“Bullshit,” Polk said. “Who do you think you’re representing? You’re supposed to be my advocate and all you’re recommending is capitulation.”
“I am your advocate, but it would be malpractice if I failed to inform you of my best legal opinion. The most we can hope for, and this is shaky, is to prove the medical staff and the hospital have not followed their own bylaws and you’ve been denied due process.”
“That’s fine, but we have to refute their outrageous accusations regarding my work. We have our own experts, and a load of character witnesses, including a whole practice full of grateful patients, happy to come forward and support me.”
“Listen, Joe,” Phelps said now in a controlled, pleading voice, “your experts, based on what we’ve seen from the medical records in question, won’t hold up under cross examination.”
Polk was up now and pacing, head down, avoiding eye contact. “You don’t know what you’re talking about. These cases…these are my patients…my patients and nobody, nobody can take care of my patients as well as I can.”
“All those unanswered pages, Joe. Where were you? Why didn’t you respond?”
Polk stared down at the floor. “I’m busy and take a break for myself. Whatever time remained, I spend at Joe, Jr’s. bedside, reading to him. I am entitled to some free time for myself. I never went there unless my patients were stable. Maybe I missed a few pages, now and then, but the nurse’s claims are gross exaggerations.”
Denial, his demon, had him headed for the falls, torturing reality and ignoring all the warning signs along the way.
It’s his ass, after all, Phelps thought.
Chapter Fifty-Three
They took the first series of depositions. I thought mine had gone well.
For convenience, the hospital made the boardroom available. It had become a second home to me. We sat near the head of the table on opposite sides. The court reporter sat in the corner. Jason Phelps focused exclusively on the two cases where Warren asked me to replace his client. After eliciting my education and training, Phelps began, “How long have you been in practice Dr. Byrnes?”
“Nine months.”
“Dr. Polk has been in practice for twenty-five years. Who has more experience in caring for patients?”
“Dr. Polk, of course, but…”
“Thank you Doctor, but you’ve answered the question.”
“I was just trying…”
Curtis Spitzer leaned over and whispered in my ear. “I told you not to elaborate or volunteer any information. Answer his questions in the shortest form possible.”
Phelps held his thick yellow legal pad, looked down, and continued, “On your first meeting with Mrs. Helen Martin you made the diagnosis of primary peritonitis, is that correct?”
“Yes.”
“What if anything did Dr. Polk say to you following this diagnosis, and what was his demeanor?”
“He thanked me, and he seemed upset that he’d missed the diagnosis.”
“Do you leave any room for the possibility it was your fresh perspective on Mrs. Martin’s case that allowed you to make the diagnosis?”
“I don’t believe so, sir. The chart was filled with…”
“Thank you Doctor, but you’ve answered the question.”
“Hear it now or hear it later,” Curtis Spitzer said.
Mulling it over for a moment, Phelps said. “You may continue, Doctor.”
“What I am trying to say is that the nursing notes were full of the patient’s complaints of abdominal pain, and the nurses’ observations she had abdominal tenderness. These finding should have led to the consideration that Mrs. Martin suffered from an intra-abdominal problem needing evaluation and treatment.”
“Did Dr. Polk make rounds on this patient on a daily basis?”
“Yes.”
“Did he write notes regarding these visits?”
“Yes.”
“Was there anything about these notes that would suggest to you that Dr. Polk was casual about his visits or about detailing the results of his visit into the progress notes?”
“His notes were copious,” I said, “but he failed to deal with the serious problem at hand, the abdominal pain and tenderness.”
“Whose observations and examinations would you give more credence to, Dr. Polk’s or the nurses?”
“Ordinarily, the physician’s observations are most germane, but in this case, the observations were made by many nurses on different shifts over a prolonged period of time. Finally, the examination of her abdominal fluid showed peritonitis, proving the nurses were right.”
“Yes, Doctor, in retrospect it’s all so simple and clear.”
I took the advice of counsel, and said nothing.
“The second time Dr. Davidson asked you to assist Dr. Polk on Mrs. Martin’s case occurred during her admission for GI Bleeding, is that correct?”
“Yes, but I replaced Dr. Polk, I didn’t assist him.”
“Do you expect us or a jury to believe Dr. Polk, an experienced physician, did not know the significance of the dark stools as indicating the presence of blood in the GI tract?”
“I find it difficult to understand much of what Dr. Polk does or doesn’t know. How he could have discounted or failed to understand the significance of the dark stools is beyond me.”
“Were you present when Chuck Martin described his wife’s problems to Dr. Polk on the phone?”
“No.”
“So you can’t be sure that Mr. Martin’s description was as clear as you are alleging it to be now?”
“I wasn’t present for that conversation. I only know what Mr. Martin told me; Helen had been having abdominal pain she described as feeling like an ulcer and her stools were black. She was gulping down Maalox by the cupful. Mrs. Martin was a high-risk patient for GI problems and she should have been evaluated and treated aggressively before the situation turned critical. Had not Mrs. Martin been impaired by her hepatic encephalopathy, she would have recognized these findings as indicating GI Bleeding. What was Polk’s excuse?”
Our exchanges went on like this for the next hour with Phelps suggesting all the while that Polk may have received incomplete or imprecise information, when only in retrospect were the diagnoses so clear.
I was glad when the deposition ended. Directly confronted with questions devised to allow only a limited range of answers was frustrating. Getting out the best version of one’s truth was the name of the game in this adversarial process.
After an emotional lift from the success of Helen’s transplant, Warren remained quiet and withdrawn. I suspected he knew more than he revealed to me about the Polk situation, and that the news was not good. He had been conducting an informal survey of the members of the Board of Trustees, trying to discover their positions. The unreturned calls surprised and disappointed him, as did the evasiveness of those he reached.
“How many board members are on Polk’s side?” Warren had speculated.
The medical staffers, who took part in the saga, from committees to the MEB and the board, caught Warren’s gloom. Their mood was somber and expectant.
As the trial date neared, I began to fear that Joseph Polk would somehow prevail. The gray day, dark from an overcast sky, reflected my mood. I discussed this with Beth whose initial outburst was short lived, the final flare of the burner, its gas gone.
We were faltering in the last lap, at exactly the wrong time. This was when we needed furious determination and outrage to fuel the final sprint to the finish line.
Chapter Fifty-Four
Joseph Polk was back in the news. Polk’s supporters and the media crowded the courthouse plaza.
Laura and Steve stood in the bright sunshine of the courthouse steps waiting for Polk’s arrival. She’d lost twelve pounds from her trim figure through surgery, recovery, and rehabilitation. The surgery had gone well, and when she recovered from the immediate traumatic effects of the surgery itself, Laura knew, by her sense of well-being, she was better. The
subsequent weeks of more vigorous cardiac rehabilitation confirmed her conclusions. She still walked with a cane, and the soreness where they’d cracked her chest (it felt as bad as it sounded) remained. The entire area felt warm to the touch and the twelve-inch bright red incision was gradually fading.
“I know that this is a bit melodramatic, Mac,” she said, “but I can’t wait to see the look on Polk’s face as he receives our lawsuit in public.”
“I still think it’s a mistake. He’s too smart to put on a show after we serve him with a malpractice suit. You’re setting yourself up for disappointment.”
“Maybe so,” she replied, “but doing this feels so right.”
“You must put the emotional part of this aside. Nobody’s asking you to forgive the guy, but we have our lives to live and I’d prefer we live it without ever hearing the name, Joe Polk again. Rupert Raby thinks this case will never get to court. The Doc’s carrier and its attorney will force him to settle.”
Ken Murphy, a burly uniformed Sheriff’s officer, approached them. “Do you have the papers?”
“Here they are,” he said handing the envelope to the officer.
“I’ll serve them right here on the courthouse steps, pretty dramatic.”
Mac watched as the black Lincoln Navigator pulled to the curb disgorging Polk and Jason Phelps, his attorney. “Do it,” he said.
Murphy moved fast for a big man. Polk barely turned to climb the courthouse steps when the office said, “Dr. Polk?”
Surprised, the Doctor turned to face the officer.
“Dr. Joseph Polk?”
“Yes.”
Murphy handed the envelope to Polk and said, “I’m serving you sir with this malpractice claim.”
Envelope in hand, Polk turned to Jason Phelps, handed him the envelope, and said, “What now?”
Phelps ripped it open, and read, “Laura Larsen is suing you. She alleges gross negligence for failing to diagnose severe coronary artery disease resulting in a heart attack. She’s asking for one million dollars in actual damages and two hundred fifty thousand dollars, the legal limit, in punitive damages.” Phelps put the document back in its envelope and placed it in his leather brief case. “We’ll deal with this later, Dr. Polk. We have other things on our minds right now.”
Polk shook his head in disgust. “What the hell’s next?”
Joe Polk and Jason Phelps turned to climb the stairs, settling near the top where they were holding another impromptu news conference.
“I have no doubt,” Polk said, “that after hearing my side of the story, they will exonerate me of these outrageous charges and return me to my position on the medical staff at Brier Hospital.” He continued to answer questions, enjoying the spotlight, when a dark-suited, thin man and a uniformed police officer approached. When Polk saw the folded document, he said, “You’re too late. They served me already.”
“Dr. Polk,” said the man holding out a folded document, “I’m detective Collins. I don’t know what you’re referring to sir. I have a warrant for your arrest.”
“My arrest? What the Hell’s going on? What’s happening to me?”
Blinded by the sun, silently screaming, Polk felt dizzy. He grasped for anything to control himself.
“Let me see that,” Jason Phelps said, grabbing the document.
“You’re under arrest,” Collins continued in a monotone, “for the death of Loretta Harrington on the charge of murder in the second degree, depraved indifference murder.” He turned Polk around, placing him in handcuffs and led him away. “You have the right to remain silent…”
Chapter Fifty-Five
Warren’s mouth was open, and for once, he was speechless as he watched as the police led Polk away. Finally, his brain reconnected with his mouth. “I’ll be damned!”
Beth and I, equally shocked could only stand there smiling like idiots.
Warren turned to Beth and me. “Murder in the second degree, he said, right?”
“You heard right or we’re all having a mass hallucination,” Beth said.
“Polk’s actions in the care of Loretta Harrington, and in her death, were outrageous,” Warren said. “It drives me crazy. Here we are, fighting to protect our rights as physicians, not just for ourselves, but for our patients as well. What Joe Polk did, what we allowed him to do, show what can happen when you combine power with ignorance, indifference, or cruelty.”
“Mary Oakes went ballistic over that case, the reason it came to the QA Committee,” Beth said. “She’ll be overjoyed.”
By the time we returned to Brier, the news had spread like wildfire. Though we were uncertain how this would all play out in their litigation with Polk, his exposure led to an immediate release of pent-up tension. We went immediately to Mary Oakes’ ward to share our joy with her. The celebration was underway as her office overflowed with staff. Finally, after things calmed down, we sat with Mary in reflection of the day’s events.
“I don’t know how the police got involved, but I couldn’t be more pleased,” I said.
Mary glanced around the room, eyes down and began, “I couldn’t let it go. We all stood by and let Polk kill that woman. They needed to know, so I met with the Harringtons. I described what happened, and why it happened. I’ve never done anything more difficult in my life.
“The rest was easier,” she continued, “The Harringtons first consulted their own attorney, and then we all went to police headquarters to lodge the complaint. A brief investigation was all it took for Kevin Walters, the DA to obtain an indictment on Joseph Polk from the grand jury for murder in the second degree, depraved indifference murder.”
“Mary,” Beth said, “That was fantastic. You had the guts to do what had to be done.”
“No,” she said quietly, “I’m no hero. I should have stood up to him in the first place and maybe Loretta would be alive today. I’m going to have to live with that.”
I took a moment to collect my thoughts, and said; “I seriously doubt that anything you could have done would have made a difference. He was the trusted and beloved family physician, who one way or another, would have had his way. I’m upset that he had the opportunity to do these things. It’s a true indication of our failure to deal with him on prior occasions. There’s more than enough guilt to spread around.”
“Thanks, Jack, but sharing guilt doesn’t help much. I’m human, make mistakes, and hopefully I learn from them. Some mistakes are tougher than others.”
“I make mistakes all the time,” I said, “well, not all the time, but often enough to know that it’s better to deal with them directly, learning from the experience and keeping myself functional.”
“What’s going to happen now?” Mary asked.
“Warren and the administration,” I said, “believe that Polk vs. Brier is a dead issue. Polk is going to spend his near future trying to keep out of jail. With these charges and the records we’ve submitted to the state licensing board, he will never harm another patient.”
Chapter Fifty-Six
Jason Phelps stood next to Joe Polk at his arraignment. They’d handcuffed Polk with his hands chained to his waist. Polk wore bright yellow coveralls marked, PRISONER.
“How do you plead?” the judge asked.
Polk’s whispered his answer. “Not guilty.”
“I’m sorry,” the judge said.
Polk looked up at the judge. “Not guilty, your honor.”
The judge set bail and the Doctor sat with Phelps in the disposition area awaiting return of his clothes and personal possessions.
Jason Phelps thought he’d seen every variety of response to arrest, from outrage and anger to depression and disbelief, but no change was as radical as the metamorphosis of Joseph Polk. Total destruction. A fall from grace at this altitude was beyond what any man could tolerate, especially a man like Dr. Joseph Polk. He actually felt sorry for him.
Jason Phelps turned to Polk. “You need a criminal defense attorney. This is a bit out of my league.”
“What am I up against?” Polk whispered.
“They’re alleging you deliberately planned the death of Loretta Harrington, a cover-up of your malpractice. If they have evidence to prove this allegation, you should be grateful the charge is not murder in the first degree.”
“My God, I could go to jail.”
“No question about that. My best guess is the DA has doubts that a jury would convict on a first degree charge, so they’re going for second degree, much easier to prove.”
“Jason, what should I do?”
“You need the advice of a criminal defense attorney, but I’ll wager you’ll want to plead this out. Your exposure to a long sentence is simply too great.”
Plead this out–jail time? There’s got to be some way out, Polk thought.
Following the arraignment, Marion drove Joe back to their home. His appearance shocked her. Nobody had ever seen Polk in this way, his suit wrinkled, his bow tie askew, and his hair uncombed. His affect was flat as he sat in silence, staring out his window.
“How did it go, Joe?”
He continued staring, but did not respond.
“What’s going on here, Joe?”
Silence.
“You have to talk to me, Joseph. I need to know what to do. I can help you. You need my help.”
“You can do what?” he said softly, turning his head in her direction, eyes dead, facial features flat.
When they arrived home, she grasped his arm, escorting him from the car. With his first sign of emotion, he angrily pulled his arm away. He moved slowly, with short steps into their house then went to his den where he collapsed into his favorite Lazy-Boy chair. His arms and legs moved like that of a manikin.
She kneeled before him, looking up into his face. He’d closed his eyes.
“Joe, snap out of this,” she said, as she placed her hands on his knees, shaking them briefly.
His eyes remained closed.
“Damn it, Joe, you knew this was coming, yet you did nothing. What’s wrong with you?”
First, Do No Harm (Brier Hospital Series Book 1) Page 32