Preferential Treatment, page 18
Benjamin Franklin Darnell
Benjamin Franklin Darnell, Esq.
Pc: Mary A. Gunther
Jack Fabian, Esq.
“Goddamnit!” Montgomery shouted.
Montgomery’s receptionist burst into the room upon hearing the loud, uncharacteristic cursing blaring from her boss’s office. “Is there something wrong, Doctor?”
“Something wrong? You’re goddamned right there’s something wrong!” The doctor’s face was crimson with rage. The receptionist cringed and backed away. “Some slimy, shyster lawyer is going to sue me for malpractice! That’s what’s wrong!”
Montgomery’s employee retreated toward the exit. “Sorry, Doctor,” she said bowing out of the room.
Montgomery crumpled the Notice of Claim into a ball and threw it against the wall. He had been warned that it was inevitable that a disgruntled patient would sue him during his career. The words he recollected were, “It’s going to happen. Goes with the territory.” While Montgomery realized that there was always a risk of that happening, especially in a high-risk specialty like neurosurgery, he never dreamed it would happen within his first year of practice, let alone his first surgical case.
He drew in a deep breath and tried to relax. You’re not the first, and you won’t be the last doctor to get one of these little love letters. Calm down.
Attached to the cover letter was a document: Certificate of Merit of Robert Edward Blakely, M.D. He studied the document, and his heart suddenly stood still. Robert Blakely. I know that name. I’ve read some of his articles that were published in several neurosurgical periodicals. I’ve even attended a few neurosurgical conferences where he spoke to the group. The guy’s a damn star if it’s the same Robert Blakely.
Along with the letter and certificate, there was another document titled Curriculum Vitae of Robert Edward Blakely, M.D. Montgomery scanned the first page and realized, to his shock and horror, that the Robert Blakely, M.D., who was teaming up with the slime-bag lawyer suing him was, in fact, the same well-known neurosurgeon that he had feared it would be.
I’m screwed, Montgomery thought. But what did I do? What didn’t I do? Sure, Joseph Gunther didn’t have an optimal result in his surgery, but I did the best anyone could have done. He just had a bad result. I saved his life!
Montgomery re-read Certificate of Merit. It sounds like a damn indictment. I’d better contact my malpractice insurance carrier. He reached into his desk file drawer, pulled out a folder that bore on its tab the inscription—American Physician Indemnity Corporation, and called.
“American Physician Indemnity Corporation. How may I direct your call?”
“I’m a doctor,” a shaken a Montgomery began. “I just got notice that I’m getting sued. You’re my malpractice insurance carrier, and I need to report the claim.”
“One moment, please,” the insurance company’s receptionist said. “I’ll put you over to one of our representatives.”
After answering an interminable number of questions from the APIC telephone adjuster, an impatient Montgomery asked, “What’s our next step?”
“The instructions for reporting the claim are located on page ten of your policy under the heading ‘Reporting Your Claim.’ Here’s what we need you to do, Doctor. We need you to send us the original of all the documents and correspondence you received. Please make sure you make a copy for yourself. Next, after one of our adjusters reviews the claim, we will contact you for an interview, and we will take your statement. With your assistance we’ll gather all relevant medical documentation including any office records, hospital charts, radiographic evidence, and any other pertinent documents. Thereafter, we’ll refer your case to a lawyer who’s on our panel of attorneys. I’m sure he or she will be contacting you shortly to set up a meeting to discuss your case.”
“They’ve got a very well-credentialed doctor that, evidently, is helping with their case. His name is Robert Blakely from Burlington, Vermont. Will I get someone to work with us on my side?” Montgomery pleaded.
“I’m sure in due time your lawyer, with your assistance, will find an expert neurosurgeon of equal or better credentials to work with you.”
“And this lawyer who’s going to represent me, is it someone who knows what he’s doing?”
The adjuster removed the telephone receiver from his ear and looked at it in disbelief. Are you serious? No, we’ll hang you out to dry with some knucklehead that has no idea what he’s doing, and we’ll fork over huge sums of cash to some ambulance-chasing lawyer. That’s why we’re in business.
“Of course, Doctor, we will provide you with one of our lawyers that will have vast experience in handling these kinds of cases. We here at APIC pride ourselves in retaining only the best attorneys in the business. Any other questions at this time?”
“No,” answered Montgomery. “I think I understand what I need to do. I’ll send the papers to you this afternoon. FedEx Overnight.”
“That will be fine. We’ll be on the lookout for them and will be in touch with you within five business days after we receive them. Good day.”
The following morning, Montgomery’s documents arrived at the regional office of APIC in Pittsburgh, PA. After preliminary review of the contents of the package by a screening adjuster, the file was assigned to the insurance adjuster in charge of the North Central Region of the company. All physician policy holders of APIC medical malpractice insurance who practiced in West Virginia were in APIC’s North Central Region for claims handling purposes. The adjuster who managed these matters in the region was Susan Pavlik, a veteran at APIC for 25 years, a former registered nurse, and one of the most respected and admired adjusters handling medical negligence insurance claims in the company.
An intra-office courier knocked politely on Pavlik’s office door. “Come in,” she shouted. The courier entered bearing the FedEx envelope.
“What fresh hell do you have for me today, Freddie?”
“No news is bad news,” chirped the courier. “New stuff keeps the lights on.”
Pavlik reached for the envelope and thanked Freddie for the delivery. She pulled the contents from the envelope and began to read. As the adjuster scanned the Notice of Claim, her eyes shot to the signature line at the bottom of the page. Ben Darnell? This can’t be. When did Darnell-Smyth start filing plaintiff’s med mal cases? Maybe it’s another Benjamin Darnell.
The adjuster then zeroed in on the entry at the bottom of the page: Jack Fabian, Esq., had been copied on the Notice. Pavlik could taste a hint of bile in the back of her throat. Not that son-of-a-bitch again, she thought. I’d hoped I had heard the last of him after the Hanratty case.
Pavlik wheeled around in her chair, reached for the telephone, and punched in a number. So frequent were her conversations with members of the law firm of Darnell-Smyth that she knew the number by memory.
“Darnell, Smyth, Woodall & Coombs. How may I direct your call?”
“Jeffrey Woodall,” the insurance adjuster demanded.
“And who may I say is calling, please,” said the receptionist.
“Susan Pavlik. American Physicians Indemnity Corporation.”
Pavlik waited impatiently for Woodall to be connected.
“Hello, Susan,” said Woodall.
“I’m going to skip the formalities. I just got a notice of claim on a med mal case coming out of Abbington. A neurosurgeon who’s accused of screwing up a guy by botching an aneurysm surgery at St. John’s.”
“Send it over. We’ll be glad to handle it for you,” Woodall interrupted.
“Let me finish, please. You may have a conflict of interest since one of your lawyers was the one who sent the claim, unless there is more than one Benjamin Franklin Darnell who practices law in Abbington.”
“No, he’s the only one I know of, but there’s no conflict.”
“Why not? How can one lawyer in a firm file a claim for a plaintiff and another one from the same firm represent the defendant? I’m no lawyer, but I know an obvious conflict when I see one.”
“Take it easy, Susan. Darnell’s gone. Quit the firm. Got his nose out of joint when the litigation section of the firm told him he’d have to take a break from defending APIC’s med mal cases after he screwed up the Hanratty case and pissed off one of our best clients—that being your company. Left in a huff. I didn’t even know he was still practicing.”
“Wow,” said Pavlik, relaxing somewhat. “I hadn’t heard. It’s really too bad. I know he had a rough time in the end with his expert in that case, but it wouldn’t be the first time an expert had gone south on a case. Ben’s a good lawyer. He’d always done right by APIC, at least until Hanratty. I know I was pissed at the time, as was the CEO, but I hope we weren’t the cause of your losing such a fine attorney.”
Woodall scowled and swallowed hard. He hated to hear the accolades for Darnell coming from the representative of his client, and he despised the fact that she was lamenting his loss.
“Well, I guess he’s the enemy now,” Woodall retorted. “So do you want us to take a look at what you’ve got?”
“Yeah, I’ll send it over,” said Pavlik and then paused. “He’s apparently teamed up with a guy named Jack Fabian. He’s the one that nicked us in Hanratty. He’s a good lawyer, too. Doesn’t have the class that Ben has, but together they could make a formidable team. They both know their way around the courtroom and a med mal case.”
“Don’t worry, so do we. We’ll handle it,” Woodall sniffed.
Pavlik was not totally mollified. “Isn’t there some conflict of interest here anyway? After all, Darnell represented APIC for years. We were his client. He knows how we operate. He knows how I think and look at cases for the company. Can’t we do something to get him off the case like raising the conflict and ask that he be disqualified?” Pavlik pleaded. “Hell, if we get him kicked off and he’s conferred with Fabian, maybe we can get rid of them both.”
“It’s a thought,” a skeptical Woodall replied with little conviction. He didn’t want to argue with Pavlik and potentially lose a fee generating case. “We’ll look into it.”
“You do that. In the meantime, I’ll send over the file and direct it to your attention.” Pavlik stopped and thought for a minute. “By the way, the name of the plaintiff is a guy by the name of Joseph Gunther. I’m assuming the other person Darnell copied was someone related to him. He copied a woman by the name of Mary A. Gunther. It could be his wife. Didn’t Ben have a secretary by the same name?”
“Jesus,” Woodall spat, exhaling loudly. “We had a secretary with the last name of Gunther that had a sick husband who’s been off for a while taking care of him. She may still be on leave. I don’t know her husband’s name, and I don’t know why he was so sick, but it very well could be our secretary who’s getting ready to sue your doctor.”
“This just gets curiouser and curiouser,” Pavlik groaned. “Is it going to be a problem for your firm if it’s her husband that’s suing? Is there some kind of conflict there?”
Conflicts are for the other guy, thought Woodall. I’ve never seen a conflict I couldn’t get around when a fee was involved.
“No, I don’t see a problem,” Woodall stated.
“Good. I’ll send the file over today. When you get it and have had a chance to look it over, give me a call. Thanks.”
“Will do. And thank you, Susan. We look forward to representing your doctor. Bye.”
Woodall hit the disconnect button and immediately dialed the firm’s office manager.
“Hello, this is Judy Facemier.”
“Hi, Judy. This is Jeff Woodall. I’ve got a quick personnel question.”
“Shoot,” Facemier said.
“Mary A. Gunther. Does that name ring a bell?”
“Sure does. Was one of Ben Darnell’s secretaries. She’s off now on leave taking care of a sick husband. Why?”
“Well, we just picked up an APIC med mal case where a guy by the name of Joseph Gunther has filed a Notice of Claim against one of their insureds. His wife is named Mary A. Gunther. Would you have Ms. Gunther’s personnel file handy?”
After a brief pause Facemeir exclaimed, “Got it! And it appears that our secretary just happens to have a husband named Joseph Gunther.”
“Great. Just great,” Woodall moaned. He thought for a moment and then declared, “Shit can her. Tell her she’s fired. Make up any excuse you want, but get rid of her. I don’t want to lose this case!”
“No problem. I’ll just write to her and tell her we had to replace her due to her prolonged absence. I’ll get it out in the mail this afternoon,” promised Facemeir.
“No. Have it delivered to her by courier today,” said Woodall. “We won’t get the file from APIC until tomorrow and we don’t want anybody crying about a conflict on down the line. If we can her before we get the file, I think we’re okay.”
“On it, Boss.”
CHAPTER 17
On Monday, May 16, 2005, thirty-two days after the service of Gunther’s Notice of Claim, Darnell had not received any reply from the doctor or his representative. Having anticipated this, Darnell had prepared the complaint that would formally begin the case. He checked his calendar against the return receipt of certified mail that had been delivered to the doctor. Satisfied that the required thirty-day waiting period had been exhausted, he stuffed the original and four copies of the complaint and a civil case information statement into his briefcase. On his way to the Nobel County courthouse, the bright, spring morning in Abbington was a welcome sight to Darnell who had spent the past five months of a typically grim winter in the dingy West Virginia town.
One block from the courthouse, Darnell grabbed his cell phone and speed-dialed his co-counsel.
“Jack. Ben.”
“Hi, Ben, are we filing the case today?”
“Yeah, I’m on my way right now. Somebody’s going to have a bad day when the sheriff comes knocking on his door.”
“Won’t be the good doctor’s best day of his life, I would imagine. Any idea who our judge will be?” Fabian asked.
“Any one of two. It’s the luck of the draw here. The cases are assigned on an alternating basis,” said Darnell.
“Any preferences as to whom we get?”
“I know there’s one we don’t want,” Darnell replied. “Judge Rowina Grant. She’s chief judge of the circuit. She could be a problem.”
“Why’s that?”
“She’s a former partner in one of my old competitors in town, Stabler-Grant.” Darnell explained. “Hung it up at her firm after twenty-six years of a very successful insurance defense practice to run for office. Really despises plaintiff’s lawyers. Loves to mess with them. It’s almost a blood sport for her. Bends over backwards to help out the defense bar. She’s smart as a whip and knows how to screw you and get away with it. I used to love to get her assigned to my cases when I was defending them.”
“I’ll bet you did,” Fabian laughed. “Any way to avoid her?”
“Unfortunately, there’s no sure-fire way. The circuit clerk is under strict orders not to allow lawyers to judge shop. Like I said, it’s the luck of the draw, and we’ve got an even chance of getting her.”
“What’s the other one like?”
“Dumb as a stump, but a nice guy that tries to be fair. Gets reversed on appeal a lot since he’s no scholar of the law. I’d take him over Grant any day as counsel for a plaintiff.”
“Come on, Ben. Can’t you turn on the charm and get that clerk to steer us away from Grant?” Fabian prodded.
“I’d kinda like to keep my license, and I’m pretty sure the clerk would like to keep her job. No thank you on that, Jack. No way I’m going to go there.”
“Can’t blame a guy for trying,” Fabian quipped.
“Well, I’m about to the courthouse. I’ll let you know who we get,” Darnell said.
“Good luck and don’t fuck it up and get the good Judge Rowina Grant.”
Darnell ignored the gibe. “Bye, Jack. I’ll talk to you in a little bit.”
“Ciao.”
Darnell breezed into the Circuit Clerk’s office and was greeted by a friendly face stationed behind a chest-high counter where legal documents were deposited for filing with the court. The young woman, a deputy clerk, warmly greeted Darnell as he approached.
“Well, goodness gracious, Mr. Darnell, how’s my favorite defense attorney? It’s been a coon’s age since I last saw you in here,” she said in her typical southern West Virginia twang.
“I’m just fine, Jenny, but I can’t claim to be your favorite defense attorney anymore.”
The clerk frowned at Darnell and gave him a puzzled look. “I’m sorry? Why not?”
“You’re looking Ben Darnell, plaintiffs’ lawyer extraordinaire,” Darnell said bowing slightly. “Don’t ask me what happened. It’s a long story. Just say I’m on my own now.”
“Okay,” Jenny drawled. Pausing for a moment, the frown lifted and turned to a broad smile. “You’re now my favorite plaintiffs’ lawyer.”
Darnell blushed. “All right young lady. Let’s skip any more niceties and do our jobs. I’ve got a complaint to file, and you’re going to clock it in for me, okay?”
“Who you suin’?” the clerk asked as she snatched the papers from Darnell and perused the case caption. “Looks like a med mal case. Never heard of the doctor, though. Must be new.”
“Yeah, Nosey.” Darnell joked with a wide smile. “It is a med mal case, and yes, he’s new. Now can I please have my copies of this so I can get back to work?”
“Sure thing,” Jenny said. She thrust the first of five copies of the complaint into the time clock. The clock produced a solid thud as it stamped the original. Four more thuds followed and she handed three copies to Darnell.
“Want to know who your judge is?” asked the clerk.
