by A. Turk
The Easters spent more than four hours with Davis. Sammie wondered whether all of the Plainview meetings would be as exhausting and time consuming. When the Easters left, Sammie ushered in the next scheduled Plainview plaintiff. It was going to be a long day.
CHAPTER ELEVEN
SERVED
TUESDAY, OCTOBER 20, 1992
Dr. Herman was at his office at 6:30 a.m. Sheila got there a few minutes earlier. The patients began arriving at 7:00 sharp. Herman had scheduled several early-morning ultrasounds.
While Herman was mentally counting his money, Sheila walked in and said, “A Plains County deputy sheriff is here to see you.”
When the deputy entered Herman’s private office, he handed the doctor the legal documents. Herman was angry and embarrassed but tried to compose himself. Begrudgingly, he choked out a “thank you.”
The deputy turned and left.
Herman sat down behind his desk and flipped through the complaint. The title of the document was Wendy and David Jones vs. Plainview Community Hospital, Dr. Lars Herman, and Dr. Charles English. The complaint was sixteen pages long, and Herman debated whether to read it all now or treat his patients. He put it aside for the moment and decided to read it at lunch. It was too important to skim through, and patients were waiting. He left his office upset, but there was money to be made.
By one o’clock he had seen more than ten patients. Eight of them required an ultrasound. Herman broke for lunch to eat his sandwich and read the complaint. With each word, he could feel his blood pressure rise:
On November 5th, 1991, Wendy Jones, a twenty-five-year-old married person presented herself at Dr. Herman’s office complaining of throbbing pain above the right eye and temple. She had experienced several episodes of dizziness and blurred vision. Dr. Herman admitted the patient to Plainview Community Hospital for tests and evaluation.
He tried to remember what Wendy Jones looked like, but he couldn’t. He read further. The complaint alleged that he was negligent and reckless in failing to obtain a sedimentation rate. The complaint also alleged that he permitted Dr. English to perform unnecessary brain surgery on his patient and that Mrs. Jones should have never been admitted to the hospital for her symptoms.
Herman couldn’t believe what he was reading. He could feel his blood pressure hit the roof. Who are these lawyers to question me a year after the fact? My patient was in pain, and I was trying to diagnose the problem. How could that be negligence? How could that possibly be reckless?
The document claimed that despite Herman’s efforts and English’s surgery, Wendy Jones continued to experience headaches for the next six months. Eventually, Mrs. Jones sought a second opinion and was prescribed medication, which ended her headaches after only two weeks.
Not only was Wendy Jones suing him, but also her husband, David, was suing him. How could the husband sue him when he’d never been a patient?
In the last section of the complaint, Wendy Jones claimed she was entitled to damages in the amount of $100,000. David Jones was seeking damages in the amount of $35,000 for disruption the surgery and his wife’s recovery had on his marriage. It asserted loss of consortium, a disruption to their normal marital life, including the intimacy of their relationship. The complaint demanded that a jury try the issues. It was signed “Benjamin Davis, Attorney at Law.”
He hated Benjamin Davis, even though he had never met the man. He threw the document to the floor in disgust but then bent down and picked it up, realizing that he needed to take action rather than pout.
He called Woody Douglas, who answered on the first ring. The hospital had also been served. Douglas told him not to worry but call his medical malpractice insurance carrier, Tennessee Mutual Insurance Company. Douglas assured Herman that his carrier would protect his interests and hire him the best defense lawyer. Feeling a little better, Herman hung up.
Next Herman called the insurance company and eventually got through to a vice president named Larry Pinsly. Pinsly was very calm. He asked Herman to fax the complaint so he could read it.
Before Pinsly hung up, he tried to settle the doctor’s uneasiness. “Don’t worry, Dr. Herman. I deal with this every day, and you shouldn’t make a mountain out of a molehill. Tomorrow I’ll call Sean McCoy, an excellent malpractice lawyer we keep on retainer. He’ll be defending you. I’ll also call the hospital’s attorney, Grayson Stevenson. I know him very well, and we’ll begin coordinating our defense. I don’t think the company will have any trouble getting expert witnesses to testify that you didn’t breach the standard of care.”
Herman agreed and felt much better. He decided to return to work to take his mind off the problem. His next patient was the ninth ultrasound of the day. He referred six ultrasound patients to Dr. English for a surgical consult. For two years, Herman and English had had a profitable business relationship. However, English’s personal life was starting to interfere. Charlie was falling apart. I wonder whether Charlie is becoming mentally unstable? Legal fees, child support, and alimony have placed incredible financial stress on him. His appearance has deteriorated, and he looks disheveled and unprofessional most of the time now. Will patients start to doubt his ability?
With these thoughts racing through his mind, Herman was moving the ultrasound wand over a young woman’s abdomen when he heard a knock at the door. It was Sheila, and she seemed upset.
He came to the door, even though he didn’t like to be disturbed. “Sheila, what is it? I’m kind of busy here!”
Sheila sheepishly responded, “Doctor, the postman’s here, and he has a certified letter from the Board of Medical Examiners. He insists only you can sign for it.”
He asked Sheila to bring the postman to his office. Herman signed the certified letter, and the postman left. The top left-hand corner of the envelope was embossed with the Board of Medical Examiners’ logo.
The board’s main function is to issue, suspend, and revoke medical licenses. The lawsuit is a pain in the ass and a tremendous inconvenience. However, the insurance coverage will pay out any judgment against me. But if my license is suspended or revoked, I could lose everything, thought Herman.
The title of the document was Notice of Charges. It identified the authority and responsibilities of the Tennessee Board of Medical Examiners. The notice was divided into sections, each identifying a separate accusation of a patient. Herman read the allegations: thirty counts of overmedicating and prescribing improper medications; twenty-six counts of performing unnecessary ultrasounds; eighteen counts of unnecessary surgical recommendations; and one count of issuing a false death certificate. Herman faced a total of seventy-five separate charges. If he was found guilty of the charges, the Board of Medical Examiners threatened the revocation of his medical license and a civil assessment of $150,000. The notice recommended that Herman retain counsel. It added that a hearing would be scheduled in accordance with due process.
While he read the state’s claims against him, the room grew hotter and hotter as the sunlight blazed through the window. He could hear the traffic outside. Suddenly, Herman had a blistering headache. He opened his desk drawer, pulled out a bottle of aspirin, and took three.
He faxed the Notice of Charges to Pinsly of Tennessee Mutual. He wouldn’t call Woody Douglas. He knew that English would be calling him after he saw the postman. Herman sighed. Charlie was already half crazy, and this problem might push him over the edge. He decided to wait for Charlie’s call.
CHAPTER TWELVE
A NEW CLIENT
THURSDAY, OCTOBER 29, 1992
Amy Pierce’s day began with the sounds of Bruce Springsteen’s “Born to Run.” She reached across her empty bed to turn off the alarm. She sat up quickly and walked into the bathroom to splash water on her face to wake up. She had a full day ahead.
Looking into her vanity mirror, she felt old. She had dark rings under her eyes, and the black roots at the crown of her red hair were starting to show. Although she was only thirty-six years old, her youth was slippin
g away while she worked seventy hours a week. She had no time for exercise, and her once-supple body had lost its firmness and ached.
She stretched her arms over her head and bent first to the right and then to the left. As she moved from side to side, she was an imposing figure at five feet nine and a half inches. She had been an All-State center for her local high school. She had a scholarship to Harpeth Hall, a girls’ school in Nashville. The school had high academic standards, so Amy had to work hard there. Her aunt, the school’s librarian, raised her after the deaths of her parents in a car accident.
Turning sideways in the mirror, she puffed out her stomach. Despite her lack of physical activity, she still had firm, supple breasts and no belly, and she weighed in at only 120 pounds. Things could be worse.
Amy walked into her son’s bedroom. Carter was still fast asleep under his dinosaur quilt. She switched on the bedside lamp and gently nudged Carter awake.
“Morning, sweetheart. Happy birthday!”
“Morning, Mommy. Can I have my presents now?”
Amy brushed his matted hair off his forehead and planted a kiss.
“Why don’t we have breakfast first? What would you like? You can have whatever you want since it’s your birthday.”
Carter gleefully responded to his mother’s question with one of his own: “Birthday cake?”
Amy tried to formulate a diplomatic response: “If we eat the birthday cake now, what will we serve your friends tonight at Chuck E. Cheese’s?”
Carter understood the predicament and shrugged his shoulders. “I guess I’ll have a Pop-Tart in the car. I’ll save the cake for later.”
By 6:00 a.m., Amy and Carter were in the car on the way to school. She was thankful that Carter’s school had a morning care program. It meant that she could get an earlier start to her day at the law firm.
She was a senior associate with the Nashville law firm of Dunn, Moore and Thomas, also known as DMT. The firm specialized in the defense of insurance companies. For four years, Amy had labored long hours at DMT, as was expected of associates. Working the twelve-hour days, five days a week, and at least eight hours on Saturday, she was expected to get her work done, and if there weren’t enough hours in a six-day week, then her Sundays with Carter had to be sacrificed. DMT didn’t worry about whether its associates attended church; the work came first.
Rather than give up her family day, she chose to bring work home during the week and work long after Carter had gone to bed. Most nights, Amy didn’t fall asleep until two, and she was up before six. Long ago, she learned to get by on less than four hours of sleep.
Amy desperately hoped her hard work would be rewarded with a partnership. The promise of that achievement was the very reason she returned home following her divorce. She knew achieving partnership in New York would be arduous. She also recognized that back home Carter would have a good environment in which to grow up near the aunt who raised her and her younger cousins. Amy’s decision to return to her hometown of Franklin, Tennessee, and work in Nashville was not the path she originally intended, however.
In 1983, Amy Pierce graduated second in her class from the University of Virginia Law School. Her ex-husband, Daniel Smith, was the valedictorian. After graduation, Dan and Amy, Mr. and Mrs., one and two, had accepted positions with large law firms in New York City. But their jobs were very demanding, with each working eighty hours a week. They barely saw each other. While Amy loved the work and the pace, Dan crumbled under the pressure. Their marriage was always under stress, and the birth of Carter added to their existing problems. Even Amy had difficulty balancing motherhood and career.
Dan was no help when it came to Carter. He was no more ready for fatherhood than he was for a high-intensity career and marriage. Dan became an alcoholic and, despite trying AA, eventually got fired because of his drinking. At twenty-nine, he was washed up and spiraling downward. Amy had no intent of being pulled down with him, so she divorced Dan and moved to Franklin.
She took the I-65 exit ramp toward downtown Nashville. Amy was in a particular rush this morning because before she left last night, the firm’s managing partner, Lowell Thomas, requested an 8:00 a.m. meeting to discuss Amy’s assignment of a new client. Amy wanted to review the background of the client, Planter’s Insurance Company, or PIC, before sitting down with Thomas. She had been given a great opportunity, and she intended to make the most of it. The information in the file on her desk told her that Planter’s was going to be a substantial and lucrative client. This assignment would raise Amy’s visibility at the firm above the other associates and might increase her status with the Partnership Committee.
As she was thinking of her new client and trying cases on its behalf, Thomas stuck his head in her office. “Amy, change of plans. I need to cancel our meeting. Last night, Jim Davenport of PIC called and said he’d be in Nashville for lunch. He requested a noon lunch meeting with the two of us, so rearrange your schedule.”
Because she was unsure of the meeting’s length, Amy rescheduled two appointments.
At 11:40, Thomas walked back into her office. “Let’s go. I don’t want to keep Davenport waiting.”
Amy and Thomas rode the elevator to the twenty-seventh floor to the Capitol City Club. Despite Thomas’s best efforts to be early, Davenport was waiting in the entry hall. Thomas introduced Amy to Davenport, and they were led to their table. The trio exchanged greetings and chitchatted for a few minutes.
Davenport proceeded to cross-examine Amy about her education, employment, and experience, even though he already knew the answers from her bio in the firm’s brochure. He wanted to hear it from her.
Davenport then guided the conversation to PIC. He described the company’s history and business philosophy. Two families, one from Birmingham and the other from New Orleans, had founded PIC in 1954. Previously, the company had limited its coverage to medical malpractice insurance in Alabama and Louisiana. After seeing an opportunity in new markets, PIC decided to expand to Tennessee and Arkansas, and Davenport was the newly appointed regional manager for the state of Tennessee.
He looked directly at Amy. “You’ll be dealing with doctors. They’re used to calling all the shots, and surgeons are by far the worst. Nobody in their office or at the hospital ever stands up to them. The doctors just run roughshod over everyone who comes in contact with them. Handling a lawsuit is not like being in charge of a medical team in an operating room. In an operating room everybody is working toward a common goal, to help the patient. Doctors are simply not equipped to deal with the adversarial nature of a lawsuit, so you need to take firm control over the litigation.”
Amy was well aware that doctors were difficult clients. Probably the only thing worse was representing another lawyer.
This was Davenport’s meeting, and he continued, “A lawsuit is a business transaction. You’ve got to weigh the risk and the monetary cost of a judgment against the cost of defense. Luckily, here in Tennessee, you’ve got a natural impetus against large awards, the jury system. Tennesseans are naturally conservative and suspicious. They don’t give large judgments, and they especially don’t award punitive damages. PIC has been doing business in Alabama and Louisiana for almost forty years. Jury verdicts in Alabama are out of control. The city of Huntsville is a fourth the size of Nashville, yet our research shows that on average Huntsville’s juries give verdicts three and four times greater than those of Nashville.”
Amy followed the dollar amount of jury awards throughout the United States; the sizes of those awards were directly related to the geographic location of the trial. Certain states were actually competing to see which local community gave the largest verdict. For example, in last month’s New York Bar Journal, an attorney in a closing statement argued that Brooklyn, and not the Bronx, had the largest award of compensatory damages in a medical malpractice case. No wonder the tort reform movement was picking up steam throughout the country.
Tennesseans were just the opposite of New Yorkers. They prided
themselves on their conservative nature. It was no fluke that people in Tennessee were simply less willing to compensate plaintiffs. Amy knew that was the draw for PIC to Tennessee.
“There are almost three times as many defendants’ verdicts in Tennessee than in Alabama. The statistics are similar for Arkansas. That’s why PIC is moving into those markets.”
Thomas responded to Davenport: “Jim, PIC has made the right decision. The Tennessee malpractice insurance market is wide open. Your competitor, Tennessee Mutual, insures more than eighty percent of the doctors in the state, and it has become lazy. Its premiums have steadily risen despite the fact that the doctors own it. Everybody knows doctors are not good businessmen. There’s a real opportunity here for PIC, and I’m confident DMT is the right firm for PIC’s litigation needs. We’ll make damn sure that PIC doesn’t have to pay out any large verdicts.”
Davenport got down to specifics: “I’ve got your first case. Well, your first five anyway. Our insured is a general surgeon by the name of Charles English. There have been at least five lawsuits filed against him in Plains County Circuit Court by Benjamin Davis and Bradley Littleton. Do you know either of them?”
Amy responded, “I don’t know Littleton, but I’ve seen Davis in court. He’s good. I’ve never had a case against him, but I’m sure several of our partners have. He’s well thought of as a trial attorney by the Bar. Davis used to be partnered with Morty Steine, who retired this year. Steine was a master in the courtroom, and we’re fortunate he’s gone. How many lawsuits did you say have been filed?”
“As of yesterday, there were five,” Davenport replied. “I’ve got a call in to the clerk to see if any additional complaints have been filed today. The state’s also brought charges against English, threatening to revoke his medical license and assess civil penalties. I’m convinced Davis or Steine instigated the state charges.”