First Do No Harm (Benjamin Davis Book Series, Book 1) (39 page)

Davis was generally pleased with the jury instructions. His defeat occurred when Boxer excluded the pattern of gross negligence on the part of the defendants.

Boxer concluded, “Your attitude and conduct at the beginning of your deliberations are very important. It is rarely productive for a juror to immediately announce a
determination to hold firm for a certain verdict before any deliberation or discussion has taken place. Taking that position might make it difficult for you to consider the opinions of your fellow jurors or to change your mind after you review the evidence. Please remember that you are not advocates for either party. You are the judges of the facts, and you must apply the law that I have instructed you.”

Boxer reminded the jury: “You are a collective body. You must, in the end, speak with one voice. You must come to a unanimous decision as to liability and, if necessary, to appropriate damages. It is your duty to consult with one another. You should listen carefully and respect the opinions of others. In the course of your deliberations, do not hesitate to reexamine your own views and to change your opinions. However, do not surrender your honest conviction as to the weight of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict. On behalf of the people of Plains County, Hewes County, the parties, their attorneys, and this court, I wish you Godspeed in your deliberations and good luck.”

With that said, Boxer dismissed the jury to deliberate.

Davis turned to Morty: “Now the hardest part begins. We wait.”

As Davis watched the jurors leave to begin their deliberations, his heart skipped a beat. This was the most important trial of his life. He knew that, and the defense knew it. Despite his game face, the math and his tired blue eyes couldn’t lie.

A lot was riding on the verdict. He didn’t know how much more his marriage could take. It wasn’t only the fact that he had gone into debt. It was the time and commitment that Plainview required of him. He missed his family. His kids were growing up without him, and he desperately needed to be there for his wife, who had sacrificed in so many ways.

The problem was that even if the jury returned a large verdict of both compensatory and punitive damages, there would still be an appeal and seven more cases to try. Logic dictated that he first had to win the Malone trial, avoid an appeal, and negotiate a settlement of the remaining cases. He had quite a difficult task ahead.

The defense team had the luxury of waiting in Barnes’s office across the street from the courthouse, right there on the square. It had air conditioning and access to a kitchen and soft drinks while the defense team waited in comfort.

Boxer took pity on the Davis team, who had no place to go, and gave them a small office in the courthouse to wait. Although he was clearly an outsider, Littleton was included as a common courtesy. Davis, Morty, Sammie, and Littleton easily over-crowded the very small room.

There was no room for the clients. The Malone family was everywhere. All ten living children were in the courtroom, as were more than a dozen grandchildren. With spouses, the group added up to more than thirty people.

Davis and Sammie took turns leaving their cramped retreat to visit with the family in the courtroom. Out of respect, Morty was given a deferment, and out of the abundance of caution, Davis kept idiot Littleton away from the clients. Davis and Sammie could only repeat to the family, “It is in the hands of the jury,” so many times.

Morty took out a deck of cards and challenged Davis to gin rummy. The old man loved the game and never lost. Over the last nineteen years, Davis figured the two of them had spent more than two hundred hours playing while waiting on juries. Morty knocked with two, and Davis was caught with eighteen points.

At five o’clock, the judge sent the jury back to the motel so they could get a fresh start in the morning. The clerk told Davis’s team to go home and called Barnes’s office and sent the defense home.

Sunday morning opened with the judge reminding the jury, “You’ve taken an oath to find the facts of this case, determine liability and, if necessary, award appropriate damages. Good luck and Godspeed.”

The defendants, with the exception of Dr. English, left the courtroom for the sanctuary of Barnes’s office,
and Davis and his team settled in to wait. Sheriff Dudley returned Dr. English to his cell on Judge Lewis’s orders.

Davis took his turn with the Malone family and approached Lorraine Burke, sitting with three of her sisters. Davis wasn’t sure who was who. He just started talking, “Hello, ladies, we’re close to the end of a long road.”

Lorraine smiled and held out her hand to Davis. He grabbed it, and she squeezed so hard, it almost hurt.

“That’s quite a grip. I wouldn’t expect that from a history teacher.”

“All of us kids worked the farm while Momma worked the bakery. Thomas was the foreman at fourteen. He had his own private army.”

“It must have been hard with no adult.”

“We didn’t know any better, and between the bakery and the farm we had enough to eat. It wasn’t too bad. I was the only one of the eleven who got to go to community college.”

Lorraine and Davis discussed the tension in Plainview. People were picking sides. Either they or their relatives worked at the hospital, and the lawsuit was affecting business and morale. Some patients believed and supported Dr. Herman, despite the finding of the Medical Licensing Board.

“You can feel the tension in the air. Our community is being torn apart by these lawsuits,” said Lorraine.

“Are you feeling secure with your job at the high school?”

“The principal is a good friend of Woody Douglas, but the parents of my students will protect me if Douglas tries to get me fired. I’m too good a teacher,
and I’ve been there over twenty years.”

Davis hoped she was right.

Three hours later, just before lunch, the judge’s clerk came into the courtroom and told Davis that the jury had a question. He needed to get his people. They even brought Littleton. The clerk had already called Barnes’s office, and the defense was on the way over.

When everyone was in the assigned places, the judge took the bench, and the jury was brought in. From experience, Davis knew that a jury’s question could be very telling about how the jurors were leaning.

The young foreman stood and looked straight at Judge Boxer.

“What’s the jury’s question, Mr. Foreman?”

“It has to do with the obligation of the hospital when it credentialed Dr. English. Did the standard of care require the hospital to verify his competency to perform laparoscopic gallbladder surgery if he was the first at the hospital to perform that procedure?”

Boxer paused a moment and then answered, “The hospital, under the standard of care, shouldn’t have allowed any surgery, unless with a reasonable degree of medical certainty it knew that surgery would be performed with a reasonable degree of safety to the patient.”

Davis liked the question, and he loved Boxer’s answer. The jury was seriously considering the liability of the hospital, which meant that it had probably already found the doctors liable.

The jury remained out for the rest of the day. At 6:00 p.m. the judge sent them back to the motel and told them that they would start again at nine the next morning.

Davis believed the lengthy deliberation was a good sign. The jury was taking its time reviewing the evidence. After all, there were 168 exhibits, and they heard testimony from fifteen witnesses. And there were several complicated issues to consider: comparative fault, how much blame to place on each defendant, and whether to find recklessness and award punitive damages. Davis wished he could be a fly on the wall and learn from the process.

The next day, Monday, the defense team hunkered down at Barnes’s office all day. The Malone family had now overflowed to outside the courthouse. Morty kept winning at rummy, first against Littleton, then Davis, and then Sammie. He chewed on cigars the whole time. Eventually he switched his cigar out when the end got too disgusting. At five there was a knock at the door of their small office. It was Thomas Malone.

“Mr. Davis, the jury’s been talking about twenty hours. Is that normal?”

Davis’s tie was loosened. He was getting as nervous as the Malone family, but he knew he couldn’t show it.

“There is no such thing as normal when it comes to a jury, Thomas. It’s a weird and wild animal. I’m only guessing, but I bet they’re fighting over whether to find the defendants reckless and whether to award punitive damages. Our burden is much higher at clear and convincing evidence. They’re divided over something, and eventually it will get worked out.”

“Could you talk to the family?”

Davis agreed to go to the courtroom. Morty, Sammie, and Littleton followed. Davis was shocked to see more than a hundred people in the courtroom. The Malone family constituted about a third, about another
third were his clients from the other Plainview cases, and there were at least forty others. Dr. Laura Patel and the six nurses represented by Littleton and more than twenty other interested persons had driven from Plainview to Hewes City for the verdict.

Davis knew he had to say something. These people had a vested interest in the Malone case, and they were looking to him for encouragement.

“I’m stunned by your support and overwhelmed by the importance of the outcome of this case, not only to the Malone family and myself, but to a community. Plainview hasn’t been a safe place to get sick the last few years. The hospital and these doctors took advantage of the most vulnerable members of your community, and I hope the jury appreciates that breach of trust and sends a message: no more. Even if we win, these cases are not over. There could be an appeal, and seven other cases are pending. I promise that my team and I will see it through to the end.”

As the words left his mouth, Davis thought,
I might have just made the biggest mistake of my life
.

Fifteen minutes later, right in the middle of a hand of gin rummy, after twenty-one hours of deliberation, the court clerk announced that the jury had reached a verdict.

They all assembled in the courtroom. The defense side, including lawyers, defendants, and insurance representatives, totaled more than a dozen additional persons.

Boxer took the bench and called for the jury. They walked in single file, led by their foreman. The jurors were trying not to make eye contact with any of the parties. That was a dead giveaway.

Davis stared hard at the jurors, looking for a smile or a twinkle in their eyes. Betsy Blue gave him what he wanted, and his stomach finally stopped doing flips.

Judge Boxer became very serious and in a ceremonial tone asked: “Has the jury reached a verdict?”

The young foreman responded: “Yes, we have, Your Honor. We, the jury, in the case of Malone vs. Plainview Community Hospital, Dr. Lars Herman, and Dr. Charles English, find that all three of the defendants were negligent.”

“What is the amount of compensatory damages awarded?”

“We award $250,000.”

Davis never expected a large award of compensatory damages. Rosie Malone was sixty-seven years old and in ill health, regardless of any negligence of the defendants, and without any lost income because she had retired.

“How do you divide the fault among the parties?”

“We find that Rosie Malone had no contributory fault; Plainview Community Hospital is forty percent at fault; Dr. English thirty-five percent; and Dr. Herman twenty-five percent comparatively at fault.”

Davis noted that the percentages assigned against each defendant were the same as the Jones settlement.
Jury’s got to the right place, even through all the bullshit thrown at them
. The next question was critical, and Davis actually held his breath.

“Do you find any of the defendants by clear and convincing evidence reckless?”

There was a hush in the courtroom. The foreman looked at Davis, and a big smile broke out across his
face. Davis relaxed for the first time in two years.

“Yes, we find that all three defendants were reckless.”

“Do you award punitive damages, and if so, in what amount?”

“We award the plaintiff $2 million in punitive damages, for a total verdict of $2,250,000.”

It was bedlam in the courtroom. The Plainview plaintiffs and their families were shouting and jumping, hugging, or crying for joy.

There was a completely different reaction from the other side of the room, however. The defense lawyers didn’t appear very upset. They would make more money with an appeal and seven trials, but Herman and English were visibly shaken.

Although Boxer tried to get control of his courtroom, it was almost impossible to hear either him or his gavel.

Herman began to cry, his body heaving as he did.

English had a crazed look on his face, and Davis vindictively gave him a victory smile. Without warning, English flipped the defense table over, causing a deafening noise. He balled his fists and tried to run across the room to attack Davis. Several people, including the foreman of the jury, forcefully tackled English to the floor. Sheriff Dudley, who had been close by, slapped the handcuffs on the distraught physician.

At that point, Boxer took control of his courtroom and shouted at the top of his lungs: “Everybody get in a seat right now! Anyone standing in ten seconds is the loser of my game of musical chairs and will spend the next twenty-four hours in the Hewes County jail.”

Davis believed him, and apparently so did everybody else. Within seven seconds, no one was standing.

“Tomorrow morning at nine o’clock, I want all of the plaintiffs and their lawyers, the defendants and their lawyers, and their insurance representatives to meet me at Plainview High School to discuss the status of these cases. Attendance is mandatory, no exceptions. Now everyone, except Dr. English, leave this courtroom, and unless you live here in Hewes County, get out of the city limits of Hewes City. You’ve got thirty minutes to leave, or you’ll be a guest of our jail. Dr. English, you’re in contempt of court. Sheriff Dudley, take him to a cell.”