First Do No Harm (Benjamin Davis Book Series, Book 1) (27 page)

“I don’t know what the hell you’re talking about.”

For the next three hours, Davis thoroughly reviewed the Malone chart with Dr. English. English insisted that it was a complicated case and that the records did not even begin to reflect what was happening and how quickly the patient deteriorated.

Davis pointed out that Dr. English, Dr. Herman, and the staff of Plainview Community Hospital created those inadequate records and that the patient remained at Plainview five days postoperative before she was transferred on her death bed to Saint Thomas.

English correctly pointed out to Davis that he’d left the country the day after surgery and wasn’t involved in Rosie Malone’s postoperative care.

Judge Boxer had his clerk get Subway sandwiches for everyone so they wouldn’t have to take a luncheon break.

“Doctor, have you read Dr. Adams’s affidavit rendering his opinions as to your care and treatment of Rosie Malone?”

“I have, and for $300 an hour, he would say just about anything. You should know. You’re the one pulling his strings.”

“So, Dr. Adams is lying for money about your negligence and recklessness, is he?”

“He’s your puppy dog.”

Davis questioned English about whether reviewing the Malone chart and the deposition testimony took time. He pulled out Exhibit B to Dr. Adams’s affidavit, which listed the documents and depositions Dr. Adams reviewed. It listed 204 separate documents.

“Isn’t it true that many of these documents listed are more than a hundred pages long?”

“That’s because you’re verbose and like to hear yourself speak.”

“That’s a yes or no question.”

“Yes.”

“So, Dr. Adams reviewed more than twenty thousand pages of medical records before rendering his opinions. Don’t you think he’s entitled to be paid for the more than one hundred hours he spent away from his practice and family?”

“I don’t know what he looked at. You drew up this list?”

“Doctor, you’re here to answer my questions, not the other way around.”

Davis continued: “Do you remember Mother Superior Paula Nash?”

“I know her voice. However, I better not swear I could identify it, or you’ll be playing an audiotape.”

“Have you read her affidavit, Doctor?”

“No, I haven’t.”

Davis threw the affidavit across the table for effect.

“Take a moment and read it, sir.”

English spent a few minutes reading the two-page affidavit. He glanced at the handwritten notes that were
attached. English was stalling, and Davis was growing impatient.

“Doctor, do you deny that you called Mother Superior Nash?”

“No.”

“Do you deny anything that she alleges you said in that telephone conversation?”

“I don’t think I said that I would contact the pope.”

“Did you threaten to go to the bishop?”

“Yes, I told her if she didn’t get Sister Carson off my back that I would go to a higher authority. I felt like Sister Carson had based her testimony on incomplete facts, your one-sided presentation of the facts.”

“Did you reference in your conversation that you would pull out all guns?”

“That’s just a figure of speech. I didn’t mean literally using a gun.”

“Are you aware that two days later, Judge Boxer issued a protective order preventing you from contacting either Sister Carson or Mother Superior Nash?”

“Ms. Pierce informed me, and I’ve had no further contact.”

“How many times have you contacted Ms. Pierce since going on the run?”

Pierce objected on the grounds of attorney-client privilege. Judge Boxer sustained.

Judge Boxer looked at the clock and told Davis to wrap it up.

“Why did you come back, Dr. English, after being gone several months?”

“I didn’t want you to win by default. I didn’t want my license taken away. I didn’t want eight judgments against me for malpractice. I wanted to defend myself
against these bogus charges. I also wanted to see the look on your face when you figure out you’re going to lose these cases, all your money,
and
your reputation.”

With that answer, the deposition was adjourned. Sheriff Dudley placed the handcuffs on English, which Davis relished, and took him back to the Hewes County jail.

Hewes City, although more than twice the size of Plainview, was still a sleepy little Tennessee town, where everybody knew just about everyone else. Jack Barnes was the exception; he actually knew everybody. That was apparent from the start of jury selection.

Hewes County was one of the three counties that Judge Robert E. Lee Boxer rode circuit over, and he lived there with his family. Boxer moved the Plainview cases to Hewes City upon Davis’s motion out of fairness and for personal convenience. The courthouse was a two-minute walk to and from his home.

The trial was originally scheduled to commence on July 5th but was delayed until August 8th to accommodate the jury pool of Hewes County. On July 24th, a two-week criminal trial for arson was completed with a guilty verdict and a seven-year sentence. Hewes County understood swift justice.

Before jury selection began in the Malone case, Judge Boxer gathered all of the prospective jurors together into the courtroom and explained why the Malone case was being tried in Hewes County and not Plains County: “As the judge, it was my decision that to guarantee a fair and impartial trial, this case shouldn’t be tried in Plains County, so I moved it here.”

Boxer was concerned that they would try the Malone case, and then it would be overturned on appeal. The judge knew that his dozens of rulings would be challenged by at least one of the parties on appeal and would be scrutinized by the higher court.

“Let me assure you that Plains County will reimburse your county for most of the expenses incurred. I have also decided that the jury will be sequestered, which means that after each day of court, the jury’s going to spend the night at a motel, with no access to television, newspapers, or magazines. We’ll provide you with tapes of appropriate entertainment. I know this is a big inconvenience, but Plains County will owe those who serve a debt of gratitude.”

Sequestering a jury for a civil case was unusual and costly, but Judge Boxer anticipated both print and TV media coverage. He didn’t want his jury unduly influenced, adding complications to an already complicated legal case.

Without further fanfare, the process proceeded. In theory, the best juror was one with a clean slate, no predisposing attitude either for or against a party. In reality, each side wanted as many biased jurors to its side as possible. This prejudice was accomplished by excusing potential jurors who the lawyers felt leaned, for various perceived and unexplained reasons, to the other side. Jurors were excluded simply because the objecting party didn’t like the way jurors looked. When possible, Davis tried to exclude jurors on the basis of cause. A challenge for cause was one where the juror was obviously biased, such as a relative or employee of one party.

A problem with jury selection in the Malone case
was how well connected Jack Barnes was in the community. Davis shouldn’t have hesitated in hiring Barnes as his co-counsel. He should have insisted despite Littleton’s refusal to share any portion of his fee. While Davis debated with that idiot Littleton, the defendants hired Barnes as their local counsel. Judge Boxer excluded any juror or spouse or child of a juror whom Barnes had represented, but the judge refused to exclude all jurors whose distant family member had been Barnes’s client. If he did, there wouldn’t have been a jury pool.

The judge ruled that there would be a jury of twelve with three alternates, but the alternates would not be identified until the jury began deliberation. This was done so that all of the jurors, including alternates, would pay attention during the incredibly long trial.

The next person up was a young lawyer, Jason Locke. Davis liked Jason on paper but was concerned that he would control the jury. Davis was absolutely confident that Jason would be the jury foreman if he permitted the young man to serve. The young lawyer made it through.

The next potential juror was Susan Connors, the daughter and granddaughter of doctors. She was far from an ideal juror. Davis’s only hope was that she would compare Dr. Herman and Dr. English to her father and grandfather and conclude that they were blemishes on the profession. When she said that she believed the increased cost of health care was because doctors were afraid of being sued, Davis knew he had to get her off the jury, and he used his last challenge.

Boxer excused Mrs. Connors, and the jury selection went on. The defendants challenged two other jurors
before an acceptable jury was empaneled.

After the jury selection was completed, Judge Boxer brought together all fifteen jurors and alternates and asked them to finish the day by selecting a foreman. He advised them that they would announce their selection in open court tomorrow before the trial began.

Davis was not happy with the jury. But he had done the best he could with what he had.

The trial began on a hot, sultry Tuesday morning in August, and inside the courtroom, the air conditioning blew like an arctic wind. In the olden days, everyone would have been furiously fanning themselves, courtesy of the local funeral home. Davis scanned the faces of the fifteen jurors and tried not to look too anxious.

At nine o’clock sharp, Judge Boxer took the bench. He gave the jury preliminary instructions about how the case would proceed. He explained the purpose of opening statements. Then he told the attorneys that opening statements should not exceed an hour each.

Davis didn’t even think that they would get to the first witness, but time management in a jury trial was very difficult to predict. Local witnesses who weren’t allowed to watch the trial before they testified often waited in the hallway. However, if witnesses were from out of town, they would be put up in a motel room and await a call to walk over to the courthouse. It was often difficult to estimate when a witness would testify due to the unpredictability of testimony caused by objections and lengthy responses. A witness’s testimony could be delayed as long as a day because of these circumstances. Other times, an attorney would come up dry, without a witness, because the case moved faster than expected.

The defendants had five lawyers at counsel table: Grayson Stevenson for the hospital, Amy Pierce and Lowell Thomas for Dr. English, and Jack Barnes and the red bow-tied Sean McCoy for Dr. Herman. The defense team decided to keep Barnes on during the trial rather than release him after jury selection, as originally planned. Davis, Steine, and Littleton were at the plaintiff’s table.

What a waste of space Littleton is
, Davis thought. Morty fought with Davis to convince him to let Littleton examine a witness. They agreed on the paramedic who treated Mrs. Malone in the ambulance from Plainview to Saint Thomas. Littleton insisted on questioning a witness on threat of going to the Malone family and causing trouble. Davis agreed so that he could focus on the trial rather than battle over the clients with Littleton.

Judge Boxer turned to the jury. “Have you selected a foreman?”

The young lawyer stood and responded, “Judge, I’ve been selected foreperson by my fellow jurors. It’s an honor to serve.”

“Very well. You will be the voice of the jury. You will contact me through my court officer or one of the sheriff deputies assigned to the case. Let’s begin.”

Boxer knew the preliminary instructions by heart. What he couldn’t remember word for word, he was able to ad-lib. “Ladies and gentlemen of the jury, you’ve been approved by the parties to decide all factual questions in dispute in the Estate of Rosie Malone vs. Plainview Community Hospital, Dr. Charles English, and Dr. Lars Herman.”

Boxer introduced all the attorneys and the parties, even though the jury already knew each of them.
“You’ve been selected to determine the facts of this case. As the judge, I’m the finder of the law. Fortunately, this isn’t my first rodeo, so I should get that part right. Another part of my job is to control what goes on in the courtroom. I will not let two people talk at the same time. I will try to be respectful to the attorneys, their clients, and the witnesses, but so there’s no misunderstanding, I’m in charge of this courtroom and this trial. I may have to assert myself during this trial. Don’t think that the increased level of my voice indicates any preference for either party’s position. I’m an equal opportunity yeller.”

He explained that it was the jury’s job to weigh the evidence, the testimony from the stand, and the documents entered into evidence. He also instructed them that they could believe all, part, or none of a witness’s testimony.

Judge Boxer explained bias; the parties were biased because they had a financial interest in the outcome, but he made it clear that other witnesses could be biased as well.

Davis mused,
All witnesses who testify are biased to some extent, but usually they aren’t blatant liars. They have at least convinced themselves that their testimony is true
.

The judge continued, “Expert witnesses are hired because of their knowledge in a particular field. In a medical malpractice case, the plaintiff must prove liability through expert testimony because the defendants are doctors or hospitals. You don’t practice medicine, so you’re not familiar with what constitutes the standard of care. You don’t know what constitutes a breach of that standard. The law requires expert testimony because you are not a doctor. You should not
completely discard an expert’s testimony because he or she is paid to read documents, give an affidavit, give a deposition, or testify at trial.

“Expert witnesses render opinions as to liability, negligence, and breach of the standard of care and do so after the fact, based upon documents, scientific journals, and accepted standards within their field of study. Expert witnesses are paid so they do at least have the bias of compensation.”