First Do No Harm (Benjamin Davis Book Series, Book 1) (35 page)

The Sister quoted specific sections of the JCAHO manual that the hospital violated. She also quoted specific sections of the hospital’s own bylaws that it violated. She concluded her direct testimony: “I have carefully reviewed all the testimony, and I am of the professional opinion that the hospital’s, Dr. Herman’s, and Dr. English’s treatment of several of their patients was in reckless disregard of the safety of their patients’ lives. If the hospital acted within the standard of care, both Dr. English and Dr. Herman would have been suspended long before poor Rosie Malone was admitted to Plainview Community Hospital on January 29th, 1992.”

Morty sat down, and Grayson Stevenson walked to the podium.

Laura didn’t dislike many people, but everyone she hated was in this courtroom, and Stevenson was among them.

“Sister, does your order know that you’re giving expert testimony in this case?”

“Absolutely, my Mother Superior notarized my expert statement, and as you well know, Dr. English threatened her.”

Pierce was on her feet within two seconds.

Laura knew exactly what happened. Stevenson figured that English’s threat toward the Mother Superior increased Dr. English’s portion of the liability pie, thereby reducing the liability of the hospital.

Stevenson tried to get the witness to testify that her nurses at Saint Francis didn’t practice medicine and followed the doctors’ care plan. The Sister fought back hard and didn’t let Stevenson put words in her mouth.

“I expect my nurses to bring to my attention anything a doctor does that they seriously question. If the treatment is below the standard of care, they’re required to bring it to the doctor first, and if he’s ignoring them, then to me.”

“But these nurses aren’t doctors. They’re not familiar with the appropriate standards.”

“Says who? The standard of care is what a reasonable doctor would do under similar circumstances. They watch doctors treat patients every day. They know what to expect, and if they see substandard care, they better speak up. In fact, Nurse Perry’s job as utilization nurse was to question whether or not the orders of the doctors were appropriate.”

Stevenson shut up and sat down. The witness had gotten the better of him.

Pierce got up next. “You’ve testified that all three defendants were negligent and reckless in their care of Rosie Malone?”

“Yes.”

“You’re not a medical doctor or a surgeon?

“That’s right. I’m a registered nurse and certified hospital administrator.”

“Are you aware that a medical panel of three doctors dismissed all claims against Dr. English for his care and treatment of Rosie Malone?”

“I read the hearing. They did, but they didn’t want to.”

“Move to strike that answer.”

“Stricken,” Boxer proclaimed.

“I need a yes or no?”

Sammie thought that Pierce was being unfair and trying to mislead the jury.
Why am I surprised? Maybe the jury will see through her deception
.

Sammie spent days preparing two of the Malones to testify: Thomas and Lorraine. They were the oldest. Thomas was the court-appointed administrator of the estate, and Lorraine insisted on the transfer. Sammie told her uncle that Lorraine was the stronger witness, so he called Thomas first.

Davis quickly established how Thomas was related to Rosie Malone and how he had been elected administrator as the oldest living child. He testified that after his daddy died, his momma raised them the best she could. He talked about her work at the bakery and the deterioration of her health that forced her to retire.

Plainview was a small town, and most of the residents knew most of the Malone clan. But this was Hewes City, so Thomas’s testimony was new to the jurors.

Sammie went shopping with Thomas and helped him pick out his blue blazer. But Davis and Morty agreed: no tie. Thomas would have looked out of place with a tie.

He was a mechanic and had to take off a lot of work to be the administrator, including two weeks for this trial. “Someone in the family had to step up. I’m the oldest. It was my responsibility to do it.”

Davis went through all of Rosie Malone’s medical problems up to February 1992.

“I thought she was in good hands with Dr. Herman. It was my sister, Lorraine, who made Momma go to see the specialist in Nashville.”

“Dr. Sizemore?”

“Yes, sir, he was a stomach doctor.”

“Was your mother addicted to narcotics?”

“I don’t know if she was addicted, but she liked her pills. She was in a lot of pain, and they made her feel better.”

“In February, did you visit your mother at Plainview Community Hospital when she had her gallbladder out?”

“Not until after the surgery, when her temperature was high. Lorraine called me and told me the surgery didn’t go well and that Momma was real sick.”

“Did you talk to either Dr. English or Dr. Herman after her surgery?”

“I’ve never met Dr. English. I was standing there when Lorraine begged Dr. Herman to transfer Momma to Nashville. Dr. Herman told her that he had everything under control and that Momma shouldn’t be moved.”

“Did you believe him?”

“Yes, sir. I’m no doctor. If you need someone to work on your Chevy truck, I’m your man. But I don’t know anything about medicine. He’d been her doctor for years. I know Momma trusted him.”

“If the jury awards your family money, what will you do with it?”

“We’d split it into two parts. The first part we’d divide up eleven ways. Momma had eleven kids, but
Melvin’s dead. We’d give his share to his two kids, Bubba and Kimberly. The other half we’d put in some kind of trust for the education of all the grandkids and great-grandkids. Momma would’ve liked them to get educated.”

“What would you do with your share?”

“First thing I’d do is put an angel headstone on Momma’s grave. Depending how much there was, second, I might put a down payment on a house in Plainview with a few acres.”

Sammie thought that he gave a good, honest answer. A juror could identify with it. The education trust was Lorraine’s idea, and it was a good use of the money.

McCoy crossed first. “You say that your mother trusted Dr. Herman. If she had lived, do you think she would have sued him?”

“Momma didn’t believe in lawsuits—”

“But you obviously believe in them, right?” McCoy interrupted.

“It was a family decision. Lorraine convinced my brothers and sisters that it was the right—”

“So Lorraine Burke, your sister, is behind this lawsuit?”

Sammie didn’t think McCoy was giving Thomas time to answer, and she wished her uncle would object.

“She’s a teacher. She understands more than the rest of us about—”

Davis rose and said, “He’s not letting the witness answer the questions.”

“Stop cutting off his answers, Mr. McCoy.”

McCoy straightened his lavender bow tie and moved on. “Your mother was a smoker for forty years, right?”

“Yes, sir.”

“She was prescribed narcotics for pain?”

“Yes, sir.”

“She was so addicted that Dr. Herman gave her fake drugs, placebos, some of the time?”

“I learned that during the trial. I didn’t know that.”

“You didn’t know your mother was a drug addict, did you?”

“Momma wasn’t a drug addict!” Thomas was about to lose it.

McCoy could smell blood in the water. “What do you call someone who takes narcotics twice a day?”

“I’m no doctor.”

“You’re not much of a son either. You didn’t visit your mother in the hospital until you thought she was dying?”

Davis jumped up and yelled, “Argumentative!”

Thomas got up and started for McCoy.

Sherriff Dudley rushed forward and placed himself between Thomas and McCoy. Davis also rushed forward.

McCoy in a low voice said snidely, “I have no further questions for this witness.”

Pierce and Stevenson passed because they couldn’t achieve a better stopping point. Her uncle also passed. Thomas was too upset to continue.

Sammie thought,
Thomas was a good witness until his outburst. He lost control, and that won’t sit well with the jury
.

After lunch, Davis called Lorraine to the stand. She was dressed in her Sunday best, and she didn’t appear nervous at all. She had taught American history to tenth
graders for the last twenty-two years. She was the only Malone child with a college degree.

She talked about her mother’s health and the fact that she tried to get her to stop smoking. She blamed Dr. Herman for her drug use. “She had never used anything stronger than an aspirin until he came to town.”

Sammie grinned at that answer.

Lorraine testified that in the summer of 1991, she convinced her mother to see Dr. Sizemore, a specialist in Nashville. It wasn’t that she didn’t trust Dr. Herman. She just thought a specialist should see her mother.

“But Momma was very loyal to Dr. Herman, so after only three visits to Dr. Sizemore, she insisted on being treated by Dr. Herman.”

Davis went through the Malone records until he got to the January 31st gallbladder surgery.

“Dr. Herman showed me the ultrasound and where the stones were. He lied to me. He lied to my mother. He wanted her to have the surgery so he could make money.”

McCoy objected, “Calls for speculation. She couldn’t possibly know what Dr. Herman was thinking.”

Boxer sustained the objection, so Davis asked, “You know the board found that the surgery was unnecessary?”

“Yes, that’s the same surgery that killed her.”

McCoy objected, “Calls for a medical conclusion.”

“Overruled, there’s been no other explanation, other than Dr. English’s suggestion of spontaneous combustion.”

McCoy tried the same tactic with Lorraine, but she wouldn’t lose her cool. “You’re about the money, aren’t you?”

“We’ve sued for money, but I want your client put out of business. I don’t want him hurting or killing anybody else.”

“So you’re about money
and
revenge?”

“Dr. Herman deserves whatever this jury dishes out to him. I’ll be happy with their verdict. I’m confident they’ll be fair.”

Sammie was very pleased with Lorraine’s last answer and her testimony as a whole. Obviously so was her uncle. After McCoy sat down, Davis closed his proof.

Boxer said, “Let’s quit a little early today. Tomorrow, the defendants will begin their proof.”

He addressed the jury: “Remember, the defendants haven’t yet had their turn, so don’t predetermine the case. Go back to the motel and have a good dinner, and we’ll see what the defendants have to say in the morning.”

The plaintiff’s proof lasted eight full trial days. All of the proof was damaging to Dr. English, Dr. Herman, or the hospital. Pierce appreciated that a lawsuit was like a boxing match. It lasted ten rounds, and throughout the fight, each boxer threw punches, some of which landed while others missed. At the end of each round, the judges determined the round’s winner. Whichever fighter won more rounds won the fight, unless there was a knockout. The key was to be standing at the end of the trial. Dr. Herman and Dr. English were standing, but just barely, and they lost every round but one.

Every lawsuit was divided into two distinct parts: liability and damages. The plaintiff proved negligence by more than the required preponderance of the evidence. Pierce anticipated that compensatory damages would be awarded; the purpose of her opening statement was to limit that amount. The unanswered question remained: Had Davis and Steine proved recklessness by clear and convincing evidence? Boxer, through his rulings, placed serious obstacles in their path. Pierce believed that they failed and that no punitive damages would be awarded.

Pierce was the only defense attorney who saved her opening statement until after the plaintiff’s proof. She
stood, walked to the podium, and started, “Ladies and gentlemen, this is my opportunity as Dr. English’s attorney to tell you what the proof will show in this case. I elected to wait until after the plaintiff closed his proof so that I could deliver my opening statement, which reflects on the proof rather than on speculation, as Mr. Davis did at the beginning of this trial.”

She paused to let the concept sink in. She continued, “It is a fact that Rosie Malone, prior to any treatment by my client Dr. English, was a sick woman. Before February 1992, she was hospitalized at Plainview Hospital three times for life-threatening heath issues. She had a heart attack, COPD, and several other debilitating health problems. She had to retire from the bakery. At the time of her death, she had no income and was on Medicare. The plaintiff has not proved significant damages in this case, only minimal out-of-pocket expenses. Any compensatory damage award is a windfall to the Malone family.”

She was about to attack Rosie Malone’s character. It was easier because Mrs. Malone wasn’t present to defend herself. An attack on an injured person, sitting between Davis and Steine, would have been more difficult.

“Rosie Malone was self-destructive. She smoked two packs of Camels each day for more than forty years. She wasn’t even trying to cut back or even use a filtered cigarette. She even smoked after Dr. Herman insisted she quit smoking by prescribing nicotine patches. She used the patches and continued to smoke. Do you realize how dangerous it is to smoke and wear those patches? The combined use multiplies the dose of
nicotine and exponentially increases the risks of stroke and heart attack.”

Pierce was aware that three jurors were smokers. That question had been asked during jury selection. She needed to distinguish those jurors from her criticism of Mrs. Malone: “Smoking is a life-threatening addiction. We are all human, and to forgive is divine. But Rosie Malone had an even deeper secret that I am confident you will recognize as a part of her destructive behavior. She was a drug seeker and drug abuser. She had no tolerance for pain and a high tolerance for painkillers. Her pain was more in her mind than actual physical pain and suffering. Drugs made her feel better. Dr. Herman recognized her addiction and gave her fake narcotics, placebos, and they worked. She took the fake drugs and felt better.