So Help Me God

by Larry D. Thompson

  "Tod, you know that we run a first class operation. We don't get sued very often. As far as I can recall, we've never had a lawsuit in Texas where the minor was the only one to give consent. It may be an open question in Texas. And I've got to tell you, I know Dr. Moyo and he's a top-notch gynecologist. Still, I don't like two complications in one procedure. We may have our work cut out for us."

  As she finished, they ordered "their usual," which for Tod was the beef enchilada plate with a beef taco on the side. Rice and refried beans came with it. Mexican restaurants in Texas were not places for people on diets.

  "Tod, there's one thing you should know about," Jan said, wiping a drop of cheese from the corner of her mouth. "There seems to be a new national strategy developing in the continuing war of the pro-life versus the pro-choice forces. The battle has been waged in Congress, the various legislatures, in the media and on the streets. Violence has even become a weapon for some of the more extreme groups. Now the anti-abortion forces are taking the fight to the courthouse. There have been several of these cases around the country. So far, the damages haven't been much and the plaintiff lawyers were usually ones who were mediocre on their best day. This seems to be the first one where there's been a lawyer of Tisdale's ability, not to mention the appeal of a seventeen-year old girl who has been a victim of events beyond her control.

  "Well, I'll be damned," exclaimed Tod. "Tisdale just may have some help somewhere on this one. Maybe, he's going to play this case for the national media. Hell, this one may make five alarms." As the waiter brought their food, Tod continued, "Okay, let's get started. First, I've got Dr. Moyo coming to the office on Friday. Marilyn, I'll need you to go to the medical center library and pull all of the most recent articles on abortion. I'm looking for techniques, risks and complications, warning signs of problems, the usual. Have those for me by one o'clock, Friday afternoon. Jan, can you meet with your folks at Population Planning and get me statistics on abortion, numbers performed annually in this country, serious complications, including death, and most important, any information on other medical malpractice cases involving abortion anywhere in the country? I'm looking for any common strategies that Johnny Bob may borrow, not that he needs any help. Wayne, your first job is to research this assault issue, and I'll need for you to meet with me and Dr. Moyo on Friday afternoon."

  Understanding their assignments, the others changed the subject and asked about the Bahamas, especially the personal confrontation with sharks.

  When Tod and Wayne returned to work, they climbed the back stairs. Tod entered his office and Wayne walked down the hall, pausing to clang the bell two more times. "Shit," Tod muttered under his breath. "I've only had this case for six hours and it's already gone from three alarms to five." As he said it, he was grinning as he glanced out the window. Pondering the waterfall, the grin spread across his face when the waterfall was replaced by another scene. He saw himself on a great white horse, armor in place, lance pointed over his horse's head, thundering toward a giant black knight on a black horse racing toward him with lance lowered. May the best man win!

  CHAPTER 40

  On Friday morning Tod switched off the alarm at five a.m., wiped the sleep out of his eyes, and reached for his running gear to get ready for his morning jog. Tod usually ran five or six miles, three days a week and a ten-miler on weekends. At one time, he had done his workouts under seven minutes a mile and had even broken three hours in several marathons. Now he was content to cruise along at eight minutes per mile. Running had been part of his life for twenty years and he expected to be doing fourteen-minute miles when he was ninety. For years he had preferred to run in the evening. No matter how stressful the day, after about three miles, sweat broke out, his breathing became more rapid and his only thoughts were focused on the next step and the beer that he earned at the end of the run. But, after Amy died, evenings were reserved for the boys. That meant an early morning during the week if he were to get his run in. He had five, six, eight and ten-mile routes laid out on the streets around his neighborhood. Not having been out for ten days, he chose the five-mile route and took it slowly, using the time to think about the Brady case and his meeting with Dr. Moyo in the afternoon. When he finished, he found both boys dressed for the first day of a new school term and devouring cereal.

  "Morning, boys. You guys sleep okay?"

  "Sure, Dad. How about you?" Kirk responded as Chris focused on the comics in the morning paper.

  Tod opened the refrigerator and poured himself a glass of Gatorade. "Yeah, I did fine. Woke up once thinking about this new case. That's about par for the course. You boys need to tackle the yard this weekend. It hasn't been mowed or edged since we left for Nassau."

  "Yes, sir," came the reply, sounding like two recruits answering a drill sergeant.

  "Okay. At ease, men. I'm going to shower and shave. You've got a pre-season game tonight, right, Kirk? Home game?"

  "Yes, sir. Seven-thirty."

  "Okay, take Chris with you and I'll see you both there. We'll go out to eat afterwards."

  One o'clock came and Marilyn had a file folder on Tod's desk containing a stack of medical journal articles on abortion, the procedure for doing one, and known risks and complications. Taking a yellow highlighter, Tod spent the next two hours reviewing and analyzing the materials. He had to know almost as much about the operation as the doctor who was performing it. He was more attentive when he got to sections on complications, how to recognize them and what to do if they manifested. By three o'clock he was ready to meet with his client.

  Tod knew what to expect. Anger. Resentment. Shock. Disappointment. Disgust. Concern. And often fear. Physicians were angry about being sued, especially at first. Some were righteously indignant. Eventually, they became concerned as the case approached trial. It was the fear of the unknown.

  At five minutes after three, Grace let Tod know that Dr. Moyo was downstairs. Dr. Moyo stood in the reception area, looking at the pictures of fire trucks on the walls and puzzling over the fire pole going through the ceiling to the second floor.

  "Dr. Moyo, I'm Tod Duncan. How are you doing today?"

  "Fine. Fine, Mr. Duncan. Of course, I would prefer not to be here," Dr. Moyo said as he extended his hand and firmly shook Tod's. Tod took an instant liking to his new client. He judged Dr. Moyo to be close to forty, with a smooth black face and curly black hair with a few strands of gray starting to show. Dr. Moyo had a pleasant smile and a few laugh lines around his eyes. Most impressive was a British accent with just a hint of another country. "Might I inquire about the fire trucks and the pole through the ceiling, Mr. Duncan?"

  "Sure, first of all, call me Tod."

  "Then, if you please, call me Zeke."

  "Okay, Zeke. This was an abandoned fire station when I bought it and as we redesigned it as a law office, I had it decorated to remind visitors of its original purpose. We still call it the fire station. The pole is the only thing inside that still remains from the original building. "Follow me and we'll go up to my office."

  Tod led him upstairs, stopping to introduce him to Marilyn and Grace, pointing out that they were both important members of his defense team. Wayne was already in Tod's office when they arrived.

  "Dr. Moyo, this is Wayne Littlejohn. He'll also be working with me in your defense. Please have a seat there at the table with him. Can I get you something to drink?"

  "Thank you. I'm fine."

  Tod seated himself at the place where he had been reviewing the medical records and began. "Zeke, you didn't choose me. Your insurance company did. So, let's start with a little about my background. I want you to feel comfortable with me as your attorney on a case like this. Next, I want to know something about you and your personal background."

  Tod outlined his career. He touched briefly on the firm he led to rapid growth, the death of his wife and the decision to streamline his life with a small firm. He closed by mentioning that he had tried over two hundred cases in nearly twenty-five years of prac
tice, winning about ninety percent of them.

  "Any questions, Zeke?"

  "Just one. What's your experience in defending doctors who perform abortions?"

  "For about ten years, I did nothing but defend medical malpractice cases, with a docket at any given time of about fifty. As to abortion, I can only recall one and it didn't go to trial. I would encourage you not to worry about that. In every malpractice case there's a learning curve. With the help of my client and experts and by reading a lot of medical literature, I have yet to find a medical area that I could not understand well enough to cross-examine witnesses and get our defense across to a jury. This one should be no different. Now, tell me about yourself."

  "I was born in Nigeria where my father is still a family doctor. I was fortunate enough to go to medical school in England and then came to Baylor College of Medicine here for my ob/gyn residency. I'm board certified and have an obstetrical and gynecology practice in the medical center. And, by the way, I met my wife in England and we have two daughters."

  As he concluded, Tod asked the one question that had been on his mind for most of the week. "With all of your very impressive training, why were you doing abortions?"

  "It wasn't an easy decision, Tod. I was just getting started, and for a black man from another country, it's hard to establish a practice. I had loans to pay plus a wife and two young children to support. Working at the clinic a few hours a day, three or four days a week paid my overhead, my house payment and put food on the table at home. I suppose I could have moonlighted in an emergency room, only this seemed more suited to my training. If a woman is going to have an abortion, she's going to be much safer in my hands than those of a lot of other doctors who perform them. I did them for more than three years, starting in the last year of my residency. I quit when my practice had developed to the point that I didn't need the additional income. I probably performed around two thousand abortions in that time and, as far as I know, never had a problem until this one."

  "Did this procedure on Lucy Brady have anything to do with your quitting the clinic?" Tod asked.

  "Absolutely not. I didn't even know she had a complication until I got the letter from the lawyer. I'd already quit the clinic."

  "You still do abortions?"

  "Occasionally. Only when there is a risk to the mother. Otherwise, I send a patient down the street to Population Planning."

  "Good. Score one for our side. It's going to make it easier for us in front of a jury if the other side cannot point the finger at you as a doctor who still makes his living doing abortions."

  "Excuse me for interrupting, Tod, but were you aware that there is something about this girl being healed by some preacher in Fort Worth?"

  "Only what I read in the petition."

  "I don't really know much about it either. After I was served, one of my nurses commented that she watched a preacher called The Chosen nearly every Sunday. She saw a girl that she thought was this Brady girl being healed or something of the sort on national television."

  "Well, I'll be damned. When we talk about the 'healing arts' in medical malpractice cases, we're not usually talking about preachers."

  Tod spent several minutes outlining the various stages of a lawsuit and what Dr. Moyo could expect. Zeke took all of this in with an amazed and puzzled look. "Are you saying that we just can't get this case dismissed and be done with it? I didn't do anything wrong."

  "I'm afraid that it's not that easy. You saw from the petition that Mr. Tisdale has already obtained one expert from his hometown. I doubt if he will use that one as his testifying expert. But, don't underestimate Johnny Bob Tisdale. He'll have a whole stable of experts before too long."

  "I guess I don't understand. Can some lawyer named Johnny Bob Tisdale from Palestine be a good lawyer?"

  "Not to disappoint you, Doc, but I can't name a better plaintiff lawyer. Frankly, I'm good and so is he. He won't miss a trick. In fact, he's been known to invent a few. Now I have a couple of questions. We haven't seen the Hermann records, but if what Johnny Bob says is true, there were two complications. How could two things go wrong in the same procedure?"

  Dr. Moyo thought a moment before he replied, "You have to understand that this is a blind procedure. We can't see into the uterus. We have to do it on the basis of experience, training and feel, if that's the right word. The pregnant uterus is thin and we are inserting various instruments. We do our best to avoid a perforation. Still, no matter how careful we are, once in every few hundred times it happens. Often we don't even know it since the perforation is so small that it will heal itself without complications. As to retained fetal parts, again, we do everything possible to make sure we have extracted all of the products of conception. The best of gynecologists occasionally leave something behind. Can both of those happen in the same procedure? Although I haven't searched the medical literature, I'm sure that there are other reported cases. I can tell you that in every abortion that I've done, I've been extremely careful. I've never had one complication that caused a serious problem, much less two."

  "Tell me your thoughts about the calls to the clinic afterwards, Zeke?"

  "Of course, I wasn't there. From reviewing the clinic record, the first call was probably not that significant. Some bleeding and cramping are to be expected. Of particular importance is that there was no sign of fever. As to the second call, I would be a little more concerned. By then, it was about forty-eight hours post-op. I don't like the fever. If the nurse had called me, I would have had the patient come to the clinic. While it's a judgment call on the part of the nurse, the clinic may have a problem there."

  "What about the bleeding, Zeke? At first there's bleeding and then it stops. The next thing we know, it's Sunday afternoon and her mother finds her lying in a bed soaked with blood."

  "Remember, I haven't seen the Hermann records. If she had a perforation, it can seal itself off, just like a cut on your arm. It can also break loose again. That's what could have happened. Then, from the petition we know that she developed DIC. Are you familiar with disseminated intravascular coagulopathy? The blood loses its ability to coagulate and once it does, it's a cascading medical event. Frankly, she's lucky to have survived. One of the issues you will need to explore is whether she took her antibiotic. It is designed to prevent the routine infections. If she didn't take the medication, she could have created some of the problems herself."

  Tod made himself a note and looked at his watch as he did so. "Oops, Doc, it's six o'clock. I've got to be at a soccer game at seven. Are you a soccer fan?"

  "As a matter of fact, I am. I played goalkeeper in my younger days, even professionally while I was in medical school in England."

  "My oldest boy is goalkeeper on his high-school team. They're playing a pre-season game tonight. I think that we've made a good start this afternoon. Let's call it a day. Things will be quiet for a couple of months while we exchange paper discovery. I'll forward the medical records to you as I receive them."

  CHAPTER 41

  True to his word, Johnny Bob sent the big stack of medical records to Tod and Jan by the end of the following week. Tod skimmed through them, looking for anything out of the ordinary. He made notes to carefully question the Brady family about the days surrounding the abortion. He found it strange that Lucy would be so sick without her mother knowing anything about it. He was pleased to find that even though she came close to dying, she made a recovery in a matter of months. In fact, after she was discharged from Hermann, she had regained the use of all of her limbs, had no cognitive defects and was fully capable of walking yet chose not to do so. The attending physician recommended that she might need psychiatric counseling on an interim basis. At least, she could walk and talk and think. Maybe he had some hope of keeping the damages down.

  After he evaluated the records, he turned them over to Marilyn for a thorough analysis. Like her counterpart in Palestine, if there were anything of importance to be found in the records, she would do it. He then took standa
rd discovery from the computer and prepared a Request for Disclosure along with Interrogatories and a Request for Production to all three of the Brady plaintiffs. This part of the lawsuit, particularly between plaintiffs and a doctor, was routine. The documents asked everything about Lucy from the day she was born, including hospital of birth, attending physician, all medical providers for her entire life, every school she attended and her grades, all physicians and health care providers since the abortion, including counselors, psychologists and psychiatrists, all medical bills caused by the abortion and, of course, a question as to whether she had other abortions or pregnancies. Johnny Bob sent similar discovery to Dr. Moyo and Population Planning. Each party had thirty days to file answers to the discovery and was under a legal duty to amend any answer as new facts developed.

  Tod met with Dr. Moyo once more to discuss his opinions about the medical records from Hermann and get his suggestions about gynecology experts. This time he went to Dr. Moyo's office across from Methodist Hospital in the Houston Medical Center. He found his client in a somber mood.

  "Looks like you don't appreciate visits from lawyers, Zeke," Tod started the conversation after he was shown to the doctor's private office.

  "Tod, I've just finished reading through these Hermann Hospital records on Lucy. I could hardly believe what was written. She came close to dying at least four times. If they hadn't gotten her to the medical center, she probably wouldn't be here. The only good news is that she seems to be all right now. Deep down, I know I didn't do anything wrong. I did her procedure just like hundreds of others. Still, there's no doubt that her problems came from my operation. Is there any way we can win this case?"