Preferential Treatment, page 12
Joe laid in his hospital bed. The side safety rails were raised to their maximum height. He appeared to stare blankly at the ceiling. The television was turned to The Price Is Right. The words belching from the set meant nothing to him.
“Joe?” Mary whispered.
Joe slowly turned his head toward Mary and Samantha and appeared confused. No hint of recognition of his wife or daughter appeared in his eyes. His formerly ever-present smile was absent. He looked frightened and sad, as if he were an abandoned and abused puppy, caged at the local animal shelter. Mary’s heart broke.
Samantha looked lovingly at her father. The sight of his lying in the hospital bed, helpless and frail, conjured up a number of emotions. She was both deeply saddened and outraged by the condition from which he had suffered and would continue to suffer for the remainder of his life. She also felt strong empathy for Mary who faced living with, and caring for, this stranger for as long as he lived.
The thought of the doctor’s words, “…it will be difficult and time consuming. You will need a break occasionally. You will need help,” rang in her mind. I need to talk to someone, Samantha thought. I need to find out just what the hell happened. Somebody needs to be held accountable if this were preventable. If someone robbed my mother and father of their happiness, that someone will have to answer for this.
Mary walked slowly toward Joe and softly kissed him on his forehead. She then reached down and took his frail, cool hand into hers and squeezed it gently. “I’ll take care of you, Honey. I’ll make sure you’re gonna be all right. I promise.” A tear seared her right cheek and trickled to the end of her chin, dropping to the floor. Mary looked into Joe’s eyes and thought she could perceive a glimmer of recognition. Joe returned the gaze, still very confused, very frightened, and completely without any realization who this person was holding his hand.
CHAPTER 12
The day after receiving the bad news about her father, Samantha returned to her job. The space on her credenza where the picture of her ex-husband used to sit was vacant. It had been eighteen months since he had broken the news to her that he was leaving her for another woman. Too much time spent in her office working and not enough time paying attention to him was the excuse. Samantha’s retort was that if he would go out and get a decent job instead of screwing around trying to be a professional photographer, maybe she could spend less time away from home supporting their two- year-old daughter and him.
Samantha, pushed the thought of her ex out of her mind, closed her eyes, and mentally replayed all that had taken place. There were a few givens. First, she knew her father was in awful shape after his surgery. Second, she knew that due to this calamity, her father would never be able to work or enjoy his life again. She also knew that Mary had not returned to work since Joe got sick, and, as a practical matter, there was no way that her mother could continue to work, care for her husband, and support the family.
Samantha reached for a cigarette and lit it, inhaled deeply, and held it in her lungs. She felt the rush from the nicotine that she needed so desperately. She opened the window behind her credenza and blew the smoke out into the cool afternoon air. She then grabbed an ash tray from her top desk drawer and snuffed the cigarette out. The “No Smoking” policy at her accounting firm was strictly enforced.
Samantha continued to rehash what had happened. She remembered the conversation she had with Joe’s family physician the first night he was admitted to St. John’s Hospital. She remembered the doctor’s closing the door to Joe’s hospital room and confiding in the family, not only as Joe’s doctor but his friend, that if it were she facing aneurysm repair surgery, she would want to go to a major medical center to have surgery performed by an experienced surgeon. She further recollected the doctor’s breaking the bad news to them about Joe’s HMO having refused a transfer since there was a “qualified” surgeon now affiliated with the HMO who was available to perform the surgery.
Samantha felt the hair on the back of her neck bristle as she recalled the smug, young surgeon confidently singing his own praise about his superior training and knowledge. But she also recalled the warnings that the family received about the dangers of this type of surgery and the risks it involved.
We were warned. We had little choice. If we didn’t get the surgery, daddy could have still had this outcome or worse happen to him even under the best of circumstances. It was a risky operation. Am I being overly critical of this young doctor who must have tried to do his best?
A conflicted and confused Samantha knew she needed some advice. Talking to a doctor would probably not do any good since she surmised that no doctor would give her a straight answer. She turned to her computer and entered the Yellow Pages website. Typing in the words “Darnell, Smyth, Woodall & Coombs—Abbington, WV—attorneys,” she found the telephone number of the law firm where Mary Gunther had been employed for many years.
I assume that if anyone will help us and give us some straight answers, it will be Mom’s boss.
“Darnell-Smyth.” drawled the law firm’s receptionist. “How may I direct your call?”
“Ben Darnell, please.”
“I’m sorry, ma’am. Mr. Darnell is not with this firm anymore.”
“Uh, can you tell me how I can reach him?”
“I’m sorry, Ma’am. We don’t have that information, but if you can tell me what you need, I can direct you to one of our other lawyers.”
Samantha’s mind reeled, completely taken by surprise. She had expected to speak with Darnell, a man about whom her mother had spoken so highly and in whom she had always professed her undying loyalty.
“I-I, uh, need to speak to someone about a problem I had with my father and a surgery he underwent. I need to see if someone can give me some guidance on whether my father may have some recourse against his doctor,” Samantha stammered.
“I’m sorry, we can’t help you, Ma’am. Our lawyers don’t do that kind of work. We represent doctors, not sue them!”
Samantha frowned and reached for another cigarette. “Well, can someone there refer me to someone who might be able to help me?” a frustrated Samantha asked.
“Honey, I’d just let your fingers do the walking, as they say. Doctor-suing lawyers are a dime a dozen. I’m sure you’ll find someone that will talk to you,” said the snarky receptionist.
Discouraged and not sure where to go to seek help, Samantha decided to continue her quest to find Darnell. She Googled Darnell’s name; however, the search yielded only Darnell’s old firm’s address and telephone number. Undaunted, she dialed 411.
“Directory Assistance for what city?” inquired the operator.
“Charleston, West Virginia. West Virginia State Bar Association, please,” stated Samantha.
“Hold for that number.”
Samantha recorded the number and dialed. Success. After speaking with the Bar Association, she was able to secure Darnell’s new contact information.
“Ben Darnell,” a friendly male voice answered.
Samantha was surprised that a lawyer would be answering his own telephone. “Mr. Darnell, my name is Samantha Hunter, Mary Gunther’s daughter.”
“Hello, Ms. Hunter. How are you, and how is Mary?” an apparently concerned Darnell inquired. “I understand that Mr. Gunther had undergone surgery a while back.”
“Not so good, I’m afraid. Daddy didn’t do well in his surgery. That’s why I’m calling. I need someone to talk to,” Samantha explained, trying to hold back her tears.
“First, let me say how sorry I am,” Darnell began. “I met your dad a few years ago, and Mary was one of my favorite employees. As a matter of fact, I was planning to call her once I got things straightened out here in my new digs to see if she were interested in coming to work for me.”
“Thank you, but I don’t think that’s going to happen. You see, daddy is so bad off that mom will have to take care of him around the clock.”
“What happened?”
“That’s what I’m trying to find out, and that’s why I’m calling you. I need somebody to look into the surgery and care daddy got at St. John’s. I need to see if his neurosurgeon or somebody else messed up. I don’t know where to turn, but since you were Mom’s boss, I thought maybe you could look into it or send me to someone that could.”
“I would be happy to talk with you. When can you come in?”
“Would tomorrow at 1:00 p.m. be okay?”
“Let me look at my schedule a minute,” Darnell said. He knew that in his nascent private practice his calendar would be blank. Darnell waited a few seconds and announced, “You’re in luck. 1:00 o’clock will be just fine. Is your mother coming with you?”
“I don’t think that would be a good idea. She doesn’t know I’m calling a lawyer. She’s not sue-happy. I don’t want to upset her,” Samantha explained.
“That’s fine. Suing is a long way off, if at all. Let’s talk, and then we’ll take it one step at a time. Of course, at some point Mary’s going to have to be part of the process.”
“I understand. Thank you for agreeing to see me, Mr. Darnell. I really appreciate it. I’ll see you tomorrow,” a relieved Samantha said.
“Looking forward to it, Ms. Hunter. See you tomorrow,” Darnell chirped.
Darnell pushed back from his empty desk, clasped his hands behind his head and leaned back in his chair. Jesus. A potential medical malpractice case, and I won’t be defending it.
Darnell had opened his new law office in Abbington less than two months ago—a second floor suite with a room he could turn into a small conference room, a nice size office, and a reception area for his yet-to-be-hired secretary. His job hunting at various insurance defense firms in the city and around West Virginia had yielded little interest in him from his brothers and sisters in the insurance defense bar. The perception was that something untold must be the reason for his abrupt departure from his old firm. Hiring a partner from one of the best known and respected law firms in the state, leaving for unspecified reasons, was too much of a risk for the stodgy firms in the tall buildings to consider. Further, since Darnell had been involved in so many cases for insurance companies who were clients of Darnell-Smyth, potential conflicts of interest could lead to present and future loss of business if he were to come on board. Of course, probably the overriding but unspoken reason for the lack of interest was his age. At fifty-four, he was just not an appealing candidate to become an associate in a law firm.
The explanations for rejection given were varied: you’re overqualified; we already have a full litigation team; the economy is rotten at this time. The bottom line in Darnell’s mind was, I’m just too goddamned old.
Accordingly, Benjamin Franklin Darnell, recently on the top of the insurance defense bar heap and partner in one of the largest law firms in the state of West Virginia, was now the sole and only person at Darnell Law Firm. He had but a few cases and was not completely sure from where his next fee was going to come. While he did have a substantial amount of money coming from Darnell-Smyth due to their contractual obligations to him, he knew that if he didn’t get some good-paying work soon, money would eventually run out and his savings would have to be tapped.
Great, thought Darnell. My first potential case is a goddamned medical malpractice case. Experts out the wazoo, depositions by the dozens, travel to God knows where. Expensive stuff and all fronted by yours truly. And if I don’t win, I’m out of luck.
Darnell suddenly felt very uncomfortable and vulnerable. A bead of sweat formed on his upper lip. He pondered the consequences of taking on the plaintiff’s side of a medical malpractice case against a neurosurgeon and, maybe, a hospital. Never before had he been in such a predicament. In the past he always had the luxury of knowing that all the expenses incurred in his defense of a doctor or hospital would be taken care of by the companies that insured them. Even if he lost the case, there still would be the fat paycheck at the end. He and his fellow defense lawyers got paid—win or lose. But now the game had changed.
Invariably in most, if not all, plaintiffs’ injury cases, the injured person would not have the money to pay their lawyer if the case were lost. Accordingly, the contingency fee was invented to take care of that problem. Under a contingent fee contract, the lawyer would take on the financial risks of the case. Both he and the client would reap the rewards if successful, but the lawyer would suffer the entire loss if the client’s case went down in flames.
In few personal injury cases were the financial stakes higher than in medical malpractice litigation. Darnell was keenly aware of this, notwithstanding the fact that he had never been on the plaintiff’s side of one. He knew what physicians, economists, life care planners, vocational rehabilitation experts, most often necessary in the prosecution of one of these cases, cost. Easily the final tally of expenses could rise to tens of thousands of dollars, or even more.
Darnell exhaled and wiped his forehead with the back of his sleeve.
What am I getting all worked up about? I’m just going to talk to the woman. Like most of these cases, there’s nothing to them. Just a bad result. Good intentions with bad luck attached. Make her feel good about looking into it for her mom and dad and send her on her way with empathetic best wishes. Cases will come. They always do. Just be patient, Darnell. Just be patient.
Promptly, at 1:00 p.m. the day following her initial conversation with Darnell, Samantha Hunter walked into the newly-opened Darnell Law Firm, such as it was. As Samantha looked around the room, immediately she was struck by not only its lack of a secretary but also a desk, telephone, computer, and other items one would expect. Only two grey metal chairs furnished the space.
“Hello,” rang a friendly male voice from the adjoining office. A smiling Darnell emerged, right hand extended toward a slightly startled Samantha. “Ben Darnell,” he said. “And you are Samantha?”
Samantha extended her hand and shook Darnell’s firmly.
“Hello, Mr. Darnell. Yes, I’m Mary’s daughter. Thank you for agreeing to see me.”
“My pleasure and please call me Ben.” He waved his left hand around the room in a sweeping gesture. “Kind of sparse furnishings. I’ve got furniture ordered, but they’re a little slow getting it delivered. Only been in here a couple of months. I do have a desk and a couple of chairs in my office. It’s right through that door. Please go in and have a seat.”
As Samantha led the way, Darnell admired her from behind. She was wearing a black skirt, just below knee length, and a matching jacket that was fitted to highlight her slim waist. Her exposed lower legs were shapely and slightly muscular, like those of a runner. She moved with grace as she entered his office, found a chair which she assumed was for clients, and sat demurely, crossing her legs.
“Well, I guess we’ve got some talking to do. Let’s start at the beginning,” said Darnell.
Samantha recited the facts as she recalled them. Darnell took copious notes. Occasionally, he would stop her and ask a question to clear up matters he did not understand and to fill in gaps in the chronology. One particular aspect of Samantha’s narrative made Darnell’s antenna go up as she recalled the first meeting with the doctor in her father’s hospital room.
“So, it’s your understanding that this Dr. Montgomery was fresh out of training?”
“Yes, that’s what he told us. He bragged about how well-trained he had been in his neurosurgical residency and how he had gained experience doing aneurysm surgeries. He projected a very confident attitude. Actually, I would’ve called it cocky.”
“And the HMO told Joe who was going to do his surgery, take him or leave him?”
“That was pretty much it.” Samantha hesitated. “Actually, the doctor said he’d be happy to make the referral to somewhere else, but he told us the HMO probably wouldn’t pay for the surgery if that were the route we wanted to take.”
As Samantha continued her saga, Darnell became more intrigued. He knew that Joe had had a horrible result at the hands of an inexperienced surgeon. While he could not begin to formulate an opinion as to liability, this one fact—inexperience—made the case sexy. It was something easy to understand—something on which a jury could latch onto and relate. Everyone wanted the best when it came to health care, especially when it was a matter of life or death.
Samantha concluded her chronicle by telling Darnell about her father’s present condition and the fact that it was most likely permanent. He would be a mental and functional cripple for the remainder of his life, unable to work and unable to experience the joys of life.
Samantha sat back in her chair and exhaled. “Well, do you think we have a case?”
Darnell looked at Samantha and shrugged. He had thought that this would just be a case that he would send out of the office as promptly as it had arrived. Now he was teetering on the abyss. His head swam as he once again thought of the huge costs and risks he would incur a medical malpractice case.
“I have to say I’m intrigued, especially with the fact that this rookie had so little experience. Certainly, from a monetary damage standpoint the case has merit. Your father is seriously and evidently permanently damaged. But there is more to these cases than how badly the patient is hurt. We have to prove somebody caused the damage as a result of negligence. That is usually the sticky part.”
Samantha nodded. “I just want to get to the bottom of why this happened.”
“I can appreciate that, but you and you mother will have to understand it’s not just getting to the bottom of why this happened. You have to be mentally prepared for a long slog and probably a trial before any resolution will come of this.” Darnell paused and placed his pen on his legal pad which was now full of his scribbles. “I’ll tell you how I’d like to approach this. If you like my plan, then I’ll get to work. If not, I’d be happy to find you someone who you will be happy with. First, however, in the spirit of full disclosure, I want you to know that I have never represented a plaintiff in a medical malpractice case—only doctors and hospitals as defendants.”
