Suzy's Case: A Novel (6 page)

Surprised to hear Henry say the word
I
before the word
appreciate,
I flash him the Beecher file and a smile. “And I appreciate you giving me half the fee on this settled case.”

As my cab cruises through the six-block stretch that constitutes Fourth Avenue, the forgotten way, before it turns into Park Avenue, the famous way, I think to myself maybe one day Henry will find it in himself to say “I’m sorry,” and how I’m glad I didn’t make an issue about the Williams holdout since it’s a turndown anyway. The hardest thing for a lawyer to learn is to know when not to talk. The second thing I and my fellow attorneys are most guilty of is talking too much but saying too little.

The trouble is that it’s a serious no-no in the state of New York to commence a medical malpractice case without first obtaining an affidavit of merit from a duly licensed physician. In my mind such a failure is just as bad as bringing a fraudulent claim altogether, and so now it’s time to begin dealing with the dilemma Henry has thrust me into.

An attorney in New York must obtain court approval to withdraw as counsel once litigation has commenced. Getting court approval to withdraw from a noninfant case is a fifty-fifty proposition, the court’s logic being that if there wasn’t a legit case to begin with you shouldn’t
have brought suit. That means: live with your error and associated expenses until the jury throws you out. Infants, on the other hand, are technically wards of the court. Getting court approval to drop an infant’s case, where the judge has an obligation to protect the child, is even more difficult. Once you proceed to factor in the tender age of Suzy Williams at the time of her injury and her brain damage, withdrawing as counsel gets harder still. Then add to the equation the fact that the attorney was supposed to obtain an affidavit of merit vouching that malpractice had been committed prior to starting the suit in the first place and you have a case that is nearly impossible to withdraw from as counsel. Thanks, Henry, and I’m not done yet. The problem continues.

In my application to be relieved as counsel, I’ll be required to give the court an affidavit from a medical expert stating that the case lacks merit. This will raise the question of who the doctor was who opined the case had merit before the lawsuit was commenced and therein lies the conundrum; there was no affidavit of merit in this case in the first place.

The worst part is that you have to serve your papers requesting the court’s permission to withdraw on the client. So when you go to court to plead your cause, you have to argue right in front of your client why you don’t want to be his or her attorney any longer. If and when the judge denies your motion, you then have to continue being the client’s attorney in a situation where the client no longer has any faith in you. Great.

Benson’s put me in a fucked-up situation, being the attorney of record for Suzy Williams as I now am. I’ll have to find a really creative legal or medical argument to get out of this one.

On the flip side, Suzy Williams is a brain-damaged child and obviously not an HIC. I won’t have to worry about being threatened, stabbed, or otherwise assaulted and battered, at least by Suzy, although I’m sure I’ll find out at some point along the way who the criminal is who’s connected to the Williams family and therefore landed Little Suzy in the legal hands of my distinguished colleague, Henry Benson.

The cabbie interrupts my train of thought. “Where did you say you were going?”

“I didn’t. I just said uptown,” I reply, then pause.

“Would you like to give me an address?” the driver responds.

“Lenox Hill Hospital,” I tell him. I have other problems, too. Only, I know how the next one will end.

I enter Lenox Hill Hospital on East Seventy-Seventh and casually walk past the two guards toward the elevator bank. Over the years I’ve become an expert in legal matters, in medicine, and especially on liars and their lying habits. I’ve also become an expert on entering hospitals without being stopped by security or having to wait in line to get a visitor’s pass. It’s part of the craft of being a successful personal injury attorney.

I go up to the surgical ICU and wash my hands before entering, just like the sign instructs. “Where’s my mommy?” I ask the nurse who’s keeping a beady eye on my every move.

Her look is skeptical, a clear rebuff to my innocent attempt at humor. “Come this way,” she orders. As we walk down the hall, she starts issuing the usual laundry list of the dos and don’ts, such as don’t get too close to the hospital bed, don’t disturb the patient, keep away from the medical equipment, etc. Maximum care means maximum regs. I cut the lecture short.

“I’ve been through the drill, nurse. Many times. I promise I know the rules.”

She stops walking. Turning to me, she puts her hands on her hips and attacks. “I don’t care what you think you know. You listen to me. It’s my job, understand?”

I back off. “Yes, yes. Sorry.” She shakes her head, then continues leading me to the room where my mother lies recovering from her incredibly serious cancer operation.

Before I enter, my sidekick reiterates an order in a firm tone. “Don’t disturb her. She’s in and out of consciousness at this point. She needs her rest.”

“Okay,” I say meekly. But the nurse, instead of dismissing herself, just stands there giving me an unfriendly look, which I really don’t think I deserve. We have nothing left to say, and so I break the silence. “Anything else?”

“No, nothing. Just don’t bother her.”

“Thank you, nurse, I assure you I won’t.” She looks me over, hesitant about leaving me alone with my own mother.

Mom is lying propped up with tubes and monitors everywhere. Her eyes are closed and she looks peaceful. The oxygen mask covering her face reminds me of the scene from
Blue Velvet
where Dennis Hopper does the asphyxiation thing just before he’s about to have sex. Jesus, even with my own mother clinging to life before my very eyes, I inexplicably make this association. I repulse myself sometimes.

At least I admit it.

I’ve played my role in this hospital scene many times during my mother’s twenty-year battle. It started with breast cancer and now metastatic ovarian has been added to the cell-destroying mix. The thing is, she’s never looked this lifeless. I quietly approach and inspect the mechanicals. There’s an IV drip line connected to a Flowmaster fluid monitor and a bundle of plastic-coated cardiac monitor lead wires emerging from beneath her sheets. The wires run into a single plastic housing that is connected to some cable. For whatever reason, this connection has some separation and I feel compelled to push the two pieces together to close the quarter-inch gap. I reach over, grabbing it, and just as I do, my new best friend enters the room.

“What are you doing back there? Trying to kill her?” Nurse Hostile screams. “Call security! Someone call security!”

“Relax, relax,” I say. “I thought the monitor cable looked a little loose. Everything’s under control. I was just—”

“Out of the room! Now!”

Ten minutes later, after my mother’s been evaluated by a doctor, for no good reason, her watchdog comes out.

“You can go back in now, but it’s against my better judgment,” she scolds. “Keep quiet. I mean it! She’s one day post-op and needs her rest. And don’t touch anything again. Got it?”

“Got it, nurse. Sorry about before.” I go in and sit on the far side of the room nowhere near Mom. There are two visitor chairs, for some reason, and I’m sitting in the one directly across from the foot of her bed. Mom’s still resting peacefully in a state of unconsciousness. Or so I hope.

After fifteen minutes of sitting, watching, and waiting for her to open her eyes, I decide to check out one of the Suzy Williams files, simply from curiosity. I pull out the defendant’s motion to dismiss, with Henry’s expert review memo clipped to it, just like he said. I take the memo off and put it under the motion, which I intend to read first.

The attorneys defending both the Brooklyn Catholic Hospital and Dr. Richard Wise are my old friends Goldman & Goldberg. I used to have a lot of cases with them as defense counsel, but we haven’t had any contact now for a while. I call them my friends because after I beat both of them—Goldman
and
Goldberg, in different cases, each by jury verdict—they started sending me the plaintiffs’ cases they couldn’t handle because of interest conflicts with the medical insurance carriers paying their bills. In the field of medical malpractice litigation you can’t wear both hats. You either sue doctors or defend them, period. Reason being, the carriers don’t want to pay attorneys to defend their insureds if they’re just going to turn around and sue one of them.

I chose to represent the victims of medical malpractice because my mother never should’ve ended up this way. There was a two-year delay in diagnosing her breast cancer, taking her from completely curable to years of otherwise unnecessary pain, suffering, and insidious yet life-prolonging medical treatments and operations. A wretched battle that didn’t need to be fought and that will soon be lost.

In any event, the papers indicate that the firm’s name is now Goldman, Goldberg & McGillicuddy. Where have I heard that name before? I check out the attorney’s affirmation in support of the motion to dismiss and see it’s been written by one Winnie McGillicuddy. I don’t know her, but wonder if she’s as cute as her name sounds. My
mind wanders and I recall McGillicuddy is the maiden name of Lucy Ricardo from the
I Love Lucy
show.

I see the motion is returnable next Friday, one week from today. Thanks again, Henry, for waiting until the last possible moment to put me in a bind. It’s crunch time, considering I’m currently in the middle of a trial. I also note the judge assigned to the Williams case is Leslie Schneider, who’s way too stingy about giving adjournments. Be ready or be dismissed. The worst part about appearing before Judge Schneider is her voice. I think I even settled a case a few bucks short just so I wouldn’t have to spend a week in her courtroom listening to that nerve-pinching whine.

I skip reading what Winnie McGillicuddy has to say, pass over the voluminous medicals, and go right to the medical expert affidavit in support of the motion to dismiss. I figure it’s attached as exhibit A—and I’m right. I don’t recognize this expert’s name, but the fact that defense counsel included the expert’s name in the first place gives the motion credibility. That’s because in New York lawyers are permitted to withhold the identity of an expert in a medical malpractice case.

In sum and substance, defendant’s expert says that Suzy was admitted suffering from the onset of a sickle cell crisis and acutely took a turn for the worse, suffering a cardiopulmonary arrest with a concurrent sickle cell stroke, both being known complications of her disease. The conclusion is that the management of her condition was appropriate, that sickle cell strokes cannot be foreseen, are unpreventable, and cannot be associated with medical malpractice. Suzy’s stroke is responsible for her brain-damaged condition and the concurrent cardiopulmonary arrest also contributed thereto. The end. Very clear and logical. If this is accurate, then Henry was a real ass for bringing suit—and I’m going to look like a bigger one trying to get us out of it.

I find our expert’s typewritten memo. It says, basically, the same thing. I read the handwritten notes accompanying it, looking for some morsel of merit, but it just confirms the memo. Nonetheless, before I seek to get out of a case with a multimillion-dollar injury, I feel it’s in my best interest, and the best interests of my clients, whom I don’t
even know, to pay a visit to this expert I’ve inherited. That would be one Dr. Laura Smith, and I never heard of her before, either.

I look up from the papers and see Mom’s still out. Her vitals are stable, according to the monitoring devices, so why not just make the call now? I dial Dr. Smith’s number and a man picks up on the first ring. “Smith Sickle Cell Pediatric Care Center, Steven Smith, director, speaking. How may I help you?”

“Hello. This is the attorney for the plaintiff on the Suzy Williams matter. I’d like to set up an appointment to see Dr. Smith, please.”

“My wife, I mean Dr. Smith, has a very busy schedule,” Steven Smith replies. “Could we do it next month?”

“How’s Monday look for you?”

He snorts. “Is it really that important?”

“Yes, it is.”

“Then come Monday anytime you want,” he says, “because no time is good. But I must advise you I’ll have to charge a flat fee of five hundred dollars for the expedited appointment. Then there’s the standard fee of seven hundred fifty dollars per hour of time. Plus, I’ll also have to charge you for time lost from Dr. Smith’s normal patient schedule, so that’s another five hundred. Therefore, if you choose to show up on Monday, you won’t be seeing Dr. Smith unless you hand me a check for one thousand seven hundred and fifty dollars for the first hour of her time. And if I’m not mistaken, didn’t she already review and reject that case?”

“That is correct,” I reply. “See you Monday.”
Click.

“Greedy fuck,” I say aloud just as my mother opens her eyes. Oops. She looks at me and, for certain, knows who I am. She slowly raises her right arm, giving me the international beckoning signal. I get up from my chair and approach with extreme caution. I move to the head of her bed and she points to her oxygen mask.

“Do you want to say something, Mom?” She nods and points to the mask again. “Do you want me to take that off?” She slowly nods again, so I gently lift it away from her face. She beckons again and so I move in closer, but not too close out of fear for my nursing nemesis.

“You look good in that suit,” she says softly.

“Thanks, Mom, I appreciate that.” She squints at my lapel.

“Is that a mustard stain?”

“Yeah, Mom, it is.”

“Doesn’t
she
send your clothing to the dry cleaner?”

“Mom, if by ‘she’ you mean my wife, then yes, Tyler does.” Mom cringes and it’s not because of pain. She gathers strength. Here we go.

“Tug, my son, every time you say her name I have less and less respect for that woman. How does a girl named Tyler allow herself to marry a man named Wyler? It’s ridiculous, Tyler Wyler. And together you two sound even more cartoonish, Tug and Tyler Wyler. Such stupidity. She knew you were going to be a success and that’s why she married you to live with such a name.” She motions for her mask to be put back on. Two deep breaths. I ignore her comments and attempt to change the subject from my wife and marriage.