Читать книгу Who's Killing the Doctors? - Alex Swift - Страница 6

It was late evening in the east coast that first Sunday of February. Payton Manning had just beaten Cameron Newton 24 to 10 in the 50th Super Bawl held at the Santa Clara stadium near San Francisco. Sitting in front of a huge flat TV as a U-shape family group around a large coffee table, all were overtly happy with the outcome of the game, all fairly calm and sober in a private home full of professionals, all seemingly satisfied with their various snacks-and-wine. They were content, though many football fans in the US probably were not, especially large groups of minorities – including President Obama who had entered in a card his prediction with a win for the Carolina Panthers-with-Cam-Newton to beat Payton and his Denver Broncos; his forecast sealed -we were told that he did not watch the game- was to be opened and aired later on CBS. He lost. Ah well! A minor matter for Mr. O, compared to how happy he was –and proud– of ‘his work and accomplishments for ordinary people’ in his 8th and last year in office as the first black President in America.

The patriarch of this family, honorable Kenneth Good, a local State Supreme Court judge, did not care much for American football, or for most sports shown on TV as a regular form of enjoyable pastime, at least since his days in college; but he too had had a good three hours of family togetherness with wife and friends, all with shared fun and he was visibly pleased with that Super Bowl; it had been won by someone with a recognizable name -Payton- he had heard just a few times. Yet his mind at that point was not into football but on the particulars of a court case over which he was to preside over in the morning.

“Anything wrong, dear?” Asked his wife Barbara. “You seem distracted and worried about something.”

“Oh, nothing,” he said. “Just my mind busy with tomorrow’s case.”

That Monday judge Good was up early, one hour before his wife, herself an orthopedic surgeon who normally got up earlier to prepare breakfast for both by 6. She would be in her medical office by 7, but he did not have to be in his chambers till 9. He still had a couple of quiet hours to himself.

His court was going to have an uncomfortable, personal injury case disputed by the covering insurance company, case already bumped a couple of times from judge to judge and it had landed on him as he couldn’t find a reason valid enough to recuse himself as the other judges had. Actually his wife had also known of the case, though not directly, just through an orthopedic colleague of a competing medical group. Lately she had been asked by the insurance company involved in the case to do a second opinion on the patient-claimant; but she had declined. She had been further asked to at least give an independent opinion on just the existing written file to that point, but again, busy already with other cases, she had passed it up, aware of tied sensitive issues, people and demands. Such distant awareness of the case by his wife as a possible conflict of interest and built-in bias did not get judge Good off the hook. Barbara had made a point of not even taking a peak at the file which her husband had been bringing home in the preceding few days.

The file consisted of the claim on record ‘by the suer’ describing her personal injury in the event (a ‘car-with-the-claimant-rear-ended-by-another’), the ambulance and ER reports, her subsequent visits to doctors – an orthopedist, a chiropractor, a neurologist and an ophthalmologist, plus X-Ray/CT/MRI reports. There was also a police report, notes and comments by the insurance adjustor, notes from her own lawyer, and a report from an IME (‘Independent Medical Evaluation’) carried out by a neurologist hired by the insurance company.

With a somber face, judge Good had his two toasts with butter and orange marmalade and his strong but creamy instant coffee with lots of sugar, without hardly saying a word or raising his eyes to meet his wife’s. He barely acknowledged her waving bye-bye and leaving before him. He already had pictured the accident in his mind and had an inkling of its repercussions, actual physical injuries to the occupants and pondered the situation, especially the legal reach, monies demanded, and the very validity of the claim.

And there were complications. The ‘accident’ seemed to him simple and mild enough judging by what he had read so far. But its very mild degree and yet having reached the stage of litigation, plus its having come to his court after two other judges had recused themselves, made it automatically complicated. Very complicated. And not as a tough judicial assessment, but in the likely repercussions that would follow after a decision, ANY decision, especially his. He wished he had tried harder to recuse himself as did his colleagues. His wife’s familiarity with the case should have been further argued with his Chief Judge enough to rule him out as ‘partial to the case,’ just as the lawyers in the case would accept and discard potential jurors… But he hadn’t been that lucky. Shocks!

At least he was consoled by having secured the presence of jurors and not a ‘one judge decision’ that so often mars State Supreme Court’s cases of liability, personal injury, labor, employment and even professional malpractice and misconduct. That -the presence of jurors for this case- had been his Chief Judge’s only allowance to him; and with that, he had agreed to be the judge – instead of the Chief letting Kenneth Good get away and ducking it altogether; with no more judges left, the case would have had to be sent to another venue if he had excused Good. Thus judge Good felt that at least the final outcome would not be on him but on the jurors…

The claim of injuries suffered followed what appeared to have been a trivial car-to-car bump from behind: The claimant did not hit anything with her head and had no external wounds or bruises. AND neither car had any visible damage to their respective rear and front bumpers! The law suit was all by the female front passenger in the car up front, the wife of the driver. He had no complaint whatsoever, but his wife claimed immediate, constant headaches, whiplash of her neck, and physical changes in her brain and eyes, all set in motion by powerful lawyers and backed by several medical specialists, expert witnesses for her. The moneys demanded were 1 million bucks.

The obvious important factor in the case was that the owner of the delivery truck that bumped hers was a large interstate company with big pockets. Hers was a much smaller sedan parked by a sidewalk in a gentle downhill with its front wheels turned to the curve. It appears, as agreed by both sides, that the delivery truck behind hers had been exited by its driver, apparently ‘in neutral,’ and that somehow, its break ‘slipped’ and the vehicle rolled down against the rear of the sedan which then was pushed with its front right wheel over the curve a couple of yards further down. Just that.

Issues that deserve further concerns on the side (chuckling to some) were, first, that the woman-claimant was herself an insurance adjustor, thus fully aware of the workings of the personal injury system, so often subject to sizable winnings, especially with her not having returned to work after 2 years since the accident. Second, her lawyer was a known high stakes liability and malpractice attorney who had just run a successful bid for an important the State post. On matters of claimed injuries, real or not, he almost always filled his clients’ pockets – and his!…

With judge Good presiding, the picking of jurors (six and one alternate) took the whole morning. Most candidates, a good twenty, recused themselves or were discarded because of their middle-to-high education, profession, and/or their acquaintance with injuries and liability pay offs one way or another. In late afternoon both lawyers gave their opening statements which brought out the details of the case making it clear how obvious was that one side demanded big money, no matter what, and that the other was hopelessly attempting a complete dismissal as ridiculous.

They finished that first day with just the two lawyers’ initial talk and blabber.

Early on Tuesday, that is by 10 AM, the claimant’s lawyer started with his experts, first an orthopedic surgeon, to explain how his client’s head was jolted violently back and forth even if it did not hit anything. X-rays of her neck only revealed to him mild, age-related arthritis. His bland testimony was no big deal to either side.

A chiropractor followed, also on his side, repeating the same thing and accompanying his explanations with a stand up partial skeleton of head-and-spine (plastic, presumably); its skull, freely pivoting, wobbled back and forth vigorously by the chiropractor as he spoke, all quite graphic for the jurors.

An ophthalmologist went next, testifying also for the plaintiff, explaining how in his opinion the woman’s bilateral, incipient cataracts were also due to such reported jolt. The insurance company lawyer, on cross examination made him admit that at the claimant’s age, her early 60s, millions of regular people without prior head or neck injuries have beginning signs of cataracts, so that just about 1/3 of all seniors have them… The matter was left there, the eye doctor’s testimony not having really helped the woman’s claim. Presiding judge Good wondered in his mind why this specialist had even agreed to testify for the woman; probably they’ve paid him well…

Last for the plaintiff came a neurologist, clearly a foreign born, probably a South East Asian, who asserted for the jurors, going over the pictures of the woman’s brain MRI, that a couple of tiny bilateral white ‘comas’ (which he called ‘scars’) in the white matter of the middle of her brain, were ‘post-traumatic’….

“Do you see those tiny spots, doctor, in many healthy people of her age who otherwise never reported any head trauma or jolts directly or indirectly?” asked the insurance company lawyer on cross examination.

“Actually yes,” the Asian guy admitted, “apart from M.S. we do see them often with advancing age and vascular disease, even in migraines, but most of the time we do not have an explanation for them.”

“And you even call those spots in her MRI ‘UBOs’ -that is, Unidentified Bright Objects- sort of taking away a significance of disease or severity, don’t you?”

………. “Aaaaah… Yes!”

“But you still call these ‘Post-traumatic,’ don’t you?”

“Well, yes. Given the sudden onset of her symptoms right after the accident…”

“And yet her symptoms are all subjective, unverifiable, aren’t they, doctor? Isn’t it all just her word?”

…“Yes, I guess they are unverifiable… But they still may be post-traumatic.”

“Yes, they may. All just for your authority, your word, for your paid testimony, doctor?”

“Objection!” screamed the plaintiff’s lawyer.

“I withdraw it, Your Honor. No further questions,” said the insurance lawyer.

“You may step down,” judge Good told the Asian expert. And so this doctor too left the room as had done the three previous witnesses. Judge Good wondered the same in his mind, all those experts attesting to the same ‘post-traumatic’ nature of a claim, without any proof. And he wondered too about himself, he judging the whole liability process of the case where big bucks make claims like this possible, so often with big, unfair winnings…

Done with the plaintiff’s four experts by late morning of the second day, the insurance lawyer called for the defense in the afternoon an expert of his own, another foreign born, American neurologist with a strong accent, apparently a Basque. After giving in a nut shell his C.V., experience and qualifications as a witness in cases considered post-traumatic, he revealed that he had ample experience on the matter. He indeed had served for years the Veterans Administration and Social Security Administration as a provider of second opinions in disputed cases where there was chronic disability claimed. He admitted to still provide those second opinions for various Insurance companies (‘IMEs’ or Independent Medical Evaluations), though with his reports often meeting disgruntled personal injury lawyers and claimants, some extremely upset, he said he was cutting back afraid for his safety, already having felt ‘stocked’ a few times. He even admitted to having been reported for one such case -just as bad for his safety- to the State Health Department as ‘misconduct.’

At any rate, the lawyer for the insurance company asked him about the testimony just heard of the four experts for the plaintiff. He categorically stated that the event described as an ‘accident’ (one vehicle gently pushing the other with no objective car damage to either), that there was no likelihood of medical consequence to any occupant. The pains described by the orthopedist and by the chiropractor, he discarded quite vehemently, as subjective and inadmissible towards any degree of ‘big recovery.’

As an unexpected, nearly comedic stunt probably well rehearsed previously between he and the insurance attorney, both of these got permission from the judge to ‘act’ in front of the jurors an unexpected ‘hit-from-behind’ scene between moving vehicles: A low speed action display between lawyer and expert witness, each sitting on a free rolling office chair, one behind the other and both facing the same direction right in front of the jurors and judge. The lawyer sat on the chair up front and the doctor-Basque in the chair behind, both sitting still. Then the doctor rolled with his feet his chair forward and hit with his hands ‘pretty strongly’ the back of the lawyer’s chair propelling it, unimpeded, a few feet forward. It was quite impressive, and it brought a gentle smile to the judge’s face and even frank laughter to several jurors as the plaintiff’s attorney screamed bloody murder and called it “Theatrics! Unacceptable in a courtroom and of no relevance to what happens with moving motor vehicles.”

Back in the witness cubicle and answering the questions of the lawyer for the insurance company, the doctor said of the common, incipient cataracts shown by the eye doctor and of the MRI UBOs shown by the Asian doc that he saw them all the time in regular, uninjured people, with no consequence… The daring Basque was vigorously crossed examined but he held on to his guns very calmly, sounding believable.

A dead silence followed at that point in judge Good’s courtroom. They still had time for the closing arguments that Tuesday in late afternoon.

Their closing words did not bring to the judge’s or to the jurors’ ears anything new that they hadn’t heard already; the point of the triviality ‘of the hit’ in the insurance company’s opinion appeared clear; and so did seem equally clear the plaintiff’s complaints-with-medical-things-plus-experts-support. The judge called the day.

Judge Good had overnight in his mind most likely more worries than any juror in the case. He was sure of what his decision would be if it was just he to deliberate and decide. And he was sure most jurors probably thought like him. But he knew that a simple negative decision for the claimant would not be well seen by the plaintiff’s lawyer, or by most personal injury lawyers with their known weight in court rulings, assignment of judges to cases, one’s reputation of being ’pro-this’ or ‘pro-that,’ etc. It would all be pasted on the Internet within hours. He hardly slept that night.

Back in court Wednesday morning he was to give his impartial speech to the jurors… but then, after encouraging them to consider every piece of evidence carefully, he told them that they were not to rule on whether the claimant’s symptoms were or not a true medical issue, a truth or a fabrication, but solely on whether the impact from behind was the responsible cause of the reported complaints verifiable or not. Within five minutes he sent them to deliberate and he withdrew to his chambers.

The judge told his personal law clerk not to disturb him till the jurors came out… or, till HE came out. But then, 15 minutes later, he came out himself barging out of the door, and startled her out of the coffee mug she was holding. He then asked her to call both attorneys for each case and ask them to meet with him behind closed doors.

Both lawyers, each with an associate, were at the judge’s chambers within five minutes. The claimant-lady and the insurance company representative were told to stay outside.

“The issue is that I am afraid each juror, ALL jurors, are in agreement with my own feeling of a totally negative judgment for the claimant,” the judge said.

“So, if it is as clear to you as it is to me -and probably to my opponent’s fear- why don’t we just let things roll and wait for the jurors to come out and hear what they decide,” said the attorney for the insurance company, himself confident in winning…

“Because if it is so decisive and clear, it may ruffle some feathers in the legal and judicial world with some uncomfortable repercussions” said the judge.

“But that’s what we chance when we bring a dispute to a courtroom,” countered the same lawyer. “If that is the case, uncomfortable repercussions will be only for you, judge. For my client and for me it will only be the anticipated, just outcome”

The claimant’s lawyer in the meantime remained silent, not saying a word or showing a facial expression of surprise, approval or disapproval.

A full minute of a soundless pause went by when each lawyer had left the judges’ chambers and went to the hallway where they were seen talking to their respective clients, and then on their cell phones, perhaps to others in their respective offices. When both returned, the insurance lawyer said: “Do you have a suggestion, judge, to intervene at this point, asking us, both parties to agree to some sort of settlement, to which we did not agree before we got here?”

“Seeing this trial as a waste of time, I had pressed you guys before to reach a settlement by any means, but you would not agree to conditions, demands or even to a face-saving figure.”

“My client” said the insurance lawyer, “was, and remains, very adamant about not giving a cent for a personal injury for which there is no hard evidence. After talking to them, they remain that way.”

“And your side,” the judge said addressing himself to the claimant’s lawyer, “still demands a million dollars? After all the facts and evidence have been laid out clearly in front of the seven jurors?… I am afraid they are also going to give you nothing.”

….. “Well, yes, after conferring with my client, the lady is willing to settle for a lower figure,” said her lawyer.

“For a MUCH lower figure?” asked the judge emphasizing the ‘much’ word.

…. “Yes…….. your honor.”

“Does each of you have the power to negotiate the figure between the two of you right now, with or without me present? And if that is the case, can I interrupt the jurors in their deliberations and tell them to pause and wait for us to get back to them?”

Both lawyers assented. Thus the judge went to the jurors’ room and passed the word that a settlement was likely and that THEY probably would not have to reach a decision, ANY decision.

After about 20 minutes Judge Good heard from the lawyers that they had agreed to a settlement for 1/2 of the initial demand, for $500,000 to be paid immediately to the ‘injured’ lady. As it is standard, she would get of course only 2/3 of that, minus ‘the disbursements’ her lawyer claimed [that, added to the 1/3 of the cost of the tests she had (X-Rays, CTs,) and 1/3 of their hired experts, plus office costs. In sum, she would get no more than 1/2 of the ‘five hundred.’ Just ‘two-fifty’!].

Fine. Finally. At least it was over. But the judge could not believe how weak the insurance lawyer -the insurance company actually- had been in agreeing to such, still an outrageous figure when in all probability there had been no injury at all!

The jurors were dispensed from further deliberations, thanked, and dismissed. It had all been at the nick of time as they already had had a first vote favorable to the defense 100%, that is, no money at all for the lady! He was later told by one of them. He thought that the ‘face savings figure’ should not have been more than $100k…

Judge Good locked himself in his quarters, had from his small fridge the ham sandwich he had brought from home, told his personal law clerk not to bother him all afternoon -if she could help it-, closed all his folders and books, turned on the radio tuned to the classical music played by the local PBS station and laid on his recliner to think calmly… or for a siesta.

PBS had that day a special Tchaikovsky day, and he was delighted he’d be treated that afternoon to some of his best, like his Marche Slave, a shortened Swan Lake, the 6th ‘Pathétique,’ Francesca da Rimini, his Symphony #4 and his ‘1812’ Overture. All among his favorites; he knew he probably would not sleep. That would be for him a celebration to having ended a hated case in the least painful, even if unfair way. There would be no unpleasant repercussions. Just one more case settled at his prompting. Perfect! Well, almost!

But the judge had resented the whole matter. It was not justice or fairness; it was just business transactions, the manipulation of convenient laws to milk deep pockets; lawyers need their clients’ monies – 1/2 or even 1/3 will do… ha! And it is not ‘So It Won’t Happen To You!’ as some lawyers insist in their ads to peddle their services…

Yes, his mind went on: He hated the whole legal world, his world especially as a judge. He did not know how long he had hated his position, his profession. Probably for years by now. He hated the law, the very laws that confined him to conform to a flourishing legal business to which, first as a defense lawyer, now as a judge, he had come to play a crucial, yet unpleasant part. He hated the day-to-day business that went on in his State Courthouse and didn’t care for the concepts of ‘evidence or lack there-of,’ the admissions and non admissions, the inadmissible-in-court or for the common unfair dismissals, the so frequent let-downs, even if by the law, by ‘precedents;’ nor cared for the use of bought witnesses, experts, it’s a cinch-to-get them to say anything, the lies and lies (the most common, under oath), the one-judge -or several- decisions, too often without jurors, even when decisions approach life-and-death consequences for the defense or for the accused, for the jury system, jurors all forced, conscripted persons, often unwilling, unhappy to serve, instead of just paid seniors…

But four o’clock came early, Tchaikovsky was still going on, and judge Good left the courthouse in a hurry. “Tomorrow will be another day,” is all he told his clerk as he left without stopping by her desk to hear what was for him the next day. He now despised being a judge, having become a lawyer in the first place. He hated to preside over so many disputed cases -welcome power? He hated his power!- of deciding their outcome, even if by then he was known for fair handedness…

His law clerk was startled. And surprised by his comment, as if it had been a bad day for him, when it actually had gone quite well and she thought her boss had handled it fine, having extricated himself successfully out of a prickly situation.

Barbara, his wife, would get home a couple of hours after him. She, an orthopedic surgeon in a large group that included bone/trauma specialists, one chiropractor and two rheumatologists, remained in her office as usual till well after five, and then she liked to stop for groceries almost daily. By shopping for food so often, she did not have to carry or drag a large bag or bags and the store was not much out of her way. Mixing with the shopping crowds in the store gave her sort of a distraction and a break from being a doctor all day – or, too often, a medico-legal expert. So the couple rarely had dinner before seven, their ‘European’ lateness being to their liking.

If she was to arrive later, she’d call him by cell. In such cases, as he waited for her, he might have a cheese-and-crackers pick-me-up with a dry Sherry, or if she was going to be very late, he would become a real cook himself and prepare for both often a 20-minute-to-cook paella-style rice double dish with sautéed seafood and veggies, eating one 1/2 of it all alone and saving the other 1/2 for her.