Preferential Treatment, page 1
Contents
CHAPTER 1
CHAPTER 2
CHAPTER 3
CHAPTER 4
CHAPTER 5
CHAPTER 6
CHAPTER 7
CHAPTER 8
CHAPTER 9
CHAPTER 10
CHAPTER 11
CHAPTER 12
CHAPTER 13
CHAPTER 14
CHAPTER 15
CHAPTER 16
CHAPTER 17
CHAPTER 18
CHAPTER 19
CHAPTER 20
CHAPTER 21
CHAPTER 22
CHAPTER 23
CHAPTER 24
CHAPTER 25
CHAPTER 26
CHAPTER 27
CHAPTER 28
CHAPTER 29
CHAPTER 30
EPILOGUE
AUTHOR’S NOTE
ACKNOWLEDGMENTS
Preferential Treatment
A Legal-Psychological Thriller, A Jack Fabian Novel, Book I
©2023 William Parsons
All rights reserved. This book or any portion thereof may not be reproduced or used in any manner whatsoever without the express written permission of the publisher except for the use of brief quotations in a book review.
This book is a work of fiction. Names, characters, places, and incidents either are products of the author’s imagination or are used fictitiously. Any resemblance to actual events, locales or persons, living or dead, is entirely coincidental.
print ISBN: 979-8-35092-840-2
ebook ISBN: 979-8-35092-841-9
CHAPTER 1
Jack Fabian woke to the scream of the clock radio. In the darkness, Mick Jagger wailed. He rolled his 6’2” frame out of bed and staggered in the direction of the deafening noise and slammed his ham-like hand onto the top of the blaring box. His alcohol-soaked brain pounded as he struggled to remember where he was and why he was there.
The assault on Jagger was futile. The radio continued to howl. “I can’t get no satisfaction! I can’t get no satisfaction!” The clock’s scarlet numerals seared his matter-encrusted eyes. 5:00 a.m.
Fabian grabbed the radio and hurled it against the wall. The plastic shattered. He glowered at the ruins scattered on the floor, silent at last.
Although foggy on the specifics of the past eight hours, only two of which involved sleep, Fabian knew that he had consumed too much Scotch and had abused his body beyond belief.
“Dumb son-of-a-bitch,” he muttered to himself. As the cobwebs began to clear, he ran his fingers through his thick, black curly hair, squinted, and struggled to acclimate himself to his surroundings. Only the lights from the street below illuminated the room. On the desk where the now-defunct radio had sat, Fabian spied a book he recognized—a Gideon Bible.
The fuzzy-brained Fabian tried to piece together the puzzle that was the previous afternoon and evening. New Orleans, French Quarter, strip joint, and too much liquor. Okay, I’m in a New Orleans hotel room.
Fabian’s eyes began to adjust to his dimly lit quarters. He peered through an open door into an adjoining room. Spread across the bed, clad only in boxer shorts and mouth agape, was his young associate at the Fabian Law Firm, Santino Fuscardo.
“Poor bastard,” he muttered under his breath. He stumbled toward the bathroom, his bladder begging for relief. “Hope he feels better than he looks.”
Through the alcohol haze, Fabian recalled that it was less than twenty-four hours ago he was absorbed in the last minute preparation for what was certain to be a long and difficult medical malpractice trial. That preparation had come to a screeching halt.
The cause for the previous night’s celebration and Fabian’s consequent horrific hangover was his reward for concluding Hanratty v. Saad, M.D., a case he had worked on for the past five years.
In the lawsuit, Fabian alleged that Dr. Rashid Saad, a pediatrician, failed to properly diagnose and timely treat spinal meningitis in his patient, Wendy Hanratty, the only child of Fred and June Hanratty. As a result, the four-year-old had died. The loss of the Hanratty’s child, in and of itself a tragedy, was amplified by the fact that Mrs. Hanratty was unable to bear any more children.
After two years of investigation and three years of litigation, the case had dragged on with little hope of a settlement. Much of Fabian’s professional time and a substantial chunk of his two-lawyer plaintiff firm’s money had been invested in the case. Until yesterday, it was a foregone conclusion that a jury trial was the only avenue to resolution.
That all changed in Baton Rouge, Louisiana, in the office of Thomas W. Young, M.D., the expert pediatrician hired to testify on Dr. Saad’s behalf. Fabian had spent days poring over medical charts, pediatrics textbooks, and journals preparing for Young’s deposition, the most important deposition in the case. His hard work paid off.
After six hours of grueling cross-examination by the veteran trial lawyer, Young had conceded that the doctor had committed malpractice. The unanticipated admission—a tremendous surprise to Saad’s defense lawyer, Benjamin Darnell, and an unexpected windfall to Fabian—completely changed the case’s landscape and opened the door for the possibility of settlement. Fabian remembered the look of surprise and disgust on the cocky, self-assured Darnell’s face when his expert and, as a consequence, his client’s case went down in flames.
Fabian managed a grin as he examined himself in the bathroom’s mirror.
Maybe I look like death warmed over now, but Darnell looked worse yesterday.
CHAPTER 2
The unexpected defection of the expert, Young, the previous day had laid the groundwork for Fabian’s present self-inflicted condition. After the deadly admission by the defense expert became irrevocably etched into the record, Darnell’s stomach began to churn violently. He detested losing. He excused himself from Young’s conference room, ostensibly to answer nature’s call. In reality, his goal was to pop a couple of antacids and place some urgent telephone calls. He needed to salvage a settlement in the case before it was too late.
Darnell strode down Young’s hallway. He spied a brass plaque on a door that bore the name “Thomas W. Young, M.D.” Darnell ducked into the vacant office. A large green leather-tufted chair stood proudly behind the desk. On the wall hung at least a dozen impressive frames displaying the doctor’s diplomas, accolades, and honors.
Darnell scowled at the self-aggrandizing display. Must have bought them at Wal-Mart, he mused.
Darnell spun Young’s chair with contempt and plopped into it. He pushed back from the desk, propped up his feet, and made himself comfortable. He knew the next few minutes were going to be anything but.
Darnell’s client, Dr. Saad, was the first of two on his list of people to call. Under the terms of Saad’s malpractice insurance policy, Darnell was required to secure his client’s consent prior to entering into settlement negotiations with any plaintiff. He knew it was going to be a difficult conversation.
Ever since the case had been filed, Saad had been adamant that he would not settle under any circumstance. He had instructed Darnell that his insurance company was not to pay a single dollar for a death he believed he did not cause. To settle for any amount, no matter how paltry, would be tantamount to an admission of professional incompetence, the physician believed. Worse, in Saad’s mind, settlement would be a horrendous personal embarrassment.
Saad’s greatest concern, though, was a federal law that required his insurance carrier to report any malpractice settlements made on behalf of its insured physicians to the National Practitioner Data Bank. Congress created the NPDB in 1986 to serve as a repository for reports of adverse actions taken by entities such as state medical licensing boards against physicians. Adverse medical malpractice verdicts and settlements against doctors were also required to be reported to the Data Bank.
Since 1990, when the NPDB was activated, this information was often considered by hospitals when determining whether privileges to practice in their institutions would be granted to a physician. State medical licensing boards also utilized the information to determine whether licenses should be granted to doctors who attempted to transfer their practices from one state to another. The reported information was also available to most HMOs and specialty boards such as the American Academy of Pediatrics, by which Saad had been certified.
There was not unrestricted access to this information, however. Ironically, Congress denied members of the public the luxury of access to this important information when choosing a doctor.
Because of the Data Bank, doctors across the nation had banded together through their various state medical associations to negotiate “consent to settle” clauses to be included in their malpractice insurance policies. This provision gave a doctor the right to refuse to settle any claim against him and insist that the insurance companies defend his case, through jury trial if necessary. Saad had such a clause in his insurance policy.
Doctors often exercised their rights under this provision, especially when they had been successfully sued by an injured patient in the past. According to national statistics, seventy percent of medical malpractice jury trials were decided in favor of the health care providers. Statistically, a doctor had a much better than 50-50 cha
As for Saad, he feared that too many adverse reports could cause him to be denied hospital privileges, the right to be a participating HMO panel doctor, the right to maintain his specialty certification, or any combination of the three. He had been reported to the NPDB once before. While one or two settlements may not have any detrimental effect on him, he feared that too many adverse reports could become an impediment to his continuing to make a very comfortable living.
During the ensuing contentious conversation with the shocked and bitter Saad, Darnell deftly shifted the blame for the case’s collapse squarely onto the shoulders of the defense expert, Young. While it was hard for Saad to believe it was one of his own who had trashed his defense, Darnell used his best skills of persuasion to redirect Saad’s ire from his perception of the incompetence of his lawyer to Young’s lack of mental toughness under the fire of a skilled lawyer’s cross-examination.
Despite this, Saad continued to protest violently, but Darnell had one more card to play.
“Look,” barked Darnell, “you can take this to trial if you insist. But consider this—we’ve got a dead kid on our hands, the only one these folks could ever have. You’ve got $1 Million in insurance coverage. If a jury thinks you screwed up and that the kid is worth more than that, you’re on the hook for the excess. Do you really want to take that chance? If you do gamble and lose, which I promise you have an excellent chance of doing, don’t complain to me if they take your house and sell it to pay the difference your malpractice policy doesn’t cover.”
Once this reality had been explained, it took only minutes for Saad to capitulate.
One down, one to go.
Susan Pavlik, the insurance adjuster for Saad’s malpractice insurance company, was the next to get the news. Pavlik controlled the purse strings in the Hanratty v. Saad case and had the final say whether it would settle or be tried despite Saad’s agreement to wave the white flag. Pavlik also had the discretion to determine how much money would be offered if a settlement were attempted.
Darnell punched in the insurance company’s number.
“American Physician Indemnity Corporation. How may I direct your call?” a husky female voice inquired.
“Yeah, uh, Susan Pavlik, please,” Darnell said, barely above a whisper.
“One moment, please,” the receptionist sang. Darnell drummed his fingers on the desk and waited. Obnoxious Musak played loudly in his ear.
“Susan Pavlik,” a business-like voice said.
“Susan, this is Ben Darnell.”
“Hey, Ben. How’s it going?”
“Not so good, Susan.”
Stony silence. Pavlik took bad news on her cases personally.
“We’ve got a little problem with Dr. Young, our expert in the Hanratty v. Saad case. I’m calling you from his office.”
“Yeah, what’s the little problem?”
“Plaintiffs’ counsel, Jack Fabian, is taking his deposition today. We’re on a break,” Darnell said.
“And …?”
Darnell drew in a long breath. “Long story short, Young went south on us. Folded like a tent in a wind storm.”
“How did that happen?” Pavlik shot back.
“I’m not sure. Lost his guts, I guess. He was one hundred percent behind us last night during our preparation. I had him tuned like a violin. No equivocation. I grilled him hard to see if there were any chinks in the armor and didn’t find any. Today was a different story. After Fabian locked Young into all his opinions, he pulled out some medical literature that totally contradicted some key points Young had made. The articles were from some throw-away journals, but when Young was confronted with them, he lost his cool and caved—agreed with Fabian that Saad blew it. Of course, I was objecting like crazy, but Young didn’t take the hint. Kept agreeing with Fabian on everything he asked him about. Once Fabian got on a roll, Young would’ve admitted the moon was made of Swiss cheese. I’ve seen this happen once before in my twenty-eight years of practice. Couldn’t believe it. Bottom line—we’ve got a serious problem here, and I don’t know if the case can be salvaged.”
Pavlik knew Fabian. He had stung APIC in malpractice cases twice before. She abhorred the thought of being stung by him again and loathed the idea of lining his pockets with any more of APIC’s money.
“Can you do anything to fix it?” a dejected Pavlik inquired.
“I seriously doubt it. Fabian really nailed him. I’m afraid that if I ask Young any questions and try to rehabilitate him, it’ll only get worse. In my judgment, he’s toast—finished. I just called Dr. Saad and explained what happened. He wasn’t too happy, but he understood how Young’s testimony torpedoed the case. His main concerns were that settling made him look like he admits malpractice and, of course, his having to report the settlement to the National Practitioner Data Bank. I’m sure he doesn’t care about the money since it comes out of APIC’s pocket, not his.”
Pavlik knew the mindset. They never do care about our money. All they worry about is protecting their huge egos and being reported to the NPDB and what effect that could have on their pocketbooks, she thought. The Data Bank—the bane of every health care provider’s existence. They screw up now and it has to be reported to Uncle Sam. Big Brother watching the medical profession. Incompetents watching incompetents. How ironic.
“What’s it worth?” asked Pavlik. She paused briefly, but did not give Darnell time to respond. “What will Fabian take is the better question?”
“I did some checking on him earlier,” said Darnell. “He’s got a reputation for being a pretty good trial lawyer, but he also has a reputation for being a bird-in-the-hand kind of guy. He’s been up to his ears in this case for quite a while, and he’s invested a lot of time and his own money getting it this far. We’ve probably taken twenty depositions to date. Today’s the fourth one we’ve taken in four different cities in the last five days. My guess is he’s spent over ten thousand in travel and expert fees recently and has sunk over sixty grand total of his own money in this case. If we go to trial, he’ll have another twenty to thirty grand in it. All of his out-of-state experts will have to travel to West Virginia for the trial. That’s expensive, especially since the trial’s in the middle of nowhere. It’ll be a logistical and economic nightmare for him to get all his witnesses there. My information from some lawyers that know him is that his little two-man firm is operating on a shoestring right now, and probably this case represents a large part of its cash flow problems. His business is feast or famine. You know the type—typical small town law shop. And the book on Fabian is that he can’t hold onto his money even though he’s had a fair amount of success—burns a hole in his pocket. I doubt he has enough of a war chest to keep bankrolling this case and keep his lights on for too long.”
Darnell paused momentarily. “And he knows that even if he wins and scores big, I can keep the case tied up for months on appeal.”
“Uh-huh,” Pavlik said with growing impatience. She wished Darnell would just answer her question and skip the analysis and the history lesson. I ask this guy the time, and he builds me a goddamn clock!
“If his back’s to the wall, though, he’ll try the case,” Darnell continued. “He’s tried them before when he’s had to. In my opinion, now is a good time to try to settle, if that’s what you want me to do. I think I can get him to take something below the $1 Million that Saad has in coverage. If you want me to try to settle it, I’d like the authority to settle for the limits, but I’ll do my best to beat him down. I’m pretty sure, under the circumstances he’s faced with, he’ll take less.”
“Any chance of getting another expert—one with a backbone?” Pavlick asked, grasping for straws while enjoying the dig.
“Don’t think we have a snowball’s chance in hell on that one,” Darnell stated emphatically. “It’s too late for that. The trial’s set to start next week. I know the trial judge, and he’d never allow a substitution of an expert at this late date.”
“OK. Get him down as low as you can, but you’ve got the million if you need it. I hope you don’t need it all.” Pavlik slammed the telephone down and glared at the clock on the opposite wall. She knew this one wasn’t going to go down well with her CEO. She pushed the Hanratty v. Saad file aside and exhaled. She desperately needed a drink.
