Sasha McCandless 02 - Inadvertent Disclosure

by Melissa F. Miller

  “Now, you go ahead and rest. We have to talk to a judge about you, but you can go back to sleep.”

  “Harry? Is Harry coming?” Jed looked around, searching for Judge Paulson.

  Dr. Spangler gave him a sad smile, “I’m sorry, Mr. Craybill, but Judge Paulson passed away. Don’t you remember?”

  “Harry’s dead?” Jed said, his voice rising in confusion.

  Sasha closed her eyes so she wouldn’t have to see the glow of victory in Braeburn’s. She inhaled, filling her lungs, and let the air out as slowly as she could. Then she snapped her eyes open.

  “Okay, let’s do this.”

  They arranged themselves around Jed’s bed. Braeburn and Dr. Spangler on his left; Sasha and Dr. Kayser on his right. They pulled the tray table out from the side of the hospital bed and rested the phone on it. Jed was already sleeping again.

  Braeburn hit the speaker button and dialed Chief Justice Bermann’s home number.

  He answered on the second ring.

  “This is the chief justice.”

  “Sir, it’s Martin Braeburn and Sasha McCandless calling. Can you hear me okay?” Braeburn held his tie down with one hand and leaned over the bed to speak into the phone.

  “I hear you fine, counselor. You are on speaker phone, as well. I wasn’t able to scare up a stenographer at one a.m., so I am going to record this call and have it transcribed tomorrow. Do either of you object to that course of action?”

  “No, your honor,” they said in unison.

  “Good. Now, one more housekeeping matter. Mr. Braeburn, I spoke earlier to Ms. McCandless ex parte, as I am sure she told you. When we had our conversation, this matter obviously was not before me. I must tell you that I called Ms. McCandless to reprimand her for her shenanigans, and it was my suggestion, not hers, that I preside over the emergency hearing. I assume you have no objection?”

  Braeburn flashed Sasha a cold smile. “No objection, your honor.”

  Her heart sank. She hated to lose. She really hated to lose against a stacked deck.

  “Wonderful. Why don’t you tell me who’s in the room and we can get started.”

  Braeburn spoke first. “I’m Martin Braeburn, representing the Clear Brook County Department of Aging Services. With me, I have Dr. Shelly Spangler, who is Mr. Craybill’s physician and the county’s proposed guardian for Mr. Craybill.”

  “Sasha McCandless, your honor. I’m Jed Craybill’s court-appointed attorney with regard to the issue of whether a guardian is required. With me, is Dr. Alvin Kayser, a board-certified gerontologist, who is my expert witness for the upcoming incapacitation hearing. He also happens to be Mr. Craybill’s new doctor. And, of course, Mr. Craybill is here, as well.”

  She looked at her client whose eyes were still closed. He was breathing evenly.

  “But, he appears to be sleeping at the moment. We’re gathered in Mr. Craybill’s hospital room.”

  “Mr. Braeburn, you requested this hearing on an emergency basis, correct?”

  “Yes, your honor.”

  “What relief are you seeking?”

  “Well, your honor, in light of Mr. Craybill’s current condition, we cannot simply follow the briefing schedule that Judge Paulson set and then wait for Judge Paulson’s replacement to schedule the incapacitation hearing. Mr. Craybill was admitted to Clear Brook County General Hospital this evening. He is not doing well. I’ll leave the medical part to Dr. Spangler, but he’s going in and out of consciousness and he seems quite confused when he is awake. Important medical decisions need to be made, and he’s in no condition to make them. Because of the pending hearing and the county’s request that Dr. Spangler be appointed Mr. Craybill’s guardian, I called Ms. McCandless as a courtesy to let her know that Dr. Spangler would be making Mr. Craybill’s medical decisions in her current capacity as his treating physician. She objected to that course of action and asserted that Mr. Craybill had selected a new doctor. So, we’re asking the court to appoint Dr. Spangler as guardian immediately.”

  “Ms. McCandless, do want to say anything before Mr. Braeburn puts up his witness?”

  Sasha took a step closer to the phone.

  “Yes, your honor. Mr. Braeburn neglected to mention that the reason Judge Paulson postponed the incapacitation hearing and ordered briefing is that, just last week, the county sought to have Jed Craybill declared totally incapacitated, which would result in a guardian being given carte blanche to make all of his decisions—medical, financial, quality of life, everything. But, despite the extraordinary power and control the county requested, it failed utterly to set forth any factual basis for its request. The county submitted no expert report and failed to propose less restrictive means that would enable Mr. Craybill to maintain his independence, perhaps with support—such as a limited guardianship. It was a naked power grab, your honor. And Mr. Craybill was quite vocal about the fact that he would not consent to it; he wanted to continue to live independently, as he has done for years.”

  Sasha could hear her voice rising.

  Jed opened his eyes for a minute and looked around with mild curiosity, then drifted off again.

  She continued in a quieter voice. “Last week, I retained Dr. Kayser to perform an assessment of Mr. Craybill to determine if he could continue to manage his own affairs. Dr. Kayser will testify as to his opinion of Mr. Craybill’s capacity.”

  She paused. She wanted to mention the conversation between Jed and Dr. Kayser, where Jed had told the doctor he no longer wanted to be under Dr. Spangler’s care. It was a delicate thing, though. Jed was the logical person to testify about it, but, at the moment, he wasn’t competent to testify—a bad fact for their position. If she introduced the conversation through Dr. Kayser, Braeburn would almost certainly object to it as hearsay.

  She stifled a sigh and looked at her client. Trying to pretend he wasn’t presently incapacitated was a lost cause. Better to own it. Her motto as a trial attorney was if she could frame the issue, she would win the argument. So she needed to frame it. Spin it to her advantage.

  She plunged in, talking a little faster than she would have liked with the hope that it would discourage Braeburn from interrupting. “In addition, Mr. Craybill advised Dr. Kayser that he intended to end his relationship with Dr. Spangler and inquired as to whether Dr. Kayser was taking new patients. Although Mr. Craybill had not yet transferred his records to Dr. Kayser when he fell ill, his then-present intention is of paramount importance—especially now, when I think all parties would agree that Mr. Craybill is in no shape currently to tell us his wishes.”

  Her eyes darted to Braeburn. He opened his mouth, thought the better of it, and closed it again. Fast, like a fish gulping. Dr. Spangler glared at him, her eyes cracking.

  On the other end of the phone, Justice Bermann exhaled heavily. “Okay, people. Let’s hear from the county. In an effort to get this thing finished before sunrise, please limit yourselves to five minutes on direct and five minutes on cross for both sides’ witnesses.”

  It didn’t sound like a lot of time. But, Sasha knew it would feel like an eternity to the doctors. She’d once had an expert witness describe testifying as what he imagined it would have been like to have defended his dissertation while naked and being pelted with vegetables by a panel of ex-girlfriends.

  Braeburn arranged his papers on Jed’s tray table and turned to Sasha. “I guess we should swear in our own witnesses?”

  She shrugged, but the chief justice rattled off the oath over the phone, and Dr. Spangler raised her right hand and was sworn in.

  Braeburn ran her through her vitals and background information in a hurry, then got right down to business.

  “How long have you been Jed Craybill’s treating physician?”

  “Oh my, forever. For as long as I’ve been practicing medicine, I mean.”

  “And how long has that been?”

  “Let’s see . . .it’s going on twelve years, now.”

  Sasha did some rough calculations in her head. That mea
nt Dr. Spangler was probably in her mid-forties, if not older. She looked like she was twenty-five. Tops.

  “And, had he ever indicated that he was displeased with the quality of care he received from you?”

  “Never.” Dr. Spangler leaned forward here and smiled at the phone, as if Justice Bermann could somehow see her through it. “I treated his wife Marla, too, until she lost her battle with cancer. They both seemed perfectly happy with my care; although, I suppose, Jed stopped coming in after Marla died. That was concerning. You see that sometimes with elderly couples.”

  She turned and gazed sadly at Jed before continuing. “The first one goes and the survivor sort of stops taking care of himself or herself. So, when I ran into Jed at the gas station over the winter and he mentioned that he’d fallen, I got to thinking about him being all alone out there at his place and not coming in for routine checkups. I was worried.”

  She’d rambled far beyond the bounds of Braeburn’s question, but Sasha didn’t intend to object. Let her run on and eat up Braeburn’s time; given the late hour, she doubted the chief justice was going to be generous in response to requests for additional time.

  “What did your worry lead you to do?”

  “He’d injured his arm—not seriously, thank goodness—and I kept thinking how much worse it could have been. I prayed over it, and I decided I had a duty to report my concern to the Department of Aging Services.”

  She turned again and looked at Jed’s sleeping form with liquid eyes.

  Sasha jotted a few notes on her notepad and waited.

  “What happened next?”

  “I met with the director of Aging Services, and she determined it would be appropriate to file a petition to have Mr. Craybill declared incapacitated. She asked me if I would serve as the guardian. I agreed, of course. As the town’s population has aged, I have had to take on that role more and more for patients and others who can no longer manage on their own. It’s a sad fact of my practice these days.”

  Braeburn nodded with understanding, and Sasha refrained from rolling her eyes. They were laying it on pretty thick, considering the judge couldn’t see them and Jed was off in la-la land.

  “Now, in your medical opinion, Dr. Spangler, as we sit here today, is Mr. Craybill incapacitated?”

  “Objection,” Sasha said in the direction of the phone.

  “Would you care to share the basis, counselor?” Justice Bermann cracked in a bored voice.

  “Relevance, your honor.”

  Braeburn telegraphed his outrage. “Relevance? Mr. Craybill’s incapacitated state isn’t relevant to a petition to have him declared incapacitated? Your honor, I don’t even know how to respond to that.”

  “Ms. McCandless, please explain.”

  “The county is conflating Mr. Craybill’s current state and his state when it filed the petition. Assuming, for the sake of argument, that Mr. Craybill is currently incapacitated, it doesn’t lend any credence to the petition. The county couldn’t have known Mr. Craybill would be in this state today back when it filed. Unless Dr. Spangler has psychic powers that Mr. Braeburn forgot to tell us about?”

  “Mr. Braeburn, what do you say? Isn’t this a case of bootstrapping?”

  “Absolutely not, your honor,” he sputtered. “The county obviously believed he was incapacitated when it filed the petition; hence, the filing of the petition. His current incapacitation serves to confirm the correctness of that belief and to highlight the urgent need for this court to appoint a guardian immediately—before Mr. Craybill declines further and so that Dr. Spangler can treat his condition appropriately.”

  Braeburn waved his hands around in wide, fast circles as he warmed to his argument.

  “Indeed, this crisis situation is a direct result of Ms. McCandless’s refusal to consent to the appointment of a guardian at the initial hearing. An appointment that almost certainly would have prevented Mr. Craybill from engaging in the self-neglect that has brought us all here. To now say that his condition shouldn’t be considered, well, isn’t that a bit like the old chestnut of the boy who killed his parents then pleaded for mercy from the court because he was an orphan?”

  He finished and gave a satisfied nod.

  This time, Sasha couldn’t stop her eye roll.

  “Oh, come on,” she said. “Your honor, I take exception to counsel’s suggestion that I am responsible for Mr. Craybill’s condition. I carried out his wishes, as I was required to do as his attorney. I understand Mr. Braeburn wanted me to ignore that duty and play ball, as it were—”

  “I’ve heard enough. The objection is overruled. Dr. Spangler, you may answer.”

  The doctor let out a throaty laugh. “If I can remember it.”

  Braeburn smiled and said, “Let me repeat it for you, doctor. In your medical opinion, based on your examination of Mr. Craybill earlier this evening, is he incapacitated?”

  “Yes.”

  “Is he capable of making his own decisions about his medical care?”

  “No, he is not.”

  “Thank you. I have no further questions.” Braeburn picked up his notepad and returned to his chair.

  Dr. Spangler’s warm, open manner dropped away. She straightened her back and held her hands stiffly in her lap. Here was a woman who had testified enough times to know what was coming.

  Sasha stood and claimed the spot on Jed’s tray table for her notes.

  She started with a neutral tone. “You testified that you became concerned about Jed this past winter when you learned he’d fallen, correct?”

  “Correct.”

  “When was this encounter with Jed at the gas pumps, if you recall?”

  Dr. Spangler frowned, thinking. “Right after the holidays. So, early January?”

  “So, in early January, Jed told you he fell, and you were sufficiently worried about his ability to take care of himself that, after prayerful reflection, you felt you had to report the situation to the Department of Aging Services, is that right?”

  “Yes.”

  “When was that?”

  “Excuse me?”

  “When did you tell the director of the Department of Aging Services that you thought Jed Craybill could no longer function independently and needed to have a guardian appointed?”

  “Hmmm . . . I’m not sure.” She flashed Sasha a fake apologetic smile.

  Sasha gave her a fake helpful smile right back. “Was it in January?”

  “I don’t remember. Sorry.”

  “February?”

  “I don’t know.” Irritation crept into her voice.

  “March?”

  Braeburn shot out of his chair. “Objection! She’s badgering the witness. She said she doesn’t remember.”

  “Ms. McCandless, move along.”

  Well, at least she knew the judge hadn’t fallen asleep on the other end of the phone.

  “Yes, sir,” she said, then turned back to the witness. “Let me make this easy for you, doctor. The incapacitation petition was filed on March thirtieth. That’s roughly ten weeks after you would have run into Jed at the gas pumps. So, did you wait two and a half months to report your concern to the Department of Aging?”

  “I’m sure I didn’t wait that long.”

  “The Department of Aging sat on your report for weeks, if not months, then? Is that what happened?”

  “I didn’t say that!”

  “But, it stands to reason: either you didn’t report it right away or you did, but the Department of Aging Services didn’t do anything about it right away. You agree it has to be one or the other, right?”

  Dr. Spangler narrowed her eyes but didn’t answer. Instead, she glared at Braeburn, who shrugged. The question wasn’t objectionable, and he knew it.

  “Do I need to repeat the question, doctor?”

  She shifted in her seat. “I don’t know what to say. At some point after I saw Jed, I raised my concerns with Aging Services. At some point thereafter, someone there instructed Attorney Braeburn to file the pape
rs, and then, apparently, they were filed on the last day of March.”

  Sasha liked the way the doctor laid it at Braeburn’s feet. It showed Shelly Spangler looked out for one person and one person only: herself.

  If there’d been a jury, Sasha would have gone after her once or twice more, just to beat her up and get her back up, but Justice Bermann understood the point and, more important, was running a clock on her.

  “Approximately how many times did you check on Mr. Craybill between the January encounter and the filing of the petition at the end of March?”

  “None.”

  “None? Didn’t you testify that you were worried about your patient living alone in a remote area?”

  “Yes.”

  “So worried that you couldn’t be bothered to follow up with him to make sure he was okay?”

  Braeburn was back on his feet. “Your honor!”

  “Yes, counselor?”

  “This is uncalled for. Ms. McCandless is—”

  Justice Bermann cut him off. “Cross-examining the witness, I believe it’s called.”

  “It’s not that I couldn’t be bothered,” Dr. Spangler said, drawing out her words in an effort to buy herself some time. “It’s that Mr. Craybill is . . .was . . .someone who valued his independence. He wouldn’t take kindly to me checking on him.”

  “Knowing that quirk of character, you didn’t try to talk to him before you sought to have him declared incompetent? Perhaps you could have suggested that he hire a part-time home aide or ask a neighbor to stop by periodically. Did you do that?”

  “No.”

  “Did you do anything to help him access resources that would have supported him?”

  “No.” Her voice took on a petulant tone.

  “Now, you mentioned you have a number of patients for whom you serve as court-appointed guardian?”

  “That’s correct.”

  “How many?”

  “I don’t know offhand.”

  “But you can estimate, can’t you?”

  “I don’t know—maybe, three to five percent of my patients?”

  Sasha was getting tired of the doctor’s coyness. “How many patients do you have, Dr. Spangler?”