician.

  On cross, Davis asked, “If one of your nurses was of the professional opinion that a patient, under a doctor’s current treatment plan, was going to die, and if an alternate treatment was available that would save the patient’s life, what should she do?”

  “Talk to the treating physician about the alternatives.”

  “What if the doctor rejected the alternatives available and continued under the same plan toward the patient’s death?”

  “She could talk to me; Woody Douglas, the hospital administrator; or Dr. Kelly, the medical director; or make a formal complaint to be reviewed by the appropriate committee.”

  “Did any of your nurses question Dr. Herman’s care and treatment of Rosie Malone?”

  “No, sir.”

  “Did anyone?”

  “Dr. Laura Patel made a formal complaint.”

  Stevenson jumped up and objected on the grounds that the committee system and its findings were confidential. Boxer sustained the objection.

  She admitted that Dr. Herman didn’t transfer the patient until the evening of the 5th, despite the fact that Mrs. Malone’s temperature was almost 105 for days.

  “All of the nurses who treated her during those shifts did nothing?”

  “They followed Dr. Herman’s orders and treatment plan. The only person who complained was Dr. Patel.”

  “No further question.”

  There was no cross from the defense table. Davis hoped that Stevenson would make the tactical mistake of putting either Woody Douglas or the hospital’s medical director on the stand. He would eat their lunch on cross. Unfortunately, Stevenson was too smart for that move and rested the hospital’s case.

  If Davis still had the pathology slides, he probably would have used them now in rebuttal to prove Ms. Johnston a liar. He hoped that he had proved the recklessness of all three defendants. He announced, “No rebuttal,” and the proof closed.

  Judge Boxer turned to the jury: “It is important the closing arguments be presented on the same day and not be broken up. I will give the jury the choice to either take the weekend off and start on Monday, or work through the weekend, even on Sunday, if the jury is willing. Let’s take a half hour, and through your foreman, you can tell me your preference.”

  When they returned, Judge Boxer nodded at the foreman, and he stood. “We’d like to start tomorrow morning at nine, work through the weekend, and get our job done. We need to get back to our lives and our families.”

  “Court is adjourned till tomorrow at nine.”

  CHAPTER FIFTY-TWO

  CLOSING ARGUMENTS

  SATURDAY, AUGUST 20, 1994

  Despite his desire to give the closing argument, Davis asked Morty to do so as a gesture of appreciation and respect. The old man earned his dollar, and he deserved it.

  Boxer called his court to order, warned the jury “what the lawyers say is not evidence,” and gestured for Davis to approach the podium.

  “With the court’s permission, Mr. Steine will be making the plaintiff’s closing argument.”

  Morty rose and moved slowly in front of the jury. He had no notes, just more than forty years of experience.

  “Ladies and gentlemen of the jury, I am an old man who’s seen human nature at its best and at its worst. Medicine is a calling and it’s also a business, but it’s not a place for greed. We have a right to expect our doctors to place their patients’ best interest and health ahead of their wallets.

  “Dr. Herman, Dr. English, and the hospital administration of Plainview Community Hospital let the dollar, not the Hippocratic Oath, control their decision making. They recommended tests, procedures, and surgeries motivated by profit and not what was in the best interest of their patient, Rosie Malone. These defendants disregarded the most basic aspect of the standard of care, first do no harm.”

  Davis hoped that Sammie was not only listening but also watching Morty. His body language was so graceful, he almost danced around the courtroom. He resembled a lion, proud, powerful, and ready to pounce. His words were mesmerizing. The jurors couldn’t take their eyes off him.

  “Ladies and gentlemen, negligence, as Judge Boxer will explain, does not require that the plaintiff prove bad intent on the part of the defendants. To find negligence, all you have to conclude is that it is more likely than not that the defendants breached the standard of care. If, based upon the proof, being the testimony and documents introduced into evidence, the scales of justice tip in favor of the plaintiff, then the defendants were negligent, and you should award compensatory damages.”

  Davis expected a modest award of compensatory damages. Rosie Malone was neither a brain surgeon with a big income nor a young mother with a husband and three or four dependent children.

  Morty spent the next forty-five minutes recounting the testimony of Dr. Swanson, Dr. Sizemore, Dr. Adams, and Sister Carson. He recited each breach of the standard of care to which each expert witness had testified. Using an overhead projector, courtesy of Sammie, Morty displayed about two dozen exhibits that proved the defendants’ negligence.

  At one point in his closing, Morty walked over to the defense table and stood behind Dr. Herman and Dr. English so the jury would stare at them for a long minute.

  Davis could see on Morty’s face that the adrenaline was coursing through him, but he needed to wrap things up.

  “As the judge will tell you, the plaintiff gives the first closing and the last closing because the burden of proof is on the plaintiff. So, I will get the honor to speak to you later today, hopefully not tonight, because all three defendants get to speak before I return.

  “Remember, Mr. Davis made you a promise at the beginning of this trial and told you that he would transcribe all the opening statements, even his own. Here they are.”

  Morty walked over to Davis, who handed him the four opening statements. Morty read to the jury highlights from Barnes’s opening statement. Morty pointed out several incorrect statements made by Mr. Barnes, including his comment that Rosie Malone was a “drug seeker.”

  He next read portions of Stevenson’s opening: “Mr. Stevenson’s version of the facts is not correct. With all due respect to Mr. Stevenson, the hospital knew exactly what was going on and let it continue so it could make more money. I submit that not only should the hospital have known that these doctors were ordering unnecessary tests and performing unnecessary procedures but also that through several employees, including Woody Douglas, the hospital administrator, it did know.”

  Morty held up Pierce’s opening
statement and read sections to the jury. Then he said, “You’ve met Dr. English. You heard about the care he gave poor Rosie Malone. Was Ms. Pierce accurate in her opening statement? Not even close. Dr. English should never have performed surgery. He doesn’t deserve to be called a doctor.

  “The last opening statement that I’m holding in my hand is Mr. Davis’s. He promised you what he believed the proof would show. Rather than read from this opening statement, which is over one hundred pages long, I’m going to challenge any member of the defense counsel to find a material statement in this opening statement that was not proved.

  “I know that I’ve been long-winded, but I submit that the proof was long and that my presentation has been accurate. I have spent all of this time talking about the proof and the defendants’ wrongful conduct.

  “I need to say a word about Rosie Malone. You never got to hear from her, and you never will. Neither Mr. Davis nor I met her because these defendants cut her life short. She was a retired baker. She spent forty-one years baking and feeding Plains County. She was not a rich woman, but she had a worthwhile life and made a difference. The defendants will focus on the fact that she lost no income and that she was on Medicare at the time of her death. She had worked hard and was entitled to those benefits. The proof is clear. These defendants, through their negligence and recklessness, took her life away from her.”

  Morty slowly walked back to the table where Davis, Littleton, and Thomas Malone were seated. Malone grabbed Morty’s hand and emotionally thanked him on behalf of his family.

  After speaking for more than an hour, Morty was exhausted. He hadn’t looked at one note. He spoke from the heart, and he surely touched the jury. He sat down, and Judge Boxer called for the morning break.

  When they returned to the courtroom, Barnes was standing at the podium. Morty would be a tough act to follow, but Barnes couldn’t change the fact that he represented Dr. Herman.

  “I first want to thank each one of you for the time, patience, and attention you have afforded these parties. With all due respect, not only was Mr. Steine a little long-winded, as he admitted, but the entire plaintiff’s case was drawn out unnecessarily. I submit that your time has been wasted. Mr. Davis and Mr. Steine, at great expense, brought in their expert witnesses. Those witnesses were paid more than $75,000 for their testimony. Sister Carson admitted that she was the dear friend of Dr. Patel, who was let go from the hospital staff because of a confrontation with Dr. Herman and Dr. English. Sister Carson is the definition of a biased witness.”

  Barnes stopped for effect. He looked at Dr. Herman and then back at the jury. “You heard Dr. Herman’s testimony. Mrs. Malone was a very difficult patient to assess. She had a very low tolerance for pain and often was treated with a placebo, sterile saline. I know it is not popular to say, but she was a drug seeker. Dr. Herman knew that, and he treated her accordingly. Remember, Dr. Sizemore treated her for five months and couldn’t solve Mrs. Malone’s problems. She was her own worst enemy. She smoked and took pain pills because she couldn’t tolerate any pain.”

  Barnes told the jury to listen carefully to Judge Boxer’s jury instructions, particularly to the fact that they were not to consider damages unless they found liability. Barnes discussed the fact that each defendant was separate and that Dr. Herman was not liable for the actions of Dr. English and the hospital.

  He reminded them that everyone, including Dr. Herman, was sorry that Mrs. Malone was dead, but that sympathy had nothing to do with their job as jurors.

  He reminded them that Dr. Herman testified that he had befriended Mrs. Malone and that he had known her much better than Mr. Davis, Mr. Steine, or any of the paid expert witnesses.

  Barnes concluded his closing statement: “Mrs. Malone is gone. Nothing anybody does or says will bring her back. If it was within Dr. Herman’s powers to do that, he gladly would. This is about money. Mrs. Malone’s children, represented by Thomas Malone, are hoping for a big payday. That’s what this lawsuit’s about, money.

  “I mention recklessness and punitive damages, not out of concern, but as Mr. Steine told you, this is my only opportunity to talk with you. Listen to the judge’s instructions on recklessness. First, it must be proved by a much higher burden than negligence by clear and convincing evidence. Second, this is a professional negligence case. There was no disregard for the safety of the patient. Dr. Herman did the best he could under difficult circumstances. These hired guns have a lot of nerve claiming that Dr. Herman was reckless. They weren’t there. All they did was read pieces of paper years after the fact. I know there will be no finding of recklessness by the people of Hewes County.”

  Trying a lawsuit was a young man’s job. Barnes moved slowly back to the defense table and placed his palms flatly on the table for support as he eased himself down. He had done an excellent job, considering that his client was a scumbag.

  Judge Boxer told everyone to be back at two o’clock. Morty couldn’t wait to give his final closing argument.

  When Davis and Morty returned, Stevenson was standing at the podium. Grayson Stevenson was a year older than Morty but lived in a different world of Nashville’s social elite. He was a member of Belle Meade Country Club; he went hunting with the governor and both United States senators from Tennessee. His grandfather was the founder of his firm in 1907, and his father and two uncles managed it through the Depression and World War II. Grayson was at the end of his career, and Davis knew Stevenson wanted to let this closing argument count.

  “Ladies and gentlemen, I represent Plainview Community Hospital. My closing argument is simple. The doctors, not the hospital, practice medicine.

  “It was Dr. Herman who performed the three ultrasounds and made the diagnosis that Mrs. Malone had gallbladder disease and gallstones. Remember, Dr. Gerald’s report said that there were no stones and no apparent gallbladder disease. Dr. Gerald worked for the hospital.

  “It was Dr. English, with Dr. Herman’s approval, who performed the surgery, and it was English who nicked her bowel. It was Herman and English who initially managed Mrs. Malone’s postoperative care, and it was Dr. Herman who decided when to transfer the patient. Remember the concept of comparative fault; each defendant is liable for only his percentage of the negligence that proximately caused damage to Mrs. Malone, not what some other defendant may have caused.

  “The only alleged claims against the hospital are that it negligently credentialed Dr. Herman and Dr. English and that the hospital was negligent in its utilization review of Rosie Malone. You heard the testimony of Dr. Sparks; utilization review is for the protection of the hospital, not the patient. Its purpose is to make sure that the hospital uses its resources wisely and does not waste those resources.

  “In the case of Mrs. Malone, she stayed at Plainview Community Hospital from January 29th until February 5th. She ran up a hospital bill of $53,000, and Medicare paid $9,000. Plainview Community Hospital lost $44,000 in its care and treatment of this patient. The utilization review process failed miserably. The utilization review nurse was negligent, and the party that was harmed was the hospital. Judge Boxer will explain that a defendant is liable only for damages that it proximately causes. The hospital’s negligence in its utilization review did not proximately damage Mrs. Malone, and therefore, her estate cannot recover from that negligence.

  “Dr. Sparks also testified that the hospital’s relationship with Dr. Herman and Dr. English is identical to the relationship of Davenport County Hospital and its physicians. There was no breach of the standard of care as to that relationship.

  “In retrospect, Dr. Herman and Dr. English made some errors in judgment, but they didn’t have a crystal ball or the benefit of hindsight like the plaintiff’s experts. These were medical decisions made by Dr. Herman and Dr. English, not the staff of Plainview Community Hospital. The hospital is not liable for these medical decisions. Thank you.”

  Amy Pierce marched toward the jury. It was evident that she was furious at Stevenson for dumping on her c
lient. Whatever common strategy the defendants might have once had now lay in pieces and was abandoned.

  Pierce explained that Rosie Malone had been Dr. Herman’s patient for several years. Dr. Herman did three ultrasounds before her admission on January 29th, and it was his diagnosis of gallstones and gallbladder disease. Herman recommended surgery based upon the ultrasounds he performed and interpreted.

  “Dr. English met Mrs. Malone on the 30th and performed surgery on the 31st. The injury during surgery was a known risk disclosed on the consent form. Surgery is an art, not an exact science,” she said.

  She reminded them that after the surgery, Dr. English left town on a scheduled vacation. She argued that he left the patient in the care of Dr. Herman and the hospital staff. He was available only the first day after surgery and made only two notations in the patient’s chart. Dr. English was outside the loop when Mrs. Malone’s temperature spiked and her condition deteriorated.

  “He left the patient’s postoperative care in the hands of Dr. Herman, who was faced with a sick and deteriorating patient. It was Dr. Herman who decided when to transfer the patient, and by then it was too late.

  “It is only natural for you to feel sympathy for Mrs. Malone. She had many health issues long before she met Dr. English. She had heart problems, breathing problems, digestion problems, and drug problems. She was in pain both emotionally and physically. But she was not a victim. These health issues had developed over more than forty years of her abusing her body. The surgery performed by Dr. English was a mere moment in a lifetime of abuse. Thank you for your time and attention.”

  Pierce sat down and the courtroom grew silent. Boxer ordered a short break.

  In the hall, Davis told Morty, Sammie, and Littleton, “I can’t believe that the defendants turned on each other in closing arguments. They held it together for years, and at the last moment, their common defense crumbled.” Davis whispered to Morty that he needed to take advantage of this turn of events. They agreed that the focus should be on recklessness and assume they had won the issue of negligence. Littleton, who overheard the conversation, insisted that Morty urge that the jury throw caution to the wind and sting the defendants until it hurt.