So Help Me God

by Larry D. Thompson

  "Yes, Mr. Tisdale, I'm on one of our hospital committees that sets policies and procedures for our obstetrical clinic."

  "Tell me, Dr. Patterson, if a woman has an abortion and is complaining the next day of some pretty heavy bleeding and then has a fever of one hundred and one, isn't that a time to start getting worried?"

  "Depends, Mr. Tisdale. I'd have to know something more about the bleeding. I'd agree that I don't like a temperature of one hundred and one following an abortion."

  "Well, let me be more specific, Dr. Patterson. Wouldn't you agree that in Lucy Brady's case, with what she told the nurse on the Saturday following her abortion and what she told the other nurse on Sunday, wouldn't you have expected the nurses to get her in for a doctor to have a look at her?"

  "Not necessarily, Mr. Tisdale. The nurses have to exercise some judgment."

  "Well, let me put it this way. Let's assume that it was your daughter, and I'm not suggesting that your daughter would have an abortion. By the way, do you have a daughter?"

  "Yes, sir. She's eighteen."

  "Just Lucy's age. Okay. Assuming that it was your daughter and she had those same problems that Lucy had, wouldn't you want to have her checked by a doctor?"

  Dr. Patterson answered, "I agree that would be the best procedure."

  "And that's what should have been done in Lucy's case, right, Dr. Patterson?"

  "I think that I would agree, sir."

  Score one for Johnny Bob and Lucy. He moved on to his next line of questioning as Jan tried to hide a frown.

  "Now, Doctor, as to Dr. Moyo, you know that he hadn't gotten any sleep in about thirty-six hours."

  "Well, I think that he might have gotten a little, but not much. I might add that it's common for those of us in obstetrics to lose a night's sleep on a fairly regular basis. We can't always convince babies to be born between the hours of nine and five."

  Several of the jurors chuckled when they heard Dr. Patterson's reply, especially the women. Even Ruby smiled.

  "Believe me, Doctor, I understand that. I've got kids and grand kids of my own and I appreciate you doctors staying there however long it takes to deliver a healthy baby. You would agree that, like anyone else, when you go without sleep it can affect your judgment and could impact on the coordination necessary to do surgery, particularly if it's a blind procedure?"

  "We're human, too, Mr. Tisdale."

  "Now, I understand your testimony about perforation and retained fetal parts being just something that can happen in one of these procedures, but wouldn't you agree that if a doctor is just dead tired, it could have some effect on his skill level?"

  "I suppose it could, Mr. Tisdale. I should add that most of us have gone without sleep for many hours and have been able to perform according to the standards of care."

  "Well, let me put it this way, then. Since Dr. Moyo didn't have a baby to deliver at the Population Planning clinic, but only had to do some voluntary abortions, wouldn't it have been the better practice for him just to have them get someone to substitute for him instead of trying to do one of these blind procedures with no sleep?"

  "Again, Mr. Tisdale, in an ideal world, that might have been a good idea. I don't know what the procedures are at the Population Planning clinic."

  Johnny Bob saw his opening. "That brings up a good point, Doctor. In your residency programs, if a doctor has been up for pert near thirty-six hours with no sleep, what's your procedure?"

  "We require them to take at least twelve hours off to get some sleep before they return. I might add, I don't think that's the standard of care among obstetricians."

  Johnny Bob had made his point and moved on. He established that the witness chose not to do abortions except in the case of rape, incest or to save the life of the mother. Knowing that this would be the last obstetrical witness, he used Dr. Patterson to confirm that there was not an obstetrician in the case who did abortions for voluntary pregnancy termination. He even elicited from Dr. Patterson that most board certified obstetricians took the same position. With that testimony, Johnny Bob was able to give the jury a very clear message that most really good obstetricians didn't want to dirty their hands with such procedures. Then he quit.

  It was near the end of the day and Tod made one more point on redirect examination. He established that Patterson on Obstetrics taught that a fetus could not be expected to be viable before twenty-three weeks. It was a nice predicate for what would come the next day.

  As the judge recessed the trial, Tod rushed down the hall to their room and called Wayne.

  "Hi, boss. I'm bringing you something back from San Augustine that you'll like, and it ain't a cheeseburger."

  "What is it?"

  "Meet me at the fire station. I'm on the outskirts of Houston and I ought to be there about the time you can make it. I'd rather you see it than me tell you about it."

  Tod rushed back to the courtroom, grabbed his briefcase, told Jan and Dr. Moyo to meet him back at the office and ran up the stairs and out the door. Jan and Dr. Moyo took one look at each other and followed.

  Wayne was so excited that he met them in the parking lot as they arrived. He hurried them into the war room and closed the door.

  "Here, Tod, take a look at this. You ain't gonna believe what your baby blues are reading."

  Tod read through the chart and as he handed it to Jan, he exclaimed, "Well, I'll be a son of a bitch."

  "Couldn't have said it better myself," Wayne grinned. "Matter of fact, you stole my exact words."

  Jan just smiled as she handed the chart to Dr. Moyo and they remained silent as he read it. Then he asked, "I understand what I'm reading. How are you going to use it?"

  "Let's get a little more information first. Let me see if I can get Dr. Olstein on the phone. We may have to get him down here as a witness."

  The phone rang ten times before an elderly male voice answered. "Dr. Olstein, this is Tod Duncan. I'm a lawyer in Houston. My young associate was at your office today."

  "Yes, sir. I think that Cary Ann mentioned something about him."

  "We're in a lawsuit down here involving Lucy Brady, one of your patients, and we need your help."

  "Son, I'm old fashioned. I won't talk about my patients, particularly with a stranger over the phone."

  "Look, Dr. Olstein," Tod continued as he tried to hide the exasperation he was feeling, "this is a malpractice case and my client is being sued for one hundred million dollars."

  "Oh, is that right? Well, that changes things a little. Don't much care for these malpractice cases. Let me pull my chart and see what I can tell you."

  Dr. Olstein left for a moment and returned to the phone. "Ah, yes. I remember this young lady. How she got to me was a little strange."

  Although Tod took careful notes, he wouldn't need them. He would never forget what Dr. Olstein had to say. As he ended the conversation, Tod asked Dr. Olstein if he would be willing to come to court on Thursday morning. The doctor was reluctant until Tod offered to pay him $250 an hour as an expert witness fee. That got his attention and he agreed to be there by ten on Thursday morning.

  As Tod hung up the phone, he turned to Wayne. "Sure hope you like that road to San Augustine. You'll be on it again tomorrow. Olstein says he'll come on Thursday. I don't want to take any chances. Get to the clerk's office at eight in the morning and have a subpoena issued for him. Get up there and personally hand it to him before he goes fishing. Oh yeah, put another Dairy Queen cheeseburger on your expense account."

  That night Tod could not sleep. The events of the day raced through his mind. He wanted to skip the expert witnesses scheduled for the next day and jump right to the one he now expected to be the last witness in the case. Of course, he couldn't do that, but the idea kept him awake. Besides, he couldn't execute his plan until Dr. Olstein made an appearance. By morning, Tod's adrenaline rush was so great that he didn't even miss the night's sleep.

  ***

  Back at the lofts, T. J. was complimenting Johnny Bob
on his cross-examination of Dr. Patterson. The drink in his hand enhanced his ebullient spirit. "Boy, Johnny Bob, I knew that I got me the right lawyer when I called you months ago. You proved it with Patterson. We're gonna get us one big verdict against that clinic and Moyo, too. You think that you've sued for enough money?"

  Even though Johnny Bob was feeling pretty good himself, at least about Lucy's case, he knew that he had to bring T. J. down a few notches. "Now, T. J., don't start getting too big for your britches. Tod's got himself two first class experts tomorrow and Jan's got herself a nurse expert who'll probably do a bang up job of explaining how her clinic nurses did the best that they could under the circumstances. And remember, Tod reserved his cross-examination of you. I expect he'll still put you on the stand."

  "Hell, Johnny Bob, bring him on. I can take anything that he can dish out. Besides, that jury likes me. I've been watching their faces and every once in a while, I'll see one of them look at me and smile. That Mexican kid even gave me a thumbs up sign at one point when Dr. Thorpe was testifying. Remember, I'm a man of God and they know that."

  Claudia had entered the room and listened quietly until T. J. had finished. Then she looked squarely at him and said, "You better listen to what Johnny Bob has to say. I'll agree that Lucy's case is looking okay, but these experts tomorrow on the beginning of life are just as good as ours. If we don't carry the day on that issue, you'll end up with a judgment that'll make you wish you had been a little more careful about calling out your enemies."

  ***

  In the strategy session during the evening before, Jan told Tod that she wanted to put her nurse expert on the stand next. After the concessions that Dr. Patterson made, she had to diffuse those issues as quickly as possible. As the morning's first witness, Jan called Robin Dorsey, a rotund, gray-haired lady, probably close to sixty. She had been a nurse for nearly forty years and knew her way around hospitals and clinics as well as any nurse in the country. There were few medical problems or medical emergencies that she had not seen in her long career. She had even worked in an abortion clinic for a couple of years, although that had been more than twenty years earlier. Jan focused on the kind of judgment calls that nurses had to make on a daily basis. Whether it was in the office, at a clinic or in the ICU, nurses had to assess patients, listen to their histories and decide if the problem warranted a call to a physician. She did a superb job of explaining the line that a nurse had to walk between deciding what was best for the patient and not being in a position of crying wolf so often that doctors lost confidence in her nursing judgment.

  Sure, a nurse was not perfect. Of course, she was occasionally wrong. But using hindsight as she called it, to judge the ordinary care of a nurse would mean that no nurse could ever make a decision not to involve a doctor. And that was not only unreasonable, but also unfair. As for the two clinic nurses, they had to weigh the information that they had and make a judgment call. The fact that it turned out to be wrong did not mean that they acted below the standard of care. In her opinion they did exactly as they should have with the information that they were provided. She added that if either nurse had known that Lucy had thrown up her antibiotic on the night of the abortion, they probably would have changed their decision. As she passed the witness, Jan was pleased with Nurse Dorsey's performance. She also noticed that Mary Ann O'Donnell, the lab technician, seemed to be nodding her head in approval.

  Johnny Bob covered the same basic points that had previously been made with other experts. Then he quit. He figured that, by this late in the trial, the jurors had already made up their minds on the nursing issue before Jan's expert ever got on the witness stand.

  It was mid-morning. During the break, Tod glanced at his watch and did some mental calculations. To make his plan work he had to get his next two witnesses on and off the stand before the end of the day. He had to make a few points with his next witness and pass him to Johnny Bob, hoping that he would finish before lunch, leaving the afternoon for his last expert, the medical ethicist.

  "My name is Lawrence Crosswell. I'm a neonatologist."

  "Would you tell the jury, Dr. Crosswell, what a neonatologist is?"

  "I'm a baby doctor, but I specialize in very small babies. Most of my practice involves the care of premature babies and full-term babies who have significant problems."

  Tod didn't waste any time in getting to the point. "Doctor, at what gestational age can you reasonably expect a baby to live outside the womb?"

  "Ideally, Mr. Duncan, we would prefer for the baby to go to full term, which is considered forty weeks. Of course that is not always possible. A few years ago, we were saving premature babies at twenty-eight weeks. Now we are able to save a few who are born at twenty-three weeks, at a cost, I might add, of hundreds of thousands of dollars. Even a million on occasion."

  "Dr. Crosswell, from your experience have you formed an opinion as to when human life actually begins?"

  "I have, Mr. Duncan." As he spoke, he turned to look at the jury. "From what I see as a neonatologist, I am convinced that there can be no human life outside the mother's womb until approximately twenty-three weeks. I don't quarrel with my geneticist colleagues who say that there is a life form with the potential for human life as early as conception, but the process from conception to birth is a long road, full of obstacles, even with the best of care. Our statistics show that in the first trimester more than fifty percent of pregnancies are lost for one reason or another. It would not be reasonable or even legal to call those deaths of human beings. If we did, we would have a statistically enormous death rate. As a matter of fact, I am not even allowed to complete a death certificate on a baby unless it is actually born alive."

  Tod looked at Jan who nodded, and he passed the witness. The move caught Johnny Bob by surprise since he assumed that, like the other experts, this one would be on the stand for several hours. Johnny Bob directed his cross-exam toward the scientific advances that had been developed, giving the fetus born at twenty-three weeks a reasonable chance of living. Dr. Crosswell agreed that the science was still progressing. He also conceded that, like so many other areas of medicine, as medical techniques were refined, they would almost certainly bring down the cost of saving a young life. Johnny Bob closed by violating the cardinal rule of a trial lawyer, never ask a question when you don't know what answer to expect. He asked the witness if he believed in abortion. He took a chance and it paid off in spades. He got a very strong "No."

  As Tod and Jan entered their room, Tod second-guessed himself about his strategy with Dr. Crosswell. He was among the best neonatologists in town, yet he ran him through the courtroom like a cow down a chute. On top of that, it turned out that the doctor was pro-life, a question he had never even thought to ask the neonatologist.

  "Tod, don't sweat it. You made the call and it's over. Besides, our nun is going to be gang busters, and by the time the jury hears the testimony tomorrow, they're probably going to forget everything else in the trial."

  "You're probably right, Jan. Let's call Wayne and see how he's doing."

  ***

  Wayne got to the clerk's office at seven-thirty and was waiting when the first employee arrived to unlock the door. Planting himself at the head of the line, he waited until Miss Bubblegum took her seat behind the counter. After he got the subpoena, he pointed his car north and arrived in San Augustine by eleven-thirty. Not a minute too soon. A fishing rod and bait bucket were leaning against the door. As he walked up the steps, Dr. Olstein came out, locking the door behind him. The doctor was a big man, six feet, four inches tall at least, with disheveled white hair, a white beard and an ample belly. Other than being a little tall, he certainly could have played Santa Claus in the San Augustine Christmas Parade. Hell, Wayne thought, maybe he does.

  "Dr. Olstein, I'm Wayne Littlejohn. I was up here visiting with your nurse, Cary Ann, yesterday afternoon. I have a subpoena for you to appear in court in Houston tomorrow."

  The old man glared at the young one. "Son,
that's not necessary. I've told your boss I'll be there and I'm a man of my word."

  "I understand that, sir. It's a big trial and we just can't afford to take a chance."

  The old doctor's demeanor softened slightly. "Well, I understand it's a big trial. I've been following it in the newspaper and I catch a little bit of it on TV. Didn't realize until yesterday, though, that it involved one of my patients. Guess my memory isn't what it used to be. I'll take your paper. I'll be there. Don't like these damn malpractice cases myself. Gonna put us doctors out of business."

  He picked up his fishing rod and bait bucket, said goodbye and headed to an old Ford pickup. After he placed his rod and bucket in the bed of the truck, he backed it out of the drive and drove slowly down the tree-covered street.

  On his way out of town, Wayne stopped at the Dairy Queen once more for a cheeseburger. As he ordered, he had a second thought and made it two. After paying, he drove back to the doctor's office, got out of his car and whistled. It wasn't long before his four-legged friend came around the corner of the house. As Bowser approached, Tod took the second cheeseburger from the sack, unwrapped it and handed it to the dog. Two gulps and it was gone. The retriever looked up at his new friend with eyes that asked, "Okay. Now, how about my fries?"

  "Sorry, Bowser, that's it for the day. I'll drop by the next time I'm in the neighborhood."

  Realizing that lunch was over, the old dog trotted back around the corner of the house as Wayne got in his car to head back to Houston. While he fastened his seat belt, the cell phone rang.

  "SPCA, San Augustine Chapter."

  "You get him served?"

  "Sure did, Tod. Caught him, fishing pole in hand, just before he left his office. He'll be there. If for nothing else, he doesn't like malpractice suits. Look for a big, overgrown Santa Claus tomorrow and that'll be him."

  "Okay. Get on back here. We've got the nun on this afternoon and I want you in on the planning for tomorrow."

  CHAPTER 76

  The nun was Sister Mary Ruth Bennett, Mary Ruth Bennett, Ph.D. and Mary Ruth Bennett, M.D. Additionally, she was a very good-looking woman. At five feet five inches tall, she had short brown hair, blue eyes, the face of a model, and filled out a business suit like an aerobics instructor. She became a nun out of a strong religious conviction. She served on the faculty of Tulane University Medical School as a medical ethicist. While her church didn't like what she had to say on the subject, she had adopted the viewpoint that ensoulment did not occur at conception, but at a much later date. It was for that reason that Tod and Jan had decided she would be their last witness. Last, that is, until the revelation of the previous day. After establishing her credentials, Tod got to the heart of her testimony.