First Do No Harm (Benjamin Davis Book Series, Book 1) (31 page)

Pierce stood and, in an even louder voice, pointed out, “Your Honor, if you admonish Dr. English, I insist that the court also admonish Mr. Davis, who has been laughing openly at Mr. Littleton since the fourth question of the examination. You’ve got to admit, Your Honor, Mr. Littleton’s examination has been entertaining.”

Judge Boxer did not address the comment and broke for the day after determining that none of the parties had any further questions for the paramedic.

Judge Boxer began at nine o’clock sharp. His job was difficult, but at least he was prompt. Some judges let their court and jury function on their own time schedule rather than by the clock.

Davis also appreciated that Boxer made decisions; right or wrong, he wasn’t indecisive. Davis admired that quality, particularly since everyone knew that, in all probability, there would be an appeal.

Boxer also inherited what Davis called the “English factor”—one of the defendants was a fugitive from justice. Dr. English’s disappearance made for interesting drama and complicated the Plainview cases. Even with the surrender of Dr. English, the Malone trial was not a typical malpractice case.

Every morning Sheriff Dudley, who was forced to sit through the trial all day, delivered Dr. English from his Hewes County jail cell to the courtroom.

Judge Lewis was taking no chances with his prisoner. It took five months for Lewis to get his hands on Dr. English, and he wasn’t letting him go until he cured that contempt.

After the parties and the jury were settled in, Judge Boxer addressed Davis: “Call your first witness.”

“Your Honor, the plaintiff calls Dr. Charles English to the stand.”

English walked slowly to the witness stand and was sworn in by the judge’s clerk.

Davis asked the judge to give the jury the adverse or hostile witness instruction.

Boxer said, “Ladies and gentlemen, when a party calls a witness, usually that witness is at least neutral to that side. When a party calls a friendly or neutral witness, the attorney may not ask leading questions. However, if you call the opposing party or a witness that the court deems hostile or adverse, the attorney may ask leading questions.”

Davis had been thinking about getting to question English before a jury for more than two years. He loved his job because of such moments.

“Please state your full name.”

“Dr. Charles English.”

“Do you go by any aliases?”

“I have a nickname. My friends call me Charlie, but you can call me Dr. English.”

Several jurors laughed, and Davis just smiled back at English. Davis went through English’s background. When he asked if Dr. English’s two children lived with him, Judge Boxer gave Davis a stern look. The last thing that Boxer wanted the jury to know about was Dr. English’s alimony and child support problems and where he was staying at night and why.

Davis asked about English’s education, including his medical training at Peterson University. He established that English graduated in 1982, and that in 1984, Peterson University’s accreditation was suspended for issuing false medical licenses.

“I have no information about that, Mr. Davis.”

Davis offered into evidence the findings of the accreditation body and the order of suspension of Peterson University as the next exhibit.

Boxer allowed the documents into evidence under Rule 9.02. Davis figured he had no choice after the exchange. But Davis knew Boxer would be keeping a closer eye on him.

Davis asked English about his medical subspecialty of general surgery, including the types of surgeries he performed at Plainview Community Hospital. What about the credentialing process and how the hospital approved the types of surgical procedures he performed there?

“Did anyone at Plainview Community Hospital ever ask you about Peterson University?”

“No, sir.”

“I guess the Credentialing Committee didn’t look too deeply into your background?”

“I wouldn’t know.”

Davis established that the hospital granted English privileges for every surgical procedure he applied for and then moved on to English’s contract with the hospital. He established that Dr. Herman was his landlord and that the hospital paid his rent for six months and guaranteed his lease. The hospital also guaranteed an income of at least $10,000 per month.

English started to get out of the witness chair. “What the hell are you driving at?”

“My point is that the hospital invested a pretty penny in bringing you to Plainview, and you needed to order tests and perform surgeries for the hospital to get its money back.”

Pierce objected on the grounds of relevancy.

“What’s the relevancy, Mr. Davis?” asked Boxer.

“Your Honor, the financial relationship between Dr. English and Dr. Herman is relevant. If Dr. English’s practice flourished and he performed a lot of surgeries, the hospital didn’t have to pay him $10,000 because he would earn his $10,000 minimum.”

“Objection overruled. Let’s move this along, please.”

Davis moved into the Malone case. He asked English if Dr. Herman was an important referral source to Dr. English, providing most of his income.

Pierce objected, but Boxer overruled, holding that the business relationship between the two doctors was relevant.

Davis pulled the credentialing document he introduced into evidence. “When you were originally credentialed at Plainview Community Hospital, you were not authorized to do laparoscopic gallbladder surgery, were you?”

“No, I was trained in 1991 and began performing that particular procedure in October 1991 at Plainview.”

“Your training consisted of a two-day course in Atlanta, Georgia, at the Southern Laparoscopic Institute?”

“It was a three-day course.”

English, for the second time, rose from his chair. He was obviously getting agitated with Davis, which was exactly what Davis wanted. He loved pushing English’s buttons and having him upset in front of the jury.

Davis knew it was three days, but English would not look any more competent with a three-day course than a two-day course. The defensive correction made English look guilty. Davis was just getting warmed up.

“You didn’t operate on human beings when you trained in Atlanta, did you?”

“No.”

“They were pigs, right?”

“Yes, but pigs are very close to humans in anatomy and are used all the time in training.”

“Doctor, you’re not telling this jury that there is no difference between one of your patients and a pig, are you?”

Several jurors laughed out loud. Judge Boxer was obviously amused.

English didn’t know what to say.

Pierce jumped up. “Objection! What is the relevancy of that question? Mr. Davis is wasting our time.”

“Your Honor, how similar a pig is to a human being is pretty darn relevant since Dr. English’s training consisted of doing laparoscopic gallbladder surgery on a pig only.”

“Objection overruled.”

“Your first laparoscopic gallbladder surgery on a non-pig was at Plainview Community Hospital on October 18th, 1991?”

“That sounds about right.”

“You performed fifty-one laparoscopic gallbladder surgeries between October 1991 and January 31st, 1992, the day you performed one on Rosie Malone?”

Pierce stood and loudly yelled her objection: “Objection! I request permission to approach the bench!”

As soon as she reached the bench, Pierce could hardly contain herself: “The court has ruled that no evidence of a pattern of negligence may be introduced.”

Davis was ready for that: “Your Honor has ruled
that the logs are admissible into evidence to prove the number of surgeries. Therefore, the number of surgeries between two dates is admissible. I intend to prove that Dr. English preferred the laparoscopic procedure to an open one and that beginning in October 1991, he regularly performed the procedure at Plainview Community Hospital.” Tying the proof to Rosie Malone would convince Boxer to admit the evidence.

The judge thought a moment. “Objection overruled. Let’s return to our spots and give the court reporter an opportunity to set back up.”

Davis waited for the reporter to set up. “That was a correct number, fifty-one, in less than a four-month period, about every other day?”

English was quiet. Davis loved the silence, his question hanging in the air.

“Isn’t that a lot of gallbladder surgeries in just four months in a town the size of Plainview?”

Boxer quickly woke up. “Ask your next question, Mr. Davis.”

Davis regrouped. “In an open procedure, a large incision is made, and the surgeon physically removes the gallbladder, right?”

“Yes.”

“In a laparoscopic procedure, three little holes are made and a camera and laser are used?”

English spent the next fifteen minutes describing the procedure and how the laser burns away the gall-bladder. English also described an open procedure. He explained why the laparoscopic procedure was better for the patient. There was a much quicker recovery time: back at work or back to your family sooner.

Davis let English talk. He believed that English was
delusional enough to think that he was connecting with the jury. Davis was sure that Pierce had told English to keep his answers short. English had, for the most part, listened until now.

Davis waited for English to catch his breath. “How many open procedures did you do after October 1991 through January 31st, 1992?”

“I don’t know, but it wasn’t many. Nobody wanted the open, the pain, the scar, and the longer recovery time.”

“The answer is none, Doctor. Remember, I have the surgical logs.”

Davis was glad he had those surgical logs; he wished he still had the pathology slides so he could prove that most of the fifty-one gallbladders removed by English were healthy. Unfortunately, the jury would never know the truth.

Davis decided not to pull out the surgical logs. The jury believed him.

“You botched the surgery, didn’t you?”

“That’s your opinion, and you’re not a surgeon.” English led with his chin.

“Well, I may not be a surgeon, but my expert Dr. Adams is a general surgeon with twenty-five years of experience, and he claims that the surgery was unnecessary and that your conduct was reckless.”

“He would say anything you asked him to say. He’s on your payroll.”

“So you’re telling this jury that you weren’t the cause of Rosie Malone getting septic and then dying?”

“I don’t know why she became septic, but that’s a well-recognized risk of laparoscopic gallbladder surgery.”

“It could have been an open procedure, right?”

“She didn’t want a scar. She was very vain.”

“You’re telling this jury that Rosie Malone, age sixty-seven, insisted on a laparoscopic procedure rather than an open one because she didn’t want her scar to show when she wore her bikini to the beach?”

English turned red in face, he was so angry. That’s what Davis wanted.

He asked the next question: “You say she didn’t want a scar, but was that worth risking her life? You did nick her bowel with the laser, didn’t you?”

“I don’t know. That’s a possibility.”

Davis was wearing English down. He was sweating, and he was about to explode.

“What other explanation is there?”

“Spontaneous combustion!”

Davis let that answer hang in the air. The smart-ass answer wouldn’t sit well with the jury. Davis suggested to the court that it was a good time to break for lunch. The judge agreed.

When they came back from lunch, Davis went through the Malone chart with English. It was a little boring, but it was essential. Morty taught him that before you put your experts on the stand, the patient’s medical records, which were what your experts relied upon, had to be in evidence.

Davis reviewed the only two progress notes that Dr. English made. “Why did you only make two progress notes, and there’s no indication in the records that you saw her after the first day postoperation?”

“You know I went on vacation with my family the day after the surgery to Nassau, in the Bahamas.”

“Did you tell Mrs. Malone before her surgery that
you wouldn’t be around to help with her postoperative care?”

“I don’t think so.”

“So she thought her surgeon would be around if there were complications?”

“She was Dr. Herman’s patient. He had treated her for years.”

Davis got English to admit that Mrs. Malone was a complicated patient with a long medical history. He also admitted that Dr. Herman’s office records reflected that history and those problems. Davis handed English Dr. Herman’s records and asked him to read from the first page. He couldn’t. Davis then handed him Dr. Herman’s admission note for the January 1992 hospitalization of Rosie Malone. He couldn’t read that note either.

“Doctor, if you can’t read Dr. Herman’s handwriting, how did you communicate about the care of your patients, such as Rosie Malone?”

“By telephone or in person.”

“Doesn’t that defeat the purpose of medical records?”

Davis didn’t get an answer to that question, and the lack of response suited him just fine.

They used the transcribed version of the medical records, since no one could read Dr. Herman’s handwriting, not even Dr. Herman. Davis kept asking English why Mrs. Malone wasn’t transferred to Nashville in light of her persistent fever over 104. English kept insisting that he wasn’t there and that Dr. Herman was in the best position to make that call. After much badgering, Davis got him to admit that maybe Herman should have transferred her sooner.

“Rosie Malone died because of your recklessness and the recklessness of Dr. Herman, didn’t she?”

“Dr. Herman was trying to figure out the problem. You weren’t there. Your paid experts weren’t there.”

“All we have is your and Dr. Herman’s version of what happened, right? Rosie Malone is dead?”

“Yes, she’s dead.”

“Wait! We do have the medical records, including your operative report, which you, Dr. Herman, and the nursing staff of the hospital created?”

“Yes.”