First Do No Harm (Benjamin Davis Book Series, Book 1) (11 page)

As she was thinking of her new client and trying cases on its behalf, Thomas stuck his head in her office. “Amy, change of plans. I need to cancel our meeting. Last night, Jim Davenport of PIC called and said he’d be in Nashville for lunch. He requested a noon lunch meeting with the two of us, so rearrange your schedule.”

Because she was unsure of the meeting’s length, Amy rescheduled two appointments.

At 11:40, Thomas walked back into her office. “Let’s go. I don’t want to keep Davenport waiting.”

Amy and Thomas rode the elevator to the twenty-seventh floor to the Capitol City Club. Despite Thomas’s best efforts to be early, Davenport was waiting in the entry hall. Thomas introduced Amy to Davenport, and they were led to their table. The trio exchanged
greetings and chitchatted for a few minutes.

Davenport proceeded to cross-examine Amy about her education, employment, and experience, even though he already knew the answers from her bio in the firm’s brochure. He wanted to hear it from her.

Davenport then guided the conversation to PIC. He described the company’s history and business philosophy. Two families, one from Birmingham and the other from New Orleans, had founded PIC in 1954. Previously, the company had limited its coverage to medical malpractice insurance in Alabama and Louisiana. After seeing an opportunity in new markets, PIC decided to expand to Tennessee and Arkansas, and Davenport was the newly appointed regional manager for the state of Tennessee.

He looked directly at Amy. “You’ll be dealing with doctors. They’re used to calling all the shots, and surgeons are by far the worst. Nobody in their office or at the hospital ever stands up to them. The doctors just run roughshod over everyone who comes in contact with them. Handling a lawsuit is not like being in charge of a medical team in an operating room. In an operating room everybody is working toward a common goal, to help the patient. Doctors are simply not equipped to deal with the adversarial nature of a lawsuit, so you need to take firm control over the litigation.”

Amy was well aware that doctors were difficult clients. Probably the only thing worse was representing another lawyer.

This was Davenport’s meeting, and he continued, “A lawsuit is a business transaction. You’ve got to weigh the risk and the monetary cost of a judgment
against the cost of defense. Luckily, here in Tennessee, you’ve got a natural impetus against large awards, the jury system. Tennesseans are naturally conservative and suspicious. They don’t give large judgments, and they especially don’t award punitive damages. PIC has been doing business in Alabama and Louisiana for almost forty years. Jury verdicts in Alabama are out of control. The city of Huntsville is a fourth the size of Nashville, yet our research shows that on average Huntsville’s juries give verdicts three and four times greater than those of Nashville.”

Amy followed the dollar amount of jury awards throughout the United States; the sizes of those awards were directly related to the geographic location of the trial. Certain states were actually competing to see which local community gave the largest verdict. For example, in last month’s
New York Bar Journal
, an attorney in a closing statement argued that Brooklyn, and not the Bronx, had the largest award of compensatory damages in a medical malpractice case. No wonder the tort reform movement was picking up steam throughout the country.

Tennesseans were just the opposite of New Yorkers. They prided themselves on their conservative nature. It was no fluke that people in Tennessee were simply less willing to compensate plaintiffs. Amy knew that was the draw for PIC to Tennessee.

“There are almost three times as many defendants’ verdicts in Tennessee than in Alabama. The statistics are similar for Arkansas. That’s why PIC is moving into those markets.”

Thomas responded to Davenport: “Jim, PIC has made the right decision. The Tennessee malpractice
insurance market is wide open. Your competitor, Tennessee Mutual, insures more than eighty percent of the doctors in the state, and it has become lazy. Its premiums have steadily risen despite the fact that the doctors own it. Everybody knows doctors are not good businessmen. There’s a real opportunity here for PIC, and I’m confident DMT is the right firm for PIC’s litigation needs. We’ll make damn sure that PIC doesn’t have to pay out any large verdicts.”

Davenport got down to specifics: “I’ve got your first case. Well, your first five anyway. Our insured is a general surgeon by the name of Charles English. There have been at least five lawsuits filed against him in Plains County Circuit Court by Benjamin Davis and Bradley Littleton. Do you know either of them?”

Amy responded, “I don’t know Littleton, but I’ve seen Davis in court. He’s good. I’ve never had a case against him, but I’m sure several of our partners have. He’s well thought of as a trial attorney by the Bar. Davis used to be partnered with Morty Steine, who retired this year. Steine was a master in the courtroom, and we’re fortunate he’s gone. How many lawsuits did you say have been filed?”

“As of yesterday, there were five,” Davenport replied. “I’ve got a call in to the clerk to see if any additional complaints have been filed today. The state’s also brought charges against English, threatening to revoke his medical license and assess civil penalties. I’m convinced Davis or Steine instigated the state charges.”

Amy was excited. Getting five lawsuits was a great first day with a new client.

Davenport said, “I spoke with English, and as you might expect, he’s a basket case. Each case also names
Dr. Lars Herman, a family practitioner. It appears that the two doctors hold privileges at Plainview Community Hospital. Herman is also English’s landlord. The hospital has also been sued.”

Amy was taking copious notes, and Davenport gave her English’s telephone number.

Davenport wrapped up the meeting. He had to be in Knoxville for a dinner meeting with PIC’s newly appointed East Tennessee counsel. Davenport promised Thomas and Amy that the lawsuits would be faxed to their office by the end of the day.

After Davenport left, Thomas turned to Amy: “You need to deliver, not just talk a good game. That means winning lawsuits and, when necessary, settling them on the cheap. Davenport is right about one thing. You’d better control these doctors. This surgeon English sounds like he’ll be a good test.”

Assuring Thomas that she could handle whatever these doctors could throw at her, Amy returned to the sixteenth floor and got back to work.

It took all afternoon for the five lawsuits to be faxed. Each lawsuit was almost twenty pages long, and Amy placed each lawsuit in a separate file. She wouldn’t be able to read through them before she would have to leave early for Carter’s birthday party. She decided to return the phone calls she missed when she was at lunch. She would jump into the cases first thing tomorrow morning.

Carter’s birthday party at Chuck E. Cheese’s was a resounding success, complete with twenty of his friends. Amy let him stay up past nine playing with his new Nintendo game.

It had been such a hectic week that she neglected to get him a Halloween costume for the school Halloween party. She meant to stop at Toys “R” Us to pick up a Ninja Turtle costume but kept forgetting because she was in a constant rush. She was panicked this morning, rushing around, pulling random clothes together to create a hobo costume. She made a rucksack out of a branch from the yard and attached a handkerchief stuffed with newspaper to the end.

When Carter got up, she furiously applied makeup to his cheeks to further enhance the hobo image. When she was finished, he looked like Emmett Kelly of Ringling Brothers fame.

“But I wanted to be Raphael from the Ninja Turtles,” the boy whined.

“I’m sorry, Carter. I’ll pick up a Ninja Turtle costume tomorrow. You can be Raphael when we go trick-or-treating tomorrow night.”

Carter was not pleased, and he got into the car without saying another word.

Amy arrived at the office just before eight o’clock and dug right into the English lawsuits. She decided to start by reading the notice of charges brought by the state’s Medical Licensing Board. The charges were quite detailed, and it took an hour to read them carefully. The state asserted that English and Herman entered into a conspiracy to perform unnecessary procedures and surgeries. The state claimed a pattern of negligent medical care and treatment of patients at Plainview Community Hospital. The charges concluded by claiming that this pattern constituted recklessness.

As Amy wrote down the charges, a messenger brought two banker boxes into her office.

“Mr. Thomas told me to deliver these medical records.”

Amy looked at the summary sheet that Thomas’s secretary prepared, identifying each of the five Plainview cases. She decided to start with the Rosie Malone death case. She retrieved Malone’s medical records from one of the boxes. They included a three-inch-thick hospital chart, Dr. Herman’s office records, more than two inches thick, and Dr. English’s incredibly thin office records. Knowing this would take some time, she relished the fact that she billed by the hour.

The Malone complaint was sixteen pages long and well written. Davis knew how to draft a pleading. Amy read the complaint and made notes on a legal pad.

The complaints were divided into four distinct parts: “The Parties,” “The Facts,” “The Allegations,” and “The Damages.” Amy’s answers filed on behalf of English would deny each of the parties’ claims. Generally, the strategy of the defense was to initially deny all of the facts, the allegations, and the nature and extent of damages.
Other times, Amy would assert she had insufficient information to either admit or deny a specific allegation and would deal with responsive answers another day. She needed to thoroughly read through each case and digest it before formulating the answers.

She opened Dr. English’s office record for Rosie Malone. It contained an admission history, a physical, an operative report, a surgical report, and one physician note. “Not much of a file,” Amy said out loud. English’s records reflected treatment from January 29th through 6:00 p.m. on the 30th.

Next were Herman’s office records. Rosie Malone had been Dr. Herman’s patient from January 1990 until her death in February 1992. During that period Herman had seen the patient at least a dozen times in his office. Herman had provided a lot of care and treatment to this patient. No question that Herman, not English, was Rosie Malone’s primary care physician.

The handwriting in the file was illegible, however. Amy could read only about every fourth word. The handwritten notes would be a nightmare, particularly for Davis. She presumed English and Herman could read them.

The typed records revealed that Rosie Malone was a sick person long before she met Amy’s client. She had been hospitalized at Plainview Community in 1990 and again in 1991 with heart problems, pulmonary problems, and a long history of stomach pain. Mrs. Malone had smoked two packs a day for more than forty years, and according to Dr. Herman’s records, she was an alcoholic and a drug seeker.

Amy thought,
Mrs. Malone is far from an ideal plaintiff
. Then she grinned. Rosie Malone’s prior conditions
would significantly lower any award of compensatory damages.

As she went through the January-February hospital records, it was apparent how quickly Rosie Malone deteriorated after her surgery. Fortunately, English left for vacation the day after the Malone surgery, transferring the responsibility of postoperative care to Dr. Herman. That explained why English had written only one postoperative note. The patient should have been transferred long before February 5th.

The death certificate signed by Herman cited “cardiac arrest.” Her heart stopped.
Well, everyone’s heart stops when he or she dies
. Even from her brief reading of the Malone file, Amy recognized that Mrs. Malone died of septicemia, not cardiac arrest. Herman had to be kidding.

She was glad that her client hadn’t falsified the death certificate. At some point during the case, her strategy would be to shift the comparative fault to Herman. She would try to hold off accusing Herman as long as possible to secure and maintain the cooperation of McCoy, Herman’s lawyer. Davis needed to be the common enemy of the defendants.

Just as Amy was strategizing, Thomas buzzed her on the phone: “Morning, Amy. Have you begun work on the answers?”

“I’m about two hours into it.”

“How does it look?”

“I don’t want to jump to conclusions, but based upon the Malone case, Davis could argue that the surgery was unnecessary. The postoperative care was negligent, but English left town the next day. We can push the responsibility of postoperative care on Dr.
Herman. He treated her for years. He’ll take the fall, not English. The compensatory damages should be minimal as the plaintiff had no income and poor health.”

Amy could tell even over the phone that Thomas was processing what she just told him.

He responded, “Have you read the Supreme Court decision of Hodges vs. Toof?”

“Of course I have. But I can’t give you a definitive answer on recklessness or punitive damages. What I can tell you is that we’re going to make a fortune trying to figure it out. We need to coordinate with McCoy on these cases. The longer we can maintain a common front, the better. If we stand together, Davis’s job will be much more difficult. There will be plenty of time to shift blame onto Herman and the hospital.”

“You’re on track. Keep focused, and make us big money.”

“Don’t worry, Lowell. I’ve got everything under control.”

“Keep me in the loop.”

Thomas hung up, and Amy returned to the Malone case. After she finished reading the other four complaints, she decided she needed to introduce herself to her client.

She dialed the number Davenport had given her the day before. The receptionist put her through to English.

“Dr. Charles English, can I help you?”

“Dr. English, my name is Amy Pierce, and I’m with Dunn, Moore and Thomas, a law firm in Nashville. I’m your attorney. I believe Mr. Davenport of PIC told you that you’d be hearing from me. I’ve read the five complaints—”