by A. Turk
“I’ve seen Tracy take stamps and yellow pads. I didn’t think it was a serious problem. I’m so sorry.”
“What the hell are you talking about?” Davis shouted and hit the play button to show Robyn the irrefutable evidence of her drug theft.
Robyn sat there several minutes without saying anything.
Finally, Donna asked, “You’ve got nothing to say? You should be ashamed of yourself. How did you get the key?”
“I took it off Charlie’s key chain while he was operating. The keys were just sitting on his desk. I put it back the next day without him ever missing it. Do you have to tell him?”
Davis realized that she didn’t understand the seriousness of her predicament. “Ms. Eden, I don’t think you understand. You’re gone. Either you resign and agree not to apply for unemployment, or you get terminated for cause for stealing drugs and Dr. Nichols reports the theft to the police. It’s not much of a choice. I suggest you go quietly.”
“Does Charlie know about your ultimatum?” Robyn’s eyes flashed with defiance.
Donna snapped, “What difference does that make? He’s not going to save your job. You’re a thief and have a drug problem.”
“I wouldn’t be so sure. I work for him …”
Donna stopped her midsentence. “That’s nonsense. You work for Nichols & Garcia, and I’m your immediate supervisor. You’re fired. Now get the hell out of here and never come back!”
Robyn stood and, with a smirk on her face, said, “You haven’t heard the last of me. You’ll be hearing from my lawyer. Dr. Garcia has sexually harassed me, and I can prove it.”
Losing her patience, Donna responded, “You’re out of your mind, girl. No one harassed you. Whatever you did, it was voluntary …”
Davis turned litigator and ordered, “Donna, quiet! Let me handle this.”
His tone was unmistakable; he was in charge, and everyone in the room appreciated the need to be quiet. Ben Davis was no one to cross. Now that he had the floor, the advice he gave needed to be extraordinary. He turned on the accused.
“You’re using bad judgment. A federal sexual harassment suit will take at least two years till trial, and an appeal will take another two years. How are you going to pay your lawyer during those four years?”
Robyn stated evenly, “I’ve spoken to an attorney who has agreed to take the case on a contingency basis and will advance all of the expenses.”
“Robyn, your lawsuit will focus on each party’s credibility. You’re a known drug addict with at least three unsuccessful rehabs and video of you stealing drugs from your employer. Dr. Garcia is a professional member of this community. Who do you think a jury will believe? Do you really think a jury will penalize Dr. Nichols for terminating you?”
“You have no idea who the hell Charlie is and what he’s capable of. You’ve got your video, and I’ve got mine. I’m willing to bet that the jury finds my video more interesting than yours. Peter Nichols is liable for the wrongful actions of Charlie. Dr. Nichols allowed harassment right under his nose. Without his blessing I never could have been the prey of Charlie Garcia.”
Davis decided to change tactics and asked, “Have you discussed your lawsuit with your sister?”
“Why the hell would I?”
“Because she got you this job, and she controls your trust, which you’ll need to live day to day during the four years of litigation.”
Suddenly Robyn was nervous. She was an actress who’d lost her script.
Davis watched her crumble to a confused drug addict faced by a powerful presence who was challenging her. The argument turned on her.
“I’m calling your sister. Let’s confirm that she’s not going to fund this fiasco.
“Here’s what’s going to happen. You’ll resign your position with Nichols & Garcia effective immediately. The company will not oppose your application for unemployment in consideration for your execution of an airtight release and confidentiality agreement that I will prepare. You’ll give us your video, all of your videos, and we hold ours, which we turn over to the police if you breach the confidentiality agreement. Take it, or leave it.”
Davis looked around the room. Sammie knew to keep her mouth shut. Nichols wanted to say something, but Davis could tell he was afraid. Donna was fuming.
“Do we have a deal, Ms. Eden? I can have the documents ready in two hours, and you can begin collecting unemployment next week.”
The scared drug addict answered, “I’ll deliver my tape in the morning.”
“How many do you have in your possession?”
“I stole just one. I knew he wouldn’t miss it.”
“You’re claiming that Dr. Garcia has other tapes? How many?”
“He’s got dozens of them, and they’re not for the pure of heart. Prepare your damn documents, and I’ll sign them.”
Robyn practically ran from the room, and Donna locked the door behind her. Using the same authoritative voice he used with Robyn, Davis said, “Do you realize how pivotal that last confrontation was? I hope what happened wasn’t lost on you. Think of what would happen to the practice if it were engaged in a four-year sex scandal. How many patients would you lose? If she gets a good lawyer before she signs my release, he’d argue that not only did Peter negligently supervise Charlie, but he allowed him to alter her looks while he exerted undue influence on a young woman whom Peter knew had a drug problem. Finally there’s Peter’s moral obligation to Valerie Daniels. I bet I could get that into evidence. I closed a good deal. My fees would have exceeded $25,000. It was a bargain.”
Nichols rubbed his eyes. He looked tired and angry. He managed to ask, “When should we talk to Charlie?”
Davis answered immediately, “There’s no time like the present. Let me handle him.” Davis got Charlie on the phone and explained in a very businesslike tone in detail what just transpired. “Before you open your mouth, you’d better think and get your story straight.”
Charlie admitted his bad judgment about his relationship with Robyn, but he swore he didn’t know anything about the theft. He admitted it was careless to leave his keys on his desk, but he knew for a fact that Nichols did the same thing. “I’ve got other tapes. I’ll destroy them.”
Davis remained silent. The Eden case would be settled by the end of the day. The releases and confidentiality agreement would be signed. The tapes could be destroyed; they weren’t evidence anymore.
CHAPTER EIGHTEEN
EGOMANIAC
Wednesday, May 15, 1996
Nichols arrived at the office before seven. As always, Donna was waiting for him.
“Morning, Donna, busy day?”
“Dr. Garcia has four lip enhancements. Two of them involve a new chin, starting at seven thirty. He and Tracy will be moving at a pretty good clip all day.”
Nichols quickly calculated the fees in his head, $28,000. Not a bad day’s work for Dr. Garcia. The kid was a money-making machine.
Donna interrupted his thoughts, “Doctor, have you noticed that Dr. Garcia has changed since Robyn’s departure?”
“How so?”
“I’d say both professionally and physically. Last week we had to cancel two morning surgeries at the last minute. Haven’t you noticed that he’s come into the office disheveled? He has always taken such pride in his personal appearance.”
Nichols was aware of the cancellations and how badly Garcia looked the last few mornings. He figured the kid was burning the candle at both ends. He debated sitting the young doctor down and having a man to man, but he’d put it off. Donna was forcing the issue.
“It’s a terrible reflection on the practice and not only his reputation, but yours as well.”
Donna always pushed hard but never too far. She’d run Nichols’s practice for all these years, and she’d help make it what it was today. Nichols knew she was right. He had to address the problem.
The phone rang, and Donna picked it up. The temporary receptionist supplied by a service hadn’t arrived yet.
>
Nichols was still standing next to Donna, who was listening intently to the caller. When she responded, Nichols could hear her end of the conversation.
“You’ve got to be kidding. You’re scheduled to be in surgery in less than an hour. It’s right on the schedule, in black and white. Don’t try to push your problems on me. Well, I suggest you get yourself out of bed and get over here and perform surgery. I won’t be talked to like that, Dr. Garcia.”
Nichols motioned for Donna to give the phone to him.
“Charlie, Peter. What’s up? Why aren’t you here?”
“You tell that bitch to reschedule my seven and my ten. I’ll be in around noon for my one o’clock. If you don’t like that, then you perform the surgeries.”
Nichols thought Garcia sounded hung over or still drunk.
“I’ll reschedule your seven, but I want you here for your ten o’clock. Sober up, and get your ass in here. This is a place of business, not your private amusement park. You can’t just show up when it pleases you.”
“I’ll try to make it in by ten.”
“Don’t try. You be here, ready to perform surgery. If you’re not here, you can just pick up your stuff and get the hell out.”
Donna canceled Janice Bender’s appointment. Dr. Nichols apologized and assured her that she’d hear from Dr. Garcia as well.
Garcia arrived at the office at nine fifteen. He performed the three scheduled surgeries at ten, one, and three thirty. By six o’clock he was finished for the day and sitting in his office writing up his surgical notes.
Nichols walked in and sat down in the leather chair across from Garcia’s desk. They hadn’t spoken since their heated telephone conversation of the morning. Nichols decided he’d take a softer approach. “Charlie, listen, I’m not only your boss. I’m your friend. What’s going on? I’m concerned about you.”
“I’ve been drinking and carousing until all hours. I’m just acting my age. I’ve been serious my entire life, and I’m blowing off a little steam now. I’ve overindulged. I’ll get it under control.”
“You admit to drinking. What about drugs?” He could see hesitation in Garcia’s body language. Nichols suspected the answer.
“Absolutely not. You can drug test me if you want. My drug of choice is Jack Daniel’s. I can stop. You know what kind of disciplined person I am. I’ll get it together. I promise this will never happen again. My drinking will never again interfere with our business.”
Nichols wanted to believe him, but he couldn’t. Something in the young doctor’s eyes made him challenge his words. He decided he’d better call Ben Davis for advice.
“Bella, I’ve got to talk to Ben.”
“He’s in a meeting, but he can call you back between appointments.”
Thirty minutes later Davis called back. Nichols explained that he had a strong suspicion that Dr. Garcia was using drugs and that he was in no condition to perform surgery. Davis was familiar with Garcia’s employment contract since he wrote it.
After a brief mental review of the contract, Davis replied firmly, “I want you to cancel all of Dr. Garcia’s surgeries for the rest of the week.”
“Are you out of your mind? That will cost me tens of thousands of dollars.”
“Would you rather have a suspected drug addict employee perform surgery at your office? That could get ugly real fast. I want you to have Donna type up a letter to Dr. Garcia demanding that he submit to a drug test at Abbott Labs on 28 White Bridge Road. The letter on the top should reflect the date and time it was hand delivered. According to his contract, he’ll have only forty-eight hours to undergo the drug test.”
“What if he refuses?”
“Then you’ll have no choice but to terminate him for cause and demand that he repay his note and demand that his parents honor their guarantee. The money’s sitting in an account at Goldman Sachs and shouldn’t be too difficult to secure to repay your investment. Cancel the appointments, and deliver the letter.”
Nichols wasn’t happy. His golden goose was probably on drugs and would have to be terminated. No more golden eggs.
After talking to Davis, Dr. Nichols delegated the delivery of the hand-delivered letter to poor Donna. Garcia read the demand that he submit to a drug test, jumped up from his desk, and barged into Nichols’s office.
“What the hell is this?” Garcia demanded.
“I suggest you read it and get your ass over to Abbott Labs as soon as possible. I’ve canceled all of your surgeries scheduled this week. You’re not performing surgery until we get confirmation that you’re drug-free.”
“Just mind your damn business. I’m seeing my patients, and I’m making you money. That’s all you need to worry about.”
“I have no choice. I’ve consulted Davis, and you’ve got to get a drug test in the next forty-eight hours. If you’re telling me the truth, you’ll be back at work as soon as you’re cleared.”
“I’m not getting any damn test. And since you’ve mentioned it, I don’t like my share of the split. You’re making a fortune off me, and I’m not getting my fair share. I deserve more. I’m also working in a hostile work environment. Either she goes, or I go.”
Nichols was about to lose his temper. Donna is right. This kid is really out of control. What an egomaniac!
“We’ve got a deal, and you’re committed for three years. If you’re thinking of walking, it will cost your parents $400,000.”
“Bullshit. You’ll never enforce that contract. I can walk away anytime. If you don’t believe me, then just watch me.”
With that Garcia stormed out of Nichols’s office and right out the front door.
Nichols called Davis and gave him the blow-by-blow details.
Davis organized his thoughts before responding, “If he takes the test and is on drugs, that’s a big problem. I’ll have to send a letter to his parents with a copy to Harrelson informing them that his drug use is a breach of contract.”
“Can’t we get him help? Put him in a twenty-eight-day program?”
“Yes, but after receipt of the results, you’re on notice that your employee and agent is on drugs. It creates a real liability for the company with his patients. We’d better think this thing through. If he tests positive or refuses to take the test, we will have to contact your malpractice carrier. Who has the coverage?”
“Tennessee Mutual. That’s my carrier, his carrier, and the company’s carrier.”
“Great. I hate those guys, and they hate me. Perfect.”
“Why do they hate you?”
“It’s too long a story. Hopefully he’ll pass the test.”
CHAPTER NINETEEN
THE GUARANTEE
Friday, May 17, 1996
Charles Juan Batista Garcia’s response to the demand to be drug tested came in the form of a written response from David Harrelson Esquire, New York, New York. Harrelson explained that Dr. Garcia refused to take an arbitrary drug test at the behest of Dr. Nichols and suggested that Dr. Nichols might seek psychiatric help for his delusions. The letter also informed Dr. Nichols that Dr. Garcia resigned from Nichols & Garcia PC and that the guarantee of Señor and Mrs. Garcia was unenforceable. A copy of the letter was sent to Benjamin A. Davis Esquire, and another copy was sent to the contact person at Goldman Sachs where the $400,000 was held in escrow.
Davis heard from Nichols within minutes of his finishing the letter.
“What does he mean that the guarantee is unenforceable?”
Nichols sounded nervous. Davis realized he needed to calm down his client.
“He doesn’t say why. We’ve got the Goldman Sachs money tied up. Goldman, by contract, is obligated if there’s a dispute to deposit the funds into the Circuit Court here in Nashville. At least we’ve got home court advantage, we’ve got the parents’ signed guarantee of $400,000 as security, and most important we’ve got the money.”
“What’s our next step?”
Davis thought a moment. “I’ll call Harrelson and see if I can flush
out his defense on the guarantee. You’ve got to find another MD to join your practice immediately. In order to enforce the non-solicitation of patients, your company needs to be able to offer the same services. You’re a DDS, not an MD. You need either another oral and maxillofacial surgeon or a plastic surgeon on staff. That should be your first priority. Also his employment contract has a non-solicitation of employees. So let his nurse, what’s her name?”
“Tracy Nelson.”
“Let her know that she can’t go to work for him. He’s going to need a staff to compete.”
The contract defined solicitation of employees as any employee who had worked for Nichols & Garcia within the last two years. Nelson was clearly barred from working for Garcia. They decided that the new doctor should pick his or her own staff. Donna also expressed concern about Nelson’s loyalty. She was terminated, given two weeks of severance pay, and the search for a nurse began.
Davis explained that the definition as to what constituted solicitation of patients was less clear. Garcia wasn’t permitted to target the company’s patients, but the contract couldn’t prevent him from treating former patients. It was the patient’s choice as to his or her doctor. The contract between the doctors couldn’t usurp the patient’s right to choose.
“I guess I‘d better have Donna start canceling his appointments.”
“I’d go about two weeks out. Tell Donna to apologize and say he’s become unavailable. I better fax a response to Harrelson ASAP.”
Davis signed off with Nichols, put down the phone, and picked up his Dictaphone. He began,
Dear Mr. Harrelson, I am in receipt of your letter of May 17th and in response to it would state that Dr. Nichols, in accordance with paragraph 10 of Dr. Garcia’s employment contract, has an absolute right to demand that Dr. Garcia undergo a drug test. First, narcotics have been taken from the practice’s storage closet; second, several employees will testify that Dr. Garcia has recently been acting erratically and that his pupils have been dilated. Donna Burns, office manager, will testify that several morning surgeries have been rescheduled because Dr. Garcia failed to appear at the appointed time to perform those surgeries. Dr. Garcia’s refusal to submit to the drug test constitutes a default.