First Do No Harm (Benjamin Davis Book Series, Book 1) (25 page)

Sammie took her seat next to Bella, Davis, and Morty in the front row of hearing room 304 in the Andrew Jackson State Office Building. She would have preferred to sit a bit closer so she could breathe down English’s and Herman’s necks, but there was nothing closer.

The room filled up quickly, and by eight thirty it was at its capacity of two hundred. The audience was composed of people from Plains and Hewes Counties. Both print and television press were there, but Tennessee law didn’t allow the cameras in the courtroom.

Through his Nashville connections, Morty secured coverage in advance of the hearing. The hospital kept the
Plainview Gazette
and the
Hewes City Express
silent.

Sammie still didn’t feel like herself. At her uncle’s insistence, she was seeing a psychiatrist to deal with her drugging. A rape test, performed the Monday afternoon after she discovered that the slides were missing, confirmed no semen was present, but that meant nothing. Whatever happened after the Wildhorse left her emotionally scarred. This hearing was the best medicine possible, and she wasn’t going to miss any of it to sit on a couch and tell her problems to a stranger. Liza was her greatest comfort, and the rest of the Davis family did their best to help her too. The kids didn’t know the
details, but they knew that Sammie had gone through a traumatic event.

Within days of the disappearance of the slides, Dr. English reappeared. He walked into the Hewes County Courthouse with Amy Pierce and surrendered himself. Judge Lewis was both amazed and pleasantly surprised. He threw English into jail and told him that he would be serving his contempt sentence until his back alimony and child support were paid in full. A payment plan was never discussed. According to reports, English said nothing and had been a guest of Hewes County ever since.

Although English was dressed smartly in a gray suit, white shirt, and yellow tie, Sammie knew that he had awakened in the Hewes County jail, in an orange jumpsuit, serving his contempt sentence.

All four members of the Davis team were excited about the prospect of Dr. English’s and Dr. Herman’s medical licenses being suspended or revoked. If they were revoked, the bastards would never again practice medicine in Tennessee. If they were suspended, their licenses would be withheld by the state for a specific period of time and certain predetermined hurdles would be imposed when the state agreed to reinstate them.

Sean McCoy, sporting a teal bow tie, represented Dr. Herman at the hearing, and Amy Pierce represented Dr. English. The state prosecutor was a geek named Larry Dillingham. Davis tried to help Dillingham, but the prosecutor was hopeless. He was disorganized and inarticulate—a typical state employee. He had risen to his level of incompetency.

Morty explained that the state had a higher burden
of proof than the plaintiff did in the Malone case. He predicted, despite the overwhelming proof, that the state, due to incompetency, would fall flat on its face.

Sammie was also concerned. She had read Dillingham’s pleadings, and she didn’t think much of his writing ability.

From Morty’s explanation, Sammie understood that the state, through the Medical Licensing Board, was authorized to issue and regulate medical licenses. The notice of charges accused the doctors of acts that did not involve the lawsuits filed by Davis. An administrative law judge would render rulings on procedure and evidence.

The finder of fact was a panel of physicians appointed by the governor. Tennessee Mutual insured Dr. Dean, an internist, and Dr. Peabody, a general surgeon. Sammie wondered why those panelists, who co-owned Tennessee Mutual with Herman, weren’t conflicted out. The reason was simple; it wouldn’t be easy to find a physician not insured by Tennessee Mutual to serve on the panel.

The remaining panelist, Dr. Bernard, a urologist, had recently begun practicing and teaching at Vanderbilt University, which was partially self-insured with the excess coverage with Lloyds of London.

The law required that their peers, other MDs, judge Dr. Herman and Dr. English. Sammie thought it was impossible to find three doctors as incompetent as Herman and English. She was convinced that Herman and English were criminals with medical licenses.

The judge called the hearing to order. McCoy, Pierce, and Dillingham agreed to waive the reading of the charges.

Davis whispered to Sammie: “That’s Dillingham’s first mistake. Those charges are so extensive and serious, reading them would have set the right stage and mood.”

The first witness was an internist, Dr. Ernie Larson, from Columbia, Maury County, Tennessee. Dillingham reviewed Larson’s background and the nature of his practice. Larson explained that there was a tremendous amount of overlap between the subspecialty of family medicine and internal medicine and that the two subspecialties performed the same services for their patients. He had privileges at two local hospitals. He confirmed that each of the tests and surgeries referenced in the charges were tests he had ordered or surgeries he had recommended with the consult of a general surgeon.

Larson proceeded to review each patient’s chart referenced in the charges. He was careful not to mention the patient by name, referencing only initials. In each case, Larson testified how Dr. Herman’s actions breached the standard of care of a family practitioner and/or an internist.

After three hours of testimony, the judge adjourned for lunch. Dr. Larson testified as to twenty-six patients by then, but his testimony was unremarkable.

After lunch, Larson testified about the remaining cases cited in the charges. By two o’clock, he reviewed the chart of R. M., a sixty-seven-year-old woman who died after an unnecessary laparoscopic gallbladder surgery.

Larson’s direct testimony ended with Dillingham asking, “In each of those dozens of cases, are you of the professional opinion, with a reasonable degree of
medical certainty, that Dr. Herman breached the standard of care and was negligent?”

“Yes, sir, I am of the opinion that Dr. Herman was negligent.”

Dillingham smiled because he made his point. “Based upon your review of the patient charts identified in the charges, are you of the professional opinion, based on clear and convincing evidence, that Dr. Herman was engaged in a pattern of gross negligence and acted recklessly in the care and treatment of his patients?”

Larson didn’t hesitate: “Dr. Herman was negligent in the care and treatment of each and every patient identified in the charges. There were dozens of acts of negligence. These were not isolated occurrences, and there was a definite pattern of gross negligence. Dr. Herman is also guilty by clear and convincing evidence of recklessness. He recommended to patients unnecessary tests and permitted Dr. English to perform unnecessary surgeries on his patients.”

Dillingham closed his proof as to Dr. Herman, and the judge adjourned for the day.

The next day, Morty, Bella, Sammie, and Davis were in the front row. The entire day involved the cross-examination of Dr. Larson, first by McCoy and then by Pierce. Sammie didn’t understand why Pierce got to cross-examine the witness since Larson’s testimony was only directed at Dr. Herman. At the end of the day, the consensus among them was that Larson’s testimony held up.

The morning of the third day began with Dillingham putting on the stand a general surgeon from Murfreesboro, Rutherford County, Tennessee: Dr. Kenneth Gayle. Davis whispered to Sammie that
Dillingham was rushing through the witness qualifications of general surgery.

Dr. Herman and Dr. English didn’t have to take the witness stand, as in a criminal trial, because they had nothing to prove. However, in most cases the defending doctor did take the stand.

Dillingham completed his direct examination of Dr. Gayle by one o’clock. It was sloppy, even to Sammie’s untrained eye, an abbreviated examination of Gayle’s background and qualifications. Neither Pierce nor McCoy had questions for the witness. Dillingham looked dumbfounded. He closed his proof expecting both Herman and English to take the stand.

Pierce stood up and approached the podium. “May it please the court and the panel, the only proof introduced into evidence that Dr. English was negligent and/or engaged in a pattern of gross negligence was arguably the testimony of Dr. Gayle. Judge, I had the court reporter print out the portion of Dr. Gayle’s testimony that dealt with his background and qualifications. It’s pretty short, and with the court’s permission, I would like the court reporter to read it back verbatim right now.”

Dillingham objected, but Pierce argued that if the court permitted this, the hearing would be shorter by at least a day. Pierce convinced the court that it was worth a fifteen-minute investment.

The court reporter read that portion of Dr. Gayle’s testimony.

When she finished, Pierce took over. “If Your Honor please, there is a fatal problem with Dr. Gayle’s testimony. At no time during his testimony does he state that he’s familiar with the standard of care in
Plains County or that the standard of care in Rutherford County is the same as in Plains County. Your Honor, Tennessee Code Annotated Title 62, section 17, requires such testimony be introduced into evidence as a prerequisite to a finding of negligence and/or a pattern of gross negligence. Mr. Dillingham has failed to prove that Dr. Gayle is a qualified witness to testify as to Dr. English’s negligence.”

Sammie glanced at Morty and her uncle, and they silently agreed. Dillingham committed a fatal mistake that disintegrated his case against English, and because he closed his proof and English elected not to put on any proof, no further evidence against English could be introduced.

Pierce went on: “I move for all charges against Dr. English to be dismissed with prejudice.”

The judge turned to Dillingham and asked, “What do you say to that, Mr. Dillingham?”

Dillingham just stood there as if he had been hit upside the head with a brick. Regaining some sense of his duty, he responded, “Your Honor can take judicial notice that the borders of Plains County and Rutherford County are only twenty miles apart and that Plainview Community Hospital and the two hospitals where Dr. Gayle practices have about the same number of beds.”

The judge gave Dillingham a look of disgust and stated, “Mr. Dillingham, those were facts that
you
should have introduced into evidence. This court cannot and will not take judicial notice of facts that you were required to introduce into evidence, but didn’t. If you have nothing further, I will rule on Ms. Pierce’s motion to dismiss.”

Dillingham was obviously so embarrassed that he almost began to cry.

Sammie did begin to cry. Dillingham’s extreme malpractice wouldn’t help the Malone case or the other Plainview cases.

Dillingham finally said, “In light of Your Honor’s remarks, nothing further, Your Honor.”

The judge squirmed in his seat. He was clearly organizing his thoughts before he said, “Whether or not Dr. Gayle qualified as an expert witness in general surgery is a legal question for the court, not a factual determination for the panel. I am very familiar with the TCA section cited by Ms. Pierce and the case law that applies to that statute. Any attorney who asserts or defends against a claim of malpractice is. Apparently, Mr. Dillingham is not. That is most unfortunate for the citizens of this state. The state went to great expense to bring charges against Dr. English and to conduct this hearing. Because of the failure of Mr. Dillingham to introduce into evidence the required proof, the charges against Dr. English must be dismissed. Ms. Pierce, your motion is granted.”

The audience, which included at least fifteen Plainview plaintiffs, became loud and angry. Even the three panel members looked upset by the judge’s ruling.

After a good five minutes and threats to clear the room, the judge got control of the hearing room. He turned to McCoy. “Call your first witness, Mr. McCoy.”

McCoy stood and made the same motion to dismiss as Ms. Pierce successfully made. He argued that Dillingham failed to prove that the standard of care was the same in Columbia, Maury County, and Plains County. He argued that Dr. Herman and Dr. Larson
were of different subspecialties and that therefore, Dr. Larson couldn’t pass judgment on Dr. Herman.

McCoy was eloquent, but the judge lost all patience. “Mr. McCoy, I distinctly remember Dr. Larson comparing Columbia to Plainview, and he did specifically testify that the standard of care in the two communities was the same. I also remember him testifying that internal medicine and family medicine overlap and that he had either ordered or recommended all of the tests and surgeries that are the subject of the charges. Your motion is denied. Now call your first witness.”

McCoy didn’t have an expert witness. Davis explained to Sammie that despite all of McCoy’s efforts, no qualified doctor was willing to come to the state hearing and testify that Dr. Herman provided his patients treatment within the standard. McCoy advised the court that he had no proof and that Dr. Herman rested.

Dillingham’s closing argument was short, just fifteen minutes. He was still shaken by the English dismissal. McCoy was equally brief.

The panel deliberated until six o’clock when it announced it reached a verdict. The panel reconvened in the hearing room, and Dr. Dean read the verdict: “We, the panel, find on each count of the charges that Dr. Lars Herman was guilty of negligence. We, the panel, find that Dr. Lars Herman did engage in a pattern of gross negligence by clear and convincing evidence. We, the panel, find that Dr. Lars Herman was guilty by clear and convincing evidence of recklessness in the care and treatment of patients R. M., H. H., T. P., F. K., B. D., D. C., K. O., R. U., T. D., and M. M. As to the other
patients listed in the charges, we find negligence only.”

That first set of initials stood for Rosie Malone. If Boxer was a man of his word, the jury in the Malone case would at least be told that the state of Tennessee had found by clear and convincing evidence that Dr. Herman was reckless in his care of Rosie Malone. Sammie wasn’t sure what the jury would be told about Dr. English’s care of Mrs. Malone or about the dismissal of the charges against him.