Dying Declaration (35 page)

58

ARMISTEAD HAD DRESSED
casually but professionally for the occasion—just like a doctor—a blue blazer, khaki pants, white shirt, red tie. His posture was ramrod straight, but the dark circles under his eyes revealed the toll of recent events. He somehow looked markedly older than he had just two weeks ago at the preliminary hearing. And he spoke with a sense of grim determination, like a man duty bound to perform an unpleasant task. He avoided eye contact with Charles and focused intently on the Barracuda.

First, they covered his credentials. Med school, board certifications, years of experience in the emergency room—it was all very impressive stuff. Armistead’s answers were precise and matter-of-fact. The receding blond hair, the wire-rimmed glasses,
and the prominent jaw all lent an air of credibility to the witness, and the jury seemed to like him.

After going through his résumé, the Barracuda proffered Armistead as an expert witness, thereby qualifying him to give opinion testimony.

“Any objection, Mr. Arnold?” Judge Silverman asked.

“No objection.”

The Barracuda next launched her witness into a medical lecture about the appendix. As far as medical science knew, the appendix was basically a useless organ attached to the end of the small intestine. But when it got infected and inflamed, it could present some major medical problems that should be treated immediately.

An inflamed appendix is excruciatingly painful but not life threatening if treated promptly. For little Joshie, the first few days of his inflamed appendix would have produced unbearable pain, like a thousand knives stabbing his abdomen. If untreated,
an inflamed appendix presents a danger of rupturing, which in turn presents a critical and life-threatening situation. A ruptured appendix spews fecal material directly into the abdomen, creating a poison in the system of the patient. The immune system will quickly be overwhelmed by this bacterial infection, eventually leading to peritonitis and the onset of sepsis.

This is precisely what happened to Joshua Hammond. In fact, Armistead said, his appendicitis had been untreated for so long,
he was in an advanced state of septic shock when he presented to the emergency room. The sepsis had begun affecting his circulatory system and central nervous system. An immediate operation was nearly impossible because the child was in no shape to survive surgery. Armistead first had to resuscitate Joshua using IV fluids to restore his strength before the doctor could remove the appendix and clean out the fecal material.

It was, according to Armistead, a race against time he was destined to lose. Despite his best efforts and the involvement of nearly every specialist at Tidewater General, Joshua never had a chance. The official cause of death was multiple organ failure precipitated by septic shock.

As he discussed Joshua’s death, Armistead’s gray eyes became downcast, and his voice softened. He confessed that he had lost very few patients in the course of his practice. It was something you never got used to. And it was particularly heartbreaking to know that this death could have been prevented if the child’s parents had just sought medical care during the first few days of the child’s illness. Instead, they sat idly by for five days while Joshua was tortured to death by his own appendix.

The Barracuda, expressing just the right amount of righteous indignation, strutted around the courtroom. When Armistead mentioned the five-day time frame, she gave him a puzzled look and asked how he could possibly know that information.

An interesting question, the witness said, and one of crucial importance. When the ER nurse first asked Theresa Hammond how long her son had been sick, Mrs. Hammond said it had been three days. This was an important fact that Armistead relied on in his treatment of Joshua. Later, Armistead said, Theresa Hammond admitted that it had actually been more like five or six days.

Charles glanced down the defense table at Theresa. Her eyes were wet with tears, and her bottom lip quivered.
She looks guilty,
Charles thought. And he knew the jurors were thinking the same thing.

“What did you do when Theresa Hammond admitted that she had lied to you about how long her own son had been sick?” the Barracuda asked.

“I was shocked,” Armistead said. “And I called you.”

“And did you later become aware of any additional information supporting the opinions you just gave us about how long Joshua had been sick and what kind of shape he was in when he arrived at the hospital?”

“Yes, I did. You later showed me a videotaped interview of Joshua’s older brother, John Paul Hammond.”

The Barracuda then asked the court’s permission to show the jury a segment of the videotape of Tiger. Charles objected, and the judge called the lawyers forward for a sidebar.

“It’s hearsay,” Charles whispered.

“Dr. Armistead’s an expert witness,” the Barracuda shot back. “He’s entitled to rely on hearsay in forming his opinions. I
just want the jury to see some of the factual statements he relied upon.”

Silverman let the lawyers argue for a while and then placed his hand over the mike in front of him. “I agree with Ms. Crawford,
and I’ll instruct the jury accordingly.”

Charles felt the wind leave him, knowing that he would now have to bring Tiger into the courtroom to testify.
As if he hasn’t been through enough.

When the lawyers returned to their seats, the judge told the jury that they would be watching segments of the videotaped testimony of John Paul Hammond. “What he says is not being admitted for the truth of the matters he asserts,” the judge instructed,
“but to demonstrate part of the basis for Dr. Armistead’s opinions. Is that clear?”

As they were expected to do, the jurors all lied, nodding their heads like robots.

“You may proceed,” Silverman said, and Crawford rolled the tape.

The camera was focused on Tiger. The sweet voice of the Barracuda in the background asked him whether or not his parents waited three or four days before they took Joshua to the hospital.

“I think it was five,” Tiger said.

The Barracuda turned off the tape and looked again at Armistead. “What did you think when you first viewed this videotape?”
she asked.

Dr. Armistead took out a pocket handkerchief and cleaned his glasses. He shook his head and looked down at his hands, then back up at Crawford.

“It confirmed what Mrs. Hammond had already told me,” Armistead said at last, “though I still found it hard to believe that any mother would allow her son to suffer for five or six days from this painful illness and then, just to make herself look better, lie to the nurses and doctors about how long her son had been sick.”

“Object!”
Nikki whispered to Charles. “How can he testify about
why
she lied, even assuming that she did lie?”

“If I object,” Charles whispered back, “I might just as well put a neon sign over that answer so the jury can remember it.”

“You won’t need to,” Nikki said. “They’re all taking notes.”

“Your witness,” the Barracuda announced.

59

“HOW MANY TIMES
have you paid money to settle a malpractice claim?” Charles demanded, rising to his feet.

“Objection, relevance.”

“What’s the relevance, Mr. Arnold?” Silverman asked.

“I intend to prove that Joshua would have survived if he had received proper medical treatment. The skill and judgment of this doctor is therefore very much at issue.”

“I’ll allow it,” Silverman said.

“How many times?” Charles asked again. He watched as Armistead glanced briefly at the Barracuda. He could sense the wheels turning in Armistead’s head, but Charles already knew what the answer would be.

“Two,” Armistead said.

“Are you sure it’s just two?” Charles asked, raising his eyebrows.

He noticed some of the color drain from the doctor’s face.

“Of course, I’m sure,” Armistead said. “You don’t forget something like that. And the way lawyers are suing everyone in sight these days, I’m fortunate that it’s just been twice.”

Charles heard one of the jurors snicker.
That’s okay; let the doctor have a little fun.

“I’ll tell you what,” Charles said. “We’ll come back to that answer. Okay?”

“Suit yourself.”

Charles then moved out from behind his counsel table, holding a copy of Joshua’s medical chart in his hand. “When Joshua Hammond first presented to the emergency room, is it your testimony that he was
in extremis
and that time was of the essence?”

“Yes.”

“With a burst appendix, delays in treatment of a few days count, don’t they?”

“Absolutely.”

“In fact, hours count. Yes?”

“Of course.”

“Minutes count too, don’t they, Doctor?”

“Every delay matters, especially if a mother waits six days to bring a child in to see us.”

Now it’s six days,
Charles noticed. He handed the hospital chart to the doctor.

“Is this a true and accurate copy of the medical records from Tidewater General Hospital pertaining to the care of Joshua Hammond?”

Armistead leafed through the pages. “Appears to be.”

“I’d like to introduce this as Defense Exhibit 1,” Charles said.

Since the Barracuda had no objection, the thick package of papers was marked by the court reporter and handed back to Charles.

“Now tell me,” Charles said, “how much time elapsed from the minute that Joshua Hammond presented to the emergency room to the minute he was first seen by a doctor of any kind?”

Armistead frowned and looked through the chart. “Twenty-six minutes. But remember, he’d been seen by a physician’s assistant during this time.”

“Can a physician’s assistant prescribe medicine?”

“No.”

“Can a physician’s assistant diagnose an illness?”

“Not officially, no.”

“Can a physician’s assistant send someone to surgery?”

“No.”

Charles paused, sure the jury had gotten the point. “So tell me again, Doctor. How long was it before Joshua Hammond was seen by any kind of doctor?”

“Twenty-six minutes,” Armistead said, his voice heavy with disgust.

“And how long before he was actually taken in for surgery?”

“About ninety minutes,” the doctor replied. “But during most of that time, we were trying to resuscitate him, to get him ready for surgery.”

“In other words, you were feeding him and providing nutrition through some IV tubes, is that right?”

“Essentially, that’s correct. We were monitoring him, providing nutrition and hyperalimentation.”

“And all of those things could have been done in an ambulance, correct?”

The Barracuda apparently saw where this was heading and stood. “Objection, Judge. This is a lot of hypothetical talk about what could have been done. I think Mr. Arnold ought to stick to the facts.”

“Give me a minute,” Charles said. “I think it will soon be clear why this is relevant.”

“All right,” Silverman said, “but let’s link it up quickly.”

“How long does it take to transfer a patient to Norfolk Children’s Hospital?”

“About thirty minutes.”

“And would you agree that Norfolk Children’s Hospital has highly trained specialists in pediatric medicine, including a specialized pediatric intensive care unit?”

Charles watched Armistead’s eyes dart back and forth. He hoped Armistead would try to dispute the superiority of Norfolk Children’s. Nikki had lined up two specialists to testify if he tried that tactic.

“Most believe,” Armistead said, choosing his words carefully, “that Norfolk Children’s Hospital has a level of care not available at less- specialized hospitals like Tidewater General. But, Mr. Arnold, I did not have the luxury of sitting back and nitpicking this decision. I had to use my best medical judgment on the spur of the moment, and that judgment told me that Joshua would not survive a transfer.”

“He didn’t survive staying at Tidewater General, either, did he?”

“Objection!”
the Barracuda shouted. “That’s argumentative.”

“I’ll withdraw the question.” Charles shrugged. “I think it’s rather obvious anyway.”

Charles walked back to his counsel table and selected some more documents. The pause in the action served to refocus the jury.

“One of those two malpractice cases that you settled involved the death of another small child from a blood disorder, correct?” Charles began pacing in front of the witness box.

“Yes. When the child first presented, she had symptoms of otitis media and was discharged with appropriate follow-up instructions.”

“No blood tests were done on the first visit; there was no referral to a hematology specialist at Norfolk Children’s Hospital and no immediate transfer to Norfolk Children’s when the child came back four days later in acute septic shock, correct?” Charles had been ticking the points off on his fingers. He watched the muscles tighten in Armistead’s face.

“Another case of lawyers second-guessing doctors,” Armistead replied, his mouth taut. “It was cheaper to settle than defend it.”

“Have you got something against sending children to Norfolk Children’s Hospital for specialized help? Is there some grudge you’re holding against that place?”

Armistead looked at the Barracuda, probably wondering why she wasn’t objecting. “No,” he said. “That’s ridiculous.”

“My mistake,” Charles said. “I thought Norfolk Children’s was the hospital that turned you down—I mean, flat said no to your application for a residency position. In fact, I heard they turned you down twice.”

Armistead dropped the chart in his hand. It fell against the handrail in front of him. “What is this? Am I on trial here?”

“No,” Charles replied quickly, even as the Barracuda came out of her seat, “but maybe you should be.”

“Objection! Move that Mr. Arnold’s remarks be struck from the record!” The Barracuda’s face was dark red.

Silverman banged his gavel. “Order!” He stared at Charles from under his huge gray eyebrows. “Mr. Arnold, I will not tolerate those types of satirical comments from counsel.” He then turned to the jury. “Please disregard that last comment by Mr. Arnold. It is not evidence and has no relevance in this case.”

“Thank you, Your Honor,” Crawford said as she returned to her seat.

Armistead glared at Charles. He leaned back in his chair, arms crossed, a scowl on his face. Charles pretended not to notice and started shuffling through some papers, letting the silence linger until Armistead could stand it no longer.

“Those two malpractice cases have nothing to do with this case, and they’re both more than two years old,” Armistead insisted.
“I can’t believe you’re even bringing them up.”

Charles looked up from his papers and smiled. “I’m sorry,” he said. “Did I ask a question about how old those cases were?”

“Objection. He’s badgering the witness.”

Charles just spread his palms and looked at Silverman.

“Let’s get back to the examination,” the judge suggested.

“You never answered the question I did ask,” Charles insisted. “Were you or were you not twice rejected by Norfolk Children’s Hospital for a spot in their residency program?”

For a full five seconds, Armistead just glared at Charles, his jaw clenched, breathing hard through his nose. A searing silence engulfed the courtroom, and some jurors shifted nervously in their seats.

“Yes, I was.”

Charles walked deliberately across the well of the courtroom and leaned against the rail in front of the jury box. The eyes of Armistead followed him warily. Charles didn’t usually put his back to the jury, but for these questions, it was critical that the jury see the look in Armistead’s eyes.

“Look through those medical records,” Charles suggested, “and show me where it says that Theresa Hammond waited six days,
as opposed to three days, to get medical treatment.”

Armistead didn’t even glance at the documents. “It’s not in there. As I already testified, your client lied to us at first and told us it had been three days. That information got into the medical records. Later, she confessed to me personally that it had actually been five or six days. Because Joshua was already dead, there was no reason to put that fact in the records.”

“So it’s just your word against hers? There’s no proof in the records?”

“Are you calling me a liar?” Armistead asked.

“I’m not just calling you a liar,” Charles said. “I’m getting ready to prove it.”

“Objection.”

“Sustained.”

“What,” Charles gruffly asked, “is the Virginia Insurance Reciprocal Company?”

He watched Armistead swallow, the doctor’s Adam’s apple bobbing up and down. He knew the jury saw it too. There was a long pause.

“I believe it’s a medical malpractice insurance company,” Armistead said.

“You believe?” Charles repeated. “You
believe
?”

Charles walked all the way over to his counsel table and picked up two sheets of paper from Nikki. The pages were just copies of some old class notes, but Charles treated them like they contained enormous secrets. He asked the next question while looking at the documents, as if he were reading them.

“Now, keeping in mind our ability to subpoena bank documents and documents from your home study if we need to, I want to ask you a very important question. Is it true, Dr. Armistead, that as recently as two weeks ago, you paid the Virginia Insurance Reciprocal a total of four hundred thousand dollars for a purpose that you described in a handwritten notation on the transfer receipts as settlement of a medical malpractice case?”

Armistead stared at the Barracuda while his Adam’s apple bobbed some more. Charles didn’t believe the money was actually used to pay off a malpractice claim, but he also knew that Armistead had gone to great pains to make it look like it had. Now Armistead was stuck with his own lie, which was aired out in court for everyone to see.

“It was a confidential settlement of a malpractice case,” Armistead said slowly.

“Who was the person making the claim?” Charles asked.

“I’m not at liberty to say,” Armistead replied. “That’s why I didn’t mention it earlier.”

“That’s interesting,” Charles said. “I thought all of your malpractice cases were settled confidentially.”

Charles looked at the Barracuda, who was now vigorously taking notes, unable to look at Armistead or the jury. She shook her head back and forth—
tsk, tsk, tsk,
—as if signaling to the jury that this information was news to her as well.

“Would you care to restate your testimony and tell the jury the truth about how many malpractice cases you’ve settled?” Charles asked.

“Three,” Armistead said.

“Including or excluding the malpractice you committed on Joshua Hammond?”

This
got the Barracuda’s attention.
“Objection!”
she barked, as all of her pent-up frustrations came to the surface in one word.

“Withdrawn,” Charles said. “I think I’m done with this witness.”

Charles sat down, and Nikki patted him on the leg.

“Not bad for a street preacher,” she said.