Crisis (12 page)
"Objection!" Randolph said. "Dr. Bowman's private life is not an issue. Counsel is trying to impugn my client."
Judge Davidson stared down at Tony after taking off his reading glasses. "You are straying afield here, son. Is the direction you are taking relevant to this specific allegation of medical negligence?"
"Absolutely, You Honor. It is key."
"You and your client's case are going to be in a lot of hot water if it is not. Objection overruled. Proceed."
"Thank you, Your Honor," Tony said before reconnecting with the jurors. "On the night of the fifth of September, 2005, when Patience Stanhope was to meet her untimely end, Dr. Craig Bowman was not snuggled in his cozy, posh Newton home with his darling family. Oh, no! You will learn by a witness who was his employee and girlfriend that he was with her in his in-town love nest."
"Objection!" Randolph said with uncharacteristic forcefulness. "Inflammatory and hearsay. I cannot allow this type of language."
Craig felt blood rush to his face. He wanted to turn and connect with Alexis, but he couldn't get himself to do it, not with the humiliation he was experiencing.
"Sustained! Counsel, stick to the facts without inflammatory embellishments until the witness testifies."
"Of course, Your Honor. It is just hard to rein in my emotion."
"You'll be in contempt if you don't."
"Understood," Tony said. He looked back at the jurors. "What you will hear testimony to is that Dr. Bowman's lifestyle had changed dramatically."
"Objection," Randolph said. "Private life, lifestyle -- none of this has relevance to the issue at hand. This is a medical malpractice trial."
"Good lord!" Judge Davidson exclaimed with frustration. "Counsels, approach the bench!"
Both Randolph and Tony dutifully went to the side of the judge's box, out of earshot of everyone in the courtroom and, most important, beyond the range of both the court reporter and the jury.
"At this rate, this trial is going to take a year, for Christ's sake," Judge Davidson groused. "My entire month's schedule will have to be trashed."
"I cannot allow this farce to continue," Randolph complained.
"It's prejudicial to my client."
"I keep losing my train of thought with these interruptions," Tony grumbled.
"Pipe down! I don't want to hear any more pissing and moaning out of either one of you. Mr. Fasano, give me some justification for this excursion from the relevant medical facts!"
"It was the doctor's decision to go to the deceased's home on a house call instead of agreeing to the plaintiff's request to take his wife directly to the hospital even though, as the doctor himself will testify, he suspected a heart attack."
"So what?" Judge Davidson questioned. "I assume the doctor responded to the emergency without undue delay."
"We're willing to stipulate that, but Dr. Bowman didn't make house calls before he had his midlife crisis, or 'awakening', as he calls it, and before he moved into town with his lover. My experts will all testify that the delay caused by making the house call was critical in Patience Stanhope's death."
Judge Davidson ruminated on this. As he did so, he absently rolled his lower lip into his mouth such that his mustache reached halfway down his chin.
"Provider lifestyle and mindset are not the issues in medical malpractice," Randolph asserted. "Legally, the question is simply whether there was a deviation from the standard of care, causing a compensable injury."
"Generally you are right, but I believe Mr. Fasano has a valid point, provided subsequent testimony supports it. Can you say that's unequivocally the case?"
"To the letter," Tony said with assurance.
"Then it will be up to the jury to decide. Objection overruled. You may proceed, Mr. Fasano, but I warn you again about inflammatory language."
"Thank you, Your Honor."
Randolph returned to his seat, ostensibly annoyed. "We're going to have to weather the storm," he said. "The judge is allowing Fasano unusual discretion. On the positive side, it will add fodder for the appeal if there is ultimately a finding for the plaintiff."
Craig nodded, but the fact that Randolph, for the first time, was voicing the possibility of a negative outcome added to Craig's growing despondency and pessimism.
"Now, where the devil was I?" Tony said after regaining the podium. He shuffled through his note cards briefly, adjusted the sleeves of his silk jacket so that his shirt cuffs presented just enough and his clunky gold watch was just visible. He raised his eyes. "In the third grade, I learned I was terrible speaking in front of groups, and it hasn't changed much, so I hope you give me a little slack."
A number of the jurors smiled and nodded in sympathy.
"We will present testimony that Dr. Bowman's professional life changed dramatically almost two years ago. Prior to that, he had essentially a traditional fee-for-service practice. Then he switched.
He joined and has essentially taken over a successful concierge practice."
"Objection!" Randolph said. "This trial is not about style of practice."
Judge Davidson sighed with frustration. "Mr. Fasano, is Dr. Bowman's style of practice germane to the issue we discussed at the sidebar?"
"Absolutely, Your Honor."
"Objection overruled. Proceed."
"Now," Tony said, engaging the jury, "I'm looking at a number of faces here that look a little blank when I mention the term concierge medicine. And you know why? Because there are a lot of people who don't know what it is, including me before I took on this case. It's also called retainer medicine, meaning those patients who want to be included in the practice have to cough up some big bucks up front each and every year. And we're talking about some big money with some of these practices, upwards of twenty thousand dollars a head per year! Now, Dr. Bowman and his mostly retired partner, Dr. Ethan Cohen, don't charge that much, but they charge a lot. As you can well imagine, this style of practice can only exist in wealthy, sophisticated areas like some of our major cities and posh locales like Palm Beach or Naples, Florida, or Aspen, Colorado."
"Objection!" Randolph said. "Your Honor, concierge medicine is not on trial here."
"I disagree, Your Honor," Tony said looking up at the judge. "In a way, concierge medicine is on trial."
"Then relate it to the case, counselor," Judge Davidson said irritably. "Objection overruled."
Tony looked back at the jurors. "Now, what do people in a concierge practice get for all this up-front moola besides getting kicked out of the practice and abandoned if they don't come up with the dough? You'll hear testimony for what they supposedly get. It's going to include guaranteed twenty-four-seven access to their doctor, with the availability of the doctor's cell phone numbers and e-mail address, and a no-wait guarantee for their appointments, both of which I personally think people should get without having to fork over retainer fees. But most important of all in relation to this current case, they get the possibility of house calls when appropriate and convenient."
Tony paused for a moment to let his comments sink in. "During the trial, you will hear direct testimony that on the evening of September fifth, 2005, Dr. Bowman had tickets to the symphony for himself and his live-in girlfriend while his wife and darling daughters were moping at home. With him currently back in the family manse, I'd love to have the doctor's wife as a witness, but I can't because of spousal confidentiality. She must be a saint."
"Objection," Randolph said, "for the very reason cited."
"Sustained."
"You will also hear testimony," Tony continued with hardly a break, "that the known standard of care when a heart attack is suspected is to get the patient to the hospital immediately in order to initiate treatment. And when I say immediately, I'm not exaggerating because minutes, maybe seconds, count between life and death. You will hear testimony that despite my client's pleading to take his stricken wife to meet Dr. Bowman where she could be treated, Dr. Bowman insisted he make a house call. And why did he make the house call? You will hear testimony that it was important because if Patience Stanhope did not have a heart attack, even though from his own testimony you will hear that he suspected it, if she didn't, then he would be able to get to the symphony on time to drive up in his new red Porsche, walk in and be admired for his culture and for the young, attractive woman he had on his arm. And therein, my friends, lies -- or lays, I'm never sure which -- the medical negligence and malpractice. For in his own vanity, Dr. Bowman violated the standard of care that dictates a heart attack victim get to a treatment facility absolutely as soon as possible.
"Now, you will hear some different interpretation of these facts from the efforts of my more polished and experienced colleague. But I am confident that you people will see the truth as I believe the Massachusetts tribunal did when they heard this case and recommended it for trial."
"Objection!" Randolph called out, leaping to his feet. "And move to strike and request the court to admonish counsel. The tribunal's findings are not admissible: Beeler versus Downey, Massachusetts Supreme Judicial Court."
"Sustained!" Judge Davidson snapped. "Defense counsel is correct, Mr. Fasano."
"I'm sorry, Your Honor, " Tony said. He stepped over to the plaintiff's table and took a paper offered by Ms. Relf. "I have here a copy of Massachusetts Laws, Chapter two thirty-one, section sixty B, saying the panel's findings and testimony before the panel are admissible."
"That was overturned by the case cited," Judge Davidson said. He looked down at the court reporter. "Remove the reference to the tribunal from the record."
"Yes, sir," the court reporter said.
Judge Davidson then engaged the jury. "You are directed to disregard Mr. Fasano's comment about the Massachusetts Tribunal, and you are instructed that it will play no role whatsoever in your responsibility as triers of fact. Am I understood?"
The jury all nodded sheepishly.
The judge glanced down at Tony. "Inexperience is not an excuse for not knowing the law. I trust there will be no more slipups of this sort, or I will be forced to declare a mistrial."
"I will try my best," Tony said. He returned to the podium slab-footed. He took a moment to gather his thoughts, then looked up at the jury. "I am confident, as I said, that you will see the truth and find that Dr. Bowman's negligence caused the death of my client's lovely wife. You will be then asked to award damages for the care, guidance, support, counsel, and companionship that Patience Stanhope would be providing today to my client if she had lived.
"So thank you for your attention, and I apologize to you as I did to the judge for my inexperience in this particular arena of law, and I look forward to addressing you again at the conclusion of the trial. Thank you."
Gathering his cards from the lectern, Tony retreated back to the plaintiff's table and immediately launched into a hushed but intense conversation with his assistant. He was flaunting the paper she had recently handed him.
With a sigh of relief that Tony had finished, Judge Davidson glanced at his watch before looking down at Randolph. "Does the defense counsel wish to make an opening statement at this juncture of the proceedings, or after the plaintiff's case in chief?"
"Most definitely now, Your Honor," Randolph replied.
"Very well, but first we will take a lunch recess." He smartly smacked the gavel. "Court's adjourned until one thirty. Jurors are instructed not to discuss the case with anyone or among themselves."
"All rise," the court officer called out like a town crier as the judge got to his feet.
3
BOSTON, MASSACHUSETTS MONDAY, JUNE 5, 2006 12:05 P.M.
Although most everyone else began to file out of the courtroom's gallery Alexis Stapleton Bowman did not move. She was watching her husband, who'd sunk back into his chair like a deflated balloon the moment the paneled door to the judge's chamber closed. Randolph was leaning over him and speaking in a hushed tone. He had a hand on Craig's shoulder. Randolph's paralegal, Mark Cavendish, was standing on the other side of Craig, gathering up papers, a laptop, and other odds and ends, and slipping them into an open briefcase. Alexis had the impression Randolph was trying to talk Craig into something, and she debated whether to intervene or wait. For the moment, she decided that it was best to wait. Instead, she watched the plaintiff, Jordan Stanhope, come through the gate in the bar. His face was neutral, his demeanor aloof, his dress conservative and expensive. Alexis watched as he wordlessly found a young woman who matched his behavior and attire like two peas in a pod.
As a hospital-based psychologist, Alexis had been to numerous trials, testifying in various capacities although mostly as an expert witness. From her experience, she knew that they were anxious affairs for everyone, particularly for doctors being sued for malpractice, and especially for her husband, whom she knew was in a markedly vulnerable state. Craig's trial was the culmination of an especially difficult two years, and a lot was riding on the outcome. Thanks to her training and her ability to be objective, even about personal affairs, she knew Craig's vulnerabilities as well as his strengths. Unfortunately, in the current crisis she was aware that vulnerability trumped the strengths such that if he did not prevail in this very public questioning of his abilities as a doctor, she doubted he'd be able to pull together his life, which had splintered even prior to the lawsuit with a rather typical midlife crisis. Craig was first and foremost a doctor. His patients came first. She'd known that fact from the beginning of their relationship and had accepted it, even admired it, for she knew that being a doctor, particularly a good doctor, was in her estimation -- and she had a lot of firsthand knowledge from working in a major hospital -- one of the toughest, most demanding, and unrelenting jobs in the world.
