First Do No Harm (Benjamin Davis Book Series, Book 1) (36 page)

“We’re here about liability and damages. Mrs. Malone and the Malone family haven’t suffered significant damages because of the negligence of the defendants. I further submit that mistakes were made. The most significant and egregious mistake occurred when Mrs. Malone was not transferred before the 5th to a better-equipped hospital. May I remind the jury that my client was not in town when these decisions should have been made? Mrs. Malone’s postoperative care was the sole responsibility of Dr. Herman. Remember, the Medical Licensing Board dismissed all charges against Dr. English.

“Mrs. Malone’s abusing her body for more than forty years caused the damage. I submit that there has been no proof of recklessness to warrant an award of punitive damages.

“I remind you that you have heard the plaintiff’s
entire case, and the defendants are only about to begin to present theirs. Please be fair and listen to our proof. The law and justice require that of you. Thank you for your time and attention.”

She sat down and felt good about her opening. She decided she couldn’t put English back on the stand. She had no other witnesses. Her last chance to convince the jury would be her closing argument. She was now relegated to watching the hospital put on its proof. She would be helpless as Stevenson attacked her client and Dr. Herman.

Davis was satisfied with the plaintiff’s proof. In his mind, there was no question that he had proved that Herman and English had been negligent and, more important, reckless in their care and treatment of Rosie Malone. Based on the evidence admitted, the jury knew that they were incompetent and motivated by greed. The proof clearly established that Rosie Malone’s admission and surgery were unnecessary and that the hospital knew exactly what was going on.

Today was the hospital’s opportunity to provide its proof. Davis figured that Stevenson had two choices: he could claim innocence, or he could convince the jury that the doctors were in charge of the patient’s care and much more comparatively at fault. It was true, the greater the comparative fault of the doctors, the smaller the hospital’s piece of the liability pie. Davis was absolutely convinced that the two-year alliance of the defense was about to crumble. A strategy of every man for himself was in the plaintiff’s best interest.

The hospital’s first witness was Dr. Leonard Sparks, the medical director of Davenport County Hospital, located south of Hewes City near the Alabama border. The hospital was offering the good doctor as an expert on how a community hospital conducts utilization
reviews of the patients. As the medical director of a community hospital, Sparks served on several medical committees, including serving as chairman of the Davenport County Hospital Utilization Review Committee. He was also a family practitioner, like Dr. Herman.

At first, Davis couldn’t figure out why the hospital offered Sparks as an expert witness. Sparks’s expert witness statement was only three pages long; he had reviewed only the hospital’s Utilization Review Plan and none of the depositions taken in the case. He was an expert for a very limited purpose. In contrast, Sister Carson’s expert witness statement on the hospital’s liability was fourteen pages long.

At his deposition, Sparks emphasized that the process of utilization review had nothing to do with patient care but was intended to protect the hospital from financial loss. The hospital, under its own rules and regulations, at periodic intervals had a nurse review each chart to confirm that the patient should remain in the hospital. Sparks’s deposition testimony was that Plainview Community Hospital lost money on the Malone case because of inadequate utilization review but that the injury was to the hospital because it never got paid for those services.

At the deposition, Davis took a chance and asked Sparks questions that were outside the content of his expert witness statement about the specific care and treatment of Rosie Malone. Sparks’s answers were damaging to both doctors. At the time, Davis thought he was brilliant, but in retrospect he knew he had been set up.

After the deposition, Davis and Morty realized
Stevenson’s real purpose of offering Sparks as an expert. It was to shift as much of the liability, under comparative fault, to Herman and English as possible. Every percentage point assigned to Herman and English was a percent not assigned to the hospital. When the verdict was awarded, those percentage points would turn into real dollars.

Barnes and McCoy, in a pretrial motion, objected to Davis’s cross-examination, but Boxer ruled the testimony was admissible. He held even though the hospital offered Dr. Sparks’s testimony for the limited purpose of utilization review, he was a family doctor, qualified in the subject matters that Davis questioned him about, and therefore, the testimony was admissible.

That was exactly what Stevenson hoped for. Sparks’s testimony on utilization review supported the hospital, but more important, Sparks’s other testimony damaged Herman and English. Stevenson was using Davis to do his dirty work and lower the hospital’s percentage of liability.

Stevenson called Sparks to the stand and began questioning him about his background. In addition to his other qualifications, Sparks chaired the Utilization Review Committee. Stevenson offered Sparks as an expert witness, though he intentionally did not specify Sparks’s area of expertise.

Davis thought,
Stevenson is baiting either Barnes or McCoy to argue Sparks’s qualifications in front of the jury
.

The crack in the defense was opened. For two years there had been a unified front. The brick wall was crumbling. Davis proved the doctors’ negligent and reckless conduct, and the hospital could no longer ignore it, or it would go down, right alongside them.

Davis rose and sheepishly acknowledged that the witness was qualified, also intentionally not specifying in what. McCoy asked if the attorneys could approach the bench. Boxer turned off his microphone, and the defense counsel and Davis moved closely around the judge’s bench. Morty and Littleton stayed seated. Davis wanted the jury to know that this was a fight between the defendants.

After the court reporter was set up, McCoy said, “Your Honor, neither Mr. Stevenson nor Mr. Davis has advised the jury what Dr. Sparks is being offered as an expert for.”

Boxer leaned forward, tapped his fingers together, and smiled. He seemed to enjoy McCoy’s predicament. “Mr. McCoy, we all know what’s about to happen. I ruled on this pretrial. The hospital is offering Dr. Sparks as an expert in utilization review. Mr. Davis is going to cross-examine the hospital’s expert on how the hospital committee system works and then finally his professional opinions about the care and treatment of Mrs. Malone. I have already ruled that Dr. Sparks is qualified to give those opinions.”

McCoy was making a record for the appeal. “With all due respect, Your Honor is committing reversible error.”

Boxer did not like McCoy’s last remark and retorted, “I don’t think you’re right, Mr. McCoy. But if you are, we’ll be doing this all over again, won’t we?”

“That’s what I’m trying to avoid, sir.”

Boxer waved for everybody to return to his or her seat; he was losing his patience.

Stevenson asked the witness about the purpose of utilization review, and Dr. Sparks began: “I reviewed
the Utilization Review Plan of Plainview Community Hospital. It’s almost identical to the plan of Davenport County Hospital. Mrs. Malone was a Medicare patient; under the plan, prior to admission, her chart required review. At that time, all the information was in Dr. Herman’s office record.”

Sparks explained in no uncertain terms that utilization review was for the hospital’s protection, not the patients’. “Hospitals generally lose money on Medicare patients because Medicare discounts its payments for many procedures. I have reviewed the chart of Mrs. Malone and the hospital bill for the charges. Medicare paid less than twenty percent of the actual charges. Plainview Community Hospital lost more than $40,000 in its care and treatment of this patient. Mrs. Malone was not a money maker for the hospital.”

Sparks’s testimony surprised the jury. It was clearly written on their faces.

“The purpose of utilization review is to prevent doctors from over-utilizing the hospital and to prevent the hospital from incurring expenses that do not get paid. The plan establishes certain deadlines for review. As I said, the first review, with a Medicare patient, is prior to admission. The second review is forty-eight hours after admission. Thereafter there is a required review at least every seventy-two hours.”

Sparks described the role of the utilization review nurse, who was a hospital employee. He testified that Nurse Perry failed horribly to do her job. He insisted, however, that her poor performance caused no damage to Rosie Malone, but she did financially injure the hospital. Stevenson next discussed with Sparks the fact that the hospital guaranteed Dr. English’s lease with Dr.
Herman and guaranteed Dr. English a minimum income of $10,000 per month. Sparks assured the jury that Plainview Community Hospital did nothing improper and that Davenport Community Hospital made similar guarantees, because he was the one who signed the contracts. Stevenson ended his examination of Dr. Sparks and turned the witness over to Davis.

Davis quickly established that he’d taken the witness’s deposition in April. “You have reviewed Dr. Herman’s office record. That was the only information that you had about Rosie Malone before her admission to Plainview Community Hospital on January 29th, 1992?”

“Yes, sir.”

Dr. Sparks testified that Mrs. Malone’s symptoms were abdominal pain and black stools. He admitted that a rectal should have been done but wasn’t. He also admitted that he had reviewed Mrs. Malone’s entire chart for her February hospitalization but could read neither Dr. Herman’s office records nor his notations in the hospital records.

Dr. Sparks testified that the patient should not have been admitted into the hospital. Prior to her surgery, a forty-eight-hour review was required by the Plainview plan. He stated that the patient should have been discharged before the surgery.

Sparks acknowledged that he was of the same medical subspecialty as Dr. Herman. He testified that in his professional opinion, the ultrasounds done at Herman’s office and at the hospital did not indicate surgery. He would not have recommended surgery to this patient.

Davis reviewed the balance of the chart with Sparks
and established how sick the patient became on the 4th. Sparks admitted that Herman should have discovered that Mrs. Malone had become septic. The obvious cause of the septicemia was the surgery performed by Dr. English by injuring the bowel. Dr. Sparks admitted that the patient should have been transferred to Nashville no later than the morning of the 4th.

“So, it was Dr. Herman’s negligence that resulted in this patient undergoing unnecessary surgery?”

“She never should have been admitted, and she never should have had the surgery.”

“Dr. English nicked her bowel during the surgery?”

“That’s the most likely cause.”

“Can you think of another, Doctor?”

“No, sir.”

“Was the utilization review nurse negligent in not insisting that the patient be discharged prior to the surgery?”

“She didn’t do a very good job. The hospital lost a lot of money on this patient.”

“As the chairman of the Davenport County Hospital Utilization Review Committee, what action would you take if your utilization review nurse had done such a poor job?”

“I would fire her.”

“It was that bad a job?”

“Yes, sir.”

“If the Plainview utilization review nurse, a hospital employee, had done her job, Rosie Malone would be alive today?”

“I don’t know.”

Davis sat down after announcing no further questions. The defense lawyers representing the doctors
collectively decided not to dig the hole any deeper by asking questions. It was better to get Sparks off the witness stand.

The hospital also put on the witness stand its head nurse, who explained that her nursing staff had followed the doctor’s orders and that it was near impossible for a nurse to challenge a physician.

On cross, Davis asked, “If one of your nurses was of the professional opinion that a patient, under a doctor’s current treatment plan, was going to die, and if an alternate treatment was available that would save the patient’s life, what should she do?”

“Talk to the treating physician about the alternatives.”

“What if the doctor rejected the alternatives available and continued under the same plan toward the patient’s death?”

“She could talk to me; Woody Douglas, the hospital administrator; or Dr. Kelly, the medical director; or make a formal complaint to be reviewed by the appropriate committee.”

“Did any of your nurses question Dr. Herman’s care and treatment of Rosie Malone?”

“No, sir.”

“Did anyone?”

“Dr. Laura Patel made a formal complaint.”

Stevenson jumped up and objected on the grounds that the committee system and its findings were confidential. Boxer sustained the objection.

She admitted that Dr. Herman didn’t transfer the patient until the evening of the 5th, despite the fact that Mrs. Malone’s temperature was almost 105 for days.

“All of the nurses who treated her during those shifts did nothing?”

“They followed Dr. Herman’s orders and treatment plan. The only person who complained was Dr. Patel.”

“No further question.”

There was no cross from the defense table. Davis hoped that Stevenson would make the tactical mistake of putting either Woody Douglas or the hospital’s medical director on the stand. He would eat their lunch on cross. Unfortunately, Stevenson was too smart for that move and rested the hospital’s case.

If Davis still had the pathology slides, he probably would have used them now in rebuttal to prove Ms. Johnston a liar. He hoped that he had proved the recklessness of all three defendants. He announced, “No rebuttal,” and the proof closed.