Preferential Treatment, page 13
“Does that make a difference?”
“I really don’t think so. I’ve handled so many of these cases from the defense side and have done battle with so many different plaintiffs’ lawyers that I have learned their tricks of the trade. Let’s say that in order to have done my job in the past, I had to get inside their heads. I wouldn’t anticipate any trouble switching hats. Most folks don’t understand, but a good lawyer can argue either side of any issue. It’s fundamental in our training and experience.” Darnell paused and looked into Samantha’s dark brown eyes, searching for some sign of acceptance. “Shall I continue?”
“I’m listening,” Samantha said, now more at ease.
“First thing we’ll do,” Darnell began, “we’ll need someone to represent your father’s interests in the case since he appears to be mentally and physically unable to do it for himself. I suggest either you or your mother to act as guardian for your father.”
“I’ll talk to Mom, but she’ll probably want me to do it,” Samantha volunteered.
“After that,” Darnell continued, “we’ll need to gather all of his medical records. Once I get those, I’ll review them thoroughly. Having done medical malpractice work representing doctors for decades, I have a pretty good sense of what I’m looking for. Next, I’ll do my own research to see if I can come up with some theory or theories of liability. Of course, I’m not a doctor, so I undoubtedly will need some medical help with any theories that I have developed.”
Samantha listened intently but said nothing.
“Once we go through these steps, we’ll need to contact an expert in neurosurgery who is willing to review the records. This could be problematic, especially in this specialty. There aren’t that many neurosurgeons around, and they all seem to know, or know of, one another. I have been told that plaintiffs’ lawyers sometimes face difficulty finding an expert in these types of cases. They don’t like to testify against each other. It’s euphemistically known as the ‘conspiracy of silence.’”
“Birds of a feather,” Samantha interjected.
“Exactly,” Darnell agreed. “There are expert services out there that will provide you with an expert if you need one. I don’t like to use them. They look too much like hired guns.”
Samantha nodded and leaned forward. “Then where do you find one?”
“That’s where my research comes in,” Darnell explained. “What I like to do is find articles in the medical literature—journals and text books—about the topic. I try to find the best clinician with a special interest in the subject, mainly at teaching hospitals with residency programs. Some of these doctors find these cases to be intellectually stimulating, and even in light of the ‘conspiracy’ there are principled guys and gals out there who believe in policing their profession. Sometimes, though, they’re difficult to find. Also, very expensive.”
“We don’t have a lot of money,” Samantha stressed.
“We’ll get to that in a minute, but in the meantime, don’t worry,” Darnell assured her, not wanting to scare her off. Darnell quickly changed the subject and laid out the rest of his game plan.
“Sounds like a lot of work,” said Samantha.
“Time consuming, for sure; but it’s something that’ll be necessary, I can assure you. How does that sound so far?” Darnell asked as he rocked back in his chair.
“Logical. Sounds like a good way to approach it.”
“One word of warning: having represented scores of health care professionals and their insurers, I can assure you that they don’t take these cases lightly. It’s always a dog fight—a dog fight that is usually only decided by a jury.”
“So, that brings us back to my question a while ago—this sounds like an expensive proposition. How does mom pay for this?”
“Here’s what I propose. I’ll advance all expenses for the case. I will ask nothing of you or your mother other than full cooperation and access to you upon reasonable notice. No money will be required. The only way I’ll be repaid is if the case is resolved in your mother’s and father’s favor.”
“Sounds like a risky proposition on your part,” Samantha exclaimed.
“There’s a little more to it. I will also need to be paid for my services if we are successful. I’m sure you have heard of a contingency fee.”
“Yes, I’m familiar with the concept.”
“It’s a percentage of the proceeds I receive if we prevail. In this case, which I anticipate will be expensive and difficult, my fee will be based on 40% of the total recovery. This is over and above the expenses I will have advanced.” Darnell paused to give Samantha an opportunity to process his proposal. “How does that sound?”
“It’s a lot, but you’re risking your money and time on the case, so I guess it sounds fair to me. Of course, it’ll all have to be explained to mom.”
“Absolutely!” exclaimed Darnell. “I am required by our ethics rules to reduce all of this to writing in the form of a contingent fee agreement explaining the explicit terms of our contract. I’ll draft one and will have your mother in to go over it, assuming she wants to go through with this.”
“What if she doesn’t?” asked Samantha.
“No one can make her sue, but your father’s rights need to be protected. You could qualify as his legal guardian, but I hope that won’t be the case. It would be best to have Mary on board. You talk to her and see what she says. If she wants to schedule an appointment, just give me a call.”
In the three weeks following his meeting with Samantha, Mary had agreed to allow the investigation to proceed. Darnell had secured a contingent fee contract from Mary and had obtained Joe’s medical records. He had also completed his preliminary research on the care and treatment of intracranial aneurysms. Through his study, he developed a firm grasp of the anatomy of the brain and its blood supply. His next step was to find a neurosurgeon who would consult with him on the case.
In the past, he had handled several neurosurgical malpractice cases; however, never had he worked on a neurosurgical case involving an intracranial aneurysm surgery. He had defended neurosurgeons who had been accused of operating on the wrong intervertebral disc during spine surgery. He had defended neurosurgeons who had been accused of leaving surgical sponges in the operative site. On one occasion, he defended a neurosurgeon who had operated on the left side of the patient’s head before he realized that the tumor he was intending to remove was, in fact, on the right side. He thought he had seen it all.
But the case of Joe Gunther was a whole new ball game for him. He knew he had a case involving a very young and relatively inexperienced neurosurgeon who, he speculated, had gotten in over his head and ended up with a horribly injured patient. But he had hit a brick wall in his research as to what this surgeon may have done, or not done, to cause Joe to end up a functional cripple. Despite his spending hours in the medical library at the West Virginia University Medical Center researching the proper techniques of aneurysm surgery, the only thing he had come up with as a theory was Montgomery’s inexperience. His instincts told him that there was something that was done improperly during Joe’s surgery, but instincts or speculative hunches would not be enough to get Joe’s case to a jury. He needed a theory. Over the years of representing doctors, other health care professionals, and hospitals in malpractice cases, Darnell had consulted with hundreds of physicians who were eager to testify in favor of defendant doctors accused of medical malpractice. A great majority of them were academicians as well as actively practicing physicians affiliated with major medical centers located in large metropolitan areas. During his years of making these contacts, Darnell had compiled notebooks of their curriculum vitae, all arranged by specialty and cataloged alphabetically. A small number of these doctors were neurosurgeons with whom Darnell had worked. Fortunately, he had made a copy of these notebooks before he left his old law firm.
Darnell pushed back from his desk and walked across the room to a nearly empty book shelf. He grasped a large green notebook and thumbed through the tabs protruding from the pages until he reached one bearing the single word “NEUROSURGEONS.”
The first curriculum vitae he found was that of James Joseph Blakely, M.D., Professor of Neurological Surgery, University of the Northeast School of Medicine. Darnell smiled and fondly recalled several cases on which he had consulted with this physician.
This guy was good, thought Darnell. He was smooth as glass, confident but not cocky, knowledgeable but not condescending. Good looking, but not too pretty. Kind of the John Wayne look. The jury loved this guy.
Darnell riffled through the pages of Blakely’s C.V. and located his publications. He found that the doctor had been the editor of three textbooks on neurosurgical practice and principles. Also, in the list of hundreds of scholarly articles he had penned, more than five dozen dealt with the subject of intracranial aneurysm treatment and surgery. Perfect, thought Darnell.
He dialed the number in the doctor’s C.V. The telephone was answered on the second ring, a male voice on the other end.
“Doctor Blakely,” the voice answered in a clipped tone.
“Doctor, I don’t know if you remember me, but this is Ben Darnell. I’m a lawyer in West Virginia that worked with you on a couple of medical malpractice cases a few years ago.”
“Ben Darnell! How the hell have you been? We kicked their ass in that last case, didn’t we? Biggest crock I’ve ever heard. That plaintiff’s lawyer was about the dumbest SOB I’ve ever run up against. He really thought he had a case. What a jerk. How long was the jury out? Ten minutes, at most? Made monkeys out of them. I bet that guy won’t ever show his face in a courtroom again.”
The doctor paused to take a breath and continued. “But you probably didn’t call to reminisce about old victories. I bet you’ve been enlisted to defend another rotten case brought by some slimy lawyer against a poor doc just trying to do his best, huh?”
“Well-ll,” Darnell drawled. “Not actually.”
“Don’t tell me you need my professional services for some neurological problem of your own.”
“Dr. Blakely, I recently left my law firm. I’m now on my own, and I’m probably not going to be doing any more malpractice defense work.”
“Then what can I do for you, Ben?” asked a now skeptical doctor.
“I have an interesting case involving a young neurosurgeon. An aneurysm surgery gone bad. My client’s in terrible shape. Can’t walk, talk, take care of himself …”
“And you want me to testify against another neurosurgeon?” Blakely interrupted.
“I just want you to take a look at the chart, Doctor. I don’t know whether there’s anything there or not. I don’t want to sue a doctor who wasn’t negligent. We both know that happens too often. I just need a highly qualified neurosurgeon, such as you, to tell me whether the doctor violated the standard of care and to testify for me if you find it happened. I don’t have the knowledge or expertise to make that call.”
“Ben, I’ve never testified against one of my own. We’re a tight knit group. We see each other at conferences. We’re supportive of each other. We share war stories about being sued, and God knows we all get sued at one time or another. Even I was sued once. The judge threw it out. Said it was garbage. Pissed me off though. I had better things to do with my time than sit there while some clueless lawyer fired inane questions at me for hours.”
The doctor paused for a breath, giving Darnell a chance to interject.
“Doctor, I’m only asking you to look at it. I’ll pay you whatever your hourly rate is. I’ll respect your opinion. I’ll make you a deal. If you agree to review the case and tell me there’s no case, that will be the end of it. No second opinions, and no tilting at windmills. You have my word. You tell me I have no case, and I will send the clients on their way.”
Darnell held his breath and waited. The pregnant pause in the conversation was deafening in its silence.
“Oh, hell,” the doctor sighed. “I like you, Ben. You’re a good lawyer. Send me the damn chart. I’ll take a look, but I have to tell you, unless my fellow neurosurgeon really screwed up badly, I won’t be inclined to get involved. Send me a check for ten thousand, too. Nonrefundable retainer. I don’t come cheap, if you recall. Seven hundred fifty an hour plus expenses. If I travel, I travel first class on your dime. If I do testify, it’s ten thousand per diem for deposition and trial. And I’m holding you to your promise that if I give you a thumbs down, you’ll ditch the case. You okay with that?”
Darnell swallowed hard.
“Thanks, doctor. That’ll be fine. I’ll have the chart to you right away.”
“Good,” said Blakely. “By the way, I guess I should have asked you. Who’s the neurosurgeon? If I’ve had him as a student or have had patients referred to me by him, I’m not inclined to get involved, no matter how bad he may have screwed up. And I might add, I’m using the masculine here not to be politically incorrect. I’m just assuming it’s a male doc. Most neurosurgeons are.”
“Yeah,” Darnell began. “The doctor’s a guy. Name’s Ancil Montgomery. Went to med school in Ohio and just finished neurosurgical residency in St. Louis, so I suppose you don’t have that kind of conflict. Since he’s only been out on his own for a short while, I doubt he would have referred any cases to you.”
“That’s good. Never heard of him. What was the location of the aneurysm, by the way?”
“There were two of them, both on the internal carotid. One was a paraclinoid aneurysm, and it was bilobulated. One of the lobes was under the clinoid process. The other was near the takeoff to the posterior communicating artery.”
Blakely whistled into the phone.
“That paraclinoid is a tough one, especially for a rookie. I didn’t take care of one of those by myself for years after I finished training, at least not without an experienced hand scrubbing in with me. Unless it’s a life-threatening emergency and no one else is around to take care of it, those typically are left for an experienced neurosurgeon to tackle. Tricky stuff. How big’s the hospital? How many aneurysm surgeries do they average a year?”
“Couple of hundred beds. I don’t have any idea how many they do, but I doubt it’s many.”
“Send it up. I’ll probably have more questions once I see the chart, but you’ve got my attention,” said the doctor. “I want you to understand that I won’t get involved in this unless I feel strongly that this guy committed malpractice. I know I’ll get heat from my colleagues if I go against one of my own.”
“I understand completely. I’ll get you the chart right away.”
“And don’t forget my check,” Blakely barked.
“Absolutely. It’s in the mail. Bye, and thanks.”
Darnell rocked back in his chair and clasped his hands behind his head. He felt exhilarated that the doctor had agreed to review Gunther’s case, but he also felt a hollowness in the pit of his stomach. He was about to make a substantial financial commitment with no assurances of ever getting his money back.
Ten thousand dollars! And that’s just the start if Blakely says I have a case.
Darnell felt alone and uncertain of his future in the practice of law. For years, he had the security and comfort of knowing he was surrounded by many partners with whom he could strategize, a slew of associates to do his bidding, and a support staff of secretaries, paralegals, investigators, and runners. He also knew that with the reputation of Darnell-Smyth there would always be a steady stream of cases from insurance companies it represented and that from these cases a steady stream of fees would be generated. He never worried about from where his next meal would come.
Now he didn’t even have a secretary to perform his typing let alone have a war chest of money to finance cases and pay the rent and other overhead. All he had was one potentially decent case—Joe Gunther’s.
What the hell did you get yourself into, smart guy? You let your temper get the best of you, and you burned your bridges. Face it, Darnell, you need help.
Darnell searched his memory, thinking of plaintiffs’ attorneys in his hometown for whom he had enough respect and confidence to ask to join him in the case but was having trouble coming up with names.
He knew that he could not call on one of his fellow defense lawyers to assist him. That would not be acceptable to their firms who were financially dependent upon insurance company money to pay their fees. And most of the local plaintiff lawyers with whom he had butted heads in medical malpractice cases had proven, in Darnell’s opinion, to be lazy, incompetent, dishonest, or all of the above. There were some young, bright, aggressive lawyers in town, but they were for the most part inexperienced in medical malpractice work. More importantly, few would have the resources to help him finance the case.
One name, however, did come to mind—a lawyer against whom Darnell had tried a couple of malpractice cases, Darryl Ames. Although Darnell had beaten him on both occasions, Ames had proven a worthy advocate and a competent, hard-nosed opponent. While tough, Ames had maintained a gentlemanly demeanor throughout the process, and Darnell felt he had always been above-board and a straight shooter. Darnell knew that Ames maintained a good reputation in the plaintiffs’ bar and that he had a tremendous amount of trial experience. He won many large jury verdicts and was reputed to be the most prosperous plaintiffs’ lawyer in the city. Certainly, he would have the financial resources that Darnell would need to carry the case through to conclusion. Satisfied with his analysis, Darnell called Ames’s office and made an appointment to see him.
“So, what brings you here?” Ames asked over his shoulder as he led Darnell into his large and well-appointed office. “Have a seat, Ben.”
