The Law of Second Chances (27 page)

Dr. Hawthorne’s attorney, Ken Cooper, now had his opportunity to present the doctor’s side. As Jack sat down, Ken stood to address the board.

This was not the setting where these gentlemen usually worked. They were trial lawyers, and their arena was the courtroom. This administrative hearing was in a ballroom at the San Juan Capistrano Hotel in downtown Miami, and the “court” consisted of a panel of about thirty physicians and other professionals who were going to pass judgment on Dr. Hawthorne’s professional future.

Ken did exactly what Jack expected him to do. He pointed out to the board that the symptoms of ovarian cancer are the symptoms of so many common ailments. “It is not a deviation from the normal standard of care not to jump to the conclusion that everyone who has persistent stomach pain or bloating has ovarian cancer. If that were the case, doctors would spend their days sending people to have diagnostic testing, from ultrasounds to CT scans. That’s the type of medicine that is already driving up medical costs.” After that, Ken read from portions of the five expert depositions that he had submitted earlier as evidence. “Five of the most prominent
physicians in this area and in the country have told you that Dr. Hawthorne did not deviate from the usual standard of care. That is evidence you cannot ignore.”

It was a good argument, and it was the argument Jack would have made and
had
made many times before, but Jack still had an almost uncontrollable desire to get out of his seat, grab Ken Cooper by the throat, and squeeze as hard as he could. The only reason he didn’t was that Ken was a longtime friend who was only doing his job. He also knew that Ken—like himself when he’d represented physicians, delusional as he may have been—actually believed what he was saying. He wasn’t so sure about the doctors at the large, elevated, U-shaped table in front of him.

It was Jack’s turn for rebuttal. He stood and put his hands in his suit jacket pockets, something he had never done in his entire career as a trial attorney. He took a deep breath to relax. His heart was in his throat.
Maybe I should have gotten someone else to do this. Maybe I’m too close to the situation
. But it was too late now. He had believed nobody else could make the case like he could. Maybe he was right. Certainly nobody else could have felt as strongly about it as he did.

“Ken made a good argument,” he began. “He always does. Ken is a good lawyer. He comes prepared. When I handled these cases—and as you know, if you’re going to represent physicians in medical malpractice lawsuits, you’re going to represent them in administrative hearings as well—I did exactly what Ken has done. I presented the testimony of the best experts in the country. That is why I gave you evidence of
actual cases
where people have lost loved ones or, as in Ms. Eliot’s case, where someone almost lost her life—all under Dr. Hawthorne’s care. So what’s it going to be? Are you going to rule in favor of people, or are you going to rule in favor of the experts?”

There was much more he wanted to say, but he knew instinctively that it was time to sit down and shut up. They had the point. They were either going to buy it or they weren’t. As the discussion proceeded around the U-shaped table, Jack quickly got his answer. Most of the doctors and other
professionals on the panel quickly adopted the opinions of the experts while expressing their heartfelt condolences to the families of the victims of the good doctor’s care. Their chairman, Dr. Robert Green, summed it up well:

“Our hearts go out to you family members who have lost loved ones. However, sometimes doctors can do everything possible and people still die. I believe that’s what happened in this case, and that’s what our experts have told us.”

Jack wanted to puke. He’d been present at numerous such proceedings in the past but felt like he was going through it for the first time, because now he was one of those family members and the case involved the death of his own wife.
How could I have been so blind for so long?
he asked himself as he sat there listening to men and women who liked nothing more than the sound of their own voices supporting the system that fed them so well.

One of the newer and more naïve members of the panel actually had a question for Jack. “Why haven’t you filed a lawsuit, Mr. Tobin? If your case has merit, you could present it to a jury of ordinary people.”

To his credit, Ken Cooper did not object to Jack’s answering the question. He could have successfully argued that the evidence stage of the hearing was over and that the lawyers were no longer allowed to speak. But he didn’t.

“Well,” Jack replied, remaining seated, “it’s a simple question but a complicated answer—an answer I’ve thought about a great deal. The only thing civil suits can do is compensate people with money. There is a great deal of propaganda in this country right now about those malpractice suits: it talks about greedy trial lawyers tricking juries into awarding huge sums of money and poor doctors having to pay high insurance premiums. The doctors have jumped in bed with the insurance industry, and it remains to be seen who will get the top position in that little affair. On the other hand, many lawyers have abused the system. The people who have been intentionally excluded from this discussion are the victims, because they have no power.

“I don’t need money. And I don’t want this discussion to
be about all that crap I just mentioned. I want it to be about people and how they’ve been harmed by this doctor. If you want to limit lawsuits, then you have to discipline your doctors. You can’t have it both ways. That’s criminal in my mind.”

“Mr. Tobin,” Chairman Green said as soon as Jack finished, “I understand you’ve had an unfortunate loss, but that is no reason to make accusations and use inappropriate analogies.”

Jack only heard the first part of the sentence. He exploded from his chair. “Did you just call the death of my wife—her name was Pat, by the way, in case you don’t have it on your cheat sheet up there—did you just call her death ‘an unfortunate loss’?” Before the stunned doctor could respond, Jack was at him again. “How about if I come up there and wring your skinny little neck? What adjective do you think your colleagues would supply for that loss?”

“You’re out of order, Mr. Tobin,” the chairman shouted.

“Out of order? You think I’m out of order? I’m not out of order. This is out of order.” Jack threw himself over the table that was in front of him and started toward the chairman, who looked like he was about to wet his pants and with good reason. Jack was a hell of a lot bigger than he was.

As he started forward, a huge hand reached out, grabbed him by the shoulder, and pulled him back. The shoulder and arm attached to that hand wrapped themselves around Jack’s body.

“Hold on, brother,” Henry said soothingly. At the same time, four uniformed security officers were moving toward them. Henry spoke to them as calmly as he had spoken to Jack.

“Hold on now,” he said. “Me and Mr. Tobin here were just leaving. I assure you, you don’t want to get in our way.”

Perhaps it was the way he said it, or perhaps it was the size of the man—they could see how firmly he held Jack—or perhaps it was the look in his eyes. Whatever it was, the guards stopped in their tracks. Henry and Jack left the ballroom unimpeded.

Jack was in a rage, oblivious to his surroundings. Henry
didn’t let go until they were in the parking lot. Even then, he stood between Jack and the entrance to the hotel.

“Don’t worry, Henry,” Jack told him. “I’m not going back in. I’ve said all I’m going to say to those people.”

“If it makes you feel any better, Jack, people like that never listened to me either.”

“C’mon, let’s get a beer,” Jack said.

“Sure thing,” Henry replied.

Not long after Henry regained his freedom, Jack had filed a claims bill with the Florida state legislature requesting that the state of Florida compensate Henry for the seventeen years he’d spent on death row. Henry and Jack were invited to a hearing before a legislative committee of state senators and representatives. Jack had witnessed enough closing arguments by plaintiffs’ lawyers in his years as an insurance defense attorney to know how to uncork the tear ducts of even the most jaded politicians. By the time he was through telling the story of Henry’s near-execution, there were very few dry-eyed members of the committee left. They awarded Henry three million dollars.

Henry was forever grateful to Jack. After Pat’s death, he stayed at the home in Bass Creek for a couple of months before buying his own place in Miami. However, he still came out to Bass Creek to spend the weekends.

Henry had made a promise to Jack to work with him on his death penalty projects in any capacity he needed. Henry knew how to do legal research, and he could investigate in places Jack could never go. He could even serve as a bodyguard if necessary. His performance at the San Juan Capistrano proved that even when he was outnumbered, people did not want to mess with Henry Wilson.

Jack was on his fifth beer when the melancholy set in. Henry was used to it.

“It’s been a year, Henry, but it’s like I lost her yesterday.”

“A year isn’t very long, Jack, when you love someone as much as you loved Pat.”

“Yeah, but I can’t seem to get on with things. It’s like I’m stuck in place. If Pat were here she’d give me a good swift kick.”

“I was stuck in place for as long as I can remember, Jack. You’ll come out of it soon. I can see the early stirrings already. Dr. Green was part of that. I can still see his face as you started toward him.”

That got a smile out of Jack.

Maybe Henry’s right
, he thought.
Maybe I am coming out of it
.

40

Langford Middleton was intelligent and ambitious. He was also passive and indecisive, but those qualities didn’t show up on his résumé. On paper, Langford looked like he had it all—undergraduate degree from Princeton, law degree from Columbia. He was equally impressive in person, standing a little over six feet, two inches tall with a full, thick head of brown hair, a strong jaw, sharp features, and a booming baritone voice. He was the fourth generation of a prominent New York family. His mother was a professor at City College, his father a Park Avenue doctor like his father before him and his father’s father.

The powers that be at the Wall Street firm of Stockwell, Pennington, Morris, and Jewel fell in love with Langford Middleton, his résumé, and his pedigree when they met him on a recruiting visit to Columbia. He was everything they were looking for in a young trial lawyer. So they offered him a job with a six-figure income, which Langford graciously accepted.

Like the other associates, Langford spent the first few years of his career in the library, researching and writing for the partners. His work was acceptable in the sense that he laid out the problems and presented the research. However, time after time, Langford failed to provide the partner he was working for with a decisive conclusion as to legal precedent or a definitive strategy on how to proceed. Even though he was transferred from partner to partner over the years,
nobody seemed to notice that Langford was not living up to the expectations the firm had for its associates. He had an affable, easygoing manner about him, and in his brief appearances in court at motion hearings he was generally impressive. He even did okay sitting second chair in a few trials. Consequently, when his five years were up, Langford was offered a partnership, which he again graciously accepted.

When he had his own case files, Langford’s character flaws gradually revealed themselves to even the most myopic observer. He wouldn’t move cases along to trial, and he failed to make settlement recommendations to clients for fear that they might consider him weak-willed. He was billing okay, but he wasn’t turning cases over. Five years after becoming a partner, Langford was bewildered and befuddled and buried under a truckload of cases, old and new. He avoided clients’ calls, and they started to complain to the managing partners, who finally took notice and decided to do something. But what? Langford was a partner, and he came from a prestigious New York family. It would be both embarrassing and expensive to jettison him.

“I think we need to make him a judge,” Richard Stockwell told the other senior partners at a management meeting.

“A judge?” Howard Pennington said disbelievingly. “How the hell can he be a judge? Judges have to make decisions. He can’t decide what type of knot to put in his tie in the morning.”

“Nobody knows he can’t make a decision but us and our clients,” Stockwell persisted. “Besides, he looks like a judge. He’s got that hair and that voice.”

“He may be central casting’s ideal choice,” Frederick Morris added, “but this isn’t Hollywood. We’re talking about a real judge.”

“Come on, Fred,” Bennett Jewel, the remaining member of the Big Four, weighed in. “We’ve got a bunch of nincompoops up there right now masquerading as judges. This has been done before. Grady, Scott, and Anderson put that fool Justin Wennington on the bench just to get rid of him.”

“Okay, okay,” Fred Morris replied. “Let’s assume we
were going to make him a judge. How would we go about doing it?”

“It’s very simple,” Dick Stockwell added. “We start putting Langford out there as the face of the firm. We’ll put him on bar committees, have him attend all social functions, and let him make the charitable and political contributions for the firm in his own name. We’ll divvy up his cases among the other partners so he doesn’t cost us any more bad publicity. It’ll take a year or two, but when a position comes up for appointment, with his name and face out there and our political connections, he’ll be a shoo-in.”

“What if he doesn’t want to go along?” Howard Pennington asked.

“Oh, he’ll go along,” Dick Stockwell replied. “In case you haven’t noticed, Howard, Langford doesn’t like to work very hard. We can sell this new job to him real easy. A year or two down the road when he doesn’t have any cases, he won’t have much choice in the matter.”

The plan worked like a charm. Two years after the plot was hatched, Langford Middleton, in just his twelfth year of practice, was appointed a judge in the civil trial division of the New York State Supreme Court.