Bringing Back Eight: A Novel About Medical Malpractice on Trial

By Stuart Spitalnic

Dr. Joseph Charles is one of eight physicians being sued for not diagnosing an infection that has left a man paralyzed. He tells his story as it happens. And, unlike most novels involving the law, this story is told from the viewpoint of a defendant, not an attorney. The malpractice trial reveals the often surprising ways the lives of both the plaintiff and the defendants are affected. What start as issues of medical judgments and physical pain quickly evolve into a question of money. Plaintiff, defendants, and witnesses are all reduced to pawns in a chess game played by attorneys. For doctors, this book may confirm your worst fears. For lawyers-especially plaintiff's lawyers-this book will remind you there is another side to it all. For patients, this novel will provide insight into the human side of today's headlines, which remind us of the malpractice crisis, doctors' strikes, and injury and death resulting in medical error.

• Language: English
• Publisher: Chicago Review Press
• Release date: Aug 30, 2005
• ISBN: 9780897339773

Book preview

RAFFERTY

DAY 1

MY ASS HURTS.

I know you’re not here just to listen to me complain, but after three hours of watching lawyers huddle with a judge, the stinging pain in my ass is about the only thing on my mind. When they get animated, you can make out some of what they say. They are keeping their voices low so the people behind us can’t hear. What I have been able to make out hasn’t sounded related to why we are here, but what do I know?

At nine o’clock the judge nodded to the sheriff, and the sheriff called our case: C. vs. Carpenter, Bucci, Reese, Cohen, Avedian, Wayford, Charles, Mitchell, and the New England Hospital. The eight of us walked through the gate separating the spectator rows from the business side of the courtroom. Raymond Parker, our lawyer, and Francine Walker, his paralegal, were already set up at the defense table. The sheriff told us to be seated, realized our row was short a chair, and produced this ridiculous old wood chair for me from the closet outside the courtroom. In a way I’m lucky—I have the pain in my ass to think about. The electric pain waves pulsing down my leg help to keep this concerned look on my face. If I had one of those padded chairs, I might be comfortable, and then I’d be straining to stay awake. Dave Bucci has been elbowed from sleep more than once this morning, and Wayford got a harsh stare from the judge when he laughed out loud noticing Cohen’s head repeatedly drifting down and jerking back.

I’m not sure if I can tell you the details of what got us here just yet—I’ll check on that later with Raymond Parker, our lawyer. If you hang around long enough, you’ll get the whole story. The forty or so people behind us are prospective jurors, and they’re not supposed to be exposed to the particulars of the case until after jury selection. You’ve probably assumed from seeing the man in the wheelchair at the plaintiff’s table, and from hearing the hospital’s name in the list of defendants, that we’re being sued for malpractice. We are. Before Mr. C. woke up able to move only two fingers on his right hand, before he needed a hole in his neck to breathe, before he needed a tube in his bladder to piss, during the days before he wound up the way you see him here now, we defendants of Rhode Island Superior Court Case 9-9854 had some involvement with Mr. C.’s medical care that made Mr. C.’s attorney say we were responsible for his client’s present condition. Let’s just keep him Mr. C. I don’t want to end up back in court because of saying something about him I wasn’t supposed to.

Anyway, now that Mr. C. can’t use anything below his neck, they’re figuring each of us should have done something different while we had the chance. If any of us had done something different (what that thing that should have been done is different for each of us), there could have been a couple of outcomes. Either Mr. C.’s paralysis would have been avoided—maybe, maybe not— or, even if he still ended up paralyzed, we could say we did what they suggest we should have, and we wouldn’t have to explain to a jury why we didn’t. Although from what we’ve heard about Frank Wabash, Mr. C.’s lawyer, he would have just come up with something else to insist we should have done.

We were supposed to be finished with jury selection this morning. Morning has only a few minutes left, and they haven’t started, so the idea of being done by lunch is dead. The lawyers have been whispering at sidebar for nearly three hours, keeping what they say from the ears of the prospective jurors. Ray Parker told us there would be a few pretrial matters to be handled before jury selection started. The judge couldn’t have thought it would take this long, or he wouldn’t have made the jury panel wait in the courtroom. At least the jurors got to bring something to do; some are reading books, one is knitting, a few are sleeping. Heather Ford, the trial coach from Parker’s office, told us if the jurors sleep it will look like they can’t pay attention, and they’ll probably be excused. If we sleep, the jurors will think we don’t care.

The judge says, We will recess for lunch and return for jury selection at one-thirty.

One juror startles and drops a paperback. The judge’s was the first loud voice in the courtroom since Frank Wabash started the morning with, May we approach, Your Honor?

All rise, the sheriff says.

The judge stands, walks down the stairs of his bench and goes through the door to his chambers. The sheriff herds the prospective jurors past our table to the side door that leads to the jury lounge. Mr. C.’s family is having trouble maneuvering his wheelchair through the gate—ironic how the place where disabled discrimination cases are tried has such crappy handicapped access. Mr. C.’s front-right wheel catches a wood slat on the gate. I’m next to them, so I take the gate from his sister so they can get him through. I don’t know if I should be offended or relieved at not getting thanked. Wabash and the court stenographer are behind Mr. C., trying not to look impatient as they wait for his sister to work the wheelchair through the gate. Francine Walker is handing Parker manila files stuffed with papers, and he shoves them into an already overstuffed accordion folder.

What did you think of your first morning in court? Parker asks.

He doesn’t lift his head from the folder as he speaks—he knows we’re all still here. None of us is comfortable enough to leave without his say-so. I’m standing, and the blood rushing back to my legs brings a throbbing pain that feels like the description of phantom pain I get from amputees. If I took a step, I’d get a vibratory shock that would drop me back to my seat.

That was getting pretty intense for a while, Parker adds.

Holy shit, about as intense as watching grass grow. We just spent three hours watching two middle-aged men talk to an older middle-aged man about who knows what, while a middle-aged woman typed every sleep-defying word into a steno machine. That doesn’t qualify as intense by me, but as Aaron Cohen said when we walked through the gate this morning, I don’t think we’re in Kansas any more.

Lunch, back at the office, Parker says, wedging the bulging folder under his arm.

He leads us through the hall (no sign of Mr. C. or his family), into the elevator, and out of the courthouse. We walk single file across Federal Street in a bad approximation of the Abbey Road album cover with a few too many Beatles. No one checks for oncoming traffic.

At least I’m here with a bunch of doctors in case I get run over, Parker says.

He’s been a malpractice defense attorney for over twenty-five years. From his delivery you can tell he has used that line plenty of times with plenty of other doctor defendants in plenty of other cases. Even so, it’s nice to be reminded that we are doctors, that we might be needed if something bad were to happen—although what we would be able to do in the middle of the street in suits is beyond me.

What if the driver thinks we’re all lawyers and tries to run down the lot of us? I say.

That gets a laugh. When you point out some truth in the absurd, you can always count on a laugh.

When the judge enters, you stand. When the jury enters, you stand. When the judge gets up to leave, you stand. You stand until the judge tells you to sit and until the last juror leaves.

Raymond Parker is giving us courtroom etiquette lessons as he paces around the conference room. He counts off the reasons to stand on his fingers while we wait for lunch.

Parker started putting the time to constructive use after his blue-haired secretary poked her head in to inform us lunch would be late. The law office of Randolph, Parker and Lewis is filled with age contrasts. The receptionists are all old women; each sits with a teenage office runner. The firm’s partners are all over fifty-five; no associate is older than thirty-five. The firm occupies an entire floor in one of the oldest buildings in the historic district, but when the accordion-gate door of the old-style elevator opens, you are struck with sleek lines of ebony, mahogany, and polished steel. The conference room we are in overlooks the old courthouse and sights of revolutionary war interest; the historic feeling vanishes when you turn from the window and your eye follows the line of iron poles suspending unshaded bulbs over a Herman Miller conference table. The conference room walls are decorated with black and white photographs of the old courthouse, but shot from unusual perspectives, giving the old building a postmodern appearance.

After lunch Wabash and I are going to take turns asking the jury panel questions, Parker says. Just sit there and look interested. Don’t read, don’t yawn, and don’t do anything that might make it look like you don’t care.

He fixes his eyes on each of us as he talks and circles, encouraging the illusion that he is talking to each of us individually rather than addressing us as a group. Talking like that must be effective when he speaks before a jury.

I will be referring to you from time to time during my questions, he goes on, so to avoid confusing the jury, stay in the same seats that you started in. Here’s lunch.

I don’t think he wants to hear my objection to the seating arrangements.

Francine Walker leads a deli deliveryman into the conference room and passes out the wrapped sandwiches.

Joe, here’s your turkey. Bucci, here’s your hot Italian.

Thank you, Francine, Bucci says.

Hot Italian, David? asks Wayford.

Hey, takes one to eat one. Right? Bucci says.

Walker hands Parker his lunch. Here’s your vegetarian.

We all look at Parker. Maybe he’s not at his physical prime any more, but he still has the shoulders of a football player, tough blue eyes that look like they could go cold if he needed them to, and scars and lines on his face that say he can handle himself. None of us would have thought him a vegetarian kind of guy. I can see him on an eat-what-you-kill hunting trip with his service buddies more than I can see him calling some roasted veggies on a hero roll a meal.

His wife won’t let him have double cheeseburgers anymore. Not since his heart attack five years ago.

I did not have a heart attack, Francine.

That’s not how your wife understands it, and she checks your lunch order every day.

"I did not have a heart attack."

We had this case that wasn’t going well, Francine Walker says. We needed another day to prepare some exhibit, and the judge was being a jerk and wouldn’t give us any more time. Ray starts rubbing his chest …

I had an itch.

So Ray starts scratching his chest, and the judge asks him what’s wrong. Seeing his opportunity, Ray tells the judge he’s not feeling right. The judge recesses the case so Ray can go to the hospital.

Parker cuts in, So I’m trying to tell these doctors there’s nothing wrong, and they keep on going with the EKGs and the blood tests, and next thing you know, they put me in intensive care and tell me I was probably having a heart attack. The next day they got an old EKG from my internist. Turns out I had some abnormality all along and I wasn’t having a heart attack.

But the damage was done, Walker continues. His wife freaked out over the whole thing and made them go vegetarian.

Parker stares down at his sandwich. I don’t think there’s been a dead animal in my kitchen in five years.

What happened in the case? I ask.

Interestingly, the plaintiff died while I was in the hospital. He had no next of kin, and the case was dismissed.

So, essentially, you gave up meat for a client.

Hey, anything to win a case.

We got back to the courtroom at the time the judge said, but we’ve been waiting thirty minutes. We’ve been taking turns shrugging shoulders at each other, wondering what the delay has been. Parker and Francine Walker are going over notes, unaffected by the delay.

The sheriff appears from the judge’s door.

All rise, he says, in the manner of a train conductor calling, All aboard!

The judge climbs the stairs to his bench and motions us to be seated.

Sheriff, bring in the jury panel, the judge says.

We stood when the judge entered. We sat when he sat. We stand again when the jury is called. Out of habit, each of us closes a jacket button when we stand and flips our jackets open as we sit. The synchronized standing and sitting, jackets opening and closing, looks like a poorly choreographed minimalist dance number.

The courtroom clerk stands and says, Ladies and gentlemen of the jury, when your name is called, answer ‘here’ and take your seats in the jury box.

Behind us are the forty prospective jurors from which six jurors and two alternates will be chosen. The sheriff takes a stack of cards and drops them in a barrel. The barrel is shaken and presented to the clerk, who reaches in and pulls out six names. She reads each card, and as each name is called, someone from the group of people behind us walks through the gate and enters the jury box. The chosen look as if they have lost rather than won some kind of lottery.

We are sitting in a row of chairs behind our attorney. Avedian, Mitchell, and Cohen crane their necks to get an unobstructed view of the selected jurors. The jurors look in different directions to avoid any eye contact; there are no floor numbers to fix on like there are in an elevator. They search around the room for something to pretend to study, not looking at us, Mr. C., the attorneys, the judge, the sheriff, or the clerk.

I am staring at the jurors—I can’t take my eyes off them. Their appearance keeps changing like one of those old-time horror-flick paintings. First, they look sympathetic to our side. We were doctors doing a job. They know that some patients just don’t do well. It doesn’t mean it was anyone’s (our) fault. They see that; I see that in them. The sunlight shifts through the window behind them, and, all at once, they look concerned and outraged. They won’t stand by and watch Mr. C. suffer. Someone must pay for what we did to him. They’ll see to that. They’ll take care of him. It won’t matter what they hear in court, they’ve made up their minds. A woman in the front row catches my eye and flashes a brief smile—the whole panel is back on our side again. Back and forth, our side, their side. I’m getting nauseous with their changing appearances spinning around in my head, but I can’t look away. It’s like when you’re seasick and you can’t take your eyes off the waves crashing on the boat, though you know the horizon is your only chance of relief.

Thank you for your participation as jurors, the judge says.

He makes it sound as if they had volunteered. One of the jurors looks up from his novel but keeps it open. The judge’s voice breaks the jury’s hold on my stare.

The judge continues, "If you sit for this trial, you will be asked to make serious decisions that will affect the lives and property of those who brought their case to this court. The attorneys will now begin what is called voir dire. They