by Randy Singer
Charles heard one of the jurors snicker. That’s okay; let the doctor have a little fun.
“I’ll tell you what,” Charles said. “We’ll come back to that answer. Okay?”
“Suit yourself.”
Charles then moved out from behind his counsel table, holding a copy of Joshua’s medical chart in his hand. “When Joshua Hammond first presented to the emergency room, is it your testimony that he was in extremis and that time was of the essence?”
“Yes.”
“With a burst appendix, delays in treatment of a few days count, don’t they?”
“Absolutely.”
“In fact, hours count. Yes?”
“Of course.”
“Minutes count too, don’t they, Doctor?”
“Every delay matters, especially if a mother waits six days to bring a child in to see us.”
Now it’s six days, Charles noticed. He handed the hospital chart to the doctor.
“Is this a true and accurate copy of the medical records from Tidewater General Hospital pertaining to the care of Joshua Hammond?”
Armistead leafed through the pages. “Appears to be.”
“I’d like to introduce this as Defense Exhibit 1,” Charles said.
Since the Barracuda had no objection, the thick package of papers was marked by the court reporter and handed back to Charles.
“Now tell me,” Charles said, “how much time elapsed from the minute that Joshua Hammond presented to the emergency room to the minute he was first seen by a doctor of any kind?”
Armistead frowned and looked through the chart. “Twenty-six minutes. But remember, he’d been seen by a physician’s assistant during this time.”
“Can a physician’s assistant prescribe medicine?”
“No.”
“Can a physician’s assistant diagnose an illness?”
“Not officially, no.”
“Can a physician’s assistant send someone to surgery?”
“No.”
Charles paused, sure the jury had gotten the point. “So tell me again, Doctor. How long was it before Joshua Hammond was seen by any kind of doctor?”
“Twenty-six minutes,” Armistead said, his voice heavy with disgust.
“And how long before he was actually taken in for surgery?”
“About ninety minutes,” the doctor replied. “But during most of that time, we were trying to resuscitate him, to get him ready for surgery.”
“In other words, you were feeding him and providing nutrition through some IV tubes, is that right?”
“Essentially, that’s correct. We were monitoring him, providing nutrition and hyperalimentation.”
“And all of those things could have been done in an ambulance, correct?”
The Barracuda apparently saw where this was heading and stood. “Objection, Judge. This is a lot of hypothetical talk about what could have been done. I think Mr. Arnold ought to stick to the facts.”
“Give me a minute,” Charles said. “I think it will soon be clear why this is relevant.”
“All right,” Silverman said, “but let’s link it up quickly.”
“How long does it take to transfer a patient to Norfolk Children’s Hospital?”
“About thirty minutes.”
“And would you agree that Norfolk Children’s Hospital has highly trained specialists in pediatric medicine, including a specialized pediatric intensive care unit?”
Charles watched Armistead’s eyes dart back and forth. He hoped Armistead would try to dispute the superiority of Norfolk Children’s. Nikki had lined up two specialists to testify if he tried that tactic.
“Most believe,” Armistead said, choosing his words carefully, “that Norfolk Children’s Hospital has a level of care not available at less- specialized hospitals like Tidewater General. But, Mr. Arnold, I did not have the luxury of sitting back and nitpicking this decision. I had to use my best medical judgment on the spur of the moment, and that judgment told me that Joshua would not survive a transfer.”
“He didn’t survive staying at Tidewater General, either, did he?”
“Objection!” the Barracuda shouted. “That’s argumentative.”
“I’ll withdraw the question.” Charles shrugged. “I think it’s rather obvious anyway.”
Charles walked back to his counsel table and selected some more documents. The pause in the action served to refocus the jury.
“One of those two malpractice cases that you settled involved the death of another small child from a blood disorder, correct?” Charles began pacing in front of the witness box.
“Yes. When the child first presented, she had symptoms of otitis media and was discharged with appropriate follow-up instructions.”
“No blood tests were done on the first visit; there was no referral to a hematology specialist at Norfolk Children’s Hospital and no immediate transfer to Norfolk Children’s when the child came back four days later in acute septic shock, correct?” Charles had been ticking the points off on his fingers. He watched the muscles tighten in Armistead’s face.
“Another case of lawyers second-guessing doctors,” Armistead replied, his mouth taut. “It was cheaper to settle than defend it.”
“Have you got something against sending children to Norfolk Children’s Hospital for specialized help? Is there some grudge you’re holding against that place?”
Armistead looked at the Barracuda, probably wondering why she wasn’t objecting. “No,” he said. “That’s ridiculous.”
“My mistake,” Charles said. “I thought Norfolk Children’s was the hospital that turned you down—I mean, flat said no to your application for a residency position. In fact, I heard they turned you down twice.”
Armistead dropped the chart in his hand. It fell against the handrail in front of him. “What is this? Am I on trial here?”
“No,” Charles replied quickly, even as the Barracuda came out of her seat, “but maybe you should be.”
“Objection! Move that Mr. Arnold’s remarks be struck from the record!” The Barracuda’s face was dark red.
Silverman banged his gavel. “Order!” He stared at Charles from under his huge gray eyebrows. “Mr. Arnold, I will not tolerate those types of satirical comments from counsel.” He then turned to the jury. “Please disregard that last comment by Mr. Arnold. It is not evidence and has no relevance in this case.”
“Thank you, Your Honor,” Crawford said as she returned to her seat.
Armistead glared at Charles. He leaned back in his chair, arms crossed, a scowl on his face. Charles pretended not to notice and started shuffling through some papers, letting the silence linger until Armistead could stand it no longer.
“Those two malpractice cases have nothing to do with this case, and they’re both more than two years old,” Armistead insisted. “I can’t believe you’re even bringing them up.”
Charles looked up from his papers and smiled. “I’m sorry,” he said. “Did I ask a question about how old those cases were?”
“Objection. He’s badgering the witness.”
Charles just spread his palms and looked at Silverman.
“Let’s get back to the examination,” the judge suggested.
“You never answered the question I did ask,” Charles insisted. “Were you or were you not twice rejected by Norfolk Children’s Hospital for a spot in their residency program?”
For a full five seconds, Armistead just glared at Charles, his jaw clenched, breathing hard through his nose. A searing silence engulfed the courtroom, and some jurors shifted nervously in their seats.
“Yes, I was.”
Charles walked deliberately across the well of the courtroom and leaned against the rail in front of the jury box. The eyes of Armistead followed him warily. Charles didn’t usually put his back to the jury, but for these questions, it was critical that the jury see the look in Armistead’s eyes.
“Look through those medical records,” Charles suggested, “and show m
e where it says that Theresa Hammond waited six days, as opposed to three days, to get medical treatment.”
Armistead didn’t even glance at the documents. “It’s not in there. As I already testified, your client lied to us at first and told us it had been three days. That information got into the medical records. Later, she confessed to me personally that it had actually been five or six days. Because Joshua was already dead, there was no reason to put that fact in the records.”
“So it’s just your word against hers? There’s no proof in the records?”
“Are you calling me a liar?” Armistead asked.
“I’m not just calling you a liar,” Charles said. “I’m getting ready to prove it.”
“Objection.”
“Sustained.”
“What,” Charles gruffly asked, “is the Virginia Insurance Reciprocal Company?”
He watched Armistead swallow, the doctor’s Adam’s apple bobbing up and down. He knew the jury saw it too. There was a long pause.
“I believe it’s a medical malpractice insurance company,” Armistead said.
“You believe?” Charles repeated. “You believe?”
Charles walked all the way over to his counsel table and picked up two sheets of paper from Nikki. The pages were just copies of some old class notes, but Charles treated them like they contained enormous secrets. He asked the next question while looking at the documents, as if he were reading them.
“Now, keeping in mind our ability to subpoena bank documents and documents from your home study if we need to, I want to ask you a very important question. Is it true, Dr. Armistead, that as recently as two weeks ago, you paid the Virginia Insurance Reciprocal a total of four hundred thousand dollars for a purpose that you described in a handwritten notation on the transfer receipts as settlement of a medical malpractice case?”
Armistead stared at the Barracuda while his Adam’s apple bobbed some more. Charles didn’t believe the money was actually used to pay off a malpractice claim, but he also knew that Armistead had gone to great pains to make it look like it had. Now Armistead was stuck with his own lie, which was aired out in court for everyone to see.
“It was a confidential settlement of a malpractice case,” Armistead said slowly.
“Who was the person making the claim?” Charles asked.
“I’m not at liberty to say,” Armistead replied. “That’s why I didn’t mention it earlier.”
“That’s interesting,” Charles said. “I thought all of your malpractice cases were settled confidentially.”
Charles looked at the Barracuda, who was now vigorously taking notes, unable to look at Armistead or the jury. She shook her head back and forth—tsk, tsk, tsk,—as if signaling to the jury that this information was news to her as well.
“Would you care to restate your testimony and tell the jury the truth about how many malpractice cases you’ve settled?” Charles asked.
“Three,” Armistead said.
“Including or excluding the malpractice you committed on Joshua Hammond?”
This got the Barracuda’s attention. “Objection!” she barked, as all of her pent-up frustrations came to the surface in one word.
“Withdrawn,” Charles said. “I think I’m done with this witness.”
Charles sat down, and Nikki patted him on the leg.
“Not bad for a street preacher,” she said.
60
AFTER THE BREAK, the Barracuda decided to end the day’s testimony with the one piece of evidence that could not be cross-examined by Charles Arnold.
“Both sides have stipulated that this prayer journal of Theresa Hammond is authentic and admissible,” the Barracuda announced. “I’d like to introduce it into evidence and read excerpts from the two entries critical to this case.”
“Any objection?” Silverman looked at Charles.
“No, Your Honor,” Charles replied, trying to look uninterested.
“Okay,” Crawford said. She walked to the front of the jury box. “The journal does not contain entries for every day. But there are two entries that fall into the time frame of Joshua’s illness. The first is dated June 1, two days before Joshua died.”
There was stillness in the jury box as they anticipated the thoughts and prayers of a mother who had watched her baby die. The Barracuda must have sensed it too and took her time finding the page.
“Here’s the entry: I have never seen Joshie so sick. God, why are You punishing him? I have prayed, Thomas has prayed, and Tiger and Stinky have offered the innocent prayers of children. Why won’t You heal him, God? Why does the temperature just increase, his pain just get worse? What could he possibly have done to deserve this? What have I done? God, I can’t hold out much longer. Please heal him and don’t let him die. I will dedicate him to Your service forever.’”
Crawford looked at the quizzical faces of the jurors. The entry seemed to hurt the prosecution’s case. It seemed to present Theresa in a sympathetic light—the suffering mother. But the Barracuda was not done.
“The next day, June 2, the day before Joshua was taken to the hospital, the entry reads as follows: ‘Josh was burning up all night and so sick this morning that he became almost lifeless. God, I fear that if I don’t get him immediate help, he will die. But I have spent hours in prayer, by myself and with Thomas and Reverend Beckham. I will trust You, God, and You alone, for healing. I will not trust man or seek man’s medical help. Though You slay him, God, I will trust You. Today You have given me the spiritual strength to see this through to the end, whatever that might be.’”
As the Barracuda finished reading the journal, Thomas Hammond stared stoically ahead with his hands folded on the table in front of him, just as Nikki had told him to do. Next to him, Theresa stared at Crawford, tears rolling silently down her cheeks.
The Barracuda closed the journal and cleared her throat. “That entry was made at 10:00 a.m. on the fifth day. For more than thirty-six hours, Mrs. Hammond refused to seek medical help for her deathly sick son—”
“Objection,” Charles said. “I stipulated she could read the diary, not give a speech.”
“Sustained,” Silverman said.
The Barracuda looked each of the jurors in the eye, then tucked the beloved journal under her arm and returned to her seat. “I’d like to introduce this as our next exhibit,” she said.
“No objection,” Charles said. He tried to sound unconcerned. Yet he couldn’t help but notice a few of the mothers on the jury glaring at Theresa Hammond.
61
AFTER THE FIRST DAY OF TESTIMONY, Charles, Nikki, Thomas, and Theresa huddled in the same small, windowless conference room that they had used for the preliminary hearing. The deputy sheriff s had given Thomas an extra half hour before he would be returned to the general inmate population. Charles noticed that Theresa had not said a word in the last five minutes. Her hollow eyes stared lifelessly ahead, reflecting a wound that might never heal. Nikki was busy giving the team a pep talk and singing Charles’s praises, much to his great embarrassment.
Thomas seemed to be only half-listening to Nikki and took advantage of the first pregnant pause in her speech to ask Charles a question.
“Give me a straight answer—no fluff—how’d we do today?”
“We had a great day,” Nikki continued, pacing the room. “The opening statement was perfect, and the cross-examination of Armistead was a home run. It doesn’t get any better than this.”
“Do you agree?” Thomas looked at Charles, putting the question straight to him.
“We had a good day,” Charles said in measured tones. “Armistead came across as duplicitous—” Thomas gave Charles a quizzical look—“as someone who wasn’t telling the whole truth. But to find for us, the jury will have to believe that Joshua would have survived if he had been transferred to Norfolk Children’s. On that count, our evidence is pretty speculative.”
Thomas nodded his head, taking it all in. He seemed to appreciate the bluntness of Charles’
s assessment.
Nikki’s face turned serious, and she took a seat next to Charles, across from Thomas. “The prayer journal really hurt us,” Nikki said somberly. “The reverend was immaterial. No great shakes for either side. But with that journal, the jury now has sufficient evidence to find Theresa guilty of knowing that Joshua was dying, though they don’t have the same level of evidence with respect to you.”
“That’s insane!” Thomas said, his first visible reaction since the trial started. “I was the one telling Theres that we couldn’t go to the doctor. She wanted to go on day one.”
Thomas placed his hand on top of Theresa’s. She blinked slowly and looked down at the table while Thomas stared at—through—Charles. “I’ve got to testify. I won’t allow anyone to place this blame on Theres.”
“Nobody’s placing this blame on Theresa,” Charles said firmly. “And you’re not testifying. Calling you to the stand and subjecting you to cross-examination would be suicide.”
The big man heaved a disgruntled sigh and shifted in his chair. The look on his face worried Charles.
“Listen, Thomas, if anybody had told me a few weeks ago that after the first day of trial we would have the prosecution’s main witness, their only witness really, admitting on the stand that he was a liar, I would’ve said that’s too good to be true. But that’s what happened. We’re in the driver’s seat. Let’s not do anything rash to mess that up.”
“I just don’t want Theres taking the fall,” Thomas said. “I want you to put me on the stand if that’s gonna happen.”
“She’s not taking the fall,” Nikki said. “There won’t be any fall to take.”
Thomas turned to Charles. “You agree?”
Charles hesitated; there were no guarantees in jury trials. “Having you take the stand is not the answer.”
There was a knock on the door from the deputy sheriff. “Just a minute,” Charles called. He turned to Thomas and Theresa, blowing out a deep breath while he rubbed his forehead. “We’ve got to call Tiger as a witness tomorrow. He’s going to have to recant his videotaped statement about Joshua being sick for five or six days.”