Preferential Treatment, page 7
“I’m not as young as I may look, Mr. Gunther. I’m thirty-two years old and feel fifty-two.”
Montgomery grinned at Mary who had taken up a position near the head of Joe’s bed. Mary smiled weakly at the doctor. Joe frowned, unamused. Montgomery’s attempt to break the ice with humor had failed miserably. He felt the need to go on the offensive.
“Mr. and Mrs. Gunther, I am a highly trained and well-educated neurological surgeon. I have recently completed my neurological surgery training at St. Louis General Hospital in St. Louis, Missouri. I have received some of the best and most rigorous training this country has to offer. I say I feel 52 because I’ve done nothing but take care of patients with neurosurgical problems for the past five years in my residency, often sixteen hours a day, seven days a week. I’ve performed hundreds of neurosurgical procedures and operations during my training. The hospital staff here at St. John’s and its Department of Neurological Surgery have seen fit to give me privileges to perform all types of neurosurgery.”
Montgomery arose from his chair and stood over Joe. “But, really, Mr. Gunther, we’re getting ahead of ourselves. My primary purpose tonight was to come in and introduce myself, do an evaluation, and order a test or two for you. I don’t know whether you’re going to need surgery or not. If you do, rest assured, it’s your call whether I do the operation. I certainly can’t force you to let me operate on you.”
“Don’t take it personal or nothing, Doc,” said Joe retreating. “You just look too young to be doin’ brain surgery.”
“I understand your anxiety. There’s a lot at stake, but I will give you the very best care I know how to provide. I can assure you of that.”
Joe began to soften. Montgomery had made a convincing case for himself. “Okay, Doc. Let’s see what’s going on up there in that head of mine. Wouldn’t surprise me if you found nothing up there at all—just empty space.”
Montgomery gave Joe a broad smile.
“Very good” said the doctor, relieved that he had gained his patient’s confidence. He had known that it was going to be difficult getting started in private practice. He had anticipated that until he had established a reputation in this rather small and clannish community, patients would be skeptical of his abilities considering his relative youth coupled with his boyish appearance.
But the doctor’s five years of residency prepared him for skeptics like Joe. Since St. Louis General was a teaching hospital, patients were made aware early on that residents would be seeing them and treating them as part of their training. During this time, he had met his share of doubters and had learned to gain their confidence.
“I’m going to order a cerebral angiogram for you. We’ll do it in the morning. The procedure should help us see on the x-ray if you have an aneurysm and where this bleeding occurred. If you do have an aneurysm or some other surgical condition, then you and I will talk again about surgery. Nothing will be done until all the risks of the procedure have been explained to you and what the possible outcomes could be, both with or without surgery. How does that sound?”
“Sounds okay with me. What do you say, Mary?”
“Whatever is best for you, Joe. I figure the doctor is going to do whatever is best.”
“Fine. I just need to look at you here for a minute, and then I’ll get out of your hair for the night.”
Montgomery began a clinical neurological examination making meticulous entries of his findings in Joe’s chart. Once finished, he telephoned the department of radiology and ordered an arteriogram for early the following morning. His work completed for the evening the doctor bid the Gunthers farewell.
The young neurosurgeon breezed down the hall toward the elevator. He felt confident that he had made great strides towards gaining his patient’s trust. He knew that he was the right person for the job. It was time for him to put all those hours of training and hard work in residency to good use.
“Mother, have you and daddy lost your goddamned collective minds?” yelled an incredulous Samantha Hunter into the telephone, still trying to awaken from Mary’s 5:30 a.m. call. “A thirty-two-year-old, just out of neurosurgical training, is going to take care of daddy? What the hell ever happened to the referral to Bloomburg’s guy at Hopkins that she knows so well? No way, Mother. Maybe you and daddy think having this wet-behind-the-ears newbie handle this problem is perfectly wonderful, but I won’t permit it. Jesus Christ! What are you thinking?”
Mary sat in stunned silence and began to cry.
Samantha pulled back, regretting the outburst.
“I’m sorry, Mom. I know it’s not your fault. I’m just worried about daddy and I hate the idea of his not getting the best care possible. If he has an aneurysm—you heard Dr. Bloomburg and Dr. Jacobson—the surgery is very dangerous. Did this guy say what kind what experience he has doing these things?”
“He—he just said that he’s been well-trained and had done hundreds of surgeries on people,” sniffled Mary. “That’s all I know.”
“Has he scheduled anything for dad yet?”
“Just the thing with the dye and the x-ray to see if they can find the problem. They’re getting him ready to take down to the x-ray department right now.”
“I’m going to call Dr. Bloomburg and see what’s going on. Surely, she can find someone else to take care of dad.”
“Okay. I’m sorry you’re aggravated at me, Samantha,” Mary said.
“No, Mom. It’s not you. I’m just pissed at the system and how they push you around like sheep. I’ll call Bloomburg and try to get things straightened out, and then I’m coming to the hospital. Maybe we’ll know more when we get the test results back.”
“Okay, Honey,” said Mary. “I’ll see you then.”
“Take care. Tell daddy, good luck on his test and that I love him.”
“Okay, Sweetie. I’ll be here. Bye.”
Hunter reached for the Marlboros on her kitchen counter and pulled one from the pack. She lit it and drew the smoke deeply into her lungs attempting to calm herself before she called Joe’s family doctor. She didn’t want to say anything she would regret later. She quickly finished the cigarette, stubbed it into the ashtray with contempt, and lit another.
“Ms. Hunter,” said an exasperated but apologetic Bloomburg. “I was going to call Joe first thing this morning. I never dreamed that Dr. Montgomery would have gone in to see him last night before I got the chance to discuss this turn of events with Mary and him. I know you’re upset, but I’m not sure I can change things. Your father is an HMO subscriber, and they have very strict rules for out-of-plan referrals. I tried last night to refer your father to my friend, just as I told you I would. Unfortunately, the medical director of the HMO told me that your father had to be referred to Dr. Montgomery. I didn’t even know he existed until after I left you last night.”
“But my mother tells me this guy’s right out of his residency training. He’s only thirty-two years old! You told us last night that if it were you facing this, you would go to an experienced surgeon at some large medical center. Don’t you remember saying that?”
“I know. I know,” said Bloomburg. “I still believe that. I would rather have a seasoned veteran neurosurgeon handle this, but I don’t know what you can do at this juncture. I suppose you could talk to the HMO medical director and see if he will change his mind. It might be worth a try, but I wouldn’t get my hopes up. They lose money when they have to pay a doctor that’s not with the HMO. In a case like this where your dad would have a non-HMO surgeon performing the surgery in a hospital that’s not participating with the HMO, they’d take a tremendous financial hit.”
“I’ll try anything at this point. Will you back me up on this?”
“I’ll do what I can, but you have to understand I’ve got to live with these people and do business with them on a daily basis.”
“Yes, I understand perfectly,” seethed Samantha. She hung up the telephone without saying goodbye.
CHAPTER 6
On November 17, 2004, Ben Darnell was stationed at his desk precisely at 8:00 a.m. He watched as steam from his large coffee mug rose skyward in a twisting, mesmerizing motion. The Hanratty v. Saad case behind him, he had many new battles to fight.
Leaning back in his plush red-leather desk chair he stared blankly out of the large picture window of his seventh story corner office. He could remember that in the past, traffic at this hour would be bumper-to-bumper—typical rush hour. During the last five years, however, things had changed. Now the traffic was sparse and moved without difficulty in his home town, the sleepy Ohio River city of Abbington, West Virginia.
With few exceptions, jobs in the service sector were all that remained downtown. While the city center had once commercially thrived, retail storefronts now stood empty. Shops and department stores had all but vanished, having moved to the sterile shopping malls and strip malls outside the city limits. Most basic industries that had been the lifeblood of the economy of the area had long since shut down, a product of the fallout from a rotten economy. Many of these businesses had relocated to the Deep South where cheap non-union labor had made doing business more profitable. Others had merely closed their doors, leaving workers jobless and without much hope of finding any new opportunities—except, perhaps, for the minimum wage retail jobs.
Two sectors of the business community, however, still maintained their strength and vitality in this otherwise withering southern West Virginia city. The health care industry and the legal profession continued to thrive, for no matter how anemic the economy had become, people still got sick and needed doctors to treat them and people still needed lawyers to assist them when legal problems arose. At times these two professions would collide. When this occurred, Ben Darnell was oftentimes called into action.
Because of his legal talents, Darnell commanded top dollar. In turn, he had enjoyed the good life. He drove to work in his Lexus LS430 and lived with his wife of thirty years in a posh gated community on the outskirts of the city in his twelve-room home. He had sent each of his four sons to private preparatory schools and then to various expensive private colleges throughout the Northeast. Ben Darnell was a successful malpractice defense lawyer.
Like his father and grandfather before him, Darnell was a graduate of Washington and Lee University School of Law, a prestigious Virginia law school from which many of the area’s prominent lawyers had graduated. His grandfather, Benjamin Louis Darnell, was one of the founders of the firm, Darnell, Smyth, Woodall & Coombs, in which Darnell had become a partner and member of the vaunted litigation section.
The firm had grown from its original four partners in 1930 to one of the two largest, most prominent, and well-heeled law firms in West Virginia. The firm boasted forty-seven partners and fifty-two associates, large by West Virginia standards, and had satellite offices in four other cities throughout the state.
Like most large law firms in the United States, Darnell, Smyth, Woodall & Coombs had built its size, reputation, and wealth by its representation of large corporations and insurance companies. It was from these economic behemoths that law firms such as Darnell-Smyth could extract huge fees based upon their lawyers’ hours of time spent multiplied by the agreed upon hourly rate. Darnell’s grandfather and namesake, the firm’s founder, had often quipped, “I don’t care what they pay me for an hour’s work—just as long as they don’t tell me how many hours I can bill.” It was on this philosophy and hard work of most of its lawyers that Darnell-Smyth had built its wealth and, consequently, its prominence in the legal profession.
Ben Darnell’s father, Jason Darnell, had died while Ben was still a college undergraduate. The elder Darnell, a firebrand of a trial lawyer in his earlier days, fell on difficult times after his wife died tragically in a head-on collision with a runaway coal truck on a winding West Virginia secondary road. After her death, a distraught Darnell began drinking heavily, first only after business hours, but soon his imbibing would start during the lunch hour, would continue throughout the remainder of the afternoon, and long into the evening.
At first, the partners at Darnell-Smyth ignored Darnell’s problem, a mistake that many members of the firm later often regretted. As the months of the addiction went by, however, the senior Darnell became a frequent embarrassment to the firm as he continued to attempt to practice trial law, usually under the influence of copious amounts of cheap vodka.
All came to a head in a Madison County, West Virginia, circuit courtroom one afternoon after he had consumed more than his usual quota of martinis during a solitary lunch in the darkened recesses of a nearby tavern. At the beginning of the afternoon session of a trial in which Darnell was representing one of his firm’s most important business clients, he approached the bench for a sidebar conference with the judge and opposing counsel. To the surprise of all present, he tripped and fell over one of the microphone cords that crossed in front of his defense counsel’s table. Sprawling on the floor, face down before the judge, jury, and the vice president of Darnell’s corporate client, the intoxicated and disoriented Darnell exhibited extreme difficulty orienting himself. Perceiving a problem, the presiding judge had instructed the bailiff to assist the floundering lawyer to his feet.
The bailiff pulled Darnell to an erect position, a brief recess was called, and he was ordered into the judge’s chambers. Upon brief questioning by the judge, it became obvious that the thick-tongued, slurring advocate was in no condition to continue the trial. A mistrial was declared, he was fined heavily, and, to no one’s surprise, the client fired him and his firm the following day.
Thereafter, a humiliated Darnell was reported to the State Bar Disciplinary Counsel for investigation and disciplinary action. The Bar Disciplinary Committee, in deference to a previously well-respected member of the bar and his prestigious law firm, mandated counseling rather than imposing harsher sanctions. He was required to attend Alcoholics Anonymous meetings in order to maintain good standing in the practice. A member of the State Bar Impaired Lawyers Committee was assigned to monitor his progress.
Although he remained sober for several months, Darnell fell back into his old habits. He began missing his AA meetings and routinely began coming to work late, usually looking disheveled and unkempt. He kept a fifth of vodka in his desk drawer and sought comfort in the bottle at frequent intervals during the day. While his insobriety was evident to several associates and staff members that worked closely with him, none had the courage to report it to partners in the firm. Job security was too important, and most feared reprisals if the whistle were blown on their boss.
Four months into his probation period during a hearing with the same jurist before whom Darnell had previously performed his now-infamous courtroom face-plant, the judge detected alcohol on his breath. He was reported, and his probation status was revoked. Soon thereafter, he was summarily suspended from the practice of law for a period of six months.
Undeterred, he continued a downward spiral of heavy drinking and was arrested on two occasions for drunk driving, the second arrest while driving on a suspended driver’s license. To the chagrin of his partners, the local newspaper, whose editorial staff and publisher routinely trashed the legal profession, had a field day reporting Darnell’s misdeeds.
Disgraced, he never resumed the practice of law. A broken and pitiful sole, he died within three years of his initial suspension.
Although Jason Darnell died several years before his son, Ben, had begun law school, the firm felt an obligation to hire the younger Darnell as an associate upon his graduation from Washington and Lee. While a few of the partners in the firm violently objected to bringing another Darnell into the firm, there remained a handful of senior partners who still had fond memories of, and allegiances to, the founding Darnell and his offspring, Jason. Ben, while in law school, was managing editor of his school’s law review. An excellent student, he graduated Order of the Coif and second in his class. As a consequence, many of the partners viewed him as having the potential to be a valuable asset to the firm.
Ben disappointed few at Darnell-Smyth after joining the firm. He worked harder than any of the other associates. He pulled his sixteen-hour days in the firm’s law library grinding out briefs for the partners, handled mundane projects that no one else wanted to touch, kept a low profile, and stayed out of the way of those whom he knew disliked him.
Keenly aware of the history of his legacy left by his intemperate father—as was every other partner, associate, and employee at Darnell-Smyth—Ben made it a practice to never have so much as a glass of wine or a single cocktail at any of the firm’s social functions at which alcohol typically flowed freely. He was all business and everyone in the firm knew it. Consequently, his dedication and hard work as an associate did not go unrecognized by most of the partners.
After six years of paying his dues as an associate at the firm, Ben was invited to become a partner. Shortly thereafter, because of his demonstrated analytical skills, his ability to eloquently articulate ideas, his pleasing personality, and his handsome appearance, he was invited to become a member of the firm’s prestigious litigation section.
For years, Ben honed his skills as a litigation specialist, in general, and as a medical malpractice defense lawyer, in particular. He was known as a fierce competitor in the courtroom and was revered by members of the medical profession as a guardian of those doctors whose actions would be called into question by injured patients and their lawyers. He loved the practice of trial law. The excitement he experienced every time he set foot in a courtroom to do battle was his lifeblood, and winning was his passion.
Over the years of representing hospitals and doctors in medical malpractice cases, his zeal and thirst for winning consumed him. Not unlike his early days during which he would spend long hours preparing a brief for a senior partner, oftentimes he would sacrifice an entire night’s sleep preparing a case in the days preceding trial. He knew that preparation was the key to winning, and winning was the name of the litigation game. No one in the practice ever entered a courtroom more prepared or more focused on winning than Darnell.
