Preferential Treatment, page 24
“Can you tell me why you were reluctant to use the operating microscope?”
“I told him I was more comfortable with the loupes. That’s what I always used. That’s how I was trained.”
“Did he protest or urge you to use the operating microscope?”
“No to both of your questions, as far as I can recall.”
“Doctor Hall, did the operating microscope have two heads for use by not only the operating surgeon but also the assistant?”
“Yes, it did.”
“Do you believe the operating microscope would have been of any benefit to you as an assistant?”
“Objection. Speculation,” said Cohen.
“You may answer, Doctor.”
“I can’t say since I don’t use them. All I did in the surgery was to suck blood and saline from the field, especially when the brain swelled so badly. He had to amputate part of the brain that had swelled, if I remember correctly. So, I don’t see how the microscope would have helped me any, even if I felt comfortable with it.”
“Speaking about the amputation of the brain, do you recall if you participated in that?”
“No, like I said, I just manned the sucker and tried to keep the operative field clear so Dr. Montgomery could see better.”
“Do you recall how much brain tissue was removed by Dr. Montgomery when he amputated part of Mr. Gunther’s brain?”
“Seemed like about the size of an egg—maybe a little less.”
Fabian screwed is face in a noticeable wince. Neither Woodall nor Cohen outwardly reacted, but each knew this graphic description would not be a good thing for a jury to hear.
Fabian continued. “Did you agree with that maneuver?”
“No choice in the matter. It was either that or the poor man would have bled to death. It had to be done to get that swollen brain tissue out of the way so he could see the aneurysm and clip it.”
“Prior to the second aneurysm’s rupturing and causing all that swelling, was there any way that Dr. Montgomery had to gain proximal control of the bleeding in the event of a rupture?”
“Where that thing was located, at the base of the skull and part of it under the clinoid process, I imagine it would be very difficult.”
Fabian thought that now would be a good time to ask some expert opinions of the doctor.
“Doctor, are you aware of any studies, authoritative journal articles, or other scholarly publications in the field of neurosurgery that indicate that better outcomes in aneurysm surgeries occur more frequently in large neurological surgery services in large hospitals than in small community hospitals?”
“Never heard of such a thing. Depends more on the skill of the surgeon than where he hangs his hat.”
“And do you believe that the more experience in aneurysm surgeries that a neurosurgeon has the better he becomes at such surgeries?”
“Depends on the surgeon—how good he is. If he’s a bad surgeon, it doesn’t matter how many he’s done. If he keeps doing the same things over and over again, I don’t see how that makes him more likely to get better.”
Fabian felt like he was getting nowhere fast. “In light of the location of the two aneurysms in Mr. Gunther and the fact that one of the aneurysms was a paraclinoid aneurysm that was bilobulated, would you consider this surgery to be a difficult one to successfully perform?”
“They’re all difficult. That’s why so many patients die in surgery.”
“Is there anything that Dr. Montgomery did or did not do that you would have done differently?”
“I wouldn’t have taken the things on in the first place. I quit doing them a long time ago, like I said before.”
“Do you believe that if Dr. Montgomery had the ability to gain proximal control of the blood flow to the paraclinoid aneurysm immediately after it ruptured that Mr. Gunther would have had a better chance of a satisfactory outcome?”
“Hard to say. I doubt it. But that’s a ‘what if’ that couldn’t happen. It was too close to the floor of the cranium to get proximal control.”
“Have you ever heard of a procedure in the performance of these paraclinoid aneurysm surgeries where the surgeon, prior to attempting the repair of the aneurysm, makes an incision in the neck and places a ligature around the external carotid artery so that the artery and its supply of blood to the brain in the area of the aneurysm could be occluded temporarily while the aneurysm is dissected out and clipped?”
Hall rubbed his chin and closed his eyes in deep thought. He then muttered the question to himself. “I’ve heard some guys use a ligature. I’ve never done it, and I’ve never seen it done.”
“Doctor Hall, do you believe if this were done in Mr. Gunther’s case that it would have given Dr. Montgomery a better chance of gaining proximal control of blood to that aneurysm which would have given him a better opportunity to get a clip on it before there was significant bleeding?”
“Objection!” Woodall exclaimed. “Speculative. Assumes facts not in evidence. Furthermore, the doctor is not your expert.”
“Doctor, please answer my question,” Fabian sighed.
“I suppose anything’s possible.”
“Will you agree with me that if Mr. Gunther’s carotid artery had been temporarily occluded that his brain would have likely not suffered any significant ischemia since there would have been collateral circulation of blood to the brain by virtue of supply from the other three major arteries feeding blood to the brain?”
“I think I can go as far to say that, in general, the occlusion of one of the four major arteries supplying blood to the brain together with adequate blood pressure in the other three arteries possibly would be sufficient to keep the brain temporarily protected from damaging ischemia.”
“Possibly? How about probably, Doctor?”
“I’ll stick to possibly.”
Fabian checked his notes. He scanned the areas he had wanted to cover and was satisfied that he had hit most of the bases. He felt that he had gotten about as much from the neurosurgeon as he could. “I think I’ve taken enough of the doctor’s time.” Rising, he said, “If you will give me a few moments to consult with my colleague, I think I may be finished. Let’s take a 10 minute break.” Fabian headed for the door and Darnell followed.
“So, what do you think, Ben? Is there anything I missed?”
“No, I don’t think he’s going to do much damage to our case, and you got some concessions out of him. Let’s see what kind of questions Montgomery’s lawyers have, and maybe you can follow up if there’s some more areas opened up.”
“Sounds good. Let’s get back in there.”
Fabian and Darnell reentered the conference room. Cohen, Woodall, and the witness were already at their respective places. “I have no further questions of Dr. Hall at this time. Thank you, Dr. Hall. Do either of you care to inquire?”
“I do,” Cohen said with confidence. She took a long drink of water from a plastic bottle and began.
“Dr. Hall, in light of what you were asked to do during Mr. Gunther’s surgery, do you believe it was necessary to know what type of surgery you were going to assist in prior to your arrival in the O.R.?”
“Absolutely not. I was merely there to assist in providing suction in the surgical field. I’ve manned suction tubes during craniotomies for decades. Could do it with my eyes closed. No need to plan for that.”
“Thank you. Am I correct that while you were in the surgical suite with Dr. Montgomery you saw nothing that he did or did not do that would have caused or contributed to Mr. Gunther’s poor result?”
“He did all he could as far as I could tell.”
Cohen glanced at Woodall. He gave her a quick nod of approval. She appreciated the unspoken vote of confidence. “Now this ligature procedure that Mr. Fabian asked you about—is it your testimony that you have never in your career employed that technique?”
“Never. I don’t do it, and obviously Dr. Montgomery didn’t either.”
“Do you know or have you known in the past any neurological surgeons at St. John’s Hospital that employed that technique?”
“I don’t know what other neurological surgeons do or did. I can only speak for myself.”
“Very well. On another topic, was there, in your opinion, anything Dr. Montgomery could have done to get an aneurysm clip on the paraclinoid aneurysm subsequent to its second and severe rupture other than the amputation of portions of the frontal and temporal lobes of the brain to gain exposure to the lesion?”
“That was all anyone could have done.”
“And is it your belief that this procedure was a life-saving maneuver?”
“Yes, absolutely.”
“And Mr. Gunther did, in fact, survive the surgery, correct?”
“As far as I know he’s still alive.”
“Doctor Hall,” Cohen continued, “I believe you testified that all intracranial aneurysms are difficult to operate on successfully. Why do you say they are difficult?”
“They are difficult because they’re very tricky things that are prone to rupture and bleed, even in the best of hands. There’s a high morbidity and mortality rate. I don’t remember what the statistics are, but it’s high—higher than most surgeries.”
“And when you say ‘morbidity and mortality’ what do you mean?”
“Morbidity refers to a diseased state while mortality refers to death. So, if I say that there is a high morbidity rate from a particular operation, I’m referring to a bad outcome but short of death. Is that correct?”
“Yes.”
“Thank you. One last question. Is it your opinion that Mr. Gunther would have had a bad result regardless of where this surgery was performed, be it a large medical center or a community hospital such as St. John’s?”
“Yes, that’s my opinion. The poor man had a time bomb in his head, and the bomb went off before Dr. Montgomery could get it defused.”
“Thank you, Doctor. Mr. Fabian, do you have any additional questions?”
“Just a couple of follow-up questions, Doctor. Then we’ll let you out of here.”
“I’ll be eternally grateful for that.”
“I’ll bet. We talked about the nonuse of the operating microscope after your arrival at the surgical suite. First, have the morbidity and mortality statistics improved in intracranial surgeries over the past, say, forty years?”
“I’m sure they have.”
“And is it fair to say that the advent of microsurgical techniques through the use of the operating microscope by neurosurgeons has contributed to that improvement?”
“Can’t say. I like the loupes.”
“Are you aware of any advantages of using an operating microscope during these surgeries over the loupes?”
“Since I never used one during any aneurysm surgeries I performed, I can’t say.”
“Thank you, Doctor. I believe you can be excused. Ms. Cohen?”
“Yes. Thank you, Dr. Hall,” said Cohen. “Have a nice evening.”
Hall looked directly at Cohen and Woodall and ignored Fabian and Darnell. “You, too.”
“So, I guess we need to get the defendant’s deposition soon,” Fabian said to his opposing counsel. “Could you get me some dates within the next few weeks?”
Woodall bristled. “He’s a very busy neurosurgeon. I seriously doubt that his schedule will permit his being ready to have his deposition taken on such short notice.”
“Check with him,” Fabian snapped. “We can do it on his schedule or on mine. Your choice, but I want to get this case moving. If he won’t cooperate on scheduling, I’ll just have to notice him for deposition. If he doesn’t like the scheduling, then I guess you’ll just have to file a motion for a protective order.”
“We just might have to do that,” Woodall screeched. “I’m sure Judge Grant won’t have any sympathy for a lawyer that won’t work around a physician’s schedule.”
“Just get me a few dates,” Fabian sighed. “Let’s get this case done.”
“It’s not the only case I have to work on,” Woodall spat.
Darnell had heard enough. “Jeff, you haven’t had a case to work on for the past ten years. All you’ve done is push papers around and act like you’re busy in that lofty position, litigation section chairperson, your daddy created for you. Quit trying to B.S. us, please.”
Woodall stood and quickly stuffed his briefcase with his notes and a copy of Gunther’s chart. “Let’s go, Amanda. I’ve had quite enough of these gentlemen today.”
The two left the room without bidding any farewells.
After the abrupt departure, Fabian arose from his seat laughing. “I think you struck one of Woodall’s nerves.”
“The truth hurts sometimes,” Darnell snorted. “I’ve had my fill of this moron, and I haven’t spent near the time with him on this case that you have.” Darnell shoved his file into his briefcase and yanked it from the conference table. “Buy you a beer?” asked Darnell knowing what the response would be.
“Nah,” Fabian slurred. “I don’t think so today.”
Darnell looked surprised at Fabian’s answer. Fabian straightened the stack of medical records and notes he had piled in front of him and smiled broadly. “I’d prefer a Scotch,” he quipped.
“Let’s go, Wise Guy. I’ll make it a double.”
CHAPTER 20
The following morning, Fabian and Darnell met to further strategize. The two knew it was critical to arrange a meeting between Fabian and their liability expert, Dr. Blakely. Fabian wanted to meet the doctor as soon as possible to pick his brain in preparation for the defendant’s upcoming deposition. Darnell promised to set it up.
After Fabian left for Jamestown, Darnell checked his Rolodex, found Blakely’s number, and dialed. It was answered on the first ring.
“Doctor Atkinson’s office. How may I help you?”
Darnell’s brow wrinkled. “I’m sorry, I was trying to dial the number for Dr. Robert Blakely. I must have the wrong number.”
“No, Sir. You dialed the correct number. It used to be Dr. Blakely’s office up until last week. He’s left the School of Medicine and is just in private practice now. I have his new number if you want it.”
Darnell wrote down the number, dialed, and contact was established.
“Hello, this is Dr. Blakely.”
“Doctor, this is Ben Darnell.”
“Ben, I’ve been meaning to call you. I’ve left Northeast. Got tired of teaching and trying to juggle that with my surgical practice and family life. I’ve been thinking about it for a long time. The last straw was a little incident I experienced at a neurosurgical conference in Seattle where I was scheduled to give a speech.”
“What happened?”
“Well, you know that case you roped me into consulting with you on—Gunther I believe is his name?”
“Yeah, Joe Gunther. The aneurysm case.”
“Right. Seems as though the doctor you sued was an understudy of a guy named Antonio Sienna. He’s Chief of Neurosurgery at St. Louis General Hospital where Montgomery did his residency. Sienna was his mentor, teacher, and, evidently became his friend during his five years in training. I guess your defendant went crying to him and told him I was ganging up on him. I was at a cocktail party the evening before I was to speak, and Sienna corralled me and read me the riot act for getting involved with what he called ‘some jack-legged lawyer’ against his pupil and friend. I think Sienna took it as some kind of personal affront to his residency program in general and to him in particular. What made it worse, he enlisted a group of his close friends in the practice to back him up. They circled me like a bunch of cops trying to apprehend a criminal. He even issued a not so veiled threat.”
“What did he threaten?”
“I’m getting to that. Anyway, seems as though a neurosurgeon testified against some other neurosurgeons in a malpractice case out West. It obviously pissed them off, and they filed a complaint with the state’s Medical Licensing Board. I heard about it shortly after the complaint was filed. Unbelievably, the Board in April found that the doc engaged in unprofessional conduct and yanked his license for a year. It’s now on appeal, and I doubt it will stand, but who needs that kind of harassment? So, Sienna and his posse said they would hate to see the same thing happen to me. They said it would be impossible for me to suffer the same consequences if I politely declined to participate in your case.”
Darnell broke out in a cold sweat. “What are you telling me?”
“Don’t worry, Ben. I told them all to take their best hold if they thought I should suffer the same fate. They can’t touch me, and they know it. It might have been the alcohol talking for that thin-skinned prima donna, Sienna. I’ve known him for a long time. Never did like the son-of-a-bitch. Hell, if anything, it’ll make me all that more determined to testify in your case. Wouldn’t be surprised if he or one of his partners showed up as the defense expert against you, though.”
“Glad you’re still on board,” said a relieved Darnell.
“There’s more. He went to my hospital’s administrator and complained. The administration tried to get me to abandon your case, and, of course, I refused. They were trying to placate Sienna at my expense, and it pissed me off. I’ve been looking for an excuse to get out of the duties of the department chair and my teaching duties, so I just quit and hung out my shingle as a sole practitioner.”
“Wow. That’s quite a saga. I guess we’ll see if Sienna shows up on the other side.”
“You’re a good lawyer, Ben. You can have some real fun with this guy if you get under his skin—which shouldn’t be hard.” Blakely paused and then said, “So, I’m sure you didn’t call me to hear about my adventures. What’s up?”
