First Do No Harm (Benjamin Davis Book Series, Book 1) (30 page)

“Ms. Perry, do you realize that you gave up your role as utilization review nurse to Dr. Herman? You did not do an independent review.”

“I guess I didn’t, but he was her doctor.”

Morty reviewed Mrs. Malone’s chart through admission till the 5th and how her temperature rose and how her condition deteriorated. “You were required to do a seventy-two-hour review of the status of the patient under the Utilization Review Plan?”

“Yes, sir.”

“Did you discuss with either Dr. Herman or Dr. English the transfer of the patient to Nashville after your seventy-two-hour review?”

“No. They were responsible for the patient and were tending to her.”

Morty concluded with the witness.

Then Stevenson asked fifteen minutes of questions. They established that Rosie Malone was Dr. Herman’s patient and that as her treating physician, it was his call as to whether she needed to be hospitalized and what tests he needed to obtain a diagnosis.

Neither McCoy nor Pierce had questions. Boxer called a fifteen-minute recess.

When they returned from the break, Judge Boxer asked Morty to call his next witness, and Morty announced Karol Hyde. She testified that she had worked at Plainview Community Hospital from February 1989 through the date of her resignation on July 7th, 1992. She testified that she knew Rosie Malone because she had been admitted several times at Plainview, including January 29th, 1992. Ms. Hyde, an RN, had been the charge nurse for seven shifts
during Rosie Malone’s January-February 1992 hospitalization.

Morty reviewed the chart with her. When they got to February 4th, he directly asked Nurse Hyde if she discussed Mrs. Malone’s deteriorating condition and need to transfer to Nashville with anyone. She became agitated and pointed to Dr. Herman and loudly said his name.

“I told him that I thought the patient had become septic and should be transferred to Saint Thomas or Vanderbilt. He indicated that they were considering that possibility.”

“Mrs. Malone wasn’t transferred until the evening of February 5th, correct?”

“Yes, sir.”

“You resigned your position at Plainview Community Hospital. Why?”

“I was concerned for my license. I had made complaints about both Dr. English and Dr. Herman to my supervisor and directly to Mr. Douglas, the hospital administrator. I’d written up six incident reports—”

Stevenson rose and objected. He argued that the committee process and the incident reports were confidential. Boxer sustained the objection and instructed the jury to ignore that last answer. It was not admissible.

“Did Dr. English and Dr. Herman continue to have privileges after you complained?”

“Nothing was done to them.”

Stevenson objected.

Boxer sustained the objection and chastised Morty: “Ladies and gentlemen, what the Plainview Community Hospital’s committees may or may not have done is
confidential. Move on, Mr. Steine. If you continue with this line of questioning, I’ll hold you in contempt of court.”

Sammie thought that the judge was being a little hard on Morty, but she was biased in favor of the old man. She recalled what he had told her many times: a judge can reprimand, but the jury can never completely erase either a question or an answer from their minds.

“Who did you give your resignation to?”

“I handed my resignation to Mr. Douglas. I apologized for not giving two weeks’ notice, but after witnessing all the negligence, I was afraid of getting sued because my name was in the charts.”

Stevenson jumped up and turned to Morty. “You’re in contempt of court—”

Boxer looked like he was going to blow a gasket. He stood and, in a much louder voice than he had used so far, yelled at Stevenson: “That’s
my
determination, not yours, sir. Mr. Steine, I hold you in contempt. That will be $500. I again instruct the jury to ignore that last answer from the witness. It is not admissible evidence and cannot be considered by you in your deliberations.”

Sammie wasn’t concerned. Both her uncle and Morty warned her that they would be pushing the judge and that he might just push back. They specifically discussed the possibility that somebody might be held in contempt. The negative implications of finding Morty in contempt in front of the jury certainly created an issue for appeal. They even agreed that it would be better if the culprit was Morty, not Davis, because the judge and jury were more likely to forgive him than Davis.

Morty then asked if the witness had filed a lawsuit against Plainview Community Hospital. Morty knew that Stevenson would bring up the lawsuit on cross
examination to prove bias. Morty established that Bradley Littleton was her attorney and that she had sued the hospital for breach of contract and for forcing her to resign to protect her license.

After Morty finished with the witness, Boxer broke for lunch.

When court resumed at two o’clock, Stevenson began with the witness: “You’ve sued the hospital?”

“Yes, sir.”

“But you quit?”

“I was forced to quit.”

“Who held the gun to your head?”

“I had to quit; it wasn’t a safe place. My license was in jeopardy every day.”

“You believe that if this jury awards a verdict to the plaintiff in this lawsuit, it will benefit you in your lawsuit?”

“I haven’t thought about it, but I guess you’re right.”

The witness confirmed that she was represented by Littleton. Stevenson quickly established that Nurse Hyde in less than a month of her resignation got a better job, paying a dollar more per hour. Stevenson did the math right in front of the jury, and Nurse Hyde made $4,250 more working her new job than working at Plainview Community Hospital.

“And you and Mr. Littleton have sued the hospital for $1 million?”

“Yes, sir.”

Stevenson paused and then said, “And you’re telling this jury that you’re not here for money?”

Karol Hyde didn’t know what to say.

Stevenson sat down. McCoy and Pierce had no questions.

Morty thought,
The defense really wanted to end on that note, very smooth
. Morty planned on calling two more nurses who had sued the hospital and were represented by Littleton. But he asked for, and Boxer permitted, a recess.

During the break, Morty explained to Davis, Sammie, and Littleton that in his opinion, Karol Hyde came off as a biased witness and lost her credibility with the jury. Her suit for $1 million, given her limited damages, made her look like a money-grubber. Littleton tried to defend his lawsuit and the amount of the suit. Davis ended the discussion by concluding, why repeat the same mistake? Hyde’s association with Littleton was probably the most damaging aspect of her testimony. They decided not to put on the stand any of the other nurses that Littleton represented because of the obvious bias.

Davis shook his head, trying to remember why he ever had anything to do with the idiot Littleton and why they were still joined at the hip.
Oh, yeah, Littleton’s name is next to mine on the client contracts. Can’t escape that
.

Davis looked over at the jury. They were still paying close attention, and he mentally tried to assess who was leaning in his direction. Davis was confident that the young lawyer-foreman understood that the hospital had violated its Utilization Review Plan, but he was less certain of the less-educated jurors. Davis remembered something Morty taught him: a jury is as smart as its smartest member and as stubborn as the last juror who needed convincing. He hoped the foreman learned how to be persuasive in law school.

They elected to call next Nurse Carole Black, who was still employed at Plainview Community Hospital. Nurse Black, under Davis’s direct examination, testified about Rosie Malone’s last three days at the hospital. Davis concluded by asking her who was responsible for determining when or if Mrs. Malone should have been transferred to Nashville.

“Dr. Herman was her treating physician, and he was monitoring her condition closely.”

“Did he wait too long?”

Stevenson objected on the basis that Nurse Black was not a medical doctor and not able to testify as to the standard of care.

Boxer sustained the objection but then asked, “Ms.
Black, as a registered nurse, is it your professional opinion that Mrs. Malone should have been transferred sooner?”

“Yes, sir. Her temperature had been over one hundred and four, almost one hundred and five, for several days. She should have been transferred as soon as it hit one hundred and four and the antibiotics couldn’t lower it.”

Boxer looked over at Davis. “Anything further, Mr. Davis?”

“No, sir.”

Davis sat down, and Stevenson tried to undo how Boxer finished the witness. He made little progress, except she emphasized that Dr. Herman was in charge of the patient’s care and that she and the other hospital employees were following his orders. Pierce got up and in a few questions established that English had left town following the surgery and was not at the hospital for Mrs. Malone’s postoperative care. McCoy didn’t ask a single question. No good would have come from it.

Davis next called the hospital custodian of records, Ms. Johnston. Davis knew she would lie, but it needed to be on the record.

“What happened to the gallbladder pathology slides from 1991 and 1992?”

“They were destroyed in the regular course of business the next year.”

Davis pulled out the Joint Commission Rule 301, which required the slides be kept five years.

“We changed that policy after my deposition, after you pointed out that rule to us.”

“So the hospital hasn’t destroyed any slides since your deposition?”

“No, sir.”

You lying bitch
, Davis thought.
What about the slides that scumbag stole from my office and drugged my poor niece to get?
If he still had the slides, he would have impeached Johnston at this point. But she was going to get away with her perjury.

It was late in the day, and the jury was getting tired. Morty suggested to Davis that they let Littleton question the paramedic as their next witness. Davis shrugged in agreement and whispered to Littleton to call the next witness.

Littleton moved to the podium: “Your Honor, Bradley Littleton, for the plaintiff.”

Boxer looked at Littleton strangely. “Yes, we’ve met before.”

A few jurors smiled. The barber, Josh Paulson, showed all of his teeth, and the mailman, Ray Breyer, smirked.

“Who is your next witness, Mr. Littleton?”

“The plaintiff calls Tommy Nelson.”

A young man in a blue uniform went up to the witness stand. He took the oath and sat down. Littleton established that Mr. Nelson was the paramedic who on February 5th transferred Rosie Malone from Plainview Community Hospital to Saint Thomas Hospital. Littleton seemed nervous, but at least the testimony was coming through.

“Isn’t it true that you were in the back of the ambulance—”

McCoy jumped up and objected: “Leading question, Your Honor.”

“Sustained. Please rephrase that question, Mr. Littleton.”

“Weren’t you in the back of the ambulance—”

Pierce jumped up this time: “Objection, leading question.”

“Sustained. Please rephrase the question.”

“Didn’t Rosie Malone—”

With a smile, Stevenson rose and stated, “Objection, leading question.”

“Sustained. Mr. Littleton, please refrain from asking leading questions. Ladies and gentlemen, a leading question implies the answer, such as, ‘Isn’t it true?’ Mr. Littleton needs to ask open-ended questions so the witness, rather than Mr. Littleton, can testify.”

Littleton stood there, his head nodding. He looked like one of those baseball bobble-head dolls. Morty thought that Littleton might lose it. But a moment later, Littleton seemed to regain his composure and stated in a higher voice than before: “My intent is to establish that Mr. Nelson was the paramedic who rode with Rosie Malone to Saint Thomas.”

Boxer looked crossly at Littleton and said, “Just ask him, sir.”

Some jurors found this amusing. Breyer the mailman, who was seated in the front row, openly laughed at Littleton. So did the bookkeeper, Mabel Donner. Davis thought,
Littleton is losing the jury that Morty and I worked so hard to win over
. The laughter was contagious. Betsy Blue, the waitress who was seated next to Ms. Donner, giggled. Even a few spectators joined in.

Littleton became even more anxious and, in an even higher voice, said, “Your Honor, I ask that you declare the witness an adverse witness so that I may ask leading questions.”

Boxer looked at Morty and Davis and seemed annoyed with them for even allowing Littleton to call a witness. Obviously, in retrospect, it was a bad idea.

Boxer said, “Mr. Littleton, why don’t you ask the witness where he was on February 5th and what he remembers of that date?”

Littleton repeated Judge Boxer’s question, and the witness gave a five-minute answer.

After the witness paused, Littleton asked, “Didn’t Rosie Malone—”

McCoy stood and almost laughingly blurted out, “Objection, leading question.”

Breyer could no longer contain himself. He started uncontrollably laughing in the front row of the juror box. Steve Paine, the assistant manager of Kroger, was laughing so hard that tears came to his eyes. Mabel Donner kept poking Betsy Blue and giggling. The second row of the jury box had better self-control but was close to breaking down.

McCoy, Pierce, and Stevenson snickered. Dr. Herman remained silent. Dr. English found Littleton’s painful situation so funny, he almost fell out of his chair, he was laughing so hard.

Littleton looked around the room. He was getting angry. His face was as red as a beet, and he started waving his arms up and down. His body language made the situation that much funnier. At least seventy-five percent of the courtroom was laughing
at
, not
with
, Littleton. It was an embarrassing moment, and Davis felt sorry for the man.

Finally, through all the laughter, Littleton yelled, “Your Honor, I ask that you admonish Dr. English for his unprofessional conduct. He’s laughing during my
examination of the witness. This is no laughing matter.”