Suzy's Case: A Novel (33 page)

My anus is tingling big-time, so my conclusion is that the hospital or its attorneys or both are perpetrating a cover-up. And by this written answer they’ve now committed themselves to the lie to the very end. They’ll need to be exposed for this, on meat hooks, by the very anatomy that defines them as defense attorneys. It’s unbelievable that a hospital and, more specifically, their Engineering Department, would have no written documentation concerning the use and operation of a heart monitor.

I turn my attention to the correspondence received from the only cardiac monitor manufacturer that responded to my threatening claim letter.

It’s from the Toledo Patient Monitor Manufacturing Company.

Dear Attorney:

Pursuant to contract, Toledo was the manufacturer and direct seller of all the cardiac-monitoring devices sold to the Brooklyn Catholic Hospital for the time period in question. Please be advised that approximately three years prior to your date of incident, in a hospital facility in Missouri, one of our older-model devices was misapplied to a patient who was electrocuted and died from his injuries. Please be advised the misapplication occurred when the medical professional applying the cardiac monitor accidentally plugged the male end of an electrode lead wire into the
female receptor site of a live electric extension cord rather than into the monitor’s receptor cable. Although we did not foresee such an occurrence at the time of manufacture, the fact that it did happen made it a foreseeable and dangerous misuse of our device. We could not possibly recall all of our machines and, in light of only one single event of this nature, same would be an unreasonable and undue financial hardship.

However, Toledo, at the advice of legal counsel, felt the situation needed to be addressed and remedied immediately. Accordingly, we retained the services of an independent safety engineering company known as Engineersafe, Incorporated. Enclosed please find a copy of their recommendations and a sample plastic adapter they designed to prevent a future occurrence of this kind.

By serial number tracking we identified that one of our “defective” machines was in use at the Brooklyn Catholic Hospital. It was the only Toledo monitor they had with a manufacturer identification number beginning with the letters CBE.

Enclosed also please find a copy of the correspondence and signed certified return receipt for same of our “Notification of Defect” to the Brooklyn Catholic Hospital’s Risk Management Department. Please note we advised the hospital of the potential misuse; provided them with Engineersafe’s recommendations; and provided them with a plastic adapter, serial number 23890873, to be placed on the monitor with the CBE manufacture number.

It is our position that the Toledo Patient Monitor Manufacturing Company provided the hospital in question with both actual notice and remedy to the potentially dangerous circumstance two years, nine months prior to the date of your client’s injury and, as such, bears no responsibility for same.

Last, if the adapter had been applied to our machine as instructed, the event outlined in your claim letter could not have occurred. We hope this correspondence proves valuable, and we wish a satisfactory outcome for your client.

Very truly yours,

Ari Haimovic, Chief Engineer

“Holy Toledo!” I say out loud, giving literal meaning to the phrase. They had told the hospital almost three years earlier that this could happen and had provided them with a ten-cent plastic adapter to prevent it from occurring. All the hospital had to do was attach it and Suzy Williams would still be the bubbly little girl she’d been in the video. On top of it all, the hospital is denying it has any such documentation, despite Toledo’s letter with certified receipt to Risk Management, which I have in my very hand. This is big, real big. I also might add I’ve never seen corporate America come forward like this. I guess since Toledo managed to insulate itself from liability by taking a reasonable corrective measure, they must feel they have nothing to lose—and I agree.

I dial up Dr. Laura. “Smith Sickle Cell Pediatric Care Center, Steven Smith, director, speaking. How may I help you?”

“Hi. It’s your favorite attorney.”

“I thought it was you from the caller ID. How can I help you?”

“More new developments,” I answer. “In addition to the patch and wire, I now have further proof my client was electrocuted. I’m coming out there this afternoon to speak to your wife and to have her sign an affidavit, to attach to my opposition papers.”

“When I didn’t hear from you or receive your engineer’s affidavit, I thought you gave up on us. I’m glad you didn’t. Congratulations on your new proof. You wouldn’t want to share it with me now, would you?”

“You know the deal, Mr. Smith. I only divulge confidential communications in person, not over the phone.”

“That’s what I thought.” He quickly adds, “And mine is that you bring a certified check in the rush amount, with all the i’s dotted and t’s crossed.

“Hey, you said there’d be no further charge.”

“I don’t remember that.”

“Oh, okay. I’ll be glad to bring another check. I might even throw in a little bonus just because I know how happy it’d make you.”

“Bonuses are always welcome. Please tack it onto the eleven dollars and fifty-three cents you still owe me.”

“Will do. See you later.”

As I go to place the receiver down, I hear him say suddenly, “Wait! Don’t hang up.”

I wonder how much this is going to cost me. “I’m still here. What’s going on?”

“My only request is that you come after hours, and after hours today means nine-thirty this evening.”

“Nine-thirty? Isn’t that a bit late?”

“Better late than never,” he responds cryptically. “See you then. Don’t forget the check and your engineer’s affidavit.”
Click.

I hate that guy. June was right when she called him a creep. There’s something about him that just rubs me the wrong way over and above his blatant greed, his faulty recollections, and his arrogance in taking credit for the success of the care center. His wife’s the head physician, so I’d imagine the center’s achievement has at least a little something to do with her. Or maybe I hate him because of the way he controls his wife.

That’s definitely part of it, and a reason I resent him. It seems Dr. Laura and I are connected by virtue of our spousal domination issues. I mean, he even had her diplomas reissued so his last name would appear on them. What’s up with that?

Before I head out to the Smith Pavilion in Brooklyn tonight I need to set myself up with a closer just in case. The information from Toledo together with wire, patch, and Fred Sanford should make getting a backup expert not too difficult. I confess I even hope Dr. Laura sticks with her “no case” opinion, as I’ve come to question whether she has it in her to come to court and implicate a fellow member of the medical community.

I call Dr. Mickey Mack, my guy with the suspended license. This should be right up his alley because his medical specialty used to be neurology.

Mick picks up on the second ring and I greet him. “How goes it, friend?”

“You know, never happy,” he replies. “I got some hot ass twice in the last three days, and afterward I felt all deflated and depressed both times. Maybe I shouldn’t have gotten divorced.”

“Mick, I know I promised to always listen and give advice, but I got a situation here and I need your direction.”

“Okay, but you better reserve some time for me after your situation ends. So, let’s have it.”

I tell Mick all about the case, incorporating the view of my Avo-smoking mystery man, and then say, “So I’m thinking I want you to find me a backup expert just in case Dr. Laura still won’t commit.”

“I got to tell ya, I agree with the homeless guy. What did you say his name was?”

“Horatio Cohen.”

“Yeah, Horatio Cohen. You need a new expert, not a backup. Forget about Dr. Laura.”

“I can’t. Call me crazy, but I have this loyalty thing running through my blood and I want to give her the first right of refusal. In fairness to her, I didn’t have the Toledo information at the time she last reviewed the case so I want to present this change of circumstance to her first because she’s been involved since the beginning. Lastly, given her reluctance, I feel if she does commit, she’ll commit hard to the cause once she becomes a believer.”

It’s Mick’s turn to talk but he doesn’t. I suspect it’s the pause of disapproval. “I’ll try to find you a backup,” he finally says, “but you’re wrong on this one. You need a new expert. The husband’s just going to extort more of your money.”

“I hear you, Mick, but I’m deep in with this Dr. Laura and time is not on my side. Let me know as soon as you find my backup. Bye.”

I put my cell away and fall victim to a “phone trail,” which is that series of thoughts that spontaneously pops into your head immediately after hanging up. For the next few seconds I question whether I want to bring the Toledo development to Dr. Laura in an effort to sway her opinion out of loyalty to her or because of my own self-righteousness. As a trial lawyer, persuading those around me and being right is everything. It’s a flaw in my personality that results in large jury verdicts, but tends at times to compromise my personal relationships. If I think I’m always right, then someone has to be wrong. This character shortcoming can turn people off and push them away.

I spend a good part of the day finalizing my legal papers in opposition to defendant’s dismissal motion where they’re asking the judge to throw Suzy’s case out. My Affirmation in Opposition, which details the lawyer’s argument against the motion, acknowledges Suzy was in sickle cell crisis but clearly states the crisis was not the cause of the cardiopulmonary arrest and its resultant brain damage. I lay out the information that supports the electrocution in terms most persuasively supporting Suzy’s claim. I discuss her chest scar, attaching a photograph; the internal charring of the wire; the skin residue on the patch; the unqualified substitute nurse; Fred Sanford’s analysis and findings. I also include the affidavit I prepared for Dr. Laura that posits Suzy’s cardiopulmonary arrest was from a nonlethal electrocution causing her heart to stop, the Toledo letter, and the hospital’s answer to my Discovery & Inspection, which directly contradicts the Toledo letter. I clearly state to the court that a cover-up is in play, but leave out the part about my anal tingle.

In addition to opposing the hospital’s motion, I also construct a cross-motion of my own seeking to amend my pleading. Amendment of a legal pleading is where you seek the court’s permission to add something to the claim that has recently come to light. Amendments to pleadings are freely given as long as there is no prejudice to the opposing party in defending the case on the merits.

I craft my cross-motion to claim that the Brooklyn Catholic Hospital was negligent in the ownership, operation, maintenance, inspection, supervision, and control of the hospital and its facilities inclusive of, but not limited to, its cardiac-monitoring equipment by its servants, agents, licensees, and/or employees of the Departments of Engineering and Risk Management.

I lay the case right out and explain how a ten-cent plastic adapter provided by Toledo could’ve prevented the whole occurrence. I argue the new claim could not have been known or made at an earlier point in time as the hospital records are silent on such an occurrence and that it came to the surface only after Nurse Braithwait provided the charred lead wire and electrode patch bearing the cells of burned human flesh. Suzy’s flesh.

I also cross-move the court to add a claim for punitive damages,
which are not intended to compensate the injured victim but rather to punish the hospital for its grossly negligent conduct. Punitive damages are not covered by insurance. Courts permit such a claim only if it can be shown the defendant was not just negligent but grossly negligent. If I can prove what I’ve laid out in my affidavit, the conduct of the hospital by its Engineering and Risk Management Departments arguably ascends to the level of gross negligence, which, simply defined, is a reckless disregard for someone’s safety.

I spend the rest of the afternoon returning calls and putting an end to the rumors swirling around the legal community that I’m brain damaged from my auto accident. I mean, who would hire a brain-damaged lawyer? After quashing the rumors, I send a copy of my Discharge Instructions to Judge Schneider and then sit back in my chair to take a rest. I think the postcoma thing is catching up with me, and I’m still craving tequila and asparagus.

I put my leg back up on my desk for the thirty-second time and unbuckle and unzip and stick my hand down my pants to check on the twins for the fifteenth time. The swelling has gone down, and they’re just about their usual size again. Still, the way the stitches feel is disturbing. I pull my elastic band out with one hand and take a peek. The black sutures look horrific. Just as I begin to pull my hand out of my pants, June appears at my office door.

“Take your hand out of your pants, counselor. I’m mad at you. You promised I’d be the first call when you left the hospital and you were discharged at two-thirty-seven in the afternoon on Saturday. That shit ain’t right.”

I quickly zip and buckle. “June, for real, I don’t even remember that promise. I barely escaped death, remember? I don’t want to hear it now. I got a broken ankle, my testicles just got out of the repair shop, I’m suffering from postconcussion syndrome, my butt knuckles hurt
from sitting with my legs up all day, and I got a bizarre craving for tequila and asparagus that I haven’t had the time to satisfy yet. Cut me some slack.”

“Not happening, Tug. You made a promise I’d be your first call. I’ve been staring at my cell since two-thirty-eight on Saturday. I have it in me to call your mom, or maybe I should send the Fidge over here to give you some guidance.”

“June, you’re going to tell my mommy on me? I’m in my fourth decade of life, not fourth grade, despite my juvenile behavior, for Christ’s sake. Give me a break. What’s the Fidge going to do? Put a hurting on me? Too late for that.”