Preferential Treatment, page 17
The taxi pulled up in front of 1563 Main. “Here ya’ go, Buddy. That’ll be $7.50,” said the driver. Fabian pulled a $10 bill from his wallet. “Keep the change.”
Fabian stepped onto the sidewalk and felt a cold blast of Arctic-like air slap him in the face. He turned up the collar of his jacket and zipped it to the hilt. He trotted to the front door of Darnell’s building, scanned the darkening sky, scowled, and ducked inside. The warmth of the entryway felt good. He shunned the elevator, trudged up the stairs to the second floor, and found Suite 2300, Ben Darnell’s office.
Fabian entered the reception area. Still no secretary, he thought. “Ben?” Fabian yelled.
“Yeah. Back here. Come on back. Welcome to the luxurious office of Darnell Law Firm.” Fabian charged into Darnell’s inner sanctum. “Good to see you, Jack. You look tan and rested. I’m jealous!”
“Eat your heart out,” Fabian grasped Darnell’s outstretched hand and shook it vigorously. “Good to be seen. You look white and pasty. You ought to try out sunny St. Martin sometime. Good for the body and soul. Bad for the liver, unfortunately. So, we’ve got us a case, huh?”
“Looks that way, assuming the good Dr. Blakely hangs in there with us. If he does, we’ve got the ammunition to get the case to a jury or make a good argument for a settlement. Have a seat.”
“A settlement?” Fabian took a seat opposite Darnell. “Come on, Ben. You know these goddamned insurance companies don’t like to settle these things. Especially with the new restrictions the legislature put on victims and us lawyers. You were on the other side. Have you forgotten that fast, or is this new-found white hat you’re now wearing squeezing your brain a little too tightly? My take on this is to just get ready to go to trial. Assume it’s not going to settle. If there’s going to be any settlement, it’ll only happen if they think we’re going to kick their asses.”
“Yeah, we’re probably going to have a dogfight on our hands. I know the old adage: If you work up a case as if you’re going to try to settle it, you’ll end up trying it every time. It’s a recipe for disaster for a plaintiff. I’ve seen it happen to too many plaintiffs’ lawyers. It’s easy pickins for the defense guys. You know how it works. Lead the poor plaintiff’s lawyer into thinking they are going to cave in at the last minute, and then little or nothing is offered. Totally blind sides him and he’s forced to settle or go into trial totally unprepared. I’ve done it so many times to you guys it’s not even funny.”
“Prick. I’d been on the receiving end of that ploy when I was a rookie. Doesn’t take long to learn that lesson. Anyway, we’re on the same page. So, fill me in on the details. And you’ll forgive me if I have to take a break and check the weather. I guess there’s a hell of a storm heading up from down south and I’d rather not have to end up being stuck here in your beautiful city with a plane covered in snow.”
“If you’ve got time to spare, go by air, I always say,” Darnell laughed. “I’ll give you the Readers Digest version. We can get into the details later. I’d like to talk about division of labor while you’re here if you’ve got the time.”
“That’s fine,” Fabian agreed. “I’ve been thinking about how to best divvy up the case. First, give me the bumper sticker version of Blakely’s theories of liability.”
Darnell ticked off each facet of Gunther’s care that Blakely had criticized. After Darnell had successfully countered each of Fabian’s skeptical challenges to each theory, Fabian was satisfied that they might, in fact, have a case.
“Sounds good. Any other deviations?” Fabian asked.
“Yeah. There are a few others that are less important. What I think is good for the case is the number of things that Blakely picked up on, coupled with the experience factor. It makes the case sexy. I think it could be a winner.”
“Well, what you are telling me is certainly better than a sharp stick in the eye,” Fabian quipped. “But you and I both know how many jurors think their docs walk on water. We need more than sexy. We’ve got to knock the defendant’s and his attorneys’ dicks in the dirt.”
“We’re both good lawyers, Jack. We’ve got good salt-of-the-earth clients that have a father and husband who’s really messed up. We’ve got a young buck doctor who obviously got in over his head. I’m comfortable with it. I think once you get your head around the case, you will be, too.”
“I’d like to meet the clients sometime soon,” said Fabian. “They’ve said it’s okay for me to work with you on the case, haven’t they?”
“I’ll arrange a meeting at everybody’s earliest mutual convenience. And yes, I got the okay just a little while ago,” Darnell said. “They trust me. Did I tell you that Mary, Joe’s wife, was my secretary before I left the old firm?”
“Yeah. I think I remember your mentioning it,” said Fabian. He paused, turned around in his chair and motioned toward the front office. “Speaking of secretaries, are you ever going to get one, or are you going to have to type your own stuff?”
“It’s on my list of things to do. I’ve got a few resumes. Nobody looks too good on paper. My wife’s offered to fill in if I get in a bind. She’s a pretty good typist,” Darnell said. He pointed to Judy Darnell’s picture framed on his credenza and said, “Not too bad looking either.”
Fabian nodded but said nothing. All he could think was how awful it would be to have to spend his nights and days with the woman he was married to.
“Are you ready to talk about division of labor?” Darnell asked Fabian.
“Yeah, I’m ready. All I can say is I’ll do anything on the case but the proof of damages part. I hate dealing with that. Life care planners, economists, vocational experts, architects. The whole lot of them—boring drudgery. I like the medicine.”
“I hear what you’re saying, Jack, but I’ve already studied the medicine and have the relationship with our expert. Don’t you think it would be more logical for me to handle the meds and you do the damages?”
“I’m a quick study,” Fabian shot back. “I’ll get to know the expert. You can make the introduction when we go to meet him. I know how to handle these guys and get on their good side. I’ve been working with medical experts for years. Here’s what I propose. First, since you’ve talked to the expert, you handle the certificate of merit that we’ll have to file to get the ball rolling. You draft the complaint, too. I’ll handle the depositions of Montgomery and his operating team. If we go to trial, which we most likely will, I’ll handle their cross. I’ll also depose the neurosurgery expert that the defense puts up and cross him at trial. I’ll do the opening statement and we can split close if you like. We’ll have to make that decision on down the line. We’ll need a day-in-the-life film of Mr. Gunther, and I have a guy that does a nice job on those. I’ll handle that, too. I’ll also do the jury questionnaire. Since we’re going to be in your bailiwick, it’s probably best for you to do the jury research and handle the actual questioning of the jurors on voir dire. You’ll know the folks better than I will, and you might even find us a ringer or two, if we’re lucky.
“You can put together the damage experts—those folks I hate to deal with but which we both know are necessary to turn this case into dollars. If you need the names of some folks that know how to post big numbers, I’ve got a whole stable of them. You’ve probably seen some of them from the defense side. You’ve probably cross-examined some of them so you know their strengths and weaknesses. You work with them on the comprehensive damage picture. And you deal with jury instructions when the time comes. On the discovery side other than depositions, you do the interrogatories, requests for production of documents, and requests for admissions. You answer the discovery requests served on us. We can divvy up the motions and other stuff that we throw at them and they, in turn, throw at us, as the need arises.”
Fabian reached for his flight case and placed it in his lap. He looked to Darnell as if he were ready to leave. All discussions were at an end as far as Fabian was concerned.
“Sounds like you’ve given this a lot of thought in advance.”
“Well,” Fabian drawled, “you know I flew down here. Took about 45 minutes, and you know what they say—flying is defined as hours of sheer boredom interspersed with moments of stark terror. I put my 45 minutes of boredom to good use.”
“It seems like a fair distribution of the load, but I hate answering interrogatories probably more than you hate dealing with damage experts,” Darnell said. “I’ll go along with your plan, with the one exception. You answer the interrogatories. What do you think?”
“You beat me down again,” Fabian laughed. “I think we’ve covered about as much territory as we can today, and yes, I’ll handle the goddamned interrogatories.” Fabian looked at his watch. “I’ve really got to get back to the airport. Mind if I have a minute to call Flight Service to get a weather briefing and file a flight plan?”
“Yeah. Go ahead. I’ll make you a copy of my notes I took from my phone conference with Blakely.”
Fabian punched in the number for the FAA Flight Service Station and waited for a briefer to answer. Satisfied that he was going to beat the impending storm, he filed his flight plan and called the taxi driver who had brought him to Darnell’s office.
Darnell reentered his office carrying a stack of paper and handed it to Fabian. “I hope you can read these notes. They’ll make more sense after you look over the certificate of merit I’m sending to Dr. Blakely. In the meantime, I took the liberty to make you a copy of some articles from my preliminary research I did on aneurysm surgery in general and paraclinoid aneurysm surgery in particular. It ought to be a good starting point for you to get up to speed on the medicine since that is your self-appointed job. I suspect this will only scratch the surface of what you’re going to be reading over the next few months.”
Fabian looked at the stack of notes and articles and feigned a disingenuous scowl. “Maybe I ought to reconsider the division of labor.”
“Not a chance, Jack. Not a chance,” Darnell replied. “How’s the storm looking for you?”
“Looks like I’m going to be fine, but I’d better get my ass out of here asap,” Fabian said as he zipped up his jacket and grabbed his flight bag. “You let me know when I get to meet the clients. Probably ought to meet Mr. Gunther, too.”
“I’ll do that, although you’re really not going to meet Joe. It’ll be more like you’ll see him,” Darnell said. “Hell of a way to make a living—capitalizing on someone else’s misery, huh?”
Fabian shrugged noncommittally. “See you, Ben. Let’s bring this thing home.”
CHAPTER 15
After six additional weeks of care and therapy at a local skilled nursing facility close to his home, Joe was released. His attending neurologist had determined that the need for inpatient skilled nursing care had been exhausted and any additional daily care could be done either by daily in-home assistance or by a family member. Of course, periodic so-called occupational therapy, speech therapy, and physical therapy all provided by trained professionals was going to be an ongoing process.
Mary had attended many of Joe’s sessions at the skilled nursing facility and had learned what was needed to take care of most of the things routinely required for an individual in her husband’s condition. She knew it was going to be difficult and tiring, but she was committed to the man she had known and loved for all of her adolescent and adult life.
Mary finished preparing her husband’s breakfast of yogurt, strawberries, and blueberries and carried it into the den where Joe spent the majority of his waking hours when not occupied by his therapies. He stared blankly at the television as Regis and Kelly bantered back and forth, spewing their usual, nonsensical nothingness. Mary looked at him and felt an engulfing wave of sorrow wash over her. She took a deep breath and forced a smile. She always wanted to be upbeat in his presence. She was certain that he could sense her pain, and was determined to hide it from him at all cost, no matter how much it hurt inside.
“Hi, Dear,” Mary sang. “I bet you’re hungry.”
Joe heard the sound of Mary’s voice. He looked in the direction of the sound but did not react or show a glimmer of recognition. Mary scurried to his side, pulled up a chair, and began to feed him. It was going to be a long, tough road with nothing happy at the road’s end. For better or for worse. For better or for worse. In sickness and in…. Mary Gunther knew there was not going to be any “health” or “better” in Joe’s future.
She finished feeding Joe and gently wiped his mouth and chin with a moist towelette. “I’m going to go out and get the mail, Sweetie. After I do the dishes, I’ll come in and keep you company.” She felt compelled to keep talking to her husband even though she knew he didn’t comprehend. Someday, somehow, I’m going to break through, and he’s going answer me. I just know it.
Mary dropped Joe’s breakfast bowl in the sink and exited her house through the kitchen door. She marched to the mailbox at the end of her driveway and opened it. Reaching in she retrieved two pieces of junk mail and one other letter. The letter’s return address in the upper left-hand corner read:
Center Health Management System
142 Main Street
Abbington, West Virginia 25723
The letter was addressed to “Mr. Joseph M. Gunther, 1425 Cedar Avenue, Abbington, West Virginia 25723.”
Mary carried the mail back to the kitchen and threw the junk mail in the trash can and the letter on the table. She surmised that it was more gobbledygook from the insurance company about explanation of benefits for Joe’s care that, to Mary’s thinking, never explained anything. It just confused her. I’ll leave it for Samantha to look at, thought Mary as she began to wash the morning dishes.
Predictably at 5:30 p.m., Samantha Hunter entered her parents’ house through the kitchen door. Mary was at the sink peeling potatoes.
“Hi, Mom. How’s dad?” Samantha asked.
“Oh, he’s in the den watching a show,” Mary said. “Why don’t you go in and say ‘Hi,’” said Mary. “Oh, and by the way, we got something from the insurance company. It’s on the table. When you get a chance, do you mind looking at it? I never understand that stuff.”
“Okay. Let me say ‘hi’ to dad first, and I’ll take a look,” said Samantha.
A few minutes later, Samantha emerged from her brief encounter with her father. As usual, seeing him made her sad and upset. “Okay, Mom. Let’s have a look at this letter you’re talking about.” Samantha scooped up the letter from the kitchen table and read it. As she read the letter, she scowled and shook her head.
“What’s it about?” Mary asked.
“Jesus, Mom,” Samantha scowled. “As if you guys don’t have enough trouble already, the HMO is telling you that since dad can’t work anymore and has been terminated by his company, your health insurance is going to be cancelled unless you stay on the insurance under COBRA. Then you can only stay on it for 18 months. After that, you guys are on your own. They say it will cost fifteen hundred and fifty-eight dollars per month if you opt for COBRA.”
Mary staggered to a chair at the kitchen table and steadied herself. “We can’t pay that, Samantha! I’m not going to be working, and dad obviously can’t, so how do we pay for the insurance?” Mary began to cry.
Samantha attempted to console her. “We’ll talk to Mr. Darnell.” Samantha stroked Mary’s head. “I know one damn thing. They better get that doctor sued, and quick!”
CHAPTER 16
Dr. Ancil Montgomery arrived at his office promptly at 9:00 a.m., the same time he would typically begin his day when he wasn’t performing surgery. He cheerfully greeted his receptionist, breezed by her, and entered his private office. A stack of mail on the corner of his desk contained the usual suspects—medical journals, advertisements, solicitations for donations, and the Wall Street Journal. Strikingly unusual, however, was a large, thick envelope at the bottom of the stack with the remnants of what Montgomery immediately recognized as a return receipt that had obviously been attached to it. The name on the return address on the envelope was ominous—Darnell Law Firm.
Montgomery sat in his chair and slowly opened the envelope. He knew nothing that came from a lawyer via certified mail could contain good news. He pulled the letter from the envelope, unfolded the contents, and began to read.
April 13, 2005
Ancil Joseph Montgomery, M.D.
822 Medical Circle Drive via Certified Mail
Abbington, West Virginia 25723
Re: Notice of Claim of Joseph Gunther
Dear Dr. Montgomery:
Pursuant to W. Va. Code §55-7B-6, you are hereby notified that Joseph Gunther, one of your former patients, has a claim for professional liability against you. Attached to this Notice you will find a Screening Certificate of Merit which sets forth Mr. Gunther’s theories of liability, which theories are incorporated in this Notice by reference. There are no other health care providers or facilities to whom this Notice will be sent.
If you plan to respond to this Notice, your response should be accomplished within 30 days of your receipt of the Notice. Please forward this Notice along with the attached Certificate of Merit to your insurance carrier and/or your attorney as soon as possible.
Also be advised that 30 days after your receipt of this Notice, it is our intention to file a medical professional liability action against you the Circuit Court of Nobel County, West Virginia.
We trust that your medical liability insurance carrier or your attorney will advise you as to any other rights or remedies to which you are entitled under the laws of the State of West Virginia.
Sincerely,
