Second Degree (Benjamin Davis Book Series 2)

by A. Turk

  Maddox couldn’t listen any longer. “How do you know McCormick did a negligent background check?”

  “McCormick didn’t speak to Dr. Gaines or the other residents at the hospital where Dr. Garcia did his residency and fellowship. Those conversations would have revealed that Dr. Garcia had a proclivity to have sex with patients. Also …”

  Sullivan slid his investigator’s report to Maddox. “This report cost me $5,000, one-sixth of what McCormick charged Nichols & Garcia to find Dr. Garcia. McCormick missed the drugs and the Princeton coed violent sex act. Dr. Nichols had a right to rely on McCormick & Associates, and McCormick screwed up.”

  Maddox responded, “Well, your client’s also been sued for negligent supervision. He admitted having sex in your offices. He was screwing patients and maybe even your office manager.”

  Davis could hardly control himself, but he forced himself to calm down and speak in a low, measured tone: “Stop! I have two conditions for settlement. The first, as I mentioned, is that Dr. Nichols must be dismissed individually. The second is that Dr. Garcia must apologize and withdraw his testimony about Donna Burns. I will not let that lie stand.”

  Lester Paul was getting red in the face. He said, “You’re asking my client to admit to perjury. He can’t do that. He’d be lucky if all Judge White did would be to hold him in contempt and fine him. The court could turn him over to the DA for criminal prosecution of perjury.”

  Davis stood his ground. “There’s no deal unless Donna Burns’s name is cleared.”

  Maddox said, “Ben, let’s not fixate on this point right now. Let’s focus on apportioning liability. I could recommend to Equitable ten percent, not exceeding $100,000. That would give you $1 million to settle the cases.” Maddox was from New York; he placed a higher value on the cases than the Nashville attorneys.

  Davis saw an opportunity. “Karl, how much do you think your defense costs and expenses will be to try these cases in Nashville?”

  “I’d guess we’re a year away from the first trial, and the other may be tried in 1999 or 2000. I would suspect both Howard and Perkins would take at least a week to try. Rough guess, $150,000 in attorney fees and another $50,000 in expenses.”

  Davis liked Maddox’s answer. “I think you’re a little low since you’ll be in a hotel for at least three weeks eating room service. I think your number is closer to $225,000.”

  “It would probably be somewhere in the middle. I’m listening.”

  “We had a great day today, but Dr. Garcia’s deposition didn’t go so well, did it? A jury verdict is an unknown, as McCormick will get hit for something, and it will be hit twice. How about if Bob can get Tennessee Mutual to agree that if Equitable contributes $150,000 toward settlement for both cases, then Equitable gets to walk away? That’s less than your estimated cost of defense.”

  Lester Paul almost came out of his skin. “You don’t have authority to make that deal.”

  “No, but Bob has the right to recommend that deal, and we’ve discussed …”

  “Why wasn’t I part of those discussions?”

  “Because the company sued McCormick, not Dr. Garcia. This has nothing to do with you or your client.”

  “It has to do with Tennessee Mutual. It’s their money you’re spending …”

  Maddox decided he better take the deal. “Bob, if you can get Tennessee Mutual to take full responsibility, I’ll get Equitable to kick in $150,000. I’d rather recommend a known risk than an unknown risk.”

  The meeting broke up. It was agreed that Sullivan would call Pinsly of Tennessee Mutual to set up a meeting between Pinsly, Sullivan, Paul, and Davis. That promised to be quite a meeting.

  CHAPTER THIRTY-ONE

  BAD BLOOD

  Friday, May 23, 1997

  As promised, Davis called Willis the next day. Davis figured it had been a long night for him. Willis had brooded, cursed Christy Howard, and now in the light of day could realistically evaluate his position and his lawsuits. Despite his reflection, Willis was not in a good mood. “I figured they’d have Lester Paul, rather than you, call. I can’t stand that guy or his client.”

  “I’m not a big fan of them, either. Right now, I’m your best friend in these cases. I want the same thing you do, settlement, but I have almost no control over the insurance companies. Sullivan has some, but I have little credibility with Tennessee Mutual. Pinsly and I have a long history together, and it’s not good. He’s listening to Paul. The reason’s simple. Paul tells him what he wants to hear.”

  “What do you think I can get for the two cases?”

  “Howard is practically worthless. She’s a train wreck. You haven’t studied those pictures. A jury will send her home in a box. Nobody will believe that she didn’t participate in those sex acts with Garcia voluntarily. Her claim that he forced her to do any of those acts will not just be rejected; you’ll be laughed out of court. Can you imagine what a middle-aged housewife is going to think about Ms. Howard?”

  “You’ve got to get me something.”

  “Maybe I can get you $30,000 if you’re lucky.”

  “Ben, because the Howard case included an element of malpractice, I selected that case as the lead one. That necrotic lip is pretty disgusting looking. I’ve got close to $20,000 in expenses. If you pay $50,000, the client will only get $20,000 after expenses and my fee. I can’t sell that.”

  “Jack, the only reason I think I can get you anything for Howard is her necrotic lip. I can’t get you a penny for the claimed sexual acts. Paul will play that video of her deposition for Pinsly, and his hand will stay in his pocket. What if I get Tennessee Mutual under Rule 54 to reimburse your expenses, and then it pays Howard $20,000 for her malpractice claim? You’re reimbursed your expenses, and Howard gets two-thirds of $20,000 or just under $14,000.”

  “Now, for Perkins, I’d like $400,000. You’re not going to find pictures of her on a website.”

  Willis was catching his breath and gaining confidence.

  “Maybe not, but she got what she paid for. There’s no medical malpractice in her case, just sex. There’s no necrotic lip. The jury might question whether there was any forced sex. You’ve got those same middle-aged women on the jury.”

  “You’ve heard what I need. See what you can get.”

  They said good-bye, and Davis asked Sammie to come into his office.

  “What did Willis have to say?”

  “He wants a total of about $430,000 for settlement and expenses.”

  “If so, you made a pretty good deal with Maddox. McCormick would be picking up more than a third of the total payment. Maddox wanted to limit McCormick’s contribution to ten percent.”

  “Let’s call Sullivan together and find out when we’re meeting with Pinsly.”

  Sullivan had been on the phone all morning with Pinsly. Paul had gotten to Pinsly first and poisoned the well. A meeting was set at Paul’s office at four.

  When Davis and Sammie arrived at Paul’s office, Sullivan, Paul, and Pinsly were already there. Obviously their meeting had started earlier.

  “Bob, what time did you get here?”

  “Three.”

  “Well, what’d we miss?”

  Paul interjected, “We were talking about how you exceeded your authority by promising Maddox that McCormick and Equitable could get out for $150,000.”

  Sullivan came to Davis’s defense. “I’ve explained to you, Lester, that Davis and I had discussed that offer before the deposition began. We agreed that I’d take the deposition and that Davis would approach Maddox and then Willis.”

  Paul turned to Sullivan. “Why wasn’t I included in that strategy session?”

  Sullivan responded, but Davis was thinking the same thing. “Because neither one of us trusts you, Lester. You’ve been a prick so long. That’s all you know how to be.”

  “I resent that, Sullivan.”

  “You can resent it all you want, but the facts are the facts. No amount of resentment is going to change those facts.”


  As much as Davis agreed with Sullivan, the bickering was slowing them down in handling business matters. Davis tried to be conciliatory. “Gentlemen, and I use that word loosely, if you’ll let me, I can get these cases settled by Monday, and Tennessee Mutual can close the files and stop paying legal fees to both of you.”

  Davis hoped that a little levity would break the ice. He was right. The mention of settlement and cessation of legal fees got Pinsly’s attention, and he got real interested. Davis asked Pinsly, “If we go to trial in both cases, how much will you pay Bob and Lester in legal fees to defend?”

  Pinsly pretended to think about his response, but he’d already calculated the dollar amount. “I’d pay out $280,000 and another $43,000 in expenses. What will it take to make the cases go away?”

  Davis described in detail his conversation with Willis. When he finished, Paul commented, “We should take more advantage of the Howard deposition in the Perkins case.”

  From Davis’s point of view, Paul always seemed to say the wrong thing. “We need to help him make the right decision. Willis is a fighter; he’ll recover from this disappointment. First, we need to agree to pay his expenses of $43,000.”

  Again, Paul tried to sidetrack the settlement. “That’s outrageous.”

  “Wait a second, Lester. How much has Tennessee Mutual paid your firm for expenses in these cases?”

  “That’s none of your goddamn business, Davis.”

  “I’m sure your fees and expenses are more than Willis’s, and as Pinsly points out, significantly more going forward.”

  Neither Paul nor Pinsly said anything. Both of them knew that Davis was right.

  Davis tried to close the deal. “I think reimbursing his expenses of $43,000 and another $130,000 should fund the settlements.”

  Pinsly asked for clarification: “You’re saying a total of $173,000 from us and $150,000 from Equitable?”

  “That’s right. Equitable is paying more than forty percent of the settlement and expenses. Equitable’s insured, Rocky McCormick, didn’t have sex with any of these women. And of course, Ms. Burns gets her written apology from Dr. Garcia.”

  Paul was quick to reply, “You’re joking, right?”

  Pinsly had prepped Lester Paul about Davis’s demand that Dr. Garcia had to apologize to Ms. Burns.

  “I’m as serious as a heart attack. If that lying little asshole doesn’t apologize to that fine lady, I’ll blow this settlement up and sue him for slander. You’ve all dealt with me before. I’m not bluffing, and I know at least two of you think I’m half crazy. Maybe I am.”

  The other men looked at one another. Sullivan was the first to speak. “You’re a crazy son of a bitch. I believe you.”

  Davis smiled. “All three of you know I’m crazy then.”

  Pinsly directed Paul to draft a letter of apology for Dr. Garcia to sign. They agreed that it would be a private letter as long as Dr. Garcia’s deposition remained sealed and that Dr. Garcia never slandered Ms. Burns again.

  When they got back to the office, Sammie and Davis tried to call Willis, but he’d left for the day. It was after six. Davis decided the call was important enough to contact Willis at home. Susan Willis, the lawyer’s wife, answered the phone. She knew Davis casually.

  A minute later, Jack Willis was on the line. “What’s up, Ben?”

  “I think we can get this done. I got your $43,000 in expenses under Rule 54. Your clients will recover, without reimbursing you in any costs incurred in any of the cases. I’ve convinced the two insurance companies to pay another $280,000. I can’t get a dime more, so don’t ask. I’m offering $30,000 in Howard, and $250,000 in Perkins. What do you think?”

  “I need a few days.”

  “You can have all the time in the world as long as the deals are done before we’re scheduled to resume Howard’s deposition on the 27th.”

  “I’ll call you in the next day or so.”

  The next day, Willis called and informed Davis that they had a deal. The paperwork was executed three days later. It contained a strong confidentiality clause that prevented the parties from talking about the case or the settlement. That same day Davis delivered Garcia’s apology letter to Donna for lying about their relationship, and he personally apologized for her having to take the polygraph.

  CHAPTER THIRTY-TWO

  MEDICAL LICENSING BOARD

  Wednesay, October 15, 1997

  It had been five months since the settlement of the Willis lawsuits. The claims of malpractice and sex were behind Dr. Charles Garcia. Life moved on; Sammie graduated from Vanderbilt Law School and took the Bar. The results were published in the Tennessean. She passed.

  It was a big day. Not only had Sammie become an attorney, but also it was the day of Dr. Charles Garcia’s hearing before the Medical Licensing Board. The entire Davis team was attending the hearing, including Bella and Liza. Davis arranged a little breakfast party to honor Sammie’s achievement.

  Aunt Liza started things off. “We’re so proud of you. We’ve watched you grow up and become a woman and a great attorney.”

  She gave her niece a hug. Davis, Bella, and Morty gave her a hug in turn. Davis produced a wrapped package from under the conference room table and handed it to Sammie.

  She opened it immediately, ripping the paper that her aunt had chosen and so carefully wrapped. She pulled from the box a leather calfskin briefcase identical to the one her father had given her uncle. Inscribed below the buckle were her initials SAD, Sammie Annabelle Davis. She kissed her uncle on the cheek. Davis squeezed both her arms and said, “At least yours doesn’t have any blood on it. Use it in good health.”

  Just a few buildings down, Amy Pierce was preparing to deal with Charlie Garcia’s last serious problem. The charges brought by the Tennessee Medical Licensing Board were still pending. The Tennessean and two of the local TV news stations ran stories the day before the hearing. News cameras weren’t allowed in the hearing room, but the reporters would attend and the cameras would be waiting outside the building when the hearing ended.

  Pierce had done a masterful job of delaying the administrative hearing, but the day had come. At her insistence Señor Garcia and Mrs. Garcia were in attendance. Harrelson, the loyal family attorney, sat next to them. As he sat there, he twiddled with his watch chain and then finally put it in his vest pocket.

  The absolute instructions to Pierce were to prevent the revocation of Dr. Garcia’s Tennessee medical license at all costs. If it was taken away, his New York license was sure to follow. Charlie’s professional future was riding on this hearing’s outcome.

  Charlie was sitting at the defense table next to Pierce and dreading the opening of the session. His father signaled him to come to the back of the room, where the Garcias and Harrelson were seated. Charlie sat down next to his father and whispered in his ear.

  He looked over to his right, and in the third row were Davis, Steine, Sullivan, Sammie, and two other women. Four vultures were ready to pick his bones after the hearing. Paul didn’t show; he wasn’t getting paid to attend.

  Charlie’s father broke his chain of thought. “Mr. Harrelson and I met with Ms. Pierce this morning, and based upon her recommendation, we’ve changed our strategy.”

  Charlie had complained to Pierce that he didn’t like his chances under the old strategy. Even though the settlements were confidential and the depositions were sealed, he could be called as a witness by the state. He would either have to perjure himself or take the Fifth. That would be difficult to explain.

  “What’s the new strategy? How has it changed? This is my life. I not only have a right to know, I’m the one who has to live with the outcome. What’s up?”

  “Don’t worry, son. Mr. Harrelson, Ms. Pierce, and I have everything under control. I’d never let you down. Just trust us. We know what’s best for you.”

  Pierce walked to the back of the courtroom to retrieve her client. Her real client was not the son, but the father. He paid the fee and controll
ed the strategy. She could tell by the look on Charlie’s face he didn’t like being in the dark, but it was better this way.

  He was thinking about the years he’d spent studying to become a doctor and now because of some stupid mistakes and some horny women, all that hard work was at risk.

  He turned and whispered to Pierce, “All I did was give these women what they wanted. Nobody held a gun to their heads.”

  “You’d better not share those thoughts with the board. You’d better not be arrogant.”

  Charlie Garcia was angry and felt no remorse for his actions. His attitude wasn’t going to be sympathetic.

  Pierce stretched to her full height of five nine and a half, and with authority she said to Charlie, “Trust me. I know what the hell I’m doing.”

  At ten, the Medical Licensing Board panel walked into the room. It consisted of three licensed physicians: Robert Becker, internist; Lawrence Karl, urologist; and Frank Alder, cardiologist. Each doctor had been appointed by the governor to serve on the board. Each read the charges brought by the state against Dr. Garcia and his answers to the charges.

  The next person who entered the courtroom was the administrative law judge, Thomas Booth. Judge Booth was a state employee and worked closely with the state prosecutor, Randi Hecht. Ms. Hecht was young and inexperienced; her boss had assigned her to the Garcia case because it was a slam-dunk.

  Unlike the civil suits filed by Willis, consent to the sex was not a defense. Ethically, the act of sex with a patient, whether voluntary or not, was still a violation of the Code of Conduct. A doctor who wanted to date or, even worse, have sex with his patient was obligated to discharge the patient as a patient first before any romantic involvement.