Cookie's Case (14 page)

However, Robert got it out, just barely, that the van was making a turn, “left or right, I mean this way or that way,”—he points in different directions—when it hit him. He also said, about five times, “I don't walk in no street. I walk on the sidewalk, correctly.” The first time was in response to the question, “What is your highest level of education?” I have to point out, this was a factor of my overprepping him.

In all, his testimony on how this accident happened was nearly incomprehensible. Bad for us—or is it?

What Robert did make completely clear was that New York Knick great Walt “Clyde” Frazier autographed his basketball when Granny took him to the game for his birthday. This basketball, which Robert was carrying en route to the park, went flying when he was struck. Where the ball came to rest is what's important here.

Anyway, despite Robert's shortcomings, he got the first question right. He answered, “My name is Robert Killroy, but I didn't kill no Roy, and I didn't kill nobody. That's just my name.”

NOT ONE WORD

After Robert leaves the room to rejoin Ethel, I question the defendant. He's come to New York from his home in Canada just for this deposition. He's a Hasid in the usual long black jacket, with the usual long curly sideburns, and the usual little round target on his head. He's also wearing glasses.

He states that the first time he saw my client was at the moment of impact when Robert's cheek was, “smooshed, oy vey,” against his windshield. Good for us. He testified that there'd been eighteen people from two different families stuffed into his van and that he was making a left turn into the temple parking lot at the moment of impact. There had been thousands of Jews roaming the streets that day having come to Crown Heights to celebrate the Rebbe's hundredth birthday.

Granny—of whom I am more than fond—has been proven right: a Jew-stuffed van, a Jew driveway, and a whole lot of Jew witnesses.

On another note, the driver testified that he never spoke to the police. That's right,
not one word
. Rather, it was the father of the family he was traveling with, dressed in the same traditional garb, that did so. A clear case of mistaken Hasidic Jew identity.

I told the defense attorney it was time to settle the case. But she wasn't fazed, despite witnessing two bouts of Robert's ooh-dats. These people just don't know what's good for them. Given Robert's condition—and I'm not even talking about his ankle—I definitely have a jury charge on the law that will take them down. And the way Rich Cohen's young associate, Ms. Kaufman, found joy in relentlessly confusing Robert makes me believe she's missing a big point here.

My challenge is to convince Cohen to bring his insurance adjuster to the mediation table so I can detonate this legal land mine in his face. Since Ms. Kaufman's ignorant about what's important, Rich Cohen will have to remain unaware too.

Lastly, I don't think I like Ms. Kaufman too much. Maybe it's because I dislike those who take advantage of others, even if it's their job. And especially so in Robert's case.

Chapter Thirteen

A
fter Ethel and Robert leave, I take out my phone. I'm looking for two e-mails in particular. I scroll down and find the one from Pusska. It reads,
Thanks for the other day. I haven't used sex since our talk. I vanted to, but I didn't
.

I scroll until I find the other I'm looking for. It's from Ray. It reads,
I'll be home all day, as usual. Come on by if you want
. She's my radiology expert—the doctor who reviews or “Ray-diates” imaging studies for me. Jurors love her quirky manner, and her credentials are unmatched. She's Yale-trained and board-certified in radiology.

Her real name is Dr. Reina Godfrey, but everybody calls her Ray. Short for X-ray, rather than Reina. The only drawback to using Ray is her insistence on doing her reviews from home. That means four flights of stairs. I grab the imaging studies and off I go.

She lives on 51st Street between Eighth and Ninth Avenues, smack in the middle of Hell's Kitchen, which is on the western edge of Midtown and has a colorful history to justify its colorful name. Once the turf of a variety of urban gangs—the Irish being the best known—it's now all about restaurants, block after block, plus the usual gentrifying redevelopment.

I hit the rusted door buzzer of her brownstone, take three steps back, and look up to the top left window. Ray's fighting to get it open. Finally, she succeeds and sticks her head out.

“Be right down.”

Ray reviews fifty imaging studies a day at a charge of two hundred fifty dollars per read. That's twelve thousand five hundred dollars per day, and she's on the job six days per week, fifty-two weeks a year.

Yet, despite her sizeable income, her brownstone is dilapidated and unsightly. To illustrate how cheap she is, she struggles with her window and walks down four flights to get the door, instead of spending a few bucks to have the buzzer fixed. I could go on, detailing the broken handrail, the peeling paint, the cracked window panels, etc., etc., etc., but I think you get the picture.

As she opens the door, she steps out past me, looking down the street first one way, then the other. Surveillance. Like someone's out to get her.

“What's up, Ray?”

“You never know. Come on.”

Whatever.

Once we're inside, she slams the door. The only upgrade she's ever made involved giant-sized Master Locks and deadbolts. I smile at her as she secures her territory.

She smiles back. Her teeth are telling. She had a Spanish omelet with toasted, buttered seven-grain bread for breakfast, a ham sandwich with spicy brown mustard and tomato for lunch, and she snacked on a granola bar—my guess would be peanut-butter flavored—seventeen minutes ago. I can't wait to look at the films up close with her.

“Come on,” she says, starting up the creaky staircase. I follow. The back of her bathrobe is hiked up. It's caught, somehow. Exposed are her legs, ghost-white from lack of sun exposure, and a hint of her droopy bottom. I mean, what's the protocol here? Do I say something?

At the first-floor landing, she stops. “Let's work here today.”

“Okay, I've never been on this floor. We always work up top.”

“I know,” she responds, “but I got involved in some reviews and forgot to feed the cats on this floor.”

“You have cats on this floor, too? Don't you have, like, seven cats upstairs?”

“Yeah. Well, I actually have twelve upstairs. On this floor I only have nine.”

“You've got to be kidding me.”

“Nope, nine more on this floor.” She takes a ring of keys out, and the jingle incites a chorus of meows. We walk into a hungry pride.

“Why do you keep nine cats on this floor and twelve upstairs?”

“Because the Jets don't get along with the Sharks. It's your typical
West Side Story
.”

“How did you discover which nine didn't get along with which twelve?”

She looks at me pityingly. “I asked them.”

She begins filling dishes with cat food and setting them on the floor.

“Ready to start?” she wants to know, once the lower nine are locked onto their bowls.

“Sure,” I answer, thinking I like Mick's workspace a heck of a lot better. The wide-open area, which comprises the entirety of this floor, is completely barren except for where we're obviously going to work. Also, there are no shades, no floor coverings, no furniture—no nothing. Bare, down to the exposed pipes and hanging light bulbs.

“Good. Now give me those imaging studies, and don't say a word.”

I hand her a stack of compact discs.

She prefers a cold read without any guidance. She says it gives her opinions greater credibility since they were formed without the influence of seeing the formal reports that come along with the studies.

I agree.

She places the numerous CDs on the tabletop, which has a heavily scratched white Formica surface. I'd say it was circa 1974. Just so you know, we're seated on stools with cracked red vinyl cushions. These, I'd guess, are vintage 1960s.

She loads and ejects the CDs, one after another at a rapid-fire pace. Mixed in with Cookie's MRIs are a number of plain X-rays. After reviewing each study—zooming in and out on the pertinent anatomy—she takes the CDs and begins placing them back in their respective sleeves. The review takes eight minutes.

“I assume you don't want to show me anything?”

“Have you looked at them?”

“Yes.”

“Well, after all these years I'm sure I've trained you well. We both see the same thing, don't we?”

“I believe so.”

“Well, what did you see?” she probes. She and Mick both love to do this to me.

“The first post-op set showed the surgeon improperly screwed hardware into an unintended joint space. It also reveals collection of fluid at the C4 level. Subsequent study showed the fluid collection, whether it be blood or CSF, had spontaneously reabsorbed. The studies after her corrective surgeries show the removal of the offending screw and restabilization of the fusion that never took. Those images appear to be normal at the C4 level where there had been this fluid collection.”

“That's what I see, too. Not such a big case, if you ask me, despite the prolonged course of treatment and multiple surgeries. Bone-healing insufficiencies, such as delayed and nonunion, are a risk of the procedure. The most recent studies show acceptable alignment and bone union where the nonunion was. She must be close to healed by now.”

“Yeah, she's good enough to dance. But it's what's not imaged in the studies that's giving me the problem.”

“I'm listening. Tell me what isn't imaged that you think should be.”

“Okay. Here's the deal. According to the defendant's surgeon, the patient sustained an injury into the subarachnoid space at the level of C4, causing an intraoperative leak. Now he didn't say this in his operative report, but he testified to such at his deposition.”

Ray shakes her head. “That's unheard of.”

“Yes. I agree.” It's unanimous.

“But the first post-op MRI did image a fluid collection at that level, so maybe he knew he had to give that.”

“I agree. Also, this nurse who'd been in the OR came forward and advised Cookie and her boyfriend while she was still in the hospital that Dr. McElroy had caused the injury. Anyway, about six months later, Cookie starts feeling pressure in her head, and Major, this retired doctor she lives with, starts tapping her on his own.”

“Spinal tapping?” she questions in apparent disbelief.

“Yes. Spinal tapping. Privately. He's been doing it weekly, continuous to this day. It's sick. I've seen it. I've even made a video of it. He performed the procedure in my office.”

“So what are you saying here? That these subsequent MRIs should show some form of defect in the arachnoid layer at C4 that's causing an obstruction of CSF flow and a backup of fluid to her brain?”

“That's exactly what I'm saying. Or at least an abnormal collection of fluid arising at that level if a defect is not visible.”

“Well, other than the initial post-op MRIs from McElroy's operation—the first series showing the fluid collection at C4 and the second documenting the expected reabsorption of the fluid, neither having strong evidence of an arachnoid membrane tissue defect—none of the subsequent studies show a fluid collection at C4 or strong evidence of an abnormal arachnoid either. However on some of them, where the base of the brain was incidentally imaged, I did see the presence of increased spinal fluid that might require tapping if clinically indicated. But there was no visible explanation for it or anything indicating that it arose from lower down at the C4 level. So you know better than to ask me to come to court on this case, right?”

“Right,” I agree. “I know better.”

“Good. That's why it's impossible to cross-examine me. I say what I see, and no one could ever make me change my mind.”

“I'm with ya.” I put the CD sleeves together. While I'm doing that, a gray cat with yellow eyes and a patch of white on its throat jumps up on the table.

“That's Tinkerbell.” She scratches her ears. “I found her barely alive on Fifty-third and Eleventh. She was just lying there, and people were walking right on by. She's my favorite. Bright, affectionate, and understanding. But sometimes she'll scratch you for no good reason.”

“That's nice of you, Ray. Are all of these rescues?”

“Every one.”

As I'm at the door and she's throwing back the locks to let me out, I think about all that we've just discussed. “You've helped a lot,” I tell her.

“I don't see how. I could talk about the screw extending into the joint and the initial fluid collection. Still, I understand there being no strong evidence of any defect at C4 impeding the circulation of the cerebral spinal fluid is against the interests of your client, if you're claiming that as an item of damages.”

“Correct. But it's weird because, like I said, I actually saw him do it right in my office. ‘It's time for tap,' Major said when he saw her taking a downward course.”

“That's a dark expression, isn't it?”

“It sure is, and what followed was even darker.” After the memory of what I witnessed skates across my brain, I realize I have another question for her.

“Several times you've used the phrase ‘no strong evidence' with regard to whether there's a tissue defect at C4. Is there any evidence of an arachnoid membrane abnormality at that level?”

“There's a hint of something there. I almost had to convince myself I was actually seeing it. I'm just not confident in saying what it is or what it isn't with a reasonable degree of medical certainty. It could easily be a normal anatomical variant. But I am certain whatever it is, given its miniscule size, could not cause a back up of CSF into the skull. May I suggest something?”

“Please.”

“There are conditions other than a mechanical blockage from a tissue defect that can cause CSF to build up, requiring a spinal tap. These involve the overproduction of fluid and the failure of fluid to properly drain. You may want to explore such alternative explanations for the tapping.”

“Sounds like a plan. Only thing is, I want the tapping to be related to the malpractice so she can collect for it. Can overproduction or the failure to drain be related to a surgical misadventure?”

“Highly unlikely.”

“Why's that?” I ask.

“Because it's physiologic.”

“Meaning?”

“In simple terms, on a chemical level the body just produces too much cerebral spinal fluid. Or something's going on that's interfering with the reabsorption of fluid.”