Cutter's Trial

by Allen Wyler

  Alex lay on his favorite couch in the surgeon’s lounge, eyes closed, trying to doze even though he knew it would be impossible. No sense driving home just to shower and drive back. Besides, he needed to be alone now. He briefly considered cancelling today’s case because of his physical, mental, and emotional condition, but decided the case was so straightforward Steve could handle most of it.

  In the quiet of the lounge, he could no longer avoid the thoughts nipping at the back of his mind. The AVM didn’t kill this patient, hubris did. Should’ve never operated him. Garrison was right to refuse. How dare I think …

  How can I live with this? How can I go on practicing?

  56

  “There is always the option of settling out of court,” Tom Finder, Alex’s defense attorney, said.

  They’d covered this ground numerous times already, but Alex refused. “I didn’t do anything wrong. Settling out of court is equivalent to admitting I did. I can’t do that.”

  Tom exhaled audibly. “I understand your point. But you need to understand what they have. They have a copy of the Nembutal prescription you wrote. Can we agree on this?”

  Alex nodded. “Yes. I gave her the prescription. But what about all the other patients I’ve written the same prescription for? None of them committed suicide. Why does this one have to be my fault?”

  “Just listen. Moreover, the autopsy report confirms toxic barbiturate levels.”

  “Right, I get all that.” Alex felt the first twinges of a tension headache. “The question is, how does that prove intent? How does that prove I gave her the prescription specifically to facilitate suicide?”

  “The sister gave sworn deposition that Meredith was depressed over her diagnosis and expressed suicidal thoughts, which she claims Meredith discussed with you. She also claims you advised Meredith to talk with her pastor.”

  This was the point where he had a problem, but short of having an actual recording of that conversation, how could her testimony be anything more than hearsay? “Don’t they have to prove that alleged discussion took place?”

  “Let me ask you—off the record, of course—were you aware Meredith intended to commit suicide with the Nembutal?”

  There it was: The Question. Lie to the man who would defend him in court? Assuming, of course, they went to court. Unfortunately, Tom kept lobbying for an out-of-court settlement.

  “Alex?”

  “Is there anything I’m not allowed to share with you? At what point does doctor-patient confidentiality come into play?”

  “She’s dead, Alex. She has nothing to lose by disclosure. Besides, nothing will leave this room. This is your defense attorney you’re talking to. Level with me.”

  Alex blew a resigned breath. “Yes, I knew she was depressed. She had every reason to be. No debate there. She didn’t want to end up disabled on a rubber sheet in the back room of a nursing home. I can’t blame her for that.”

  Finder nodded. “In other words you prescribed the prescription so she could end her life.”

  Alex could no longer look him in the eye.

  “This is exactly the reason I recommend we counter with three million and put this unfortunate episode behind us. What do you say?”

  “Let me ask you something.” Alex explained Meredith’s claim of being alienated from her family. “If what Meredith said was true, how did her sister get her medical information?”

  “Look, Alex, that doesn’t change a thing. My worry is we stand a good chance of losing this case if it goes to a jury. Juries are funny animals, unpredictable, and this is the Bible Belt. They have strong biases, and assisted suicide is one of them.”

  “I need to think about it. I leave tomorrow for a meeting. I’ll give you my answer soon as I return. I still contend there’s no way for them to know what Meredith and I discussed in the privacy of my office. I just can’t see it as anything more than hearsay.”

  Tom grunted sarcastically. “You’d be amazed with what juries believe.”

  “You gave her the prescription. You know it, I know it, the family knows it, and every lawyer involved in the case knows it. You knew she wanted to commit suicide with it. My advice? Man up, settle the case, move on.” Alex and Lisa were sitting in the TV room watching CNN after dinner, but the volume was turned low to allow them to talk.

  Alex grew angrier. “How do you know all that for fact?”

  “Because I know you. I know your beliefs as they apply to terminal diseases. I know how much you want to do the right thing for your patients. And I believe in my heart you gave her the prescription out of love. I just can’t believe you were stupid enough to actually go ahead and do it. That’s why I think you ought to roll over and admit you got caught with your hand in the cookie jar.”

  “If I lose this suit, it’ll be one strike against me. Two more and I’m finished practicing. At least in this state. I don’t want to take that risk.”

  “But Tom thinks there’s a good chance you’ll lose anyway. Why submit to the trial?”

  “Because I don’t believe the sister has anything more than hearsay.”

  Lisa sighed.

  He pushed out of the leather chair and headed for the door.

  “Where you going?”

  “Out for a walk. I need to think.”

  57

  “What would you guys do?” Alex asked two long-time friends, John and Paul. The three of them had worked as a team throughout one intense year of residency. Three hundred sixty-five days and nights of brutal call in the Dark Ages of residency programs when program directors could exercise unregulated totalitarianism and demand unreasonably long hours. At every annual AANS meeting, the three met for drinks to swap war stories and seek each other’s advice. Alex had just explained to them the Meredith Costello case and wanted to hear their opinions.

  John leaned back in his chair, hands knitted behind his beefy head. “You gave her the prescription?” It was the first day of the AANS meeting, which was being held in San Francisco; the three of them sat in the hotel lobby bar.

  “I did. The lawyers have a copy of the prescription.”

  Paul set his beer back on the square coaster. “The thing that bothers me is how does the sister have any idea what she did or didn’t discuss with you?”

  “That’s the same thing that bothers me. I can’t get it out of my mind. But my lawyer keeps pushing me to settle out of court.”

  “Fight it,” John said, leaving no question in Alex’s mind.

  58

  “Isn’t it true, Doctor, that you murdered Meredith Costello?”

  And there it was: The Question. Time stopped, as if God pressed “pause” for Alex Cutter’s universe. Every courtroom detail suddenly became ultra-sharp: the American and state flags to either side of the judge’s black robe, dirt coating the outside windows, the metallic, mold-tinged smell of air conditioning, the jurors’ eyes on him, the observers scattered throughout the viewing gallery. Alex’s breath caught. Two beats passed before time began creeping forward again.

  How did I ever get to this point?

  Tom Finder jumped to his feet, saying, “Objection, Your Honor.”

  “Objection sustained. Mr. Diamond, you’ve been warned. I will not warn you again.”

  “Yes, Your Honor,” the lawyer said solemnly in spite of flashing a smile at the jury, clearly having made his point.

  The witness chair felt like concrete.

  “Isn’t it true, Doctor, that you wrote Meredith Costello the Nembutal prescription?”

  Alex thought back to the endless hours of trial preparation. Tom Finder drilled him repeatedly, approaching each point from as many angles as possible, probing for an inconsistency in answers. “We don’t want to be ambushed,” Finder had explained.

  “Yes.”

  Diamond nodded at the jury as if to say, “See?”

  “And isn’t it true, Doctor, that she used this prescription to kill herself?”

  “It’s possible. I don’t know that for a fact—�
�

  “Doctor! Answer yes or no, please,” Diamond said, voice raised.

  “No. That assumes—”

  “Yes or no.”

  Alex wanted to scream from the frustration and anger boiling inside. “He’s going to try to piss you off,” Finder had warned. “Don’t let him succeed.”

  “I don’t know.”

  “You don’t know?” Diamond’s voice was now laced with heavy sarcasm. “You don’t know?”

  I’m going to lose. Tom Finder had been right to recommend a negotiated settlement. Why had he not followed that advice? Better yet, he should’ve followed Garrison’s advice and refused to operate the AVM. How many times had he criticized physicians for overestimating their abilities—flying planes, launching restaurants and other business ventures—and now here he was, having ignored the advice of his defense lawyer. Maybe he should talk to Tom during the next break and agree on a settlement. Would that work? Or did the shark now smell blood, whipping him into a feeding frenzy? Had he already lost any opportunity to negotiate a settlement? I’m fucked.

  “No, I don’t know that. If the owner of a gun shop sells a customer a pistol, is he then responsible for any murder committed with that weapon?”

  Diamond appeared furious. “I want that comment stricken from the record.”

  “You did just fine,” Finder assured Alex during the break. “You didn’t let him rattle you, and you remained on point just like we practiced. It’s not pleasant being on the stand. I understand that.”

  Just then, one of Tom’s partners passed him a note. Tom read it, smiled, and slipped it into his suit coat.

  “What was your relationship with Meredith?” Finder asked Jenny Baker, Meredith’s sister.

  “We were very close. Like all sisters are.” Baker sat with her spine straight. She wore what Alex considered, for lack of better words, a typical southern belle dress: white lace collar and fluted lace cuffs at the wrists. She wore a plain gold cross hanging from a modest gold chain around her neck.

  “Does this mean you approved of her sexual persuasion?”

  Her smile shriveled immediately as she glanced at Diamond. “Objection,” he yelled. “Irrelevant.”

  “Objection sustained. Restate the question, please.”

  Finder took his time ambling toward the jury to place his right hand on the dark oak railing. “What I’m asking is this: Did the fact she was a lesbian bother you?”

  “Objection.”

  Jenny Baker squirmed, eyes pleading for Diamond’s guidance. She fingered the gold cross around her neck.

  “If it pleases the court, I’d like to explain,” Finder said to the judge, approaching the bench. The judge turned on the white-noise generator to block the jury from hearing their ensuing discussion.

  “The relevance will become clear very soon, Your Honor.”

  With a stern look, she said, “I sincerely hope so, Mr. Finder.”

  “Ms. Baker, are you a Christian?” Finder asked.

  She hesitated, perhaps looking for a trap in such a simple question, and began fingering the gold cross around her neck again. “Why, yes, of course,” she said, as if some things in life should be self-evident.

  “I see. Where do you worship?”

  She fidgeted a moment before clasping her hands primly on her lap. “Well … I worship every day, throughout the day. I constantly thank our Heavenly Father for his blessings.”

  Finder leaned in on the jury rail, making eye contact with each juror while addressing Baker. “Yes, I understand that, Ms. Baker. What I am asking is this: Do you attend a specific church?”

  “Yes.”

  He turned to her, her face the picture of innocence. “And what is the name of that church, please?”

  Her rigid, prim posture straightened even further, a seemingly impossible feat. “A Christian church, sir.”

  “I believe we just established that, ma’am. Please give the name and address of the church in question, Ms. Baker.”

  Eyes straight ahead, she said, “Christ Our King Church on Poplar Avenue.”

  Finder scanned the jury again. “I see. And is there anyone at this church from whom you receive spiritual guidance? A pastor, a church elder, someone you seek when needing support?”

  She shrugged. “Pastor Gilliam, I suppose.”

  “Pastor Gilliam,” Finder repeated. “Have you ever sought the advice of any of the church elders?”

  “No,” she replied without hesitation.

  “Be very careful here, Ms. Baker, and think. I ask you again: Is there anyone else in that church, especially among the church elders, from whom you’ve sought advice?”

  She clasped her hands tightly together while considering her answer. “No.”

  “Really? Isn’t it true Ms. Baker that Doctor Clarence Hill attends the same church?”

  She momentarily froze.

  “Your Honor, Mr. Finder is badgering the witness.”

  “Answer the question, Ms. Baker,” the judge said.

  “Well, yes, I guess he does.”

  “And isn’t it true, Ms. Baker, that Doctor Hill is one of the church elders?”

  “Yes.”

  “And isn’t it also true that you spoke with Doctor Hill on multiple occasions about Meredith’s sexual persuasion?”

  “Objection,” Diamond said.

  “Overruled.”

  “Isn’t it also true that you prayed with Doctor Hill for Meredith’s conversion to heterosexuality?”

  “Objection!”

  “Ms. Baker, haven’t you just testified that you and Doctor Clarence Hill talked about Meredith several times?”

  “I guess we talked from time to time. After all, we attend the same church and are involved in several of the same activities. Bible study is one of them.”

  “It’s more than that, isn’t it, Ms. Baker?” Finder stood at the defense table staring directly into her eyes, his voice assertive. Alex expected Diamond to object, but that didn’t happen.

  “Well, I reckon I’ve sought his advice on spiritual matters from time to time.” She seemed to like that answer, because she added, “But that’s all.”

  “Spiritual matters? You mean like suicide?”

  “Objection!”

  “Isn’t it true, Ms. Baker, that when you learned of Meredith’s death, you suspected your sister committed suicide?”

  She glanced at her tightly clasped hands. “Yes.”

  Finder nodded. “And isn’t it true, Ms. Baker, that you knew she was under Doctor Cutter’s care?”

  “Yes.” Her eyes began to take on a defiant hardness.

  “And isn’t it true that you knew that Doctor Cutter and Doctor Hill practice in the same group?”

  Her defiance began to slump. “Yes, I guess that’s true.”

  “And isn’t it true, Ms. Baker, that you are the sole beneficiary of Meredith’s life insurance policy?”

  She was looking at her hands now instead of at the court. “Yes.”

  “Speak up, please, ma’am, so the court can hear you.”

  “Yes.” She glared directly into Finder’s eyes.

  “Isn’t it true that you asked Doctor Hill to look at Meredith’s medical records to see if Doctor Cutter had prescribed the Nembutal?”

  59

  “Got a second?” Garrison said, interrupting Alex in the middle of signing dictations.

  Alex nodded and stood to arch and stretch his back. He also knew if he remained sitting, the conversation—whatever it might be—might be prolonged, and he wasn’t in the mood to chitchat.

  Garrison closed the door to give them more privacy. “Sorry about the verdict. I know it’s tough. But we practice a high-risk specialty. No neurosurgeon I know of has been able to do his job without getting sued several times in a career. Comes with the territory. What with this being your first malpractice suit, I’d to say you’re doing pretty damn well. Not that that’s any consolation. Doesn’t make the loss any easier.”

  Alex said nothing
. He appreciated Garrison’s attempt to take the bite out of the defeat, but he still found it difficult to get past Garrison’s refusal to help him with the AVM.

  “As for the part about your medical license, well, there’s no way in hell that one’s getting past the state quality assurance board.”

  “Thanks, but it’s still one suit against me. Two more and I’m done practicing. Least, in this state I will be.” Alex realized his clenched fists ached from being balled so tightly, so he began to flex and extend his fingers. “Your boy Clarence was the one who was behind the suit. You know that, don’t you?”

  Garrison shook his head. “No, I don’t know that. Neither do you. But even if it was true, we still have the moral issue to consider. You can’t go around prescribing depressed patients the means to commit suicide.”

  “Bullshit. That’s not the issue. We both know there’s no love lost between Clarence and me. He saw an opportunity to fuck me over and took it. Plain and simple.”

  Betsy Lou poked her head into the office. “Hey, both you docs got patients waiting to be seen.”

  Garrison waved her off and shut the door again. “Don’t blame Clarence for your own actions. End of discussion. We have another matter to discuss.”

  Alex waited.

  “I understand you’ve been ordering hep C and HIV testing on all pre-ops.” Garrison started playing with the loose ties of the surgical mask dangling from his neck, wrapping them around his index finger.

  “So? What about it?”

  Garrison shook his head. “Can’t do that. It’s illegal.”

  “Why not? Shouldn’t I know when I’m about to take an extra risk with a patient?”

  “I’m telling you, you can’t do that. It’s an infringement on their rights.”

  “What about my rights? What about Robert Sands’s rights? Forced to retire at forty because of hepatitis. Far as anyone knows, he picked it up during a trauma case. Robert is now totally screwed. Can’t practice medicine anymore. Think of what he lost from one accidental needle stick. What about his rights?” Alex was fuming now.