“The form is evidence of informed consent?” Leary said.
“Sometimes. It depends. The rules are interpreted in favor of the patient. I’ve defeated forms before.”
“So it’s basically the patient’s word against the doctor’s.”
“Right. And most times, the insurance company will settle rather than roll the dice with a jury.”
Leary nodded. It made sense. He wondered if that was what had happened to Vicki Briscoe.
“Could a doctor lose his or her license for failing to get informed consent?”
Snyder puffed on his cigar, seeming to think about the question. “Possibly. It would be unusual though. I guess if the State Board of Medicine already had it in for someone and was looking for an excuse, they could cite the incident as unprofessional conduct, maybe even fraud or misrepresentation, unethical behavior, and use that to justify taking the guy’s license. Why are you asking me all these questions, Leary? Why would the DA’s Office care about med mal law?”
“I’m not at liberty to say.”
“Surprise, surprise.”
This time, Leary smirked. “Thanks for your help, Noah.”
Unlike Snyder’s hypothetical patient, the plaintiff that Kelly Lee had represented in the medical malpractice case against Vicki Briscoe had not suffered any damage to his private parts. According to the information Briscoe had given Jessie, the case involved complications from surgery to repair a ruptured biceps tendon.
Briscoe had given Jessie the patient’s name and address. Leary wasn’t sure if that was a HIPAA violation—did doctor-patient privacy laws apply after the patient sued the doctor?—and it wasn’t Leary’s job to know. The guy’s name was Alphonse Fulmer. Leary staked out his apartment in Society Hill, and, when he left, followed him to a local bar.
First a cigar lounge, and then a bar, all before noon. Just a day in the life of a DA’s Office detective.
Fulmer walked with a pronounced limp, which made Leary question his own knowledge of anatomy terms. The biceps tendon was in the arm, right? When the guy slid onto a bar stool and greeted the bartender with a wave, both of his arms seemed to be working fine.
Other than Fulmer, the bar was empty. Leary chose a seat two stools away from him.
The bartender brought Fulmer his drink without bothering to take an order, which told Leary he was a regular. The drink was bottom shelf gin, straight, before noon, which told Leary the man probably had a drinking problem.
Leary ordered a beer. He drank it slowly, biding his time as Fulmer worked his way through several fresh gins. He hoped the alcohol would make the man more receptive to conversation with a stranger. Waiting also gave Leary a chance to get a good look at the man. He was short, with thinning gray hair that looked like it hadn’t been washed in days. His body was skinny, and the wrinkled shirt and old, dirty jeans he wore seemed to hang off his frame. He stared at nothing. His movements were languid, sleepy.
Leary picked up his beer and moved to the stool next to him. “I guess you like gin. Always been a beer man myself.”
“I don’t even taste it anymore.” Fulmer stared down at his now empty glass, then turned his watery gaze on Leary. His pupils were constricted. He scratched at his neck, where the skin was red and irritated.
Leary’s cop brain catalogued these details. The pinpoint pupils, itchy skin, slow breathing, and skinny body were all signs of opiate abuse.
“You hurt your leg?” Leary said.
Fulmer shrugged. “Nothing serious.”
Leary nodded. “I ask because I have surgery tomorrow. On my back. I’m pretty nervous about it.”
Fulmer turned slightly on his stool. For the first time, the man’s eyes seemed to show interest. “What’s wrong with it?”
“I get back pain a lot. Doc thinks some surgery will make it better.”
Fulmer seemed to hesitate for a second, then said, “I’d think twice about that surgery, if I were you.”
“Bad experience?”
“You see this arm?” Fulmer patted his right arm. “Looks normal, but there’s nerve damage you can’t see. I need to take five Vicodins a day just to stand it.”
“How’d that happen?”
“That’s what I’m trying to tell you. Surgery.”
“You had surgery that went wrong?”
The bartender refilled Fulmer’s drink. He emptied the glass into his mouth. “What the doctors call a complication. You know what the complications are for your surgery?”
“I’m not sure.”
“You better find out.” He studied his arm. “Actually, I take that back. Don’t find out. That way, anything bad happens, you can sue.”
“Is that what you did?”
Fulmer nodded slowly. “You bet I did. Go to the doctor with a hurt tendon, come out with permanent nerve damage? You bet I sued.”
“Your doctor didn’t warn you that the procedure might cause nerve damage?”
Fulmer opened his mouth to answer, then paused. His eyes narrowed. Leary realized he’d slipped up, used words that were too specific. He’d made Fulmer suspicious.
To the bartender, Fulmer said, “Give me the tab, Jim.”
“Settling up already?” The bartender looked surprised, but brought over the check. Fulmer paid in cash, from a thick wad of bills.
Fulmer lowered himself carefully from the stool and started to limp away.
“Did the nerve damage affect your leg?” Leary said.
Fulmer stopped. “You ask a lot of questions.”
“Sorry. I’m just nervous about my surgery, especially after what you told me happened to you.”
Fulmer shook his head and limped out of the bar without looking back.
“Poor guy,” the bartender—Jim—said from behind Leary.
Leary turned to him. “Yeah. Sad story.”
“You don’t know the half of it.” Jim cleared Fulmer’s glass and wiped down the bar with a rag. “The surgery messed up his arm, like he told you, but then he got a lawyer. He got a big payout from the hospital’s insurance company—not enough to make up for the chronic pain he’ll suffer for the rest of his life, but it’s better to suffer with money than without it, right?”
Leary nodded. “I agree with that.”
“But bad luck always seems to follow that guy. No sooner did he get the money, someone attacks him on the street, breaks his leg. Can you imagine?”
“He was attacked?”
The bartender nodded grimly. “Some thug, jumped off a motorcycle, hit Al’s leg with a bat, then got back on his bike and sped away. You want another beer?”
“No thanks.” The word motorcycle echoed in Leary’s mind. “I need to get going.”
Leary’s phone vibrated in his pocket. He pulled it out and recognized the name on the screen as his contact at the City Hall courthouse.
Leary said, “You have something for me on Judge—”
“Not on the phone. Let’s meet. Talk in person.”
“Where?”
“Same place we met last time.”
The call disconnected before Leary could ask where that was. It had been years since he’d seen his friend—back when he was still a homicide detective. He let out a curse.
“Bad news?” the bartender asked amiably.
“No, I just—” Then it came to him, the location of their previous rendezvous. Penn’s Landing. “I need to go.”
“Have a good one.”
33
Leary walked along the Penn’s Landing waterfront. Around him, people enjoyed the restaurants and shops and arcades. Sunlight sparkled pleasantly on the Delaware River. He wished he could relax and enjoy it, but his mind kept flashing on Alphonse Fulmer—the man with the pinprick pupils and gin-tainted breath—and his limp.
It seemed likely that Fulmer’s claim about not receiving informed consent before the operation on his ruptured biceps tendon was bogus—cooked up by Kelly Lee as an easy win with the hospital’s insurance company, just like Noah Snyder had e
xplained. He’d interviewed enough witnesses, questioned enough suspects, to know when someone was hiding something. That meant Vicki Briscoe really had been wronged. The medical malpractice claim against her had been fabricated. A lawyer’s trick.
And the revocation of Briscoe’s medical license? Leary remembered Noah Snyder’s comments on that, too. He’d said the medical board might use the medical malpractice claim as a pretext for revoking a license, if the board was already looking for a reason. Vicki Briscoe was the daughter of a well-known criminal, a gang leader. Leary had no trouble imagining the backroom political discussions at the State Board of Medicine, old white men steeped in tradition and propriety. Can we get rid of her? She doesn’t belong here.
He grimaced. But what really bothered him was the limp. The bartender had told him that Fulmer had been attacked by a man on a motorcycle. Ray Briscoe was the leader of the Dark Hounds Motorcycle Club. Coincidence? He didn’t think so. Fulmer’s claim ruined Vicki Briscoe’s career, so her father—or maybe Briscoe herself—arranged for some revenge in the form of a baseball bat to the knee.
And now Jessie was spending time with this woman.
She can take care of herself. Leary mouthed the words, but he wasn’t sure he believed them—not in this scenario. Briscoe has no reason to want to hurt her. That sounded better. But was it true? Hadn’t Jessie mentioned prosecuting Briscoe’s boyfriend?
A voice jerked him back to the moment. “I forgot how lovely Penn’s Landing can be.” It was Warren Williams.
“Thanks for meeting me on short notice,” Leary said.
“Where’s your guy?”
“He’ll be here. Walk with me.”
Warren’s breathing sounded heavy, and Leary had to slow his pace so the overweight lawyer could keep up. They had not been walking for more than a few minutes when the smell of cigarette smoke invaded Leary’s space. He turned to see a middle-aged man. He wore sunglasses and a fedora, and walked briskly with one hand jammed in a pocket of his windbreaker and the other holding a cigarette to his mouth.
“Who’s he?” the man said, indicating Warren.
“My boss.”
The man nodded but didn’t stop walking. “Okay.”
“Is this cloak and dagger routine really necessary?” Warren said between labored breaths.
“I don’t want to be seen talking to you. The reasons should be obvious.” The man hesitated for a second, then added, “And also, I like to get outside. Gives me a chance to smoke.”
“I guess you can’t do that in the courtrooms of City Hall,” Leary said.
The man blew out a plume of smoke. “It’s frowned upon.”
“Imagine that.” Between this cloud and the one in Noah Snyder’s cigar club, Leary’s throat was starting to feel irritated.
The man turned slightly as they walked. Through the haze of cigarette smoke, his gaze was wary. “Before I tell you anything, I want to know why you’re asking about Dax.”
Leary started to answer, but Warren touched his arm, stopping him. “Let’s just say I have an interest,” Warren said.
“You’re planning to tangle with her?”
“She’s tangling with me. I don’t think I have a choice.”
The man nodded. “This judge is dirty. Not just ethically challenged—most of them are that—but this one is on the take. Been accepting gifts from litigants and other interested parties for years.”
Warren seemed to take this news in stride, and Leary wondered just how common it was. “Risky. How is she getting away with it?”
“Friends in high places, mostly. People willing to look the other way. And money. Where political expediency doesn’t cover her, she just spreads the wealth. The usual facilitators.”
“Did she take any bribes in connection with the Rowland case?” Leary said. Warren shot him a warning look, but said nothing.
The man nodded. “As a matter of fact, she did.”
Leary felt his stomach drop. Right now, Jessie was pulling out all the stops to prepare for a hearing Judge Dax had set for 2 PM. But if the judge had taken a bribe from Boffo Products Corporation, then Jessie didn’t have a chance. Dax was going to throw out the case.
“Please tell me you brought us evidence,” Leary said.
The man patted the bag slung over his shoulder. “Come on, Leary. Have I ever let you down?”
“Give it to me.” Warren stopped walking and held out a hand. The man didn't move.
“Giving you what’s in this bag could be very dangerous for me.”
“The DA’s Office will protect you.”
The man snorted a laugh, then coughed. To Leary, he said, “This guy serious?”
Leary had been dealing with the man off and on for years, and believed he had established that his word was solid. Still, this request was the first time he’d really tested the strength of the relationship. “If you give us what we need, we’ll make sure Dax won’t be a threat to you.”
“You’re going to take her down?”
Leary glanced at Warren, who gave a curt nod. “Yes,” Leary said.
The man flicked his cigarette to the ground and stomped it out. “I have a friend, needs a little help.”
“You’re joking,” Warren said, but Leary hushed him.
“What can we do for your friend?” Leary said.
“He was arrested for drunk driving. Can you make it go away?”
“Yes,” Leary said. “Right, Warren?”
Warren grumbled a reply.
“You know I’m good for it,” Leary said.
“That I do,” the man agreed. He opened his bag, withdrew a manila folder, and passed it to Leary. “You better handle her decisively. She slips the net, all of our careers are finished.”
“Understood,” Leary said.
The man turned and walked away, leaving Leary with Warren. The lawyer looked disgusted. “The DA’s Office isn’t in the business of doing personal favors, Leary.”
“You’re really saying that with a straight face?”
Warren sighed. “Fine. I just hope his friend doesn’t wind up running over some kid the next time he drives home drunk from a bar. I don’t need that on my conscience.”
Leary held up the folder. “Right now, this is what matters. Jessie has a hearing before Judge Dax in a few hours. We need to move quickly.”
34
Jessie squirmed on an uncomfortable, pew-like seat. It had been a long time since she had felt like an outsider in a courtroom, but that’s exactly how she felt now. Part of this feeling stemmed from the fact that this courtroom was in City Hall, rather than her familiar stomping grounds of the Criminal Justice Center. Part of it was that she sat in the gallery with the other spectators, rather than at counsel’s table as a participant. (Noah Snyder sat with the Rowlands at the plaintiffs’ table, and Douglas Shaw sat at a defense’s table so packed with lawyers they’d barely been able to squeeze in enough chairs.) But the greatest source of her unease was the feeling that she didn’t understand the rules here, that Judge Dax, Noah Snyder, and Shaw’s legal team were playing a game no one had shown her the manual for, and which had little to do with the facts of the case or the legal research she’d spent the first half of her day working on. And there was nothing she could do but watch.
Judge Dax opened the proceedings. They were assembled here this afternoon for a motion hearing, which meant the lawyers for each side would try to persuade the judge to rule in their favor on the two motions before the court—the plaintiff’s motion to certify a class and the defense’s motion for summary judgment. Snyder was still riffling through the document Jessie had prepared for him. It was a legal roadmap of the arguments she hoped would carry the day for the Rowlands and other victims of Boffo’s recklessness. They had also filed her hastily prepared reply brief.
The lawyers at the defense table sat stone-faced with their hands clasped in front of them on the tabletop. They looked calm and prepared. And confident. Either they were great actors, or they knew someth
ing Jessie didn’t, since as far as she’d been able to determine, the law was on the Rowlands’ side.
“I’ve considered your motions,” Judge Dax said, “and before I rule, I will hear arguments. Mr. Snyder?”
Snyder stood up. He flashed the judge his trademark, rakish smile, but Dax only regarded him coldly. Snyder faltered, but only for a second. Then he smiled again and glanced at the document in his hands.
“Your Honor, as you know, my clients seek certification as a class for purposes of the Commonwealth’s class action statute. Courts have consistently held that Pennsylvania’s class certification rules are to be applied liberally. See, uh, Inn Braun v. Wal-Mart Stores Inc., a Pennsylvania Supreme Court decision—”
One of Boffo’s lawyers stood up. “Your Honor, I don’t believe that case was cited in plaintiffs’ brief.”
Snyder shot the man an annoyed look. “It was cited in our reply brief.”
“A reply brief that was filed literally minutes before this hearing, Your Honor.”
Snyder looked at the judge with a pained expression. “As you know, the plaintiffs in this case substituted counsel between the filing of the motion and this hearing, as a consequence of the death of their original attorney. But I can assure you that we provided as much notice as was possible given the circumstances. If Your Honor would prefer to postpone this hearing to give the defense additional time to review the reply brief, we would not object to that.”
“That won’t be necessary,” Dax said. “Go on.”
“Thank you, Your Honor.” Snyder glanced again at his document. “As I was saying, the Pennsylvania Supreme Court upheld a jury verdict in favor of the class action plaintiffs in that case. I would also point your attention to another decision, Weinberg v. Sun Co., where the court held that a class action method does not need to be superior to alternative modes of suit.”
He flipped a page, and Jessie cringed inwardly as she watched him quickly read what she’d prepared for him. She hoped he wasn’t reading this for the first time.
“Your Honor,” he went on, “for a suit to proceed as a class action, Rule 1702 only requires five criteria to be met. It is not intended as a demanding standard. Therefore, it is our position that class certification should be granted here.”
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