First Do No Harm (Benjamin Davis Book Series, Book 1) (29 page)

The jury next learned about the plaintiff’s third expert witness, Sister Carson. She wasn’t there to testify about the Catholic Church. She was a registered nurse and the president and chief executive officer at Saint Francis Hospital in Saint Paul, Minnesota. She served on each of the medical committees at Saint Francis and knew the standard of care required of a hospital to properly credential, proctor, and monitor their doctors.
She’d read Plainview Community Hospital’s own rules and requirements and was familiar with the rules promulgated by the Joint Commission on Accreditation of Healthcare Organizations. Davis described JCAHO as an organization that licenses hospitals and regulates what goes on at those hospitals.

“Sister Carson will testify that Plainview Community Hospital was not only negligent in its care and treatment of Rosie Malone but also reckless.”

He had tied all three defendants to Rosie Malone’s death and identified for the jury which of his experts implicated which of the defendants.

Davis described in detail Rosie Malone’s February 1992 hospitalization and how her temperature rose and how her condition deteriorated. Davis insisted that she needed to be transferred to a better-equipped hospital, with a cardiologist, a pulmonologist, and an infectious disease specialist.

Davis argued that Mrs. Malone wasn’t transferred until February 5th at 6:00 p.m., only after her daughter insisted that she be transferred.

“It was too little and too late. If it weren’t for Lorraine Burke, Mrs. Malone’s daughter, the defendants never would have transferred Mrs. Malone. They didn’t want outside physicians to discover their negligent care. The failure to transfer Mrs. Malone was reckless.

“All of the plaintiff’s experts will testify that the deteriorating medical condition of Mrs. Malone and the need to transfer her were apparent from the medical records, written by the defendants. Those records, which in the case of Dr. Herman must be translated, prove their negligence and recklessness.”

Davis took a breath. His allotted time was about up.
He pointed out that neither Dr. Herman nor Dr. English could find an expert to testify on his behalf. The defendants were their own experts. He assured the jury that this failure to secure experts proved that their conduct was negligent and reckless.

The judge gave Davis a stern look. He was out of time.

Davis quickly closed his opening statement. He thanked the jury, not only on behalf of the Malone family, but also for the citizens of Plains County. He expressed his confidence that after hearing all the evidence, they would find for the plaintiff and do the right thing. He nodded, turned, and walked back to his seat.

As he approached his co-counsel, Davis saw the pride on Morty’s face. But when Littleton mumbled, “Good job,” Davis thought,
I don’t give a rat’s ass about what you think
.

Davis was satisfied. He challenged the defense counsel and told them that if they strayed from the truth in their openings, their clients would be held accountable for their misrepresentations. He thought what he said made good sense, and he hoped the jury would agree.

“Thank you, Mr. Davis. Ladies and gentlemen, we’re going to take a fifteen-minute comfort break, and then we’re going to hear from the defendants.”

Davis guessed that McCoy would go first, then Pierce, and then Grayson for the hospital. Morty agreed. Littleton offered no opinion.

Back in the courtroom, Jack Barnes, the local attorney, was standing at the podium to make Herman’s opening statement. Morty looked at Davis and just shook his head ever so slightly, but Davis recognized that it made sense. Barnes knew these people. He spoke their language. Neither Davis nor Morty thought of this possibility because their egos, unlike McCoy’s, wouldn’t have allowed them to miss giving the opening statement. He was the defense’s logical place to start.

“Ladies and gentlemen, my name is Jack Barnes, and together with Mr. McCoy, I represent Dr. Herman. I won’t be as long-winded as Mr. Davis. Remember, what the lawyers say isn’t evidence. I think we are better served if we just get to the evidence.

“As Judge Boxer told you, the plaintiff goes first, and that’s a big advantage. Please do not make up your minds until you hear all the proof. That’s what the law requires, and I’m confident that’s what you’ll do. Remember, the burden of proof is on the plaintiff, not the defendants. Dr. Herman doesn’t have to prove anything.”

Barnes assured the jury that the facts surrounding the death of Mrs. Malone were not as black and white as Mr. Davis had misled them to believe. She was a
complicated patient, with a long medical history. He informed the jury that in June 1991, at Lorraine Burke’s insistence, Mrs. Malone began seeing a gastroenterologist, Dr. Randall Sizemore. Barnes emphasized that Dr. Sizemore treated Mrs. Malone for almost five months, and he didn’t solve her problems but rather made them worse.

“He prescribed various medications and performed various tests, and he couldn’t find out why Mrs. Malone was experiencing abdominal pain. Mr. Davis didn’t mention Dr. Sizemore and his failure to correctly diagnose Mrs. Malone, did he?

“Another thing that Mr. Davis didn’t mention was that Mrs. Malone was a drug seeker. Dr. Herman knew this. It’s apparent that Dr. Sizemore did not.”

Davis had to give Barnes high marks. He was placing Sizemore on trial, even though he had not seen the patient since October 1991, months before her death.

Barnes attacked Sizemore for overprescribing narcotics and not understanding that the patient had a low tolerance for pain. He insisted that Dr. Herman knew the patient and prescribed placebos, such as sterile saline, because most of the pain was psychological, not physical.

“The plaintiff’s experts from Atlanta weren’t there in February 1992; they never met Mrs. Malone. As Mr. Davis says, all they have to look at are medical records. They didn’t talk to the patient. They didn’t examine the patient.”

Barnes walked over to the defense table and drank from his glass of water. When he resumed, he was standing very close to the jury. Davis thought he was violating their space, but that was Boxer’s call. Davis
secretly wished he dared to get that close to them.

Barnes convincingly argued that Dr. Herman inherited from Dr. Sizemore a very sick and drug-dependent patient. He assured the jury that Dr. Herman did the best he could, but that Mrs. Malone was an uncooperative patient, who refused to follow her prescribed diet and who continued to smoke two packs a day.

Davis was concerned that Barnes was so effective that the jury might award damages against Dr. Sizemore rather than Dr. Herman.

“With due respect to your intelligence, your job as the jury boils down to listening to the proof and the jury instructions, given by the judge, and determining if the standard of care was met. Dr. Herman will testify that he did his best and that he provided care and treatment within the standard of care. These claims of recklessness by Mr. Davis have absolutely no merit and have no basis in the facts. Thank you for your attention.”

The judge thanked Barnes for his opening statement, and Grayson Stevenson III rose and walked to the podium. His navy suit and white hair were immaculate. He had on his traditional red power tie. Even at a distance, Davis could see his reflection in the man’s shoes. Neither Davis nor Morty liked Stevenson either before or during the Plainview cases. He was pretentious and a part of the Nashville elite.

Stevenson spoke as he moved toward the jury box: “Ladies and gentlemen, I represent the hospital, and unlike Mr. Davis, I’m not going to tell you what the proof will be. I’ll leave that to your good judgment.”

Stevenson had chosen to attack Davis himself in his opening. Not an uncommon tactic.

“Mr. Davis didn’t explain the hospital’s committee system and how it acts as checks and balances to protect the patients. What Mr. Davis didn’t tell you in his opening statement, but that the law requires, is that the minutes of the committees must be kept confidential. The Tennessee legislature passed a statute that requires confidentiality. Sister Carson has no idea what the hospital did because by law, she was not permitted to read those minutes.”

Davis thought Stevenson might have just made a terrible mistake. The minutes, prior to trial, had not been discoverable because of the law. The judge might reverse his ruling based on Stevenson’s opening.

“It is also important for you to remember what the judge said about biased witnesses. Several nurses who will testify are former employees of the hospital and have sued the hospital. Mr. Littleton, who is seated at Mr. Davis’s table, represents them. It is the hospital’s position that they have an axe to grind and may not testify accurately.”

So Littleton’s first contribution to the case has been as a prop for Stevenson
. Davis wished that Littleton would simply disappear. He was tired of defense counsel attacking him, but it would break the golden rule to interrupt Stevenson.

“The hospital’s expert, Dr. Leonard Sparks, will testify that the hospital did nothing wrong and that its employees acted within the standard of care. The hospital must let its doctors make medical decisions as to the care of their patients. The reference by Mr. Davis to the utilization review nurse is misleading. Utilization review has to do with hospital costs, not care. Mrs. Malone was a Medicare patient. The hospital lost money
during Mrs. Malone’s February 1992 hospitalization.”

Stevenson emphasized that Dr. Herman was paid for the two ultrasounds and that the hospital was paid a very minimum dollar amount for the eight days Mrs. Malone stayed at Plainview Community Hospital. “The moment Mrs. Malone was transferred to Saint Thomas Hospital was the moment that Plainview Community Hospital stopped losing money. It was Dr. Herman who delayed transfer; he was her treating physician, responsible for her postoperative care.

“The fact that Mrs. Malone died is a tragedy. But tragedies happen in life, and that doesn’t mean anyone was negligent. It certainly doesn’t mean anyone was reckless. We all feel sympathy for the Malone family. But as Judge Boxer will instruct you, sympathy is not to be considered. The plaintiff must carry the burden of proof. If the plaintiff fails, you must not award any amount of money because of sympathy. Thank you.”

When Stevenson sat down, he smiled at Davis, which Davis found very annoying.

Judge Boxer asked Pierce, “Should we take a break? It’s four thirty-seven.”

“No need, Your Honor. I would like the court to explain to the jury the defendant English’s right to reserve opening argument.”

Judge Boxer explained that a defendant could give an opening argument at the beginning of the plaintiff’s proof or at the beginning of the defendant’s proof.

“Dr. English’s counsel has elected to wait until the plaintiff closes its proof and to give her opening later in the trial.”

Davis couldn’t tell whether Morty was as surprised as he was. An effective defense was to keep the plaintiff
off balance. Passing on her opening statement threw Davis for a bit of a loop.

Judge Boxer reminded the jury that they were sequestered and were not to discuss the case with their families, their fellow jurors, or anyone else. He told them to be back in the jury room by eight forty-five the next morning.

Sammie was actually enjoying watching the Malone trial. Almost all of her work was done. Her research was finished, and the motions and briefs were written. She helped outline the direct and cross-examination questions for each of the anticipated witnesses and worked on the proposed jury instructions. At this point her job was to watch the jury’s reaction to the proof. The case was now up to her uncle and Morty.

Morty called the first witness: Celia Perry, the utilization review nurse. Boxer agreed that she was an adverse witness and that Steine could ask leading questions. Morty had Ms. Perry explain her background; the jury was probably surprised that she only had a GED. She read into the record her job description. Morty also discussed with the witness the Utilization Review Plan of Plainview Community Hospital, which was already an exhibit in evidence.

Morty then specifically reviewed the January 29th hospitalization of Rosie Malone with the witness. Morty asked, “It was your job to look at Dr. Herman’s office record to determine if hospitalization was appropriate?”

“Yes, sir.”

Morty handed the witness Dr. Herman’s office record. “What aspect of that record prompted you to
allow the admission of this patient?”

“I can’t read the record.”

No one could read it.

“So, on what medical basis did you recommend admission to the hospital?”

“A conversation I had with Dr. Herman. He told me that he had done three ultrasounds and that he suspected gallbladder disease. He wanted to admit the patient to have a third ultra-sound to be read by the radiologist, Dr. Gerald, and to perform other investigative tests.”

“Ms. Perry, the patient didn’t have to be admitted to have an ultrasound read by Dr. Gerald, did she?”

“No, sir.”

“Wasn’t it your job to admit the patient only if the admission were necessary?”

Perry insisted that Dr. Herman was the patient’s treating physician for years, and she was just a nurse, not even an RN. She testified she wasn’t in a position to question him.

Morty reviewed with Ms. Perry the Malone chart from admission on January 29th until right before her surgery. “You were required under the Utilization Review Plan to assess the patient forty-eight hours after admission, right?”

“Yes, sir.”

Perry admitted that she could not read the history, the physical, the physician orders, or the progress notes written by Dr. Herman. Morty asked on what medical basis she recommended that Mrs. Malone undergo surgery.

“I had another conversation with Dr. Herman. He assured me that the patient required the surgery and
that Dr. English confirmed the need for the surgery. They were the patient’s doctors, so I concurred.”