A Minor Fall

by Price Ainsworth

  I also expected that at roughly the same point in time, my wife would learn of my infidelities and boot me out of the house. Today, I was a well-dressed, promising young lawyer with a prestigious, downtown Houston law firm. I had a beautiful wife, a lovely home, and eagerly anticipated the birth of my first son. Only I knew that in less than a month I would likely be sitting in my parents’ home in Abilene, out of a job, facing a divorce, and unable to see my child.

  Again, the thought crossed my mind to call my dad and see if he had any suggestion about how to fix this situation. But I knew he wouldn’t have any specific advice regarding the lawsuit, and I imagined that his recommendation regarding Michelle was to follow Dr. Nathan’s admonition. Still, it might be nice just to hear his voice, and it would certainly be good to get the weight of this overwhelming secret off my chest. It had been some relief to talk to the black-haired, freckled-face girl in Tennessee. It had been stressful at the time, but ultimately some relief when I talked to Dr. Nathan. But a confession to Dad wouldn’t be telling Michelle, as I knew I must do; and telling Dad would just get him involved in the problems that were all of my making.

  I wondered what Mom and Dad would be doing on this morning before he went to work. They both would have read the paper by now to see if there were any good garage sales in the area. They both enjoyed rummaging through garage sales and flea markets looking for treasures to complete their collections. Mom would buy quilts and Depression glass. Dad would buy old books. Mom and I always gave him a hard time about how many copies of Hamlet one man could own.

  He also collected what he called “lone wolf” prints. You’ve probably seen versions of the vintage painting called Lone Wolf by the famous Polish painter Alfred Wierusz Kowaski but not paid much attention to them. They have little value beyond their old frames, but it was interesting to compare the prints when Dad hung them on a wall in his study at home.

  Each is a little different, although each depicts scene of a winter evening with a little house in the background. There is always a light in the window and usually a hint of smoke from the chimney. On a snowy hilltop above the house, a lone wolf stands watching the house. The wolf and the house look a little different in each print, according to the rendering of the scene by different artists and various lithographs of the original oil painting. As a kid I assumed that the theme of the scenes was the proverbial wolf at the door—no matter how comfortable the home might appear, a wolf lurked nearby in the darkness.

  One Christmas morning, as he unwrapped a lone wolf print that I had found at an antique store in Lubbock while I was in college, I asked Dad why he collected the pictures. He pulled the wrapping paper away from the frame and studied the print like he had never seen it before. He said, “I’ve always wondered about the wolf. Does he long for the warmth of the house? Does he resent civilization encroaching on his territory? Why is he by himself?”

  I clicked on my computer and googled dove hunting. Several ads popped up for dove hunting trips to exotic locals like Argentina and Columbia. I considered calling Dad and suggesting a trip.

  Before I could call home, I heard the phone ring at Eileen’s desk, and she told me on the speakerphone that Mrs. Henderson was looking for me.

  That afternoon, I found myself in the living room of Mrs. Jean Henderson’s home on River Oaks Boulevard. Going into the house reminded me of going into a bank in Abilene. The building was about the same size, but the grounds at the Henderson home were far more extensive and green. The azaleas were long since out of bloom, but the Asian jasmine that covered the fluted, square columns along the front of the house gave off the heavy sweet scent of summer in Houston.

  I was greeted at the door by a gracious woman who worked for the Hendersons. She escorted me to a room partitioned into several conversational seating areas by groups of silk-covered chairs and couches. She brought me a cup and saucer and poured me a cup of coffee, which I placed on the antique nesting table beside me.

  In a moment, Mrs. Henderson appeared, wearing a flowing caftan and a matching scarf on her head. She looked good except for appearing exhausted, and she hugged me before she sat down on the couch across from me. Her husband appeared from somewhere in the back of the house. He was whistling and issuing commands to a well-groomed Scottie that followed at his heels. I stood to shake Dr. Henderson’s hand.

  “It’s nice to meet you, Mr. Jessie.” Dr. Henderson said with an air of formality. “Jean has told me a great deal about you. All very good, I might add. We appreciated very much your helping her with that car wreck business.”

  “I enjoyed working on the case,” I said.

  “I thought the insurance company would never pay that claim,” Dr. Henderson said. “I suppose that is one area of our practices that is somewhat similar. Both of us probably spend a great deal of our time trying to get insurance companies to do what they had promised to do in the first place.”

  “I suppose you’re right,” I said. “Still, if the insurance companies did what they were supposed to do, I probably wouldn’t have a job.”

  They both laughed.

  “Davy,” Mrs. Henderson said, “I’m afraid I may need your help again.”

  “How can I help?” I asked, and she proceeded to tell me about, of all things, a potential medical malpractice claim that she might pursue. It seems that in 2003 she had been diagnosed with breast cancer. A lumpectomy was performed, and she underwent chemotherapy and radiation therapy. Sometime in 2004, she noticed a thickening at the site of the lumpectomy scar and went to see her oncologist. He was concerned and ordered a biopsy that was read by the pathology group for the clinic where he worked. The path report had indicated that the tissue was cancerous.

  “Well,” Mrs. Henderson said, “having been diagnosed with breast cancer twice in the span of about a year, James and I decided to handle this situation aggressively. I had a double mastectomy . . .” her voice trailed off. It was obviously something that still caused her emotional difficulty. “Remember, this came up during the car wreck trial.”

  “The problem,” Dr. Henderson interjected, “is that when the breast tissue from the mastectomy was analyzed by pathologists, there was no cancer found in the tissue . . . not even in the supposedly diseased breast.”

  “Could the biopsy have removed all of the malignancy?” I asked naïvely.

  “Not likely,” Dr. Henderson said. “I asked the oncologist to have fresh cuts of the biopsy tissue sent to the University of Texas MD Anderson Cancer Center for re-examination. I wish to hell I had done that before Jean’s surgery.”

  He handed me the padded mailer that contained pathology slides and a folded copy of the report from MD Anderson. I unfolded the copy of the report. While I was unable to read the slides myself, the pathologist at MD Anderson in his report identified the suspect cells as being the result of changes in tissue that occur from radiation procedures rather than from a malignancy. Without even being told the patient had undergone radiation therapy, the after-the-fact pathologist had correctly diagnosed the condition, a diagnosis that would have prevented Mrs. Henderson from losing both breasts.

  “I’ve been going round and round with Dr. Valdez, the pathologist who originally misread the slides. I’ve been trying to get him to cover the costs of the surgery and the MD Anderson review.” Dr. Henderson said. “I don’t see why my health insurance should have to pay for this when it wasn’t necessary. But Valdez and his group have quit returning my calls.”

  “This is potentially a serious case, Dr. Henderson,” I said, stuffing the report back in the envelope.

  “I’m sorry you’ve been through this, Mrs. Henderson. You know from having been in the car wreck case, that the case probably won’t be settled without filing suit and preparing for trial. We’ll have to hire a pathologist to review the slides again and write a report. I know that may seem silly to you in light of the MD Anderson report, but under the current medical malpractice statute we’ll need a report that identifies the pathologist’s negli
gence as well as what injury his negligence has caused. We’ll probably also need an oncologist to discuss the likelihood of the recurrence of the disease, as well as your response to being told that the cancer had reappeared.

  “Ten years ago, this would have been a multimillion dollar case. Now, with tort reform, there are limits of $250,000.00 on pain, suffering, and mental anguish damages. There will be significant costs to prosecute the case—hiring the experts, taking depositions, and so forth. My firm would, of course, front those costs. If you are successful, however, the costs are deducted from any recovery you make. All I am saying is that, despite the significance of your injury, after the cap on damages is applied and fees and expenses are deducted from your recovery, you will probably receive far less than what we would agree is adequate compensation for your claim.”

  “I appreciate your candor, Mr. Jessie,” Dr. Henderson said. “You may not believe this, but I actually was one of the few physicians that opposed the constitutional amendment permitting the legislature to cap non-economic damages in medical malpractice cases.

  “I’m an orthopedic surgeon. I treat people injured in accidents every day. If the legislature caps damages in medical malpractice cases today, what is there to keep them from capping damages in car wreck or workplace cases tomorrow? To me the whole idea of setting a limit on what a recovery might be before hearing the evidence in a particular case seems antithetical to justice. Why should a physician get a legislated break on the pain and suffering he causes while a truck driver has to buy enough insurance to foot the whole bill? Hopefully, enough people will learn about how the insurance lobby manipulated the law and we can get it changed, but that’s a conversation for another day.

  “The bottom line is that I don’t care what it costs to prepare this case, and I am even willing to front the costs and still pay you your contingency fee if it will encourage you to get involved in this case. I know that you will need to get those slides to yet another expert to review them. I don’t expect the MD Anderson pathologist will write a damning report that uses the word ‘negligence,’ much less testify against another pathologist here in town. It may be difficult to find any pathologist that will testify against Dr. Valdez and his group. They are pretty well known in this community. They are pretty well known everywhere, for the matter.

  “I encourage you to find the best. I want this pathologist Dr. Valdez sued. I don’t care how respected his group might be. They could have resolved this for just the cost of the medical care, but they won’t even talk to me about it. I want a jury to hear what he did so that maybe he won’t make the same mistake again,” Dr. Henderson said, rising from the couch where he had been seated next to his wife and snapping his fingers to get the Scottie’s attention. The alert little dog followed his owner’s every movement. Dr. Henderson clearly was angry, but he didn’t want me to think that he couldn’t control his anger.

  “And another thing,” he continued while trying to appear calm, “I want you working on this case, and not that blowhard Sullivan. I asked him to handle Jean’s car wreck case, and he assured me that he would. Instead, Sullivan must have decided that you were better qualified to handle that case, so I assume that you are more qualified than he to handle this case.” Dr. Henderson smiled.

  I stood up from the chair, shook hands with them and thanked them for their confidence in me. I assured them I would begin work on their case immediately. I didn’t tell them that, in a few weeks, it would probably be the only case I had.

  “We’re not in any hurry, Mr. Jessie. You take whatever time is necessary,” Dr. Henderson said.

  “You know, I should tell you,” I said, “that there is a possibility I could be changing firms sometime in the near future. Nothing definite.”

  “As far as I’m concerned, the case goes with you, Davy,” Mrs. Henderson said, looking to her husband as he nodded his agreement. “I don’t know what all the legalities of that are, but this is your case,” she said.

  A few days later, Eileen rang my extension to tell me that Sullivan wanted me to meet him at Damian’s for lunch. He was at his usual table in the bar when I got there. Riza sat next to him. They were looking at her laptop computer screen when I walked over and sat down. Without my ordering, a starched waiter brought me a perfect Sea Breeze. I had heard the juicer whirring behind the bar when I walked into the room. Riza closed the laptop and put it aside.

  “Hey, Davy. Glad you could join us. How are things at home?” Sullivan asked.

  “Fine,” I said, “we’re just a couple of weeks away, I guess.”

  “Right,” he said. “It’s a shame the commissioner has scheduled that hearing on the admissibility of the experts on Michelle’s due date. Have the doctors said anything about the baby coming early?”

  I wondered if he was looking for some reason to postpone the hearing. “No,” I said.

  “Good,” he said. “I’ve been thinking about this hearing, and I think you should be the one to argue the matter. After all, you wrote the response. Damn fine work, too.”

  “I would love to argue it,” I said, “but I am worried about whether or not Michelle will understand my being gone at that time.”

  “Don’t you worry about Michelle,” Tim said. “I’ll talk to her. This is a big case. This is a big responsibility for you. I’m sure you can handle it. I’ll send Riza out to help you, if she can. You know what I always say: ‘Illegitimi non carborundum.’”

  Sullivanisms were usually, but not always, delivered in English. Fortunately for those of us whose education had been something other than classic, the Latin was usually followed by an English translation.

  “Don’t let the bastards grind you down.” Sullivan said.

  “Thanks,” I said.

  “Don’t you think you should go out there a couple of days early to meet with our expert and get him ready for his testimony?” Sullivan asked.

  “Where does he live?” asked Riza.

  “In Ohio, but I’m sure he’d meet me again in Lexington,” I said. “Are you sure you don’t want to be there for this hearing, Tim? It’s the first time we’ll have appeared before this special master commissioner.”

  “I’m confident you can handle it,” Tim said. “I’ll check with Peters to make sure you can take the plane over and back. That should shorten the time for you to get back, if Michelle goes into labor. Don’t worry. Her mom and I will be here, and her brother Jonathan is also available.”

  I watched to see if there was any change of Riza’s expression when Tim mentioned Jonathan’s availability. Nothing was noticeable. “Yeah,” I said. “Jonathan has even been with Michelle to a couple of the Lamaze classes that I missed.”

  “Have you got time for lunch?” Tim asked.

  “No, thank you,” I said. “I guess I better start getting ready for the hearing. I’ll take a rain check.” The truth is I had to start thinking about how I was going to tell Michelle that I had to be halfway across the country at the time she was scheduled to deliver our baby.

  Eileen looked up as I walked by her desk towards my office when I got back. “How was lunch?” She asked, probably surprised at my lack of inebriation.

  “Fine, I guess. I didn’t stay to eat. Mr. Sullivan wants me to handle the hearing in Kentucky.”

  “Did y’all talk about your new case?” she asked with the hint of a suggestive smile.

  Immediately, I was worried that she had heard something about the new Henderson case. I wondered if Mrs. Henderson or Dr. Henderson had called and Eileen had heard enough in taking a message to figure out that they were talking to me about a new case.

  “New case?” I asked, trying to see what she knew.

  “Yeah. Did Mr. Sullivan not mention it? What do you guys do at lunch? It looks like you are going to be the firm’s breast lawyer.”

  “Breast lawyer?” I asked, now convinced that both Eileen and Sullivan knew about my signing up the new Henderson case. Immediately I felt guilty about keeping the information about a n
ew case from Sullivan. Of course, he was bound to find out about it, and he would wonder why I had tried to conceal the fact that the Hendersons had called me.

  Eileen looked through a stack of paper on the corner of her desk and removed a manila folder containing a few pages and a disk in a plastic case. “I can’t believe Mr. Sullivan didn’t tell you about this. You are not going to believe the video. Be sure to tell your wife that you are working on a new case if you take it home to watch it.”

  I didn’t know what was on the disk, but I didn’t see how it could have anything to do with Mrs. Henderson. Relieved, I smiled back at her and asked Eileen, “What is it?”

  “Did you know there are video cameras in hospital rooms these days? I sure didn’t. I don’t guess they are in all of the rooms. Anyway, this young, I would say attractive woman is in the hospital having her tonsils out. She is in a recovery area. You know, one of those rooms that is divided into multiple recovery areas by curtains that make a wall around individual patients? The woman is by herself. Maybe her mom had gone to get coffee or something. The young woman is out of it from the surgery. Then a doctor, also young, and I’m guessing he is the surgeon, comes in to check on her. He looks at her chart for a moment, and then walks over to the bed, reaches behind her, unties her gown, and begins to fondle her breasts.”

  “He does what?” I asked.

  “Yeah, he fondles her, but that’s not all. Get this. The doctor then leans over and kisses one breast. Then it looks like he hears something. He quickly pulls the woman’s gown and sheet up and is reading his file when a female nurse comes into the room.”