A Minor Fall

by Price Ainsworth

  When they got home to the Davis’ house, Tamara went to her old room, put on a gown, and got into bed. It wasn’t until that night that they put the disk into a computer and sat down with Mr. Davis to watch what they assumed was going to be a video of Tamara’s tonsillectomy. Shocked and upset by what they saw on the video, Mr. Davis wanted to call Dr. Ammons immediately, but Mrs. Davis calmed him down. Of course, none of them knew that there was a security camera in the recovery room, but they assumed that there wasn’t a camera in the private room in which Tamara had spent the night. Would the doctor have come to that room during the night? Tamara didn’t think so, and she remembered being wakened every few hours by the nurses that came in to check vitals and meds.

  Mrs. Davis thought they should call a lawyer, but they didn’t know a lawyer. Mr. Davis asked his boss about lawyers the next day at work and got Tim Sullivan’s name as a lawyer who had deposed Mr. Davis’ boss in a case a few years ago involving the collapse of a crane.

  “So that is how we got here Mr. Jessie.” Mrs. Davis said. “We thought we were meeting with Tim Sullivan this morning, but basically we just need some advice as to what to do next. Does Tamara have a case?”

  I explained the problem with trying to collect from the doctor and told them that I had some ideas about how we might be able to make the hospital responsible for his actions. I kept to myself the concerns I had about what the damages in this case might be (Tamara was sexually assaulted, but not raped, and she was not conscious of the event when it occurred. Still, a jury, just like the Davis family, might get really mad when it saw the video).

  I had Tamara sign a contingency fee contract and authorizations for me to obtain her medical records. I explained that I would be writing notice of representation letters to the doctor and the hospital, and that I would send Tamara copies. I walked them to the elevator, and, as they got on, I asked if either of them knew personally any of the folks that worked at the hospital. Mrs. Davis answered for both of them when she said, “We don’t know any of those people, and we don’t want to know any of them.” The elevator doors closed, and I went back to my desk.

  I asked Eileen to make two copies of the video, and I spent most of the rest of the day working on my letters to Doctor Ammons and Methodist Hospital. The letter to the doctor was straight forward, about three sentences. I represent Tamara Davis, a former patient of yours. Enclosed is a video of you molesting her. Have your lawyer call me.

  The letter to the hospital was much longer and went on and on about why an institution would have surveillance cameras and nobody monitoring them in a fashion whereby they could respond quickly in a crisis. Obviously, the cameras were there to protect the hospital and not the patients. I made sure the letter was full of righteous indignation and dripping with prejudice.

  20

  THE FOLLOWING DAY, I met Eli and Rod for lunch at the Ragin’ Cajun on Richmond. It seemed like we had not been to lunch together in a long time, and I had forgotten how much fun they were. We dissected the Astros and their playoff chances and made our predictions for another dismal Texans season. We each ate a dozen raw oysters, a cup of gumbo, and a softshell crab po-boy. On television sets in the corners of the room, SportsCenter continued to show the previous night’s highlights.

  They regaled me with stories of a case they were preparing to take to trial the next month; and, though they wouldn’t jinx it by saying so, it sounded to me like they were going to win it. The case had come into the firm as a referral to Peters, and Eli had done most of the work on it. He had asked Rod to try it with him because of the number of witnesses involved, and because Rod was the best among the associates at briefing the thorny legal issues that the case was bound to present.

  I was jealous of the fun they were having working together on the case. Nobody expected them to win. That’s why Peters had given Eli the case. Eli had been careful not to tell Peters how well the depositions had gone out of fear that Peters would take back the case. It involved a man named Fulshear who was shot in his home by the Houston police.

  Apparently there had been a disturbance at the house between Fulshear’s daughter and an old boyfriend. Mr. Fulshear had called the cops. Because of an error in the police dispatch, the police were sent to the home under the impression that an armed assailant was at the house. Some time had passed before the police arrived, and the family had gone to bed. When Mr. Fulshear later heard something in his front yard, he got a handgun out of his nightstand and went to the front door expecting to confront the boyfriend. When he opened the door, the cops saw the gun and opened fire. One bullet had left Mr. Fulshear paralyzed. I thought about what Sullivan always said about the Houston police, “You are never as close to death as when you’ve been stopped by the Houston cops.”

  “Where are the entry wounds?” I asked.

  Eli and Rod smiled at each other and looked around the restaurant to be sure that nobody was listening. “There are multiple entry wounds.” Eli said. “One of them, probably the last one, is through the bottom of our guy’s left foot.”

  “They shot him while he was on the ground?” I asked.

  “Face down in his own home.” Rod said.

  I knew it would be difficult to win the case. There are myriad hurdles in any civil rights cause of action including trying to hold a verdict in the conservative Fifth Circuit on appeal. But the facts were compelling, and I could understand why Eli and Rod were reluctant to tell Peters how well the case was developing.

  We had all ordered bread puddings before they got around to asking me how the Kentucky case was going. I told them that I was certain that we were going to lose it. First, our expert would be struck. Then, a summary judgment would be granted. Sullivan was not even going to attend the hearing on the motion to strike the expert.

  “Why did he ever get the firm involved in that one?” Eli asked.

  “I don’t know,” I said. “I just can’t figure it out. It’s as if he has had nothing to do with the case ever since he assigned me to work on it.”

  “If the cases were winners, they wouldn’t give them to us to handle. We all know that,” Rod said.

  “I guess you’re right, but I thought this was going to be something different,” I said. “I thought this was going to be one of those cases that I would help Sullivan work up, and then he would do all of the important stuff at trial. Maybe I would present a plaintiff or two on direct examination or cross-examine a few corporate employees. Unfortuantely, now I don’t think we’ll ever get to that point.”

  “I just don’t understand why Sullivan would invest so much of the firm’s money in this case,” Eli said. “I even read an article about it the other day in the Wall Street Journal. The article made it sound like the big publicly traded oil companies like Boyd and Exxon and others were watching the case pretty closely to see if there were going to be other radiation contamination cases. There must be other regions in the country where radiation comes to the surface along with the oil when you inject water downhole into the system. What do you call it again?” he asked.

  “The plaintiffs call it TENORM, and the defendants call it NORM,” I said. “Technologically Enhanced Naturally Occurring Radioactive Material. The plaintiffs focus on the ‘technologically enhanced.’ The defendants focus on the ‘naturally occurring.’”

  “Maybe, Sullivan thinks TENORM will be the next asbestos or Fen-Phen,” Rod said. “A lot of asbestos cases were thrown out of court before the Borel v. Fiberboard case over in Beaumont.”

  “Spindletop,” Eli said.

  “Maybe,” I said, “but the way this has worked out, if I lose it, or when I lose it, I won’t have many other cases at the firm to fall back on.”

  “There will always be other cases. Maybe they will give you half of mine,” Eli said.

  “Maybe they will give you all of mine,” Rod said.

  “Do you ever think about quitting?” I asked realizing that I was initiating a conversation that might be viewed by some as bordering on betray
al or treason.

  “I didn’t used to,” Eli said without hesitation. “But, I’m not sure I can do this forever. I guess I’d like to make partner here someday, if only because I think it would look good on my resume. Sometimes though, I think I’d like to start my own firm. Where would I get cases, though? Advertise? I don’t think my wife wants to see me on billboards or on the Fox Channel telling people to call 1-800-WE-B-HURT.”

  “Surely some of the referral lawyers that send cases to Peters & Sullivan would send us cases. They know we’re the lawyers working up the cases for settlement or trial,” I said.

  “Yeah, but they know that Peters and Sullivan are the names on the judicial campaign contribution checks,” Eli responded. “And they know that both Peters and Sullivan have the financial wherewithal to finance a case. Where else could you go to find a firm that will step in and cover a million-dollar tab like the firm did on your Kentucky case?”

  “Maybe there is still some way to work this out to your advantage,” Rod said. “So what if you lose it? If TENORM is the next asbestos, you’ll be one of the few young lawyers in the country that knows anything about it.”

  “Yeah, man,” Eli said, “you could be the Walter Umphrey of oilfield radiation pollution.”

  “I wish I had never heard of TENORM,” I said.

  They continued to try and boost my spirits as we ate. While it might mean that I advanced ahead of them in the partnership race if I somehow resurrected the Carter case, they offered positive suggestions on how to handle the direct examination of my expert, as well as cross-examination of the defendant’s experts. They understood I was in a fight, and they were my friends. They were there to help me if I would just let them. I always enjoyed those lunches with the associates at Peters & Sullivan. And I always learned something from having the opportunity to bounce ideas around with them.

  For instance, it had not occurred to me until lunch that day that Boyd was a publicly traded company.

  Days crept by. I spent most of my time in my office, with the door closed. Ostensibly, I was preparing for the expert witness hearing in Kentucky. I did talk to Mr. Walton a few times on the telephone. I scribbled ideas for a short story about dove hunting in Argentina. I kept the handwritten pages in the breast pocket of my blazer.

  I also called Mr. Whiskers at Brennan’s to get information about betting on the outcome of a local trial. I wanted to know if you had to put the money up front or if you could wait until the verdict came in. He told me that he thought I was good for it, and I bet money I didn’t have on Eli and Rod to win the Fulshear case. I told myself that I could take cash advances on my credit cards if I had to, but I knew there probably wasn’t that much credit left on them. In reality, I was trying to come up with a plan for an acceptable departure from the firm, one that wouldn’t appear to potential referral lawyers that I had been fired for losing a big case or cheating on my wife. I knew I was going to need some seed money if I went out on my own.

  I did get an interesting call one day from an insurance adjustor for the company covering Methodist Hospital.

  The adjustor informed me that there was no court that would hold the hospital liable for Dr. Ammons’ actions, but, out of an abundance of caution, he wanted to see if my client Tamara Davis and I would be willing to participate in a pre-suit mediation. I told him that we would be willing to mediate with the mediator of the hospital’s choosing, but it seemed to me that we could save the cost of the mediation by the hospital offering its liability caps.

  Remember, the legislature had capped intangible damages in a medical malpractice case at just $250,000, and the Texas Supreme Court had made it pretty clear that anything having to do with a doctor or a hospital was a medical malpractice case within the definitions provided by the statute. I didn’t think that sexual assault by a doctor on a patient should come under the purview of the statute, but I had read enough of the cases to think that the court would decide that the case against the hospital qualified for the protection of the statute and the limitation on damages. There was no way to assess what the damages were without doing an expensive focus group study intended to see what a potential jury might award, so I just asked for the max. After a slight pause, the adjustor told me that he would get back to me.

  Michelle’s belly continued to grow, and with each passing day, I struggled with how I would tell her about the herpes.

  I assumed that she would kick me out of the house when I told her. I assumed that her first call would be to her mother, who would immediately call Sullivan. I assumed I would have a broken marriage, no place to live, no job, and no money within minutes of my revealing the facts to Michelle.

  Of course, I had to tell her. My putting it off only made matters worse. I was risking her health, as well as that of our unborn child. I felt some relief because I didn’t think that Dr. Nathan would let the child be delivered vaginally, and he would thereby significantly reduce the health risk to the child. But the C-section delivery would be fraught with its own risks.

  I needed to talk to someone about my predicament. The only psychologists I knew had been expert witnesses in cases I had tried with Sullivan. I worried that they would call him, or that maybe they had some ethical duty to call Michelle when there was a potential risk to Michelle’s health and the health of her baby. And, I didn’t have any confidence in the advice they might give me. The psychologists I knew had not made very good witnesses during trial: their opinions had been expressed more like multiple-choice answers rather than concrete diagnoses. I thought that I needed somebody to tell me what to do, and how to do it, rather than asking me how it all made me feel. I felt like crap. I felt like I was looking through the large end of a megaphone, and the hole of light at the other end was growing smaller and smaller.

  I thought about talking to Eli or Rod. It would be too much to ask, though, that they not mention anything to their wives, and their wives would call Michelle immediately.

  I even thought about trying to talk to Sullivan. He was the only person in the world I knew who regularly dealt with such ridiculous circumstances. He was going to find out everything, eventually. It was not as if he had never had an affair. He already knew that the Kentucky case was headed down the tubes, and he didn’t even seem that upset about it. He just kept holding press conferences about the progress of the case and not really doing anything on the case. But if I told Sullivan, I then risked his telling Michelle before I did. If I was ever going to have a chance of reconciling with Michelle, I had to be the one who told her.

  Talking to Riza would be just like talking to Sullivan.

  I could call Beth, if I could find her. She would at least listen to me without being judgmental. I wondered how her situation had worked out. Was she still married? Did she have a job? Where was she living? Beth would insist that I tell Michelle at once. It was the right thing to do. Whenever I got around to talking to Michelle, however, she would want to know when the last time was that I had been in contact with Beth. It seemed best to put whatever time and distance I could between us—not to pretend that the affair had not happened, or that I had not contracted a sexually transmitted disease, but so that I could honestly say to Michelle that there was no longer anything between Beth and me except having the same virus.

  I considered calling Jonathan. He might even feel that his dad was to blame in part for the situation in which I found myself, but ultimately, he would have to tell his sister Michelle what was happening. Telling Jonathan also risked Michelle finding out from someone else.

  One afternoon in early September, having pondered the situation for hours that day and for days before that, I called my dad. I knew he would be in his office while he was between classes. At 1:05 p.m., he taught Freshman English for fifty minutes. At 3:05, he taught an upper-level Shakespeare course. I expected that, as was his habit after lunch, he would be sitting at his cluttered desk reviewing note cards he had prepared years ago for his Shakespeare lecture, or perhaps grading papers that had been tu
rned in from an earlier class.

  He seemed happy to hear from me. I rarely called him during the day, and when I did, it was usually just to confirm family trips or get-togethers. I could tell he thought that I might be calling to tell him that Michelle had gone into labor a few days early.

  “No,” I said, “the doctor tells us that everything is on schedule. I think Michelle wishes we could hurry up and have this baby. She’s pretty miserable right now.”

  “Yeah,” he said, “I remember how that works. Well, what’s going on, then?”

  “I need to talk to you, Dad,” I said. “I need to talk to somebody, and honestly, I don’t know whom.”

  “You can always talk to me. How can I help?”

  “I’ve got a problem, Dad. A big problem.” I paused, nervously searching for what to say next. “At least, I’ve made it a big problem. I want to tell you about it, but I just don’t know where to start.”

  He could sense that I was wavering on telling him anything about what was going on with me. “What is it, Davy? You didn’t wreck that little BMW convertible that I like so much, did you?” He always said that he wanted to buy my BMW when I got tired of it, although we both knew that he would never admit that he could afford it. The irony, of course, was that he could afford the car after a lifetime of saving while I could not afford it, but thought that I had to have it because I somehow deserved it.

  “No,” I said, “nothing like that. Dad, I just don’t know if I can talk to you about this. It’s really bad. You’re not going to believe how badly I’ve messed things up. You and Mom are going to be very disappointed in me. You’ve always given me everything I’ve ever needed. I don’t know where else to turn. My life is about to become completely unraveled.”