First Do No Harm (Benjamin Davis Book Series, Book 1) (8 page)

“Ladies and gentlemen, I only took the Bar exam once,” said Davis. “Each time I walk into court, I represent that I am qualified to practice law. It was the hospital’s job to question and investigate Dr. Herman and Dr. English before it let them loose on this community. You and your families are the victims. Greed, rather than good medicine, controlled your care. That’s the truth.”

Sammie noticed the Indian woman in the back row smile in response to Davis’s last remark.

“Mr. Littleton and I are here to offer you an opportunity to set things right. You may or may not have a valid lawsuit. That question can only be answered after a qualified doctor reviews your medical records. At no expense to you, we are willing to investigate. If you or a family member was damaged by sub-standard care, you are entitled to be compensated under the law. My assistant has a legal pad at the circulation desk. If you are interested in having your medical records reviewed, please give her your name and contact information. One of my paralegals will be calling you. Thank you again for coming here this evening.” Then Davis sat down.

The room filled with angry voices. The meeting lasted less than thirty minutes, but Sammie could feel the tension in the room. Her uncle and Littleton had raised the awareness of these confused and desperate people. A line of people formed next to the circulation desk, where Bella was waiting.

Sammie approached the Indian woman. “Dr. Patel?” Sammie shook hands with the doctor, and after a brief conversation, she joined Bella to help record contact information.

They ended up with twenty-six names. The first three were Thomas Malone, Wendy Jones, and Edith Easter.

The Davis family was running about an hour late. Davis knew that Morty had already gone through his tackle box in anticipation of an afternoon of fishing, drinking beer, smoking cigars, and bullshitting. As usual, Morty would make his ham and cheese sandwiches with spicy German mustard. The two had been fishing together since 1975, and Morty always made the same type of sandwich and made the same bad joke about “two Jews eating ham in a row boat.”

This time Davis brought along Liza, their children, and Sammie. Bringing the family was an extra bonus. The whole family loved Morty, and he got a kick out of being with the children. They were the grandchildren he never had. Davis wanted Jake to learn how to fish with him and Morty. Liza, Sammie, and Caroline would play Frisbee and have a picnic lunch while they waited for the main course of the evening’s catfish dinner to be caught by the men. After they pulled into Morty’s driveway, Ben sent the three females to the pond in one of the golf carts so they could set up their picnic lunch.

Since Goldie’s death from cancer on July 4th, Morty had been living like a recluse, never leaving his farm, Squeeze Bottom. He had aged in the last month and now looked used up. Davis invited the old man to his
house for a home-cooked meal at least a couple times each week, but he politely refused.

On May 8th, Morty retired completely in order to spend more time with Goldie. He hoped that they would share more than a few weeks together, but God had other plans.

The younger man tried to stay in touch via the telephone. However, his family and a busy law practice preoccupied him. He tried to go fishing with Morty as often as possible because he knew that those trips were the highlights of Morty’s weeks.

Davis and Jake walked in the house without knocking; Davis had been there more than a hundred times. “Sorry we’re late. Let’s not keep those catfish waiting.”

Morty’s grandfather Abe had purchased Squeeze Bottom, a house and 288 acres, in 1914. Despite its age, the main house appeared almost new due to a fresh paint job.

As they left the house, Davis held the screen door open and took the fishing rods and tackle box from his older friend’s hands. It was a glorious day. The sun was shining, the sky was dotted with cotton ball–looking clouds, and the birds were singing.

The trio stepped into the other golf cart parked in the circular gravel driveway, and Jake drove, sitting on Davis’s lap, to Dear’s Pond, which had been named in honor of Morty’s mother, Deidra. Morty took great pride in his private fishing hole.

As Davis and Jake unloaded the gear, Morty took a seat on his usual stump and began peppering Davis with questions. “How’s the practice since I left? How’s my girl Bella doing? How’s Sammie working out? Is she
as smart as you thought she’d be?”

Davis laughed. “Everybody’s doing fine. You know Bella is the one who keeps things moving along and on track. Sammie’s got some skills. She can work the computer and she knows how to research, but she’s raw and inexperienced. She also has an annoying habit of listening to music while wearing headphones. It’s very unprofessional.”

“Don’t sell her short just because you’re related by blood. Give her a chance. She’s smart. She needs to be taught,” Morty reminded him. “And with hard work and guidance, she could be a real asset.”

Morty baited Jake’s rod while the five-year-old squirmed almost as much as the worm on the hook. Jake asked Morty if the worm felt any pain. The old man looked grandfatherly, lied, and assured the child that the worm was more than happy to cooperate so they could catch a catfish dinner.

After Jake was settled down in the small bass boat, waiting for his first fish, Davis explained to Morty how hectic things had been. “You know how busy it can get. There aren’t enough hours in the day.”

He could tell that his old friend missed the excitement of the practice of law. Davis worked his way into the primary purpose of his visit. “I took those medical malpractice cases Littleton referred out of Plains County. It’s ten cases, and I’m a little overwhelmed by the thought of drafting ten separate complaints.”

Davis took the oars and repositioned the boat about twenty feet from the shore.

Morty baited his hook and cast his line with authority. “That shouldn’t be too difficult. The cases
involve the same three defendants and revolve around almost identical negligent acts. You’ll draft a template and then vary the document to fit the particular facts of each case.”

Davis cast his line and pretended to concentrate on his floater, but in reality he was listening intently to the old man.

“In each case you’ll have to at least prove negligence. Recklessness will be a harder sell to a jury. You’ll have to establish recklessness by clear and convincing evidence rather than by a mere preponderance of the evidence. I don’t know that you can prove that these doctors and the hospital disregarded the consequences of their actions.” Morty stopped talking a minute to light his cigar with his gold Dunhill lighter, which Davis always admired. It was a gift from Willie Nelson.

Davis had reached the same conclusion about the probability of a jury verdict of recklessness and an award of punitive damages.

“If the court allows you to introduce evidence of a pattern of either negligence or recklessness, the hospital can be held liable.” Morty dropped an ash from his cigar in the lake and continued, “Another issue that you’ll have to address is that Tennessee Mutual will insure at least one of those doctors. You can forget about retaining a Tennessee expert witness.” Morty shook his head. “I think you’re making a big mistake. These cases will preoccupy you and take away from the rest of your practice. You’ll also dump a ton of money in these cases. You should just let Littleton keep the cases and drown on his own.”

Morty stopped to respond to his bending pole, but
despite being an experienced fisherman, he over-corrected and lost the fish. Jake was so disappointed.

Morty sighed and turned to Davis. “When was the last time you were in Plains County?”

“Last month.”

“And before that?”

Davis thought a few moments. “Never.”

“Bingo. You’re trying these cases in Plains County, the defendants’ backyard, and you’re a New York Jew.”

Davis had to agree with Morty. He made a good practical point.

Morty continued, “That hospital is the largest employer in the county. How are you going to get an impartial jury? Do you know how difficult it is to change venue in a civil case? During my forty years I changed venue a half dozen times in criminal cases, but I never changed venue in a civil case. In a criminal case you can always argue to the court in a rape or murder trial that the county jury pool is too prejudiced. In those cases, it’s one of their own raped or murdered. But in a malpractice case, you’ll need at least three affidavits from disinterested persons. You couldn’t even get one of the local barbers to give an affidavit. Everyone knows everyone else in these small towns, and nobody’s disinterested. You can’t get a fair trial in Plains County.

“You also better start thinking about who you’re going to get as local co-counsel to help you pick the jury. You’ll need someone with good connections with the judge. Jack Barnes is the man for the job. I’d give him a call right away and get him on your team. He’s an experienced trial lawyer who knows his people. Give him a piece of the action. Better yet, give him Littleton’s piece of the action. Is Judge Robert E. Lee Boxer still on
the bench in Plains County?”

Davis hung his head and looked despondent.

“What’s wrong?”

“I waited too long.”

“What do you mean?”

“I wanted to retain Barnes in June, right after the meeting at the library. I knew we’d need his local political pull with the judge and his experience for the jury selection. Littleton talked me into waiting. He was convinced there’d be a quick settlement. He didn’t want to give up a percentage of the fee to Barnes. While we waited, Dr. Herman hired Barnes as his personal lawyer.”

“Lesson number one, don’t listen to Littleton. He’s an idiot.”

Davis nodded and told Morty that Boxer had two years left on his term and served three county circuits: Plains, Hewes, and Briar. He had been on the bench almost six years, and he was only in his late thirties. Davis had never appeared in front of Judge Boxer before. Davis didn’t get to Plains, Hewes, or Briar often. His practice was primarily in Nashville, Davidson County. He knew to keep his New York Jew ass in Nashville and hire a lawyer when he went to adjacent rural counties.

Morty emphasized the point: “I knew Boxer’s Uncle John pretty well. He was a great judge and held his bench for three terms, twenty-four years. He was scholarly and always prepared. John wouldn’t let a lawyer get away with anything. If a lawyer was avoiding a question with a witness, John would ask that question for the lawyer. I hated when he did that. I’ve been before his nephew. To his friends, he’s Bobby Lee.
But you’ll be calling him Judge Boxer. Bobby Lee’s half the man that his uncle was, but that just makes him your average county judge, more politician than scholar.”

Both Morty and Davis understood courtroom politics. Morty was usually the beneficiary of such political favoritism.

“I know how you can get Boxer to move these cases. As a circuit judge, he presides in three county seats. The cases must be filed in Plains County because the alleged negligence and acts of malpractice occurred in Plainview. So you file there, but then move for a change of venue to Hewes County. I predict it will probably be granted.”

Davis looked at Morty with astonishment.

Morty had more to share: “These ten cases are going to tax any county court system. This is going to be a handful for any judge. Each trial will last at least two weeks, with endless motions and required court appearances. The entire process, if all ten cases are tried, will last at least five years, won’t it?”

“Absolutely.”

“So, if you were the judge faced with these cases and all this extra work, would you want to travel ninety minutes, forty-five each way, to court to preside over these trials? Or would you prefer to roll out of bed and walk to your courtroom? What does human nature tell you? And where do you think Judge Boxer lives?”

Davis smiled and said, “Hewes City, the seat of Hewes County.”

Davis’s tone turned serious. “Morty, I need your help. These Plainview cases are overwhelming. I’m ignoring my other clients.”

Before Davis could even ask the question, Morty reached his hand across the boat to shake Davis’s hand
and said, “Give me a dollar, Ben.”

Davis reached for his wallet and pulled out a one-dollar bill. He handed it to Morty.

Morty put the dollar in his pocket and said, “Say hello to your new senior associate. I want to mentor Sammie, and unlike when I taught you, I’ll have the time to do it right.”

“I don’t think you did such a bad job.”

“There’s always room for improvement,” Morty said with a grin.

Davis was forced to give Jake a dollar too and agreed he could be his new “junior associate.”

The disappointed fishermen decided to call it a day, and Davis rowed them to the bank. They rarely ended their outing without bringing in at least a couple of good-sized fish. Jake was the most disappointed of all.

Looking confused, Caroline met them and asked, “Dad, where are the fish?”

He replied, “Well, Morty decided he wanted to take us to the Loveless Café for supper tonight. What do you think?”

Excited, she ran to tell her mother and Sammie.

At the café about an hour later, the family had their favorite dishes, including the house specialty: fried chicken, biscuits, and jam. They talked about everyday family things, not a word about law or legal cases. Jake told silly jokes that kept everyone laughing. It had been a good family day for all of them.

Davis decided to wait to tell Liza and Sammie the good news about his “new” senior and junior associates until they got in the car for the ride home. He knew they would be pleased; he certainly was.

Laura arrived at Davis’s office ten minutes early. She had made arrangements for him to contact her mentor, Sister Leslie Carson. Davis was to place a conference call and interview Sister Carson as a potential expert witness. Sister Carson’s testimony would criticize the hospital’s credentialing of Herman and English. She would also speak to the failure of the Plainview committee system to stop the repeated acts of malpractice by Herman and English.