First Do No Harm (Benjamin Davis Book Series, Book 1)

by A. Turk

  The crowd reacted to the reference to “profits.” An obese woman stood and yelled loudly, “They kept operating on my mother until there was nothing left of her. Dr. Herman kept insisting he could make her better, but all he did was make it better for him and the hospital.”

  Sammie thought the woman hit a nerve with the crowd, and several others made loud grumbling noises. The atmosphere changed drastically to one more like a revival meeting.

  As Littleton continued his presentation, he stumbled a bit over his words: “Two years ago, the hospital was marginally profitable. Today, Plainview Community Hospital is flush with profits, through Dr. Herman’s and Dr. English’s unethical practices. What are these unethical practices? They perform unnecessary medical tests, procedures, and surgeries. This is how the hospital has dramatically increased its revenue. Profit was gained as Dr. Herman and Dr. English risked the lives of you and your families. Profits are why the hospital has turned a blind eye to Dr. Herman’s and Dr. English’s wrongful actions.”

  People in the audience forgot about Littleton and started chatting among themselves.

  A young woman about twenty moved to stand in front of Littleton. Tears were running down both cheeks. “You all knew my sister, Irene. Dr. English lost her last March. She was just twenty-six and left behind a husband and two small children.”

  An older man came up from the second row, put his arm around the young woman, and ushered her to the back of the room.

  Littleton had lost control, so he sat down.

  Sammie was concerned that the crowd was about to turn ugly; someone needed to gain control—fast.

  Davis jumped to his feet, cupped his hands to his mouth, and produced a rebel yell. The crowd was familiar with that battle cry.

  It may not have been the most professional thing to do, Sammie thought, but it got everybody’s attention and they stopped talking.

  Davis said, “I apologize for my weak Yankee attempt at your battle cry, but on behalf of Mr. Littleton and myself, I would like to thank you for attending this information session.”

  Sammie noted that her uncle’s voice was deeper and more authoritative than Littleton’s; he sounded like a radio announcer and projected loudly enough to reach the back of the room. He was much taller, stood more erect, and generally carried himself better. She could tell that he immediately gained the trust of the crowd, the same way he secured the trust and confidence of a jury.

  “The health and well-being of your community are at stake. Without health, you have nothing. We live in a dangerous world. With every breath we take, there are microbes and countless other foreign bodies that could affect our health. If you farm, as I know many of you do, your hard work places you at risk every day for accidents, both minor ones and life-threatening ones. Heck, anytime you get in your car you’re at some risk that a fool not paying attention will run a red light or even worse that a drunk driver will cross the yellow line and plow right into you.”

  Davis continued, “These are problems we have come to expect, and they’re part of life. But it’s different when men you’ve placed your trust in betray you. These physicians took an oath to protect this community, and they placed themselves and their wallets ahead of you. Unlike the drunk who crosses the yellow line, they weren’t all liquored up. They knew exactly what they were doing. They were stone-cold sober and stone-cold-hearted.”

  Davis stopped and looked directly at Sammie, or at least she thought he did. She suspected that everyone there felt the same way: he was speaking directly to him or her. Her uncle cleared his throat, took a sip of water from a bottle hidden under the podium, loosened his tie, and unbuttoned his top button. He was establishing a relationship with the audience, becoming one of them. His piercing blue eyes scanned the crowd. Sammie did the same with her even deeper blue eyes and saw that he mesmerized the patients and their kin.

  “Earlier, Mr. Littleton mentioned the hospital’s lax attitude when checking the backgrounds of new physicians. Dr. Herman went to medical school in Mexico, at the University of Mexico City. By law, because he was a foreign-trained physician, in order to practice medicine in the United States, Dr. Herman was required to pass a qualifying examination known as the FLEX exam. This test certifies that foreign-trained doctors possess the minimal skills and knowledge to treat patients in the United States. The American Medical Association doesn’t want unsuspecting Americans to be treated by foreign-trained quacks. Dr. Herman, amazingly, failed the FLEX exam eight times before finally passing.”

  Davis paused for effect. “Now everything I’ve just told you about Dr. Herman’s education, training, and FLEX exam results is a matter of public record. Why didn’t the hospital call and get those test results? And if they did, why did they grant privileges to Dr. Herman?”

  After another pause, Davis turned his attention to English. “Dr. English attended Peterson University in the Dominican Republic. In 1985, Peterson University lost its accreditation as a medical school. The American Medical Association, after a thorough investigation, determined that Peterson had been issuing fraudulent medical degrees. This finding has been widely publicized throughout the general media and was also widely known throughout the medical community. I have here an article from the New York Times on August 31, 1985. It explains why Peterson was forced to close its medical school. Today, seven years later, Peterson University’s medical school remains closed. Dr. English graduated in 1982. His education and training were stated on his application for privileges at your hospital.”

  Davis held up the application and told the audience that the document was a matter of public record, filed with the state. “Plainview Community Hospital should have conducted a serious investigation of Dr. English’s qualifications. It didn’t. The mere reference to Peterson on English’s application should have been a red flag.”

  A tall redheaded gentleman stood and addressed the audience, “I lost my job of ten years because of Dr. English’s botched surgery last year. Dr. Herman told me I had stones, and I needed my gallbladder out. They told me I’d be out of commission three days, but I couldn’t go back to work for almost a month. After three weeks my boss replaced me with a younger guy who’d take a lot less money. I’m still on unemployment, and the insurance company has paid English for the botched surgery but not for all the additional medical expenses I ran up after the surgery. It ain’t right.”

  “Ladies and gentlemen, I only took the Bar exam once,” said Davis. “Each time I walk into court, I represent that I am qualified to practice law. It was the hospital’s job to question and investigate Dr. Herman and Dr. English before it let them loose on this community. You and your families are the victims. Greed, rather than good medicine, controlled your care. That’s the truth.”

  Sammie noticed the Indian woman in the back row smile in response to Davis’s last remark.

  “Mr. Littleton and I are here to offer you an opportunity to set things right. You may or may not have a valid lawsuit. That question can only be answered after a qualified doctor reviews your medical records. At no expense to you, we are willing to investigate. If you or a family member was damaged by sub-standard care, you are entitled to be compensated under the law. My assistant has a legal pad at the circulation desk. If you are interested in having your medical records reviewed, please give her your name and contact information. One of my paralegals will be calling you. Thank you again for coming here this evening.” Then Davis sat down.

  The room filled with angry voices. The meeting lasted less than thirty minutes, but Sammie could feel the tension in the room. Her uncle and Littleton had raised the awareness of these confused and desperate people. A line of people formed next to the circulation desk, where Bella was waiting.

  Sammie approached the Indian woman. “Dr. Patel?” Sammie shook hands with the doctor, and after a brief conversation, she joined Bella to help record contact information.

  They ended up with twenty-six names. The first three were Thomas Malone, Wendy Jones, and Edith Ea
ster.

  CHAPTER EIGHT

  THE FISHING HOLE

  SUNDAY, AUGUST 23, 1992

  The Davis family was running about an hour late. Davis knew that Morty had already gone through his tackle box in anticipation of an afternoon of fishing, drinking beer, smoking cigars, and bullshitting. As usual, Morty would make his ham and cheese sandwiches with spicy German mustard. The two had been fishing together since 1975, and Morty always made the same type of sandwich and made the same bad joke about “two Jews eating ham in a row boat.”

  This time Davis brought along Liza, their children, and Sammie. Bringing the family was an extra bonus. The whole family loved Morty, and he got a kick out of being with the children. They were the grandchildren he never had. Davis wanted Jake to learn how to fish with him and Morty. Liza, Sammie, and Caroline would play Frisbee and have a picnic lunch while they waited for the main course of the evening’s catfish dinner to be caught by the men. After they pulled into Morty’s driveway, Ben sent the three females to the pond in one of the golf carts so they could set up their picnic lunch.

  Since Goldie’s death from cancer on July 4th, Morty had been living like a recluse, never leaving his farm, Squeeze Bottom. He had aged in the last month and now looked used up. Davis invited the old man to his house for a home-cooked meal at least a couple times each week, but he politely refused.

  On May 8th, Morty retired completely in order to spend more time with Goldie. He hoped that they would share more than a few weeks together, but God had other plans.

  The younger man tried to stay in touch via the telephone. However, his family and a busy law practice preoccupied him. He tried to go fishing with Morty as often as possible because he knew that those trips were the highlights of Morty’s weeks.

  Davis and Jake walked in the house without knocking; Davis had been there more than a hundred times. “Sorry we’re late. Let’s not keep those catfish waiting.”

  Morty’s grandfather Abe had purchased Squeeze Bottom, a house and 288 acres, in 1914. Despite its age, the main house appeared almost new due to a fresh paint job.

  As they left the house, Davis held the screen door open and took the fishing rods and tackle box from his older friend’s hands. It was a glorious day. The sun was shining, the sky was dotted with cotton ball–looking clouds, and the birds were singing.

  The trio stepped into the other golf cart parked in the circular gravel driveway, and Jake drove, sitting on Davis’s lap, to Dear’s Pond, which had been named in honor of Morty’s mother, Deidra. Morty took great pride in his private fishing hole.

  As Davis and Jake unloaded the gear, Morty took a seat on his usual stump and began peppering Davis with questions. “How’s the practice since I left? How’s my girl Bella doing? How’s Sammie working out? Is she as smart as you thought she’d be?”

  Davis laughed. “Everybody’s doing fine. You know Bella is the one who keeps things moving along and on track. Sammie’s got some skills. She can work the computer and she knows how to research, but she’s raw and inexperienced. She also has an annoying habit of listening to music while wearing headphones. It’s very unprofessional.”

  “Don’t sell her short just because you’re related by blood. Give her a chance. She’s smart. She needs to be taught,” Morty reminded him. “And with hard work and guidance, she could be a real asset.”

  Morty baited Jake’s rod while the five-year-old squirmed almost as much as the worm on the hook. Jake asked Morty if the worm felt any pain. The old man looked grandfatherly, lied, and assured the child that the worm was more than happy to cooperate so they could catch a catfish dinner.

  After Jake was settled down in the small bass boat, waiting for his first fish, Davis explained to Morty how hectic things had been. “You know how busy it can get. There aren’t enough hours in the day.”

  He could tell that his old friend missed the excitement of the practice of law. Davis worked his way into the primary purpose of his visit. “I took those medical malpractice cases Littleton referred out of Plains County. It’s ten cases, and I’m a little overwhelmed by the thought of drafting ten separate complaints.”

  Davis took the oars and repositioned the boat about twenty feet from the shore.

  Morty baited his hook and cast his line with authority. “That shouldn’t be too difficult. The cases involve the same three defendants and revolve around almost identical negligent acts. You’ll draft a template and then vary the document to fit the particular facts of each case.”

  Davis cast his line and pretended to concentrate on his floater, but in reality he was listening intently to the old man.

  “In each case you’ll have to at least prove negligence. Recklessness will be a harder sell to a jury. You’ll have to establish recklessness by clear and convincing evidence rather than by a mere preponderance of the evidence. I don’t know that you can prove that these doctors and the hospital disregarded the consequences of their actions.” Morty stopped talking a minute to light his cigar with his gold Dunhill lighter, which Davis always admired. It was a gift from Willie Nelson.

  Davis had reached the same conclusion about the probability of a jury verdict of recklessness and an award of punitive damages.

  “If the court allows you to introduce evidence of a pattern of either negligence or recklessness, the hospital can be held liable.” Morty dropped an ash from his cigar in the lake and continued, “Another issue that you’ll have to address is that Tennessee Mutual will insure at least one of those doctors. You can forget about retaining a Tennessee expert witness.” Morty shook his head. “I think you’re making a big mistake. These cases will preoccupy you and take away from the rest of your practice. You’ll also dump a ton of money in these cases. You should just let Littleton keep the cases and drown on his own.”

  Morty stopped to respond to his bending pole, but despite being an experienced fisherman, he over-corrected and lost the fish. Jake was so disappointed.

  Morty sighed and turned to Davis. “When was the last time you were in Plains County?”

  “Last month.”

  “And before that?”

  Davis thought a few moments. “Never.”

  “Bingo. You’re trying these cases in Plains County, the defendants’ backyard, and you’re a New York Jew.”

  Davis had to agree with Morty. He made a good practical point.

  Morty continued, “That hospital is the largest employer in the county. How are you going to get an impartial jury? Do you know how difficult it is to change venue in a civil case? During my forty years I changed venue a half dozen times in criminal cases, but I never changed venue in a civil case. In a criminal case you can always argue to the court in a rape or murder trial that the county jury pool is too prejudiced. In those cases, it’s one of their own raped or murdered. But in a malpractice case, you’ll need at least three affidavits from disinterested persons. You couldn’t even get one of the local barbers to give an affidavit. Everyone knows everyone else in these small towns, and nobody’s disinterested. You can’t get a fair trial in Plains County.

  “You also better start thinking about who you’re going to get as local co-counsel to help you pick the jury. You’ll need someone with good connections with the judge. Jack Barnes is the man for the job. I’d give him a call right away and get him on your team. He’s an experienced trial lawyer who knows his people. Give him a piece of the action. Better yet, give him Littleton’s piece of the action. Is Judge Robert E. Lee Boxer still on the bench in Plains County?”

  Davis hung his head and looked despondent.

  “What’s wrong?”

  “I waited too long.”

  “What do you mean?”

  “I wanted to retain Barnes in June, right after the meeting at the library. I knew we’d need his local political pull with the judge and his experience for the jury selection. Littleton talked me into waiting. He was convinced there’d be a quick settlement. He didn’t want to give up a percentage of the fee to Barnes. While we
waited, Dr. Herman hired Barnes as his personal lawyer.”

  “Lesson number one, don’t listen to Littleton. He’s an idiot.”

  Davis nodded and told Morty that Boxer had two years left on his term and served three county circuits: Plains, Hewes, and Briar. He had been on the bench almost six years, and he was only in his late thirties. Davis had never appeared in front of Judge Boxer before. Davis didn’t get to Plains, Hewes, or Briar often. His practice was primarily in Nashville, Davidson County. He knew to keep his New York Jew ass in Nashville and hire a lawyer when he went to adjacent rural counties.

  Morty emphasized the point: “I knew Boxer’s Uncle John pretty well. He was a great judge and held his bench for three terms, twenty-four years. He was scholarly and always prepared. John wouldn’t let a lawyer get away with anything. If a lawyer was avoiding a question with a witness, John would ask that question for the lawyer. I hated when he did that. I’ve been before his nephew. To his friends, he’s Bobby Lee. But you’ll be calling him Judge Boxer. Bobby Lee’s half the man that his uncle was, but that just makes him your average county judge, more politician than scholar.”

  Both Morty and Davis understood courtroom politics. Morty was usually the beneficiary of such political favoritism.

  “I know how you can get Boxer to move these cases. As a circuit judge, he presides in three county seats. The cases must be filed in Plains County because the alleged negligence and acts of malpractice occurred in Plainview. So you file there, but then move for a change of venue to Hewes County. I predict it will probably be granted.”

  Davis looked at Morty with astonishment.

  Morty had more to share: “These ten cases are going to tax any county court system. This is going to be a handful for any judge. Each trial will last at least two weeks, with endless motions and required court appearances. The entire process, if all ten cases are tried, will last at least five years, won’t it?”