by A. Turk
Davis rose and said, “He’s not letting the witness answer the questions.”
“Stop cutting off his answers, Mr. McCoy.”
McCoy straightened his lavender bow tie and moved on. “Your mother was a smoker for forty years, right?”
“Yes, sir.”
“She was prescribed narcotics for pain?”
“Yes, sir.”
“She was so addicted that Dr. Herman gave her fake drugs, placebos, some of the time?”
“I learned that during the trial. I didn’t know that.”
“You didn’t know your mother was a drug addict, did you?”
“Momma wasn’t a drug addict!” Thomas was about to lose it.
McCoy could smell blood in the water. “What do you call someone who takes narcotics twice a day?”
“I’m no doctor.”
“You’re not much of a son either. You didn’t visit your mother in the hospital until you thought she was dying?”
Davis jumped up and yelled, “Argumentative!”
Thomas got up and started for McCoy.
Sherriff Dudley rushed forward and placed himself between Thomas and McCoy. Davis also rushed forward.
McCoy in a low voice said snidely, “I have no further questions for this witness.”
Pierce and Stevenson passed because they couldn’t achieve a better stopping point. Her uncle also passed. Thomas was too upset to continue.
Sammie thought, Thomas was a good witness until his outburst. He lost control, and that won’t sit well with the jury.
After lunch, Davis called Lorraine to the stand. She was dressed in her Sunday best, and she didn’t appear nervous at all. She had taught American history to tenth graders for the last twenty-two years. She was the only Malone child with a college degree.
She talked about her mother’s health and the fact that she tried to get her to stop smoking. She blamed Dr. Herman for her drug use. “She had never used anything stronger than an aspirin until he came to town.”
Sammie grinned at that answer.
Lorraine testified that in the summer of 1991, she convinced her mother to see Dr. Sizemore, a specialist in Nashville. It wasn’t that she didn’t trust Dr. Herman. She just thought a specialist should see her mother.
“But Momma was very loyal to Dr. Herman, so after only three visits to Dr. Sizemore, she insisted on being treated by Dr. Herman.”
Davis went through the Malone records until he got to the January 31st gallbladder surgery.
“Dr. Herman showed me the ultrasound and where the stones were. He lied to me. He lied to my mother. He wanted her to have the surgery so he could make money.”
McCoy objected, “Calls for speculation. She couldn’t possibly know what Dr. Herman was thinking.”
Boxer sustained the objection, so Davis asked, “You know the board found that the surgery was unnecessary?”
“Yes, that’s the same surgery that killed her.”
McCoy objected, “Calls for a medical conclusion.”
“Overruled, there’s been no other explanation, other than Dr. English’s suggestion of spontaneous combustion.”
McCoy tried the same tactic with Lorraine, but she wouldn’t lose her cool. “You’re about the money, aren’t you?”
“We’ve sued for money, but I want your client put out of business. I don’t want him hurting or killing anybody else.”
“So you’re about money and revenge?”
“Dr. Herman deserves whatever this jury dishes out to him. I’ll be happy with their verdict. I’m confident they’ll be fair.”
Sammie was very pleased with Lorraine’s last answer and her testimony as a whole. Obviously so was her uncle. After McCoy sat down, Davis closed his proof.
Boxer said, “Let’s quit a little early today. Tomorrow, the defendants will begin their proof.”
He addressed the jury: “Remember, the defendants haven’t yet had their turn, so don’t predetermine the case. Go back to the motel and have a good dinner, and we’ll see what the defendants have to say in the morning.”
CHAPTER FIFTY
THE DEFENSE STEPS UP
FRIDAY, AUGUST 19, 1994
The plaintiff’s proof lasted eight full trial days. All of the proof was damaging to Dr. English, Dr. Herman, or the hospital. Pierce appreciated that a lawsuit was like a boxing match. It lasted ten rounds, and throughout the fight, each boxer threw punches, some of which landed while others missed. At the end of each round, the judges determined the round’s winner. Whichever fighter won more rounds won the fight, unless there was a knockout. The key was to be standing at the end of the trial. Dr. Herman and Dr. English were standing, but just barely, and they lost every round but one.
Every lawsuit was divided into two distinct parts: liability and damages. The plaintiff proved negligence by more than the required preponderance of the evidence. Pierce anticipated that compensatory damages would be awarded; the purpose of her opening statement was to limit that amount. The unanswered question remained: Had Davis and Steine proved recklessness by clear and convincing evidence? Boxer, through his rulings, placed serious obstacles in their path. Pierce believed that they failed and that no punitive damages would be awarded.
Pierce was the only defense attorney who saved her opening statement until after the plaintiff’s proof. She stood, walked to the podium, and started, “Ladies and gentlemen, this is my opportunity as Dr. English’s attorney to tell you what the proof will show in this case. I elected to wait until after the plaintiff closed his proof so that I could deliver my opening statement, which reflects on the proof rather than on speculation, as Mr. Davis did at the beginning of this trial.”
She paused to let the concept sink in. She continued, “It is a fact that Rosie Malone, prior to any treatment by my client Dr. English, was a sick woman. Before February 1992, she was hospitalized at Plainview Hospital three times for life-threatening heath issues. She had a heart attack, COPD, and several other debilitating health problems. She had to retire from the bakery. At the time of her death, she had no income and was on Medicare. The plaintiff has not proved significant damages in this case, only minimal out-of-pocket expenses. Any compensatory damage award is a windfall to the Malone family.”
She was about to attack Rosie Malone’s character. It was easier because Mrs. Malone wasn’t present to defend herself. An attack on an injured person, sitting between Davis and Steine, would have been more difficult.
“Rosie Malone was self-destructive. She smoked two packs of Camels each day for more than forty years. She wasn’t even trying to cut back or even use a filtered cigarette. She even smoked after Dr. Herman insisted she quit smoking by prescribing nicotine patches. She used the patches and continued to smoke. Do you realize how dangerous it is to smoke and wear those patches? The combined use multiplies the dose of nicotine and exponentially increases the risks of stroke and heart attack.”
Pierce was aware that three jurors were smokers. That question had been asked during jury selection. She needed to distinguish those jurors from her criticism of Mrs. Malone: “Smoking is a life-threatening addiction. We are all human, and to forgive is divine. But Rosie Malone had an even deeper secret that I am confident you will recognize as a part of her destructive behavior. She was a drug seeker and drug abuser. She had no tolerance for pain and a high tolerance for painkillers. Her pain was more in her mind than actual physical pain and suffering. Drugs made her feel better. Dr. Herman recognized her addiction and gave her fake narcotics, placebos, and they worked. She took the fake drugs and felt better.
“We’re here about liability and damages. Mrs. Malone and the Malone family haven’t suffered significant damages because of the negligence of the defendants. I further submit that mistakes were made. The most significant and egregious mistake occurred when Mrs. Malone was not transferred before the 5th to a better-equipped hospital. May I remind the jury that my client was not in town when these decisions should have been made? Mrs. Malone’s postoper
ative care was the sole responsibility of Dr. Herman. Remember, the Medical Licensing Board dismissed all charges against Dr. English.
“Mrs. Malone’s abusing her body for more than forty years caused the damage. I submit that there has been no proof of recklessness to warrant an award of punitive damages.
“I remind you that you have heard the plaintiff’s entire case, and the defendants are only about to begin to present theirs. Please be fair and listen to our proof. The law and justice require that of you. Thank you for your time and attention.”
She sat down and felt good about her opening. She decided she couldn’t put English back on the stand. She had no other witnesses. Her last chance to convince the jury would be her closing argument. She was now relegated to watching the hospital put on its proof. She would be helpless as Stevenson attacked her client and Dr. Herman.
CHAPTER FIFTY-ONE
STABBED IN THE BACK
FRIDAY, AUGUST 19, 1994
Davis was satisfied with the plaintiff’s proof. In his mind, there was no question that he had proved that Herman and English had been negligent and, more important, reckless in their care and treatment of Rosie Malone. Based on the evidence admitted, the jury knew that they were incompetent and motivated by greed. The proof clearly established that Rosie Malone’s admission and surgery were unnecessary and that the hospital knew exactly what was going on.
Today was the hospital’s opportunity to provide its proof. Davis figured that Stevenson had two choices: he could claim innocence, or he could convince the jury that the doctors were in charge of the patient’s care and much more comparatively at fault. It was true, the greater the comparative fault of the doctors, the smaller the hospital’s piece of the liability pie. Davis was absolutely convinced that the two-year alliance of the defense was about to crumble. A strategy of every man for himself was in the plaintiff’s best interest.
The hospital’s first witness was Dr. Leonard Sparks, the medical director of Davenport County Hospital, located south of Hewes City near the Alabama border. The hospital was offering the good doctor as an expert on how a community hospital conducts utilization reviews of the patients. As the medical director of a community hospital, Sparks served on several medical committees, including serving as chairman of the Davenport County Hospital Utilization Review Committee. He was also a family practitioner, like Dr. Herman.
At first, Davis couldn’t figure out why the hospital offered Sparks as an expert witness. Sparks’s expert witness statement was only three pages long; he had reviewed only the hospital’s Utilization Review Plan and none of the depositions taken in the case. He was an expert for a very limited purpose. In contrast, Sister Carson’s expert witness statement on the hospital’s liability was fourteen pages long.
At his deposition, Sparks emphasized that the process of utilization review had nothing to do with patient care but was intended to protect the hospital from financial loss. The hospital, under its own rules and regulations, at periodic intervals had a nurse review each chart to confirm that the patient should remain in the hospital. Sparks’s deposition testimony was that Plainview Community Hospital lost money on the Malone case because of inadequate utilization review but that the injury was to the hospital because it never got paid for those services.
At the deposition, Davis took a chance and asked Sparks questions that were outside the content of his expert witness statement about the specific care and treatment of Rosie Malone. Sparks’s answers were damaging to both doctors. At the time, Davis thought he was brilliant, but in retrospect he knew he had been set up.
After the deposition, Davis and Morty realized Stevenson’s real purpose of offering Sparks as an expert. It was to shift as much of the liability, under comparative fault, to Herman and English as possible. Every percentage point assigned to Herman and English was a percent not assigned to the hospital. When the verdict was awarded, those percentage points would turn into real dollars.
Barnes and McCoy, in a pretrial motion, objected to Davis’s cross-examination, but Boxer ruled the testimony was admissible. He held even though the hospital offered Dr. Sparks’s testimony for the limited purpose of utilization review, he was a family doctor, qualified in the subject matters that Davis questioned him about, and therefore, the testimony was admissible.
That was exactly what Stevenson hoped for. Sparks’s testimony on utilization review supported the hospital, but more important, Sparks’s other testimony damaged Herman and English. Stevenson was using Davis to do his dirty work and lower the hospital’s percentage of liability.
Stevenson called Sparks to the stand and began questioning him about his background. In addition to his other qualifications, Sparks chaired the Utilization Review Committee. Stevenson offered Sparks as an expert witness, though he intentionally did not specify Sparks’s area of expertise.
Davis thought, Stevenson is baiting either Barnes or McCoy to argue Sparks’s qualifications in front of the jury.
The crack in the defense was opened. For two years there had been a unified front. The brick wall was crumbling. Davis proved the doctors’ negligent and reckless conduct, and the hospital could no longer ignore it, or it would go down, right alongside them.
Davis rose and sheepishly acknowledged that the witness was qualified, also intentionally not specifying in what. McCoy asked if the attorneys could approach the bench. Boxer turned off his microphone, and the defense counsel and Davis moved closely around the judge’s bench. Morty and Littleton stayed seated. Davis wanted the jury to know that this was a fight between the defendants.
After the court reporter was set up, McCoy said, “Your Honor, neither Mr. Stevenson nor Mr. Davis has advised the jury what Dr. Sparks is being offered as an expert for.”
Boxer leaned forward, tapped his fingers together, and smiled. He seemed to enjoy McCoy’s predicament. “Mr. McCoy, we all know what’s about to happen. I ruled on this pretrial. The hospital is offering Dr. Sparks as an expert in utilization review. Mr. Davis is going to cross-examine the hospital’s expert on how the hospital committee system works and then finally his professional opinions about the care and treatment of Mrs. Malone. I have already ruled that Dr. Sparks is qualified to give those opinions.”
McCoy was making a record for the appeal. “With all due respect, Your Honor is committing reversible error.”
Boxer did not like McCoy’s last remark and retorted, “I don’t think you’re right, Mr. McCoy. But if you are, we’ll be doing this all over again, won’t we?”
“That’s what I’m trying to avoid, sir.”
Boxer waved for everybody to return to his or her seat; he was losing his patience.
Stevenson asked the witness about the purpose of utilization review, and Dr. Sparks began: “I reviewed the Utilization Review Plan of Plainview Community Hospital. It’s almost identical to the plan of Davenport County Hospital. Mrs. Malone was a Medicare patient; under the plan, prior to admission, her chart required review. At that time, all the information was in Dr. Herman’s office record.”
Sparks explained in no uncertain terms that utilization review was for the hospital’s protection, not the patients’. “Hospitals generally lose money on Medicare patients because Medicare discounts its payments for many procedures. I have reviewed the chart of Mrs. Malone and the hospital bill for the charges. Medicare paid less than twenty percent of the actual charges. Plainview Community Hospital lost more than $40,000 in its care and treatment of this patient. Mrs. Malone was not a money maker for the hospital.”
Sparks’s testimony surprised the jury. It was clearly written on their faces.
“The purpose of utilization review is to prevent doctors from over-utilizing the hospital and to prevent the hospital from incurring expenses that do not get paid. The plan establishes certain deadlines for review. As I said, the first review, with a Medicare patient, is prior to admission. The second review is forty-eight hours after admission. Thereafter there is a required review at least every seven
ty-two hours.”
Sparks described the role of the utilization review nurse, who was a hospital employee. He testified that Nurse Perry failed horribly to do her job. He insisted, however, that her poor performance caused no damage to Rosie Malone, but she did financially injure the hospital. Stevenson next discussed with Sparks the fact that the hospital guaranteed Dr. English’s lease with Dr. Herman and guaranteed Dr. English a minimum income of $10,000 per month. Sparks assured the jury that Plainview Community Hospital did nothing improper and that Davenport Community Hospital made similar guarantees, because he was the one who signed the contracts. Stevenson ended his examination of Dr. Sparks and turned the witness over to Davis.
Davis quickly established that he’d taken the witness’s deposition in April. “You have reviewed Dr. Herman’s office record. That was the only information that you had about Rosie Malone before her admission to Plainview Community Hospital on January 29th, 1992?”
“Yes, sir.”
Dr. Sparks testified that Mrs. Malone’s symptoms were abdominal pain and black stools. He admitted that a rectal should have been done but wasn’t. He also admitted that he had reviewed Mrs. Malone’s entire chart for her February hospitalization but could read neither Dr. Herman’s office records nor his notations in the hospital records.
Dr. Sparks testified that the patient should not have been admitted into the hospital. Prior to her surgery, a forty-eight-hour review was required by the Plainview plan. He stated that the patient should have been discharged before the surgery.
Sparks acknowledged that he was of the same medical subspecialty as Dr. Herman. He testified that in his professional opinion, the ultrasounds done at Herman’s office and at the hospital did not indicate surgery. He would not have recommended surgery to this patient.
Davis reviewed the balance of the chart with Sparks and established how sick the patient became on the 4th. Sparks admitted that Herman should have discovered that Mrs. Malone had become septic. The obvious cause of the septicemia was the surgery performed by Dr. English by injuring the bowel. Dr. Sparks admitted that the patient should have been transferred to Nashville no later than the morning of the 4th.