by A. Turk
“Morty helped me select the carrier and the amount of coverage. I’m glad he advised me,” said Nichols. “How do I get Tennessee Mutual to hire your office to defend me in this mess?”
Davis looked at Morty, then Sammie, and then Nichols. “Tennessee Mutual isn’t going to retain our firm.”
“Why not?” asked Nichols.
Sammie answered the question: “The senior management hate our guts. They’d rather pay the plaintiff than pay us a fee. Tennessee Mutual hasn’t forgotten or forgiven us for the Plainview cases.”
“Is that when Ben got beat up? I contributed to the reward fund.”
Davis didn’t like to talk about Plainview, so Sammie answered, “We sued two doctors for performing unnecessary surgeries, and one of them was insured by Tennessee Mutual. It got pretty heated and lasted for years. We tried one and then settled the rest. It ended with bad feelings on both sides. They won’t let us represent their insured and pay us.”
“What are you talking about? I want you to be my lawyer!”
Nichols was near panic. He’d known Morty his whole life; he’d been by his side since his father was killed. Ben Davis was his lawyer. He needed his guidance and advice about this lawsuit. Damn the insurance company.
Davis could see the pain on Nichols’s face and tried to calm him down by saying, “Don’t worry, I will be. But you’ll have to pay for me personally. You’ve been sued personally, you’ve been sued for $10 million, and your coverage is only half of that. I can’t accept any money from Tennessee Mutual, or this firm would owe it certain obligations of disclosure and ethical commitment. If you hire and pay us, I’ll be able to better maneuver and protect your interest. Tennessee Mutual will at first object to my involvement but will eventually agree because it’s one less lawyer the company will have to hire. If you hire us, Tennessee Mutual will have to hire two lawyers: one for the company and another for Dr. Garcia. If the insurance company rejects our involvement, Tennessee Mutual ethically would be required to hire three lawyers: one for you, one for the company, and one for Dr. Garcia. There is a clear conflict among the three defendants. They select from its pool of defense firms to represent its shareholders/insureds. I’ll work with whoever it selects. As much as I’d rather not, let’s call Tennessee Mutual.”
Davis gave Nichols the number, which was answered on the first ring. Davis told Nichols to ask for Larry Pinsly. He was connected almost immediately.
“Mr. Pinsly, my name is Dr. Peter Nichols. I’m one of your insureds.”
“What can I do for you, Dr. Nichols?”
“I’m with my attorney, Ben Davis. I’ll let him explain.”
Davis took a deep breath. The last time he saw Pinsly they were in federal court, and Judge Wise had just chastised Pinsly’s lawyer for unethical and possibly criminal conduct.
“Hello, Larry, I’ve got you on speakerphone, so my associates and Dr. Nichols can hear us. Dr. Nichols was served today with quite an unusual complaint, and he’s giving you notice of the suit.”
Davis spent the next twenty minutes telling Pinsly the nature of Dr. Nichols’s relationship with Dr. Garcia, the pending breach of contract suit, and the substance of the lawsuit filed by Ms. Perkins.
Pinsly asked several questions and then said, “Thanks for looking out for our insured. We’ll take over from here. I’ll call Sean McCoy, and he’ll get right on this.”
Davis immediately responded, “Dr. Nichols has asked me to stay on as his personal attorney. He’s been sued for $10 million, and there’s only $5 million in coverage. He needs separate representation from that of his company and Dr. Garcia. My firm will be exclusively protecting Dr. Nichols’s interest. As you know, the lawyers you hire will be protecting conflicting interests, those of the company and those of Dr. Garcia. I’d prefer not to work with Sean McCoy. You know our history together. I’m sure we can agree on another firm that’s approved by your company.”
The tone of Pinsly’s voice was anything but friendly: “Look, Davis, you’re not going to tell me who to hire to defend this action!”
“I’m not telling you who to hire. I’m simply asking you not to hire McCoy’s firm. I don’t like or trust him. Larry, you’re stuck with me. We’re on the same side of this one. Let’s put our history and differences behind us, and then work together for the benefit of our common client. I’ll fax over the complaint. Let me know which two lawyers you want to hire. I’ll be reasonable. Try to do the same.”
Pinsly didn’t directly reply. He said good-bye to Dr. Nichols only.
As soon as Pinsly hung up, Nichols, who was obviously surprised by the tone of the conversation, questioned Davis, “Pinsly really doesn’t like you, does he?”
“Let me assure you, the feeling is mutual.”
“What’s the story?”
“It’s too long to tell. Someday, I’ll write a book about it.”
CHAPTER TWENTY-ONE
TELLING THE STAFF
Friday, July 5, 1996
It would be a busy day. Dr. Nichols had a full schedule, and the day began with Sammie showing up at the office on Davis’s orders to pick up the Perkins chart and to attend a staff meeting. Nichols knew she was there to observe and report the staff’s reaction to the news of the lawsuit. Nichols understood he needed the support of his staff through these difficult times. They’d figured that the presence of the beautiful young Sammie would be less of an intimidating effect than that of Davis or Morty. She was there to answer any questions that Nichols found either uncomfortable or too difficult to answer.
As agreed, Sammie stood in the back of the conference room, trying to blend into the walls. Nichols stood at the front with Donna faithfully at his side. Sammie told Nichols to remain calm and to speak in an even tone.
It wasn’t easy, but he began the explanation: “I’m sure most of you have heard about the sensational lawsuit that has been filed concerning the alleged conduct of Dr. Garcia. Let’s face it. This is a small office, and news, both good and bad, travels fast. But rumors are dangerous, so I want to set the record straight. The practice and I are named in that lawsuit because Dr. Garcia was an employee of the company at the time. The lawsuit is a matter of public record, and therefore there will be publicity. I’m assured by our lawyers that not only will a summary of the lawsuit make the papers, but we can expect local TV news coverage as well.”
Nichols paused to collect himself. It was harder than he thought to face his staff and discuss the lawsuit.
“These are allegations. Nothing has been proven, and I’m told that the burden is on the person making the claims to prove them. I was shocked by these accusations and have always expected employees to conduct themselves with the highest degree of ethics and professionalism. I have done nothing wrong, yet I am saddened that I will have to defend the company and myself.
“It is critical we work together to minimize the impact of this lawsuit on the practice we’ve built together. I need your help and cooperation. You may be asked about the lawsuit by patients. If so, your response must be, ‘I’m not permitted to discuss the matter, but I assure you that it is this practice’s policy to uphold the ethics of our profession.’ If they persist, direct them to either Donna or me. If a member of the news media calls you at home or follows you from the office, your response must be, ‘I have no comment.’ Take the person’s name and the news outlet and give the information to Donna or me. I hope you all know how much I appreciate your loyalty and support. I have done nothing wrong. We all need to take solace in that fact and stick together through this difficult situation.”
Nichols was exhausted. His mouth was dry as could be. He desperately needed a drink of water or something stronger, but it wasn’t even eight. He wasn’t used to giving speeches, and he didn’t like controversy since the murder of his father.
“How’d I do?” he asked Sammie.
“You were great, poised and confident. I just hope you don’t have to give the speech again.”
“What the hell
does that mean?”
“Well, we don’t know if Charlie Garcia kept his hands to himself. Anna Perkins may not be an isolated incident. The man’s a pig.”
Sammie’s words really bothered Nichols. Maybe because he suspected she was right. He was so worried that right in front of her, he picked up the phone and called Davis. He explained his concerns about other possible victims.
After a slight pause Davis gave his opinion, “You’ll see other lawsuits. Unfortunately you’re going to have a target on your back. Peter, some of these suits will have merit while opportunists trying to take advantage of the situation will file others. They’ll contact Jack Willis because he brought the Perkins lawsuit. The key is to get to Willis, settle fast, tie him down with a confidentiality agreement, and hope for no more press. If the case continues, drags out, and draws more coverage, the other cases are likely to surface. You need to communicate with Garcia’s counsel quickly before the insurance companies get involved and screw it up. You also need to settle your breach of contract lawsuit against him. You’re co-defendants in the Perkins lawsuit. It’s not good form to be suing each other when you’re being sued together.”
Sammie had been listening on the speakerphone, and she volunteered, “Why don’t I fax the Perkins complaint over to Harrelson, and we’ll all give him a call?”
Courtesy of Bella, an hour later Sammie, Nichols, Davis, and Morty had Harrelson on the line.
Davis took the lead: “Good morning, Mr. Harrelson. I’ve got my team on the line. As you can see, we’ve got a problem.”
“Who is Dr. Garcia’s carrier? I assume it’s the same carrier as your client. How much coverage do we have? Have they assigned my client a lawyer yet? Has the media got hold of this story?”
Nichols found Harrelson’s shotgun blast of questions almost amusing. The lawyer was panicked.
“Boy, you’ve got a lot of questions,” Davis observed. “It seems your client needs my help after all, doesn’t he?”
“Don’t try to get smart with me, Davis. Your client, Nichols, is in the same hot water as my client. Don’t forget that they’re co-defendants, and they’ll need to put up a common defense.”
“I don’t think so. All they’ve alleged is that the company negligently advertised the skills and the ethics of your client and did a negligent background check when hiring him. All of the claims against my clients are based in negligence. On the other hand, your client has been charged with intentional torts, the most serious ethical violations a doctor can commit, and he’s exposed to several possible criminal prosecutions. David, you’re overplaying your hand. Nichols isn’t in the same boat as Garcia, and he has no intention of getting in that sinking boat with him.”
Despite the fact that their conversation was not face-to-face, Nichols could tell that Harrelson was hot. It was obvious to Nichols that Davis was provoking him and was getting to him. It was equally obvious that Davis was enjoying himself in the process.
Harrelson responded loudly, “Do I really have to teach you the law? Respondent superior, Nichols & Garcia, is liable for the acts of its agent and employee, Dr. Garcia.”
Davis was prepared. “I’ve got Black’s Law Dictionary open to the page that defines that term: ‘Let the master answer for the acts of his servant.’ It goes on to state that the master is liable only if the servant is acting within the scope of his duties and not on the side. We didn’t hire Dr. Garcia to have sex with his patients. I think it’s fair to say that using a ten-inch dildo is outside the scope of employment.”
“We’ll have to agree to disagree.”
Nichols thought Davis got the best of Harrelson in that exchange.
Davis plowed forward. “If you really want to work together, we need to address our pending lawsuit.”
“What about it?”
“It might be easier for us to work together if Dr. Garcia’s parents met their obligation and paid Dr. Nichols back under the guarantee.”
“That’s not going to happen. We’ve got good defenses, and we can drag that case out for years.”
Now it was Davis’s turn to be annoyed. “You think so? Your answer is due tomorrow. I’ll be filing a motion for default judgment the next day. So, unless you can get licensed in Tennessee in the next week or so, you’ll have to hire a Tennessee attorney. I’ll withdraw my motion once your answer is filed. I’ll then move to take the depositions of Señor and Mrs. Garcia and their little boy, Charlie, as quickly as possible. You’ll be able to delay a month or two, but I’ll get my depositions. Within four months, not years, I’ll file a motion for summary judgment. Since neither the facts nor the law supports your defenses, the court will throw them out and award me a judgment against all your clients for $400,000 and my attorney fees and costs. Let me assure you, Mr. Harrelson, I’m within a month or two of acquiring the money deposited by Goldman Sachs with the court.”
Harrelson snarled, “You’re dreaming, Davis. I’ll let you know the name of my Tennessee co-counsel by close of business Monday.”
Davis was obligated to provide Harrelson the contact information of Dr. Garcia’s malpractice insurance carrier so that Harrelson could contact Larry Pinsly of Tennessee Mutual about the defense in the Perkins case. With the exchange of that information, the heated conversation ended.
Nichols was unnerved by how the call went. He said good-bye to Morty and Davis, and Sammie gave him a hug. The hug felt good.
Sammie rubbed his back and whispered, “This is going to be a long, hard fight. Morty, my uncle, and I are in your corner. You need to accept the fact this isn’t going to remain quiet. The news will eat this story up. Morty can minimize coverage because he knows the editor of the newspaper and the news directors of all three local TV stations.”
Sammie called it right. That evening all three local stations ran the lawsuit as the third story, and the Tennessean ran the lawsuit on the front page of the business section. In each account Nichols & Garcia was identified as a defendant and Garcia’s employer. No coverage mentioned Dr. Peter Nichols as a defendant, courtesy of Morty. At least that was something, but not much.
CHAPTER TWENTY-TWO
THE MESS GETS WORSE
Monday, July 8, 1996
Davis decided it was time to call Jack Willis, Anna Perkins’s attorney. Willis was a smooth-talking southern boy who could convince a jury the sky wasn’t blue on a clear sunny day. Juries identified with him. He was short and maintained a long mane of gray hair. He constantly ran his hands through it to regain control when it was disheveled. Davis knew, despite grooming problems, Jack Willis was up to the job.
Before he made the call, he ate two chocolate-covered doughnuts. It calmed his nerves. He looked up the number in the attorneys’ directory and dialed. Willis answered his own phone.
“Jack Willis here. Can I help you?”
Davis got right to the point. He represented Dr. Peter Nichols and had nothing but disdain for the alleged conduct of Dr. Garcia. Willis assured him that he could prove his client’s accusations against Garcia.
Willis, a smart lawyer, knew about the dispute between Nichols and Garcia, and he decided to test Davis. “Ben, we’re not as adverse as it appears on paper. Maybe we can help each other. I’ll tell you something you don’t know, and you tell me something I don’t know.”
Davis replied, “That might work. Seems fair as long as it doesn’t violate a client confidence.”
“I’d never ask you to do that, Ben.”
“You go first.”
“Your clients are about to be served with another lawsuit because of the sexual misconduct of Charlie Garcia and for medical malpractice. The Christy Howard lawsuit has one significant difference from that of the Perkins suit; this patient did drugs with Garcia, which may explain why she let him sexually abuse her.”
Davis decided he’d better get as much information as possible while Willis was being so candid.
“What kind of drugs did they do?”
“They did Ecstasy. He’s a sick guy.
It’s a shame your client hired and promoted him to Nashville. I did my research on your client. He has a good reputation and a clean record, but he’s responsible for at least any acts of negligence, maybe more, depending on the facts.”
“Come on, Jack, Nichols has no personal liability. If Garcia’s wrongful conduct falls on anyone, it’s the company, not Nichols individually. Tell me about the malpractice aspect of the lawsuit.”
Willis in a very organized and articulate way explained the Howard lawsuit. He described in detail how Howard’s lower Garcia kissable lip turned necrotic. He’d already retained a plastic surgeon to testify that Garcia breached the standard of care.
“What do you want?” Davis asked.
“A little cooperation and quick settlements. Let’s start by your telling me the dollar amount of malpractice insurance your clients and Dr. Garcia have and with whom.”
“You know that the dollar amount of coverage is confidential and not discoverable, but I can’t help it if you guess.” Davis smiled, knowing that Willis couldn’t see him on the other end of the line. After two guesses, he coughed when Willis said $5 million, and Davis volunteered that Tennessee Mutual provided coverage. It was agreed that Davis’s loyalty and fiduciary duties were to Dr. Nichols, not Garcia and definitely not Tennessee Mutual. Davis hoped that a quick and quiet settlement could be negotiated with Willis.
The allegations of the Howard complaint included many of the same ethical and tortious claims asserted in the Perkins case, but it also included a traditional malpractice element. Willis included a picture of Ms. Howard’s necrotic Garcia kissable lips. The lower one had turned black and a deep purple, and there was dried pus in the corners of her mouth.
Davis knew that the Perkins case would be defended differently than the Howard case because it was a straight sexual misconduct case. In Howard, Willis would have to prove that there was a breach of the standard of care, that Dr. Garcia provided negligent medical care, and that such care proximately caused damage. There was no question that Ms. Howard’s lower lip became necrotic, but Willis had to prove the problem was caused by Garcia. He’d need expert testimony to prove negligence. That surgeon would have to agree to testify against Dr. Garcia, and that might be difficult since Tennessee Mutual insured about eighty percent of the doctors licensed to practice in the state. On the other hand, Tennessee Mutual would have no problem finding and retaining medical expert witnesses. These physicians would be insured and shareholders of Tennessee Mutual. They’d have no problem protecting their company and testifying that Dr. Garcia didn’t breach the standard of care. Willis would hire his own out-of-state medical experts, who would testify that Dr. Garcia did breach the standard of care. The Howard lawsuit would become the war of experts, while the Perkins case would focus only on Dr. Garcia’s sexual misconduct.