First Do No Harm (Benjamin Davis Book Series, Book 1) (34 page)

Davis plowed on: “Are you familiar with the Hippocratic Oath, Doctor?”

McCoy stood and argued, “The Hippocratic Oath is not relevant. The standard of care is the measure of liability.”

Davis’s quick response indicated he expected the objection. “Your Honor, the Hippocratic Oath is at the heart of the standard of care. I guarantee the court that if I asked ten doctors of different subspecialties what the common denominator of the standard of care was for each of those subspecialties, it would be the Oath. It’s the most basic principle of medicine. The court cannot exclude its overall vision from this trial. These doctors, if they did nothing else, were required to live by its words. It is the Ten Commandments of medicine.”

Even Herman thought that Davis was compelling. The judge directed Herman to read the Hippocratic Oath. Herman tried to read the long text with enthusiasm, but it was not an easy read, particularly because he was forced to do so.

Davis reviewed with Herman Mrs. Malone’s medical history. In 1990, she had a heart attack and was treated by Dr. Herman at Plainview Community Hospital. She was a chronic smoker, and Herman had prescribed nicotine patches. Davis reviewed with him the sixteen medications that Mrs. Malone was on right before her January 1992 hospitalization, and he asked, “Isn’t it true that every medication has side effects, Doctor?”

“Yes, but the benefits outweighed those side effects.”

It took Davis twenty minutes, using the
Physicians’ Desk Reference
(
PDR
), to review the sixteen medications that Dr. Herman prescribed to Rosie Malone and their side effects. “Doctor, there’s no way on God’s green earth that you could begin to fathom all the interactions of those side effects, right?”

Herman hesitated and then admitted that it would be difficult. He was committed to regaining points with the jury.

“Mrs. Malone was your patient from January 1990 through June 1991, and then she returned to your care in October 1991, correct?”

Herman took this as his opportunity to turn the tables. “The patient personally told me that one of her daughters made her go to a doctor in Nashville. To the best of my recollection, she told me that she did not want to but that she was forced to. According to her family, he was a GI specialist.”

Herman confirmed that he never requested or reviewed Dr. Sizemore’s records when he resumed treatment of Rosie Malone in October 1991.

“I didn’t need his records. This was a chronically ill patient with almost no tolerance for pain. I would give her placebos, sterile saline, so she would feel like her
complaints were being addressed. I tried to wean her off narcotics. When I replaced them with a placebo, she did just as well. I certainly didn’t need Sizemore’s records to deal with the patient. I had a trusting relationship with her. She would call my office, sometimes three and four times a day.”

Herman claimed that, unlike Rosie Malone’s family, he was supportive and comforting, and he tried to help her deal with her pain. “She was a chronically ill person, a hypochondriac with real problems. That’s why she was so difficult to assess. Many of her symptoms were psychological while others were real. She told me that her family members didn’t come to see her. She told me that they didn’t understand and had abandoned her.”

Morty rose and said four words: “Objection, Dead Man’s Statute.”

In Tennessee, the Dead Man’s Statute prevented a witness from testifying about a conversation with a dead person because the deceased could not refute it.

Judge Boxer looked at McCoy and Barnes. They did not say anything, so Boxer sustained the objection.

The judge broke for lunch. It was past twelve, and they hadn’t had a morning break.

When they returned, Davis reviewed the Malone chart with Herman. Herman knew the chart, but he did a poor job of explaining why the patient wasn’t transferred when her condition deteriorated. He admitted that there was no pulmonologist, cardiologist, or infectious disease specialist at Plainview and that the patient needed those medical subspecialties.

Davis had him spinning by the end of the examination. It was almost four o’clock when he asked his last question on direct: “Doctor, you filled out Rosie
Malone’s death certificate, correct?”

Herman squirmed in his seat. “Yes.”

Davis continued, “But you were not the attending physician at the time of Miss Rosie’s death in Nashville. The law and medical ethics require that the attending physician fill out the death certificate. Why did you violate the law and your ethics?”

Barnes objected, stating that the question called for a legal conclusion. The judge overruled the objection. Davis repeated the question.

Herman hesitated and then said, “Because it was mailed to me, and I didn’t know the law.”

Davis responded, “Doctor, everybody knows that ignorance of the law is no excuse.”

Davis handed Dr. Herman the Medical Licensing Board finding that he was negligent and reckless in his care of Rosie Malone. Dr. Herman cringed because he knew what was coming.

“The board that found you reckless in your care of Mrs. Malone consisted of three doctors?”

“Yes, sir.”

“And the state had its own expert that asserted you were reckless, right?”

“Yes, sir.”

“And the state’s expert testified basically the same as Dr. Sizemore and Dr. Swanson?”

“I’ve not compared their testimonies.”

“They’ve each testified that the surgery was unnecessary and that it was reckless not to transfer before the 5th?”

“I guess so.”

Davis sat down, convinced that the jury saw Herman for what he was.

Pierce asked only one question: “The same panel that found you reckless dismissed all claims against Dr. English for his care of Rosie Malone?”

Herman choked out, “Yes.”

Herman’s face filled with fury. He wasn’t sure who he hated more, Benjamin Davis or Amy Pierce.

Judge Boxer broke for the day.

Sister Carson and Dr. Laura Patel spent Tuesday night at the Davis home preparing the Sister’s testimony. She was to take the stand the next day. She felt stressed, but Laura sat with her, and Davis guided them through the depositions, the plaintiffs’ strategy, and the hospital’s liability as well as the liability of the doctors.

From their conversations, Laura knew that Sister Carson had already read her own deposition six times, though in good conscience, she had charged for only three. She explained to Laura that she had been questioned thoroughly at her deposition in January by the defense team: first by Stevenson, then by McCoy, and finally by Pierce. Davis hadn’t asked her any questions, so the deposition was taken from the defendants’ perspective. Davis explained that there was no need to question her because Sister Carson agreed to testify live at trial.

Although she no longer lived in the house, Sammie stayed the night working on the Plainview cases and drove Laura and Sister Carson to the Hewes County Courthouse. Davis had to go to the office to read and sign documents in an unrelated case before leaving for court.

Laura, Sister Carson, and Sammie were seated in the first row when the lawyers began to arrive. Laura
recognized McCoy, Stevenson, Barnes, and Pierce. She couldn’t forget Stevenson, who pulled out the recorder the day she was suspended from the hospital. She knew Sister Carson’s testimony was damaging to all the defendants, but it was most critical of the hospital.

The courtroom filled up quickly. It must have been very close to nine when Davis and Morty entered the courtroom.

Dr. Herman came in and sat between Barnes and McCoy. As Laura was staring at Dr. Herman, an officer and Dr. English entered the courtroom.

The trial began almost immediately after the judge entered the courtroom. The judge’s clerk swore in Sister Carson, and Morty began with the Sister’s background. She had been a nurse in Vietnam and joined the order in 1965. She held various positions and worked in the Congo. Sister described her rise in the ranks at Saint Francis and her move from nursing into administration. She detailed her duties as president and CEO of Saint Francis, including her dealings with the board and the various medical committees. She was a member of the American College of Hospital Executives, and she was the keynote speaker for the group in 1993.

Laura was proud of her mentor, an amazing woman whose life focused on medicine and God.

Sister Carson then described in detail the role of the Joint Commission on Accreditation of Healthcare Organizations, JCAHO. She made it clear that there were different levels of hospitals, but within each level the standard of care was the same throughout the country. She confirmed that both Plainview and Saint Francis were about the same size, 225 beds, and were at the same level within JCAHO. The Sister testified that
the standard of care at both hospitals was, or should have been, the same.

Morty announced that he offered Sister Carson as an expert witness.

Sister Carson, through Morty’s questioning, described the standard of care at a community hospital such as Plainview and the hospital’s responsibilities in credentialing its medical staff.

She took up the responsibilities of the medical committees and the Executive Committee of the hospital. She emphasized the difficulty of the hospital administrator’s job because the administrator had to be an advocate for the patients, the nursing staff, and the medical staff while also protecting the administration.

Morty asked her to look at her affidavit; it was her résumé. He made that ten-page document the next exhibit. He then asked her to look at the next exhibit, the list of materials she reviewed. The first document was the complaint in the Malone case, which was more than an inch thick. He laid the document on the table where Thomas Malone and the plaintiff’s counsel sat. He identified the next document on the list, asked if the Sister reviewed it, and then placed it on top of the other document. He spent the next ten minutes repeating the process and creating a pile. Within no time, the stack of documents was as thick as two telephone books.

Based on their expressions, Laura could tell that the jurors were intrigued and were paying close attention to Morty’s theatrics.

Stevenson broke in with an objection, arguing repetition.

Morty was prepared for the objection: “May I please address the objection, sir?”

“Of course, Mr. Steine.”

Boxer respected Steine, despite his earlier finding of contempt, and afforded him great deference. He was the type of person who commanded every room he entered. Morty had not taken the lead in the Plainview cases, but his presence was always there. Boxer also obviously recognized his contribution.

Stevenson argued that Mr. Steine had already introduced the list of documents and that he was wasting valuable time reviewing each document with the witness: “It’s highly prejudicial, and any good from identifying these documents is outweighed by the prejudice. It should be excluded in accordance with Rule 4.03.”

Morty countered with the obvious: “In order for the jury to weigh Sister Carson’s testimony, they need to know how extensive her investigation of the records was.”

Boxer agreed and allowed Morty to continue to build his pile. By the time he finished, it was four feet high, and the jury was watching it carefully to see if it would topple over. Morty was quite a showman; he held the jury’s complete attention.

“You’re pretty busy running Saint Francis Hospital. Is that a forty-hour-a-week job?”

“No, sir. I’m on call twenty-four, seven, and I work about sixty hours a week.”

“So, when did you read all this material?”

“Well, these documents have been sent to me over an almost two-year period. As depositions were taken, Mr. Davis would send me a copy. I worked at night and during my free time.”

“Have you been paid for your time?”

“Yes, I have been paid $100 an hour for my time, but I did not charge for every hour.”

“What do you mean?”

“Well, for example, I’ve read my deposition at least six times. I think I charged for only three. That is true of many documents.”

“How much have you been paid in total?”

“I’ve received $11,400, but I donated every cent I was paid to the church. I didn’t agree to testify because of the money.”

“Why did you testify?”

“Because it was the right thing to do.”

The judge decided it was a good time to stop for lunch. Within an hour and fifteen minutes, the Sister was back on the witness stand.

Sister Carson testified that a hospital owed certain obligations to its community and patients, according to the JCAHO manual. For instance, JCAHO required that the hospital secure an informed consent for all tests and surgeries performed at the facility.

“JCAHO requires that the hospital only issue medical privileges to their medical staff for which they are competent, and the hospital must maintain an adequate Quality Assurance Plan to protect the patients.

“I am of the professional opinion that the governing boards of Plainview Community Hospital, its Board of Directors, Board of Trustees, Executive Committee, and the various other committees, breached the standard of care and breached their obligations to patients, including Rosie Malone.”

There was fire in Sister Carson’s eyes as she spoke: “I am of the opinion that Plainview Community Hospital permitted members of its medical staff, Dr.
Herman and Dr. English, to provide substandard medical care as described in the testimony of Dr. Adams and Dr. Swanson. Plainview Hospital did not establish and enforce an adequate quality assurance of its patients.”

Sister Carson testified that she reviewed the credentials of both Dr. Herman and Dr. English and that Plainview Hospital had not followed the standard of care in its credentialing of those physicians.

Sister Carson was critical of Dr. English’s training in laparoscopic surgery: “He only performed surgery on a pig.” She testified, “There was no proctorship. The hospital just let him loose to perform surgery; it was a breach by the hospital of the standard of care.”