The Oath

by John Lescroart

  "It wasn't you," Kensing said. "It wasn't your fault."

  "Whoa up," Elliot said. "Wait a minute!" He was leaning back in his wheelchair, focusing on first one of the doctors, then the other. Finally he settled on Cohn. "Look, I'm sorry, your name just clicked. I wasn't trying to be accusatory."

  Cohn's face was hard and bitter. "But the name clicks, doesn't it?"

  "It wasn't that long ago," Elliot said apologetically. "I'm a newspaperman. I remember names." He scratched at his beard. "And the kid's name was Ramiro, right?"

  "We're not opening this can of worms again, Jeff. The topic's not on the table."

  But Cohn raised her hand to stop him. "It's all right, Eric. It's past now."

  "Not so long past. Markham sure wasn't over it."

  "He is now." Cohn obviously took some comfort in the thought. "Actually, this might be a good time to tell somebody the facts." She turned to Elliot. "You know the basic story, right? This kid goes to urgent care with his mom. He's got a fever, sore throat, funky-looking cut on his lip."

  Elliot nodded, recalling. "Some other doc had seen him a couple of days before and told him he had a virus."

  Kensing spoke up. "Right. So this night, Judith is at the clinic, swamped. Overwhelmed, really. She sees Ramiro and sends him home with some amoxicillin and Tylenol."

  "And two days later," Elliot concluded, "he's in the ICU with the flesh-eating disease."

  Kensing nodded. "Necrotizing fasciitis."

  Elliot remembered it all clearly now. The flesh-eating disease was always news, and when there was a local angle, it tended to get everybody worked up. So he'd heard of it, and had even heard the rumors about Judith Cohn's—among many others'—alleged part in the tragedy. The official story didn't include her by name, however, and Elliot's own follow-up inquiries at the hospital were met with what he'd come to expect—the typically evasive Parnassus administrative fandango that left all doctors infallible, all administrative decisions without flaw. He'd never gone to press because he'd never felt he had it exactly right.

  But Cohn was telling him now in a voice heavy with regret. "They're right. I should have recognized it."

  Kensing shrugged. "Maybe the first doc who saw him could have, too. But neither of your diagnoses are what killed him."

  "What do you mean, Eric?" Elliot asked.

  "I mean that at every step in the treatment, Parnassus took too long deciding what they could afford to do to save him. Ramiro didn't have the right insurance. There was a glitch on one of the forms in his file. Was this test covered? Was the oxygen covered? Who was going to pay?" He angrily shook his head. "Long story short, they were counting pennies all the way, and it compromised his care. Fatally."

  Cohn's eyes had gone glassy, the memory still painful to her. Elliot asked her gently, "You didn't treat him at all after his initial visit to the clinic?"

  "No. I never saw him again. Except at his funeral."

  Kensing took it up. "But did that stop Markham from singling her out within the physicians' group as the primary point of failed care?"

  "That's the impression I got," Elliot admitted. "But nobody would go on the record."

  "Everybody got that impression," Kensing said. "Of course, what it really was, was Markham looking for a scapegoat. He himself had been the point man for the lame explanations of what we were not doing and why. Judith was his way to take the heat off him. Fortunately, the physicians' group went to bat for her."

  "At least enough so I wouldn't lose my job," she added with real bitterness. "The only consolation is that I saw Luz—the mother?—at the funeral. She seemed to understand. She didn't blame me. She blamed Markham."

  "Markham?" Elliot asked. "How did she know Markham even existed?"

  Cohn obviously thought it was a good question. "You remember that puff piece they did on him in San Francisco magazine? It was lying out everywhere in the system that that poor woman went with her sick boy. Markham's happy face and how he cared so deeply for his patients. She still had the cover with her at the funeral. She showed me."

  "And you want to know the supreme irony there?" Kensing asked. "It wasn't Markham either. In fact, they'd all been Ross's decisions. Ross is the chief medical director. He makes those calls. The truth is that Ross lost that kid single-handedly, and nobody seems to have a clue."

  A silence settled. After a minute, Elliot spoke. "Do you live here, Judith?"

  "She stays over sometimes," Kensing answered quickly, then added, "Why?"

  "I was wondering if she was here last Tuesday morning."

  It was Judith's turn to ask. "Why?"

  Elliot felt he had to tell them that in talking with the hospital staff, checking the records, he had discovered that Eric had been well over an hour late for work on the morning Markham had been hit.

  Kensing closed his eyes, squeezed his temples with one hand, looked across at Elliot. "I don't even remember that. Was I? And what would it mean if I was?"

  "It would mean you didn't have an alibi for the time of the hit-and-run accident." Elliot turned to Judith. "And you could corroborate the time he left for work."

  "That's the most ridiculous thing I've ever heard!" she said. "Now someone thinks Eric drove the hit-and-run car, too?"

  "No one necessarily thinks it," Elliot said. "I've just heard the question, that's all."

  "What idiots," Judith said.

  "Well, idiots or no," Elliot said, "you ought to appreciate what other people might be saying."

  "I think I'm getting a feel for it," Eric answered wearily.

  "Tuesday night I was here," Judith said. "Does that help?"

  "Yeah," Kensing said, "but that was midnight." He turned to Jeff. "I stopped by the Markhams'. Judith was asleep when I got home."

  Cohn gave the subject a minute's more reflection, then shook her head. "Come on. You're in the hospital, working your normal job, which means you're not some criminal. You're a regular person with a decent career. Suddenly an accident victim comes in and there's a good chance he's going to die. Now it turns out that you know this person. Not only that, but he's somebody you hate enough to want to kill. To kill! And just like that he's delivered to you and you decide on the spur of the moment to take this tremendous and probably unnecessary risk and make sure he dies where they might be able to trace it back to you." Judith sat straight up, dripping ridicule. "Please."

  "Except that from what I hear, that's essentially what happened," Elliot said soberly.

  * * *

  Hardy's morning had been awful. He'd slept fitfully with Rebecca Simms's news percolating somewhere in his unconscious. Unknown dead people featured in several half-remembered dreams, and he was up and out of bed before 6:00. After the kids were off at school, damned if he'd call Glitsky for the company. He'd walked briskly alone for an hour, to the beach and back, but he hadn't warmed up first so the exercise had left him feeling tight and old. One of Freeman's clients had parked in his space under the building, and by the time he went to get his car back from where he'd parked it on the street, he'd gotten a ticket. Finally, just before lunchtime, after a morning of reviewing bills and other mail he'd ignored for the past week, and before he left the office to go to the Chronicle building, he placed a call to homicide when he was fairly sure the lieutenant would be at lunch. And sure enough—his first stroke of luck the whole day—Glitsky had been out.

  Now he sat on a low filing cabinet in the cubicle that was Elliot's office on the ground floor of the Chronicle building. His frustration with Kensing surfaced in an over-formal tone. "I confess to being somewhat surprised to learn at this late date that he has a girlfriend. We talked last night on the phone for hours. I asked him to tell me everything important about his life he could think of, and he never mentioned her."

  "Judith," Elliot said. "Really pretty. But maybe it's not an important relationship. Maybe it's one of those modern things where they just have incredible sex every couple of hours, but otherwise don't even like each other. Wouldn't that be horri
ble?"

  "Awful." Hardy remained somewhat distracted. "Do you know when they got together?"

  "No. Why?"

  "Because it'd be nice to know if she was in the picture before he and Ann separated. Maybe his wife leaving didn't break his heart after all."

  "You should ask him."

  "I will, but it'd be swell if he volunteered some of this stuff. I didn't even know he was the leak on Baby Emily."

  "Was he?" Jeff's open face was the picture of innocence.

  But Hardy hadn't stopped by the Chronicle to talk about his client. He wanted to know if Elliot had heard any rumors about a rash of unexplained and unexpected deaths at Portola.

  "No." But the thought of it, of the story in it, lit up the reporter's eyes. "How big a rash?"

  "I don't really know. My source wasn't sure of the details, or really even of the bare facts. But she seemed pretty levelheaded, and she was definitely scared."

  "So what did she say?"

  Hardy gave him a fairly accurate recounting of his talk with Rebecca Simms. About halfway through, Elliot pulled a pad around and began taking a few notes. When Hardy had finished, Elliot said he'd like to talk to her.

  "I can ask her," Hardy replied, "but I got the feeling that even talking to me made her nervous. Evidently the administration at Portola likes to keep a tight lid on their internal affairs. People who talk become unemployed pretty quick."

  "Okay, so help me. Where do I look?"

  They both came up with it at the same time. "Kensing."

  Jeff closed the door to his cubicle and put on the speakerphone. Kensing told him that yes, Judith was still there, but she'd worked the night shift at the clinic and had gone in to bed. He was just hanging out, he said, windows open, reading a book. It was the first one he'd read in maybe a year. Max Byrd's Grant. Fantastic. The best first sentence he could remember reading anywhere. "'Start with his horrible mother.' Isn't that great?"

  Elliot agreed that it was a fine line. But he'd called because Dismas Hardy was here with him in his office and they wanted to ask him about something. When Hardy had finished with Rebecca Simms's story of unexplained deaths at Portola, Kensing was silent long enough for Elliot to ask him if he was still there.

  "Yeah. I'm thinking." Then, "I can't say the idea hasn't crossed my mind. But people are always dying in the ICU. I mean, they don't get in there until they're critical to begin with. So what you're asking, I take it, is whether people died who shouldn't have died, right? Are we off the record here, Jeff? I don't need any more bad press right now."

  "Okay. Sure." Jeff wasn't crazy about agreeing, but under the circumstances there was nothing else he could do.

  "While we're being formal," and Hardy no longer had any intention of being anything but formal in his relations with this client, "this conversation isn't privileged, either. Just so you know."

  "All right. So what are you suggesting? Some kind of rampant malpractice? Or something more serious?"

  "I'm not suggesting anything," Hardy said. "I'm asking if anything has struck you."

  "Well, I'd be surprised if we've filed many eight-oh-fives. I'll go that far."

  "What are those?" Hardy asked.

  "Reports to the state medical board. When a doctor screws up seriously enough for the administration to suspend his clinical privileges for more than thirty days, then the hospital's supposed to file an eight-oh-five with the state. They're also supposed to forward it to the National Practitioner Data Bank, which is federal—and never goes away. You get listed in the data bank, your career is toast."

  "So why don't these things get turned in?" Hardy asked.

  "You're a lawyer and you're asking me that? You're a doctor and some hospital writes you up, what do you do? You sue the bastards, of course. You're a patient who finds out your hospital hired a bad doc, you sue the hospital. Everybody sues everybody."

  Elliot couldn't resist. "I always assumed you lawyers loved that part," he said to Hardy.

  But Hardy was hearing something else altogether. "Are you telling me, Eric, that Portola's got these doctors, and knows it, and they're not filing these reports?"

  "Let me answer that by saying that we have people on the staff whom I would not personally choose as my own physician."

  "So what really happens when some doctor messes up?" Hardy asked.

  "Couple of things. First, you notice I mentioned the magic thirty-day suspension from clinical privileges. So instead you get grounded for twenty-nine days. Ergo no eight-oh-five, right? You're within the guidelines. And no national database."

  "Are there any Portola doctors on this database?" Jeff was always chasing the story. "How can I find out?"

  "You can't." Kensing's voice was firm. "The public can't get access to it, for obvious reasons. Although prospective employers can. In any event, there's another way reporting doesn't happen. It's probably more common."

  "And what's that?" Hardy asked.

  "Well, the eight-oh-fives are based on peer reviews."

  "Other doctors," Elliot said.

  "Right. And there's some feeling among doctors, especially now at Portola, that we're all in this shit storm together, so we better protect one another. If one of our colleagues isn't making the right medical decisions, okay, you go have an informal discussion, mention the standard of care we all strive for. But we're all under this intense financial pressure, we're all working too hard all the time, the bottom line is we're not ratting one another out."

  "Never?" Hardy asked.

  "Maybe with some egregious lapse—I'm talking inexcusably gross fatal error—and maybe even more than one. But anything less, you're not going to get a peer review at Portola that recommends an eight-oh-five. Most hospitals in the country, I'd bet it's close to the same story."

  In the cubicle, Elliot and Hardy looked at each other. "What about other causes of death?" Hardy asked. "Maybe intentional deaths?"

  This gave Kensing pause. "What do you mean, intentional?"

  "Maybe pulling the plug early, something like that." Hardy considered, then added, "Maybe something like this potassium."

  "You're talking murder, aren't you?" No answer was called for. "Do I think that's been going on at Portola?"

  "Do you?" Hardy asked.

  "Only in my most paranoid moments."

  Elliot jumped in. "Do you have many of those, Eric?"

  Kensing sighed audibly. "There was another patient in the ICU at the same time as Markham. Did you both know that?"

  "I thought there were several," Hardy said.

  "That's true. What I meant was that there was another patient who died."

  "Who was that?" Hardy's every instinct knew that he was on to something, and that this was part of it.

  "His name was James Lector. Seventy-one, never smoked. He'd developed some complications after open-heart surgery and we had him on life support for a couple of weeks, but he was off that and responding to treatment. His vital signs had been improving. I was thinking of moving him out in a few days."

  "And he died?" Hardy said.

  "Just like that. No reason I could see. Just stopped."

  "I would never reveal a source," Elliot said. "I'd take your name to my grave."

  Hardy ignored him. "So besides this man Lector," he asked, "how many would you estimate? Deaths you couldn't explain?"

  "Actually, I started keeping track last November. This little logbook I have."

  They waited.

  He continued. "I thought I'd go back and see if there was a pattern. Maybe something to get them off my back."

  Elliot asked him why he started keeping track. "I don't know exactly. I guess now that you ask, I wanted my own ammunition for when they finally got around to firing me. I didn't think anybody was killing patients on purpose, but we were losing patients we shouldn't have—like the Lopez boy, Jeff. So if fiscal policies were affecting medical care, I wanted to come back at them with that. I more or less just thought the place was going to shit and I wanted some record
of specifics."

  This time, the silence hung for a while. Finally, Hardy asked, "How many, Eric?"

  "Not including Tuesday," Kensing said. "Eleven."

  17

  Whatever the special at Lou the Greek's would turn out to be today, Hardy didn't have a taste for it. He was hoping he could just stick his head through the door and survey the room to see if it contained Wes Farrell.

  But no such luck.

  Smack in the middle of the lunch hour, the place was wall to wall, three deep ordering drinks. The law continued to be thirst-making work, Hardy noted. He pushed himself into the crowd, got through the crush by the bar, and made a quick tour of the room, exchanging the occasional pleasantry with a familiar face, but mostly moving. If Farrell wasn't here, he didn't want to be, either. Not least because he didn't want to run into Glitsky.