“I treat most of the residents of the town proper and a good portion of the surrounding county. The last time I checked my database, I had nearly three thousand patients.” She finished with a self-satisfied smile.
“Three thousand? You’re a practice of one, right?”
“That’s right.”
“Forgive me, doctor. Can you explain how you can possibly adequately treat three thousand people?”
The smile turned modest. “Well, first off, the fact that a patient is registered in my database simply means I have treated him or her. Many of my patients are like Mr. Craybill, in that they don’t come in for annual checkups or well visits. I see them when they have the flu or sprain an ankle, but it might be years between visits. And, second, as you’ve surely noticed, Springport is fairly rural. There’s not much drawing people to the area; well, there wasn’t until the fracking started, at least. Although some businesses are moving into the area, there aren’t currently a lot of other options for medical care. So, some of my patients may see me for routine issues just because it’s handy, but they seek treatment in Johnstown or elsewhere for other conditions. I understand that. I’m just a simple country doctor, after all.”
She fluttered her eyelashes and looked down at her lap, like she was waiting for Sasha to come put a halo on her head.
“Okay, let’s do some math. We’ll be conservative. Three percent of three thousand is ninety. I got that right, didn’t I?”
“Yes.”
“So, there have been at least ninety of your patients, possibly more, who—in your view—needed to be declared incapacitated. Did you manage to get yourself appointed as the guardian for all ninety?”
“You say it like there’s some kind of conflict.” Her dark eyes flashed a warning at Sasha.
A warning she chose to ignore. “Isn’t there?”
“Not hardly. It’s a great deal of work and responsibility. If there’s a family member or friend willing to take it on, I always ask them to do so before I go to the Department of Aging Services. But, sometimes, there’s no one.”
“No one except you.”
“That’s right.”
“You’re paid by the county for doing this, right?”
She laughed, a wide open laugh. “A pittance.”
“So, that’s a yes?”
“Yes.”
“And serving as guardian gives you complete control over the person, his finances, everything, right?”
“Yes. Well, subject to the court’s oversight, of course.”
“Of course. I don’t imagine you have time in between caring for your three thousand patients to provide the level of support required to help ninety or more incapacitated individuals stay in their homes?”
“No, unfortunately, that’s just not possible. And, unlike more metropolitan areas, we don’t have any social work agencies qualified to serve as the guardian. It’s just me.”
“A simple country doctor, right?”
“You got it.”
Sasha switched gears fast, while the doctor was still basking in her self-sacrifice. “When did you last see Mr. Craybill before today?”
“I can’t recall. It’s been awhile.”
“You didn’t speak to him recently and recommend an allergy medication?”
Dr. Spangler’s face clouded. “Who told you that?”
Sasha looked at her impassively and waited for her to answer.
“I . . .don’t believe so.” She wrinkled her brow and stared at the ceiling. Her eyes shifted to the left corner of the room. “Not that I recall.”
“Hmm. Are you sure?”
This time her eyes met Sasha’s straight on, but the doctor raised one hand to her mouth before saying, “Actually, I am.”
Liar, Sasha thought and tallied the tells: she’d answered the question with a question; looked up and to the left; touched her face; and, finally, prefaced her answer with “actually.”
“Just one last question. What was Mr. Craybill’s score on the MMSE you administered?” Sasha threw the question over her shoulder, casual and relaxed, as she headed back to her seat.
“Um, I didn’t give him a test.” She said it in a resigned voice.
“Pardon?” Sasha said, wheeling around to face her again, letting her face register disbelief.
Dr. Kayser, who had been so silent and still that she’d forgotten he was there, choked back a laugh at the theatrics.
“I said,” the doctor repeated, louder this time, “I didn’t give him a test.”
“I have no further questions for this witness,” Sasha said.
Justice Bermann spoke before Braeburn had a chance to ask for redirect. “Excellent. We are adhering nicely to our schedule. Call your expert, Ms. McCandless, and let’s keep this ball rolling, shall we?”
Braeburn was too busy whispering furiously with his red-faced client to ask the judge for any leeway, so Sasha motioned with her head for Dr. Kayser to hurry up and take the seat Dr. Spangler had just vacated.
“The defendant calls Dr. Alvin Kayser.”
The simple country doctor grabbed her four-hundred-dollar couture handbag and stormed out of the room while the chief justice administered the oath to Dr. Kayser.
A weary Braeburn stipulated to the gerontologist’s qualifications as an expert in geriatric medicine. It was a concession that Sasha wouldn’t normally want nor ask for, even at a bench hearing. Judges were, after all, people, and people were impressed by a long string of medical credentials. Dr. Kayser’s were more impressive than most, and, ordinarily, Sasha would have loved to have trotted out every award, certification, and publication to his name. But, she didn’t have that kind of time.
She got to the point as soon as he’d settled in his chair.
“Dr. Kayser, can you tell us what method you employ to determine if someone is incapacitated?”
“Certainly. First, I perform a complete physical examination, including extensive blood work. Typically, I’d be looking for changes in the patient’s health that either could cause incapacitation or could result from it. That sounds convoluted; would you like an example?”
He was a pro, Sasha thought. He got out in front of the confusing matter right away, with no prompting.
“Please.”
He fell into his rhythm. “An obvious example of a condition that could render a person incapacitated is Alzheimer’s Disease, mid-stage or later. An example of a condition that might be caused by a patient’s incapacitation would be diabetic ketoacidosis in a patient whose diabetes had been controlled by insulin but who, as result of dementia-related forgetfulness, has stopped taking insulin or eating a proper diet.”
“What would your next step be?”
“Next, I would administer a mini mental state examination or MMSE to screen for cognitive impairment. If the patient’s score on the MMSE indicated mild to moderate impairment, I would gather additional psychosocial information and perform a safety assessment of the patient’s home. Based on all that information, I would determine whether there were services that could be provided to support the patient, despite the impairment.”
He paused and took one of the clear plastic cups stacked by Jed’s bedside. He picked up the water pitcher, poured himself a drink, and took a sip.
Then he said, “Obviously, a severely impaired person, such as someone in advanced late-stage Alzheimer’s Disease would not be able to care for himself or herself, regardless of the level of support available. But, in most cases involving even moderate impairment, in my experience, complete guardianship is not warranted.”
“Did you evaluate Mr. Craybill?”
“Yes. Last Thursday, I visited Mr. Craybill in his home and performed a physical and MMSE. The results of the physical indicated that he was in relatively good health, and he scored 29 out of a possible 30 points on the MMSE, which indicated no cognitive impairment. His home was clean and well-maintained. He was cogent and engaged. In my opinion, as a board-certified geriatric specialist, he was not,
at that time, incapacitated in the least.”
Sasha steeled herself and asked the question. “What’s your opinion of his current condition?”
“Sadly, he is currently not capable of making medical or other decisions. He appears to be disoriented, confused, and incoherent, at times.”
“How could such a precipitous decline occur in a week?”
“I’m afraid I can’t say. I would need to examine him and run some tests, which I am told Dr. Spangler has forbidden—”
“Objection!” Braeburn was on his feet in a flash. “Hearsay, your honor.”
“Sustained,” came the ruling from the phone.
“I’’ll rephrase. To your knowledge did Dr. Brown order any tests at intake?”
“Yes.”
“Were those tests ultimately performed?”
“No, they were not.”
“In your opinion, should they have been?”
Dr. Kayser leaned forward and said, “Without a doubt.”
Good enough.
“Now, previously, did Mr. Craybill tell you he was looking for a new doctor?”
“Objection. Hearsay.”
“It’s not being offered for the truth of the matter asserted, your honor, but to show Mr. Craybill’s state of mind.”
Hearsay was the biggest evidentiary hurdle in most trials. Neither side could introduce an out-court-statement to prove the truth of the statement. There were, however, several exceptions to the hearsay rule. Some of them deemed an out-of-court statement to not be hearsay under certain circumstances; some of them permitted the admission of hearsay statements for limited purposes if the speaker was unavailable to testify in court; and some of them permitted the admission of such statements regardless of whether the speaker was unavailable.
Sasha had learned early in her career that most attorneys were terrified of looking like idiots with regard to hearsay, so she had simply memorized all of the exceptions and key cases that set them forth. Knock a guy down on hearsay a few times early in a trial and he’d think twice about objecting again. It was the same principle she applied to self-defense: make the first punches count.
“Mr. Braeburn?” Justice Bermann prompted her opponent.
“Your honor, um . . .,” Braeburn was thinking hard.
Sasha could guess what was coming and tried to keep her smile at bay.
Braeburn walked right into the trap she’d sprung. “Even if Mr. Craybill said that, the statement is inadmissible because it is irrelevant. There’s nothing to suggest he did ultimately switch doctors.”
“Ms. McCandless.”
“Under the Hillmon Doctrine, your honor, a statement of intent is a present mental state and relevant to show the intent was carried out.”
The chief justice’s amusement was evident in his tone. “Hillmon, eh?”
“Yes, your honor, the United States Supreme Court ruled in Mutual Life Insurance Company of New York v. Hillmon that a declaration of intention is credible evidence of that intention and, as such, is admissible as an exception to hearsay.”
“Refresh my recollection; what year was that case decided?”
“1892, your honor.”
“This court isn’t about to ignore a hundred-plus years of precedent. The objection is overruled.”
Sasha nodded at Dr. Kayser to answer the question.
“Yes. He was furious at Dr. Spangler for initiating the incapacitation proceeding. He asked me if I would take him on as a patient. I was willing, but I expressed concerns because my practice is in Pittsburgh, which is a good distance from here. I told him I would see if I could associate with a hospital up this way. He said that regardless of whether I began treating him, he was not going to see Dr. Spangler again.”
“Did you officially accept him as a patient?”
Dr. Kayser spread his hands wide, “I can’t answer that. It’s not like being a lawyer, where there’s a formal process for a client to leave and find new representation. Some patients immediately transfer their medical records, others may make the decision to leave a doctor’s practice but take no overt action until they need to make an appointment with a new doctor. If Mr. Craybill had called my office seeking an appointment, my staff would have given him one.”
“As a gerontologist, you’ve had patients who have been deemed incapacitated, haven’t you?”
“Oh, yes.”
“Have you ever done what Dr. Spangler did—report your concerns about a patient to a county agency?”
“Have I ever determined a patient to be incapacitated and without support, then reported it to the appropriate service agency? Yes, I have. Have I ever made that determination solely on the basis of a chance meeting in a parking lot? Certainly not.”
“Have you ever served as guardian for one of your patients?”
“No, I have not. Nor would I.”
He was a dream witness. Having had no opportunity to prep him beforehand, she had to rely on his instincts and experience as an expert to understand where she was headed and follow her there. But, he was a step ahead of her.
“Why is that?”
“In my view, it would be unethical for me to deprive someone of his decision-making power and then take control of that power myself. It could too easily lead to abuse.”
“Thank you, Dr. Kayser.” Sasha turned to Braeburn. “Your witness.”
“Dr. Kayser, I have only one question for you.”
The doctor, having been cross-examined more than a few times before, raised an eyebrow in open disbelief.
Braeburn chuckled. “Well, depending on your answer, there might be one or two more. But, let’s start here: you do not have privileges to practices at this hospital, do you, doctor?”
“Well, no. I suspect I could easily—”
“You’ve answered my question. Dr. Spangler does have privileges, correct?”
“I don’t know firsthand, but I would imagine she does.”
“Mr. Craybill needs care right now, doesn’t he?”
“He does, indeed. But Dr. Spangler has apparently instructed—”
“Again, doctor. You’ve answered my question. Now, you testified about the steps you took to arrive at your opinion that, as of last week, Mr. Craybill was not incapacitated, did you not?”
“I did.”
“You also testified that, in your view, Mr. Craybill is now, in his current state, incapacitated, correct?”
“Yes.”
Dr. Kayser shot Sasha a look. She gave him a half-shrug, glad the judge couldn’t see her. She knew where Braeburn was going with this line of questioning, but she didn’t see a way to stop it.
“Now, did you examine Mr. Craybill this evening, give him an MMSE, or inquire into his social support systems this evening?”
“No, of course not. He’s not lucid.”
“But, even without having taking any of those steps, you were willing to testify under oath that Mr. Craybill is incapacitated now?”
Dr. Kayser sighed heavily and stared at Braeburn. “Correct.”
“Thank you, doctor. That’s all I have.”
“And I’m ready to rule,” Justice Bermann informed them.
Sasha and Braeburn took a step closer to the telephone and stared down at it. Jed’s chest rose and fell in an even pattern as he slept. Dr. Kayser sat attentively, like a school child, and waited. As if on cue, Dr. Spangler slipped back into the room and stood against the wall.
“I find that Mr. Craybill is incapacitated and needs to have a court-appointed guardian. I have grave reservations about the potential conflict of appointing Dr. Spangler. Similarly, I find credible Dr. Kayser’s testimony that Mr. Craybill intended for Dr. Kayser to be his physician going forward, but as Dr. Kayser himself noted, it would be unethical for him to serve as the guardian for one of his patients. Accordingly, I appoint the emergency room physician who admitted Mr. Craybill as his temporary guardian. What was the doctor’s name?”
“Brown,” Sasha said. “Sam Brown.”
�
��Thank you. Dr. Brown has decision-making authority for Mr. Craybill until his condition changes and someone petitions the court, by which I mean Judge Canaby, to modify this order in the ordinary course. Good night, counselors. And good night, Dr. Spangler and Dr. Kayser. The court thanks you for your time.” He ended the call without further niceties.
CHAPTER 34
Sasha told herself half a loaf was better than none. At least Dr. Spangler hadn’t been named Jed’s guardian. But, this didn’t feel like half a loaf. If felt more like the bread heel—the nasty, crusty heel that her brothers would leave in the wrapper growing up and their mother would dutifully toast and eat with her morning tea. A crummy heel.
She paced along the long hallway, trying to shake off her disbelief that Justice Bermann hadn’t ruled in her favor. Dr. Kayser overtook her a third of the way down the hallway.
“Sasha, I’m sorry. I walked into that, but it’s true. I don’t think a treating physician should be the guardian. At least he didn’t name Dr. Spangler.” His kind eyes wrinkled with concern that he’d let her down.
“Don’t be sorry, Dr. Kayser. You told the truth. But, don’t you see?”
“See what?” He stared at her in confusion.
“If Dr. Brown is the guardian, he can’t be the treating physician, per the judge’s order. You don’t have privileges here. That leaves guess who as the treating physician.”
Understanding spread across his face. “Dr. Spangler.”
She just nodded. Any victory they’d achieved was Pyrrhic. Not only was Dr. Kayser out in the cold, but with the incapacitation issue decided, she presumably was no longer authorized to represent Jed. She felt tired. Tired and defeated.
His expression reflected the same emotions briefly, then he perked up. “But, what I was starting to tell you before the hearing. I took the liberty—”
He stopped mid-sentence as Connelly came toward them, running full out, and skidded to a stop beside them.
“Gloria’s had a heart attack,” he said, catching his breath.
Sasha felt tears pricking at her eyes. What next?
Ashamed to let Kayser and Connelly see her cry, Sasha bowed her head and hung back as Connelly led them to the cardiac care unit.
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