Hiding truth
by
Richard D. Topper
SMASHWORDS EDITION
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PUBLISHED BY:
Richard D. Topper on Smashwords
Hiding Truth
Copyright © 2010 by Richard D. Topper
All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form, or by any means (electronic, mechanical, photocopying, recording, or otherwise) without the prior written permission of both the copyright owner and the above publisher of this book.
This is a work of fiction. Names, characters, places, brands, media, and incidents are either the product of the author’s imagination or are used fictitiously. The author acknowledges the trademarked status and trademark owners of various products referenced in this work of fiction, which have been used without permission. The publication/use of these trademarks is not authorized, associated with, or sponsored by the trademark owners.
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There are a few people I would like to thank. To my wife, Pat, for her positive spirit, encouragement and for allowing me to pursue my passion. To trial lawyers everywhere, especially the members of the Ohio Association of Justice who fight the good fight for their clients despite the negative press brought on by the purveyors of a myth called tort reform. To John Lowery, my college journalism professor, who first gave me the encouragement to write and publish. To my daughters, Bridget and Clare, may your lights always shine. To my parents, who always encouraged creativity in all aspects of life.
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Hiding Truth
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CHAPTER 1
Maura Keane moved from one uncomfortable chair in the family waiting area of Eastcliff Medical Center to another uncomfortable chair where there was no clock in sight. She didn’t want to be reminded that one hour passed since she let go of her husband’s hand and watched a nurse wheel him into surgery. She wanted to remember the smile that had come over his face as he weakly lifted his IV-laden right hand and gave her the “V” for victory sign.
As a grainy television poured out the mid-morning drivel of talk shows and lawyer advertisements, Maura reread the first paragraph in a Newsweek article about the epidemic of hospital infections. She shook her head, crossed her arms, and stared at a gray haired woman holding onto a toddler who batted his hands on a kids’ table littered with an incomplete set of dominoes, pre-colored coloring books and a collection of peeled crayons.
Maura twisted her neck to look at the clock. Only five minutes passed since the last reading. She flinched as the minute hand jumped off the Roman numeral one. She quietly repeated her husband, Tim Keane’s mantra: “It’s just a gall bladder operation.” Sick people die in hospitals, Maura thought. Healthy people walk out. She vowed to keep her eyes off any time piece.
Crossword puzzles were invented to make minutes move quickly, Maura thought as she picked up the Genoa Observer. Unless, you get stuck on a six letter word for the capital of Texas. She folded the newspaper and looked at the clock. Maura fumbled with her purse and took out a tissue to wipe a bead of perspiration that slowly meandered down the side of her face from her forehead to her cheek. “What’s wrong with me? I never sweat,” she thought as she began the internal debate about everything that could go wrong versus the statistically low risk of Tim’s gall bladder surgery.
In the middle of the debate, Tim’s surgeon, the platinum-haired Dr. Sheward walked into the family waiting area with an associate whom Maura believed to be an intern or resident. She felt his quick, deliberate step signaled a positive outcome and sighed with relief. Her heart raced when she saw the stern look on Dr. Sheward’s face. When she read the badge on the assistant’s lapel that said “Bereavement Services”, her eyes glazed over.
Maura became faint and nauseous as Dr. Sheward muttered the words, “We lost him.” When Dr. Sheward mumbled something about “Complications,” and an “Aberrant artery”, words she couldn’t understand, Maura Keane collapsed and fell into the arms of the counselor.
* * * * *
Chapter 2
The rubber ball slid lifeless into the back corner of the glass-walled court. Sean McDonnell missed another serve and lost another game of racquetball.
Sammy Maldano wiped the sweat off his forehead and challenged his opponent, “Had enough?”
“No way. Bring it on,” Sean replied as he picked up the rubber ball and bounced it against Sammy’s chest.
The unlikely pair, Sean McDonnell, a red-haired lawyer who looked like he just walked out of college cross-country practice and Sammy Maldano, a squat, muscular and often unemployed car salesman, met four years ago at the university recreation center. Sean was a regular at the rec center, using the racquetball court to relieve the frustrations of law school. Sammy enrolled in one class at the university ten years ago, and managed to alter his student identification card every year since then to show he was a current student allowing him privileges at the rec center. Sammy used the racquetball court in his often failed attempts to meet women.
In his usual fashion, Sean refused to give up and allow Sammy to win. Two out of three became three out of five. Having the upper hand in conditioning, Sean won the fifth game and Sammy conceded the match.
Slamming his locker shut, Sammy told his friend, “Seany, you have to talk to my cousin about suing her doctor.”
“Listen, Sammy. Like I told you the last time and the ten times before that, I’ve only been out of law school for three years. Sometimes, I think I was lucky just to pass the bar exam. Even experienced lawyers hate malpractice cases. They’re too expensive and too damn hard to win.”
“Come on, Seany, you’re the best lawyer I know. And don’t tell me you almost flunked the bar exam. I know you got all A’s in law school.”
“There’s a difference between getting A’s in law school and winning a malpractice case. And don’t forget the money,” Sean added as he shut his locker and began walking away from Sammy.
“I’ll loan you my next commission on a rust proof job.”
“That will pay for one long distance phone call to an expert. No.”
For three years, Sean McDonnell had been building a practice. Divorces. Drunk driving cases. Criminal appointments. Wills for relatives. Landlord tenant cases for his friends. Whiplash cases for his divorce and drunk driving clients. His practice was growing, but with a wife and a young child, the two-year old byproduct of a post-bar examination celebration, the going was still rough. The law-school pundits say the “A” students go to work for the big firms, the “B” students are judges, and the “C” students do the rest. Sean’s grades put him in the big firm category, but he had no desire to work in such a firm. Money was tight, but his comfort level and job satisfaction level were high.
“Come on, Seany,” Sammy pleaded. “She ain’t got anywhere else to turn. She’s even been to the big guy that’s on TV. You know that shyster that says: ‘I get nothing, if you get nothing.’ Even he won’t talk to her.”
“If that guy won’t take the case, doesn’t that tell you something?”
“These attorneys don’t know her case. They’ve never talked to her. She can’t get past the office staff. And she’s got a case. She even remembers the doc saying there was this abusive blood vessel.”
“What the hell is an abusive blood vessel? Wife beaters are abusive. Blood vessels are not.”
“See, Seany. You know a lot about these medical terms. You’ll be perfect for the case.”
Sean sighed. Sammy could be persuasive. At the same time he was attempting to persuade Sean to take Maura Keane’s case, he was pushing Sean to buy a new Toyota. Sean could afford neither. However, Sammy hadn’t won salesman of the month at Midway Toyota three times running on good looks.
“The bull shit you use on your Toyota customers will get you nowhere with me. Especially, when you’re talking about my wallet. Do you know how expensive these cases are? Besides, I’ve asked around and this Sheward guy, your cousin’s doctor, he’s like God in the medical community. There’s no way I could get someone to testify against him.”
“Seany buddy, you speak like a real pro. If anybody can do it, you can.”
“Okay, tell her to call me. But I’m just talking to her. I’m not taking her case,” Sean sighed and added, “Got it?”
“What a guy.”
“Yeah , right. Just don’t build her hopes up.”
* * * * *
Chapter 3
Sean knew he couldn’t afford to take Sammy’s cousin’s case. Amy and he still lived in an apartment near campus. It was perfect while they were in school, but the rooms were slowly expanding with worn furniture, new baby furniture, toys, and Cardozo, a
black
Labrador retriever. Although their daughter, Helen, was oblivious to the cramping, Sean and Amy knew it was time to relieve the overcrowding with a starter home. Every spare dollar in the McDonnell family savings account was earmarked for the new McDonnell home.
Sean and Amy McDonnell met in college. Sean sat behind Amy in Sociology 304, Sex in the Modern Society. Concentrating on note-taking and trying not to blush during a discussion of the Kinsey report, Amy tried to ignore the whispering and tapping of the young man behind her whose come-on was to make snide, but intelligently humorous comments about the teachings of Dr. Kinsey and Masters and Johnson. During one class, Amy turned around to tell Sean how annoying he was and to stop the banter. Their professor noticed the discussion. Feeling his lecture was being ignored, the sociologist ordered Sean and Amy to meet him after class at which time he told the two he wanted a joint research paper about Kinsey on his desk within the week. Sean looked at this as an opportunity. Amy looked at this as torture.
The first two nights of outlining the assignment took place in Queens Library. The third and fourth nights consisted of drafting the paper and idle conversation over coffee at Starbucks. The fifth night, the two met for beers at the Mug Club, a campus hangout. The sixth night, they met at Amy’s apartment and discussed the last edit over a bottle of red wine. The finishing touches were put on the paper the following morning at breakfast in Amy’s apartment. In punishing his two sociology students, their professor unwittingly created a lasting relationship.
“So what do you have going on tomorrow?” Amy asked as Sean and she cleared the dishes and picked up the Kraft macaroni on the floor under Helen’s booster seat after a candlelight dinner of tuna casserole.
“I’ve got a final hearing in domestic court on the Smith case. This is the guy who swore he could hide e-mails to his boyfriend from his wife. And I’m meeting Sammy’s cousin to talk about a malpractice case.”
“I didn’t think you wanted to take those cases,” Amy commented.
“I don’t. But if I don’t talk to this lady, Sammy will never get off my back.”
“Lady?”
“Yeah, her husband died during an operation at Eastcliff.”
“A young widow?” Amy joked.
“For all I know, she could be seventy.”
Neither Sean or Amy ever felt threatened by the other’s relationship with the opposite sex. They were both strong, good looking and committed individuals who trusted each other completely. Amy was short, freckled and soft-spoken which belied her strong-willed, intelligent nature. Sean’s easy temperament and broad smile disarmed his opponents whose clients would surrender a case to him on cross-examination without knowing what they had done.
“It’s nice of you to do this as a favor for Sammy. Do you think you want to get involved in a malpractice case?”
“Are you kidding? The expenses alone would eat us alive. Besides,” he said lowering his head, “I don’t think I’m ready.”
“Ready for what?” Amy said throwing the dish rag on the counter. “Every muni court prosecutor says you’re the best. It is one thing to say you don’t like malpractice cases, but don’t tell me you can’t do it. And don’t use the expenses as an excuse.”
“It’s probably not even a good case,” Sean muttered as he turned away from Amy and walked into the bedroom.
* * * * *
Chapter 4
As Maura Keane twisted the lever next to the steering wheel of her minivan sending a stream of washing fluid onto her windshield to clear off the salt and December road crud, she remembered her husband maneuvering through the minefield of potholes on Route 29 last February in the same Dodge Caravan. Nothing could sour his mood on that day. Wisps of snow swirled like cotton candy in a machine hiding patches of black ice. Maura pressed an imaginary brake on the passenger side, but Tim drove on. When the wheel clunked into a slush-laden pothole, Maura cringed, but Tim smiled. After two months of stabbing abdominal pain, her husband was getting his gall bladder removed.
It took three years of marriage for Maura to accept the Zen of Tim Keane’s Midwestern optimism. The November through March atmospheric shroud over the Ohio Valley that spawned Seasonal Affect Disorder never affected Tim. The upheaval of blacktop resulting from the constant freezing and thawing of winter slop was a minor nuisance in his life. The promise of freedom from pain was a reason to celebrate.
Now, she was on her way to a lawyer’s office who was a friend of Sammy’s to talk about Tim’s death. As she squeezed the steering wheel, she thought about their appointment with the primary care physician when Tim had severe pains in his abdomen. The family doctor diagnosed Tim immediately, referred him for a CAT scan, and said, “I’m going to send you to Henry Sheward. He’s one of the best.”
Maura thought about their first step into Dr. Sheward’s elegantly appointed waiting room adorned with plaques touting his surgical prowess. She remembered the professionally crafted brochure explaining the benefits of laparoscopic gall bladder surgery. How the surgeon uses a scope which leaves barely a mark as opposed to a scalpel which causes a painful, slow healing and a wretched scar. How one scope is inserted into the abdomen to light and televise the internal structures of the body and how another scope safely removes the gall bladder with very little effect on the surrounding blood vessels, organs, and body tissues. How the patient will be out of the hospital in one day. The procedure looked and sounded perfectly safe.
Dr. Sheward appeared to be professional and accomplished as he greeted them in his starched white coat. He was tall with striking features, delicate hands, and perfectly coifed silver hair. In his somewhat feigned, but acceptable pseudo-British accent, Dr. Sheward explained the technique and his success rate. Dr. Sheward never offered to take questions, but as he ended the appointment in the examining room, he stated, “Tim is young, fit, and healthy. Once we extricate his gall bladder with the laparoscopic instrumentation, he will be out of the hospital in one day and on the soccer field sidelines in two weeks.”
Maura slammed the palm of her hand on the horn as an Escalade cut in front of her. She let little things bother her more, since Tim’s death and remembered that almost nothing bothered him. The title of the once-popular song, “Don’t Worry, Be Happy”, was the cliché that described Tim Keane’s attitude and his life. She heard these words when Tim responded to her concerns. It was amazing to Maura that Tim didn’t recite those lyrics in his vows to her at the altar when they were young celebrants just a decade ago. It was just as surprising that he didn’t whisper the tune in her ear as she was painfully struggling to push their only child, Rachel, into the world eight years ago.
In fact, there were only two times she had ever witnessed stress in Tim’s life. The first time was when he was trying to construct the line-up for Rachel’s U-7 soccer team to allow all the girls equal playing time in their championship game. Despite the urgings to win at all costs by overly zealous parents, Tim wanted to give the “A” players and the “B” players equal opportunity to participate. The second stressor noticed by Maura was when Tim was forced to terminate one of his co-workers in a never-ending cycle of downsizing in the advertising agency where he worked.
As she pulled into the lawyer’s office, Maura thought about sunny days when she watched Rachel on the soccer field. She thought about Tim with a whistle in his mouth, clapping his hands and encouraging the girls to do their best. She then thought about cold nights when she rolled over and put her right arm around what she thought was Tim’s chest only to touch a pillow which accentuated the harsh reality of Tim’s absence. After too many days and nights of longing for Tim’s presence, Maura vowed to find out what happened to him in the surgical suite at Eastcliff Hospital.
* * * * *
Chapter 5
Sean’s storefront office could be politely described as basic. The shaded window in the front said “McDonnell Law Office,” but could just as easily say “Rainbow Cleaners” or “Gus’s Gyro Shop.” His one- room office housed a dark walnut desk purchased from a used furniture store, a “last year’s model” copy and fax machine, and two cracked, stiff blood-red leather client chairs. The faded gray carpet gave way to off-white walls on which Sean’s State Bar license and his law school diploma were displayed. He had yet to acquire the framed accolades adorning the walls of experienced lawyers. Sean’s prized possession was his HP laptop which allowed him the benefit of typing his own documents and not paying a secretary.
It was this environment into which Sean McDonnell ushered his first medical malpractice client, Maura Keane. As Maura sat down, Sean watched her scan the surroundings. He wondered about the stark contrast between his office and the other attorneys’ offices where Sammy said she had been. Perhaps his new client might think that his focus was on servicing clients rather than impressing them. It was just as likely that she thought he was not successful enough to flaunt its trappings.
#
Sean’s office exhibited a sharp contrast to the attorneys’ offices where Maura had been previously. A parent of one of Tim’s soccer players recommended Jones and Thompson, P.C., a large, downtown firm. As Maura walked out of the onto the 22nd floor of the Wells Fargo Bank Building and into their office, she was awestruck by the view out of the window overlooking the War Memorial Park. As she approached the secretary, she noticed the clientele in the gallery-like reception area all wore suits. When she sank into the leather divan, she noticed the reading selection consisted of The Wall Street Journal, Business Week, and Golf Digest. This was not the “People’s” law firm, she thought.
As Maura pondered whether the firm of Jones and Thompson, P.C. had a web-site that cost more than her house, the secretary for H. Robert Thompson, III beckoned her to follow and asked if she would care for coffee. After politely declining, Maura followed her through the walnut-paneled hall past a myriad of conference rooms inhabited by silk-suited negotiators, secretarial pools staffed by furiously processing laborers, libraries stocked with bedraggled first year associates into the office of H. Robert Thompson III. His view was even more spectacular than the cityscape she had just seen.
“Good afternoon Mrs. Keane,” Mr. Thompson said as he reached out to firmly shake Maura’s hand. “Jim Perry had many good things to say about your husband. He sounded like a fine young man. Jim tells me that you feel a doctor committed medical malpractice in your husband’s gall bladder surgery. Our firm represents some of the finest businesses in town and many multi-national corporations. We have a fine litigation staff, but ...”
“You don’t have time for a medical malpractice case,” Maura thought. “You’re too busy defending corporate misdeeds.”
“Unfortunately, our firm concentrates in commercial matters,” Thompson III continued.
“I don’t mean to be disrespectful, Mr. Thompson, but why did you have me come all this way, if your firm doesn’t take medical malpractice cases.”
“We refer people such as you who seek these services to a fine group of personal injury lawyers,” Thompson answered. “If I might, I will be happy to place a call to them, make the introduction, and refer you to them.”
“Would you at least like to hear what happened.”
“I wouldn’t want to waste your time and your emotional energy and have you relive those tragic events.”
“I need to talk about this with someone.”
“My secretary will call the malpractice lawyers, and they will be happy to listen to you,” Thompson said as he buzzed his secretary, stood up and offered his hand to Maura.
“Don’t bother,” Maura said as she picked up her purse and strode out of the office.
“Tragic, tragic,” he said in a dismissive tone. “Good luck, and say hello to my friend, Jim.”
Maura stood on the bricked sidewalk outside the Wells Fargo Building for ten minutes and stared at the War Memorial. She barely noticed the pedestrian traffic streaming by her. She had thought long and hard before she decided to pursue her claim. She consulted with her family and her priest about the wisdom of suing Tim’s doctor. She remembered the campaign ads from the conservative politicians telling her that it was people just like she who were forcing doctors to leave their practice, because of baseless malpractice claims. Her priest and family convinced her otherwise. Now, H. Robert Thompson III made her feel like she was just another player in the lawsuit lottery.
Seeing the bankers and lawyers coming out of the Wells Fargo Building walking their way past her for a steakhouse lunch, she regained her composure. Her beloved husband, the father of her only daughter, her confidant, her lover and friend was dead from a simple gall bladder surgery. She wanted answers. She should have asked for an autopsy, but the doctors told her it would serve no purpose. And she was too distraught to challenge them. She wanted to know whether there was something more they should have done. And if there was malpractice, shouldn’t they be held accountable? Maura left the law firm of Jones and Thompson, P.C. discouraged and depressed, but now she was angry. She resolved to pursue her case. Tim’s case. Rachel’s case.
Maura’s anger motivated her to seek a recommendation for a firm that specialized in medical malpractice. She called the lawyer who had done their wills five years ago, something she felt she should have done in the first place. He recommended the firm of Greenwald and Boyer.
The Greenwald and Boyer office was as modern and extravagant as the Thompson office was traditional and elegant. It reminded her of Tim’s ad agency. Maybe that was a good thing, she thought. Chrome, Hockney prints, and glass were everywhere. She felt much more at home in this office.
Bob Boyer personally greeted her and led her to conference room.
“Tell me what you think happened,” Boyer said.
“That’s the problem. I don’t know. The last time I saw Tim we were in the preoperative room waiting for his surgery. He was so healthy. I remember the anesthesiologist coming in to put the medication in Tim’s IV. He wondered if Tim was a marathon runner, because his heart rate and blood pressure were amazingly low. He said that he wished all his patients were in this good of shape.”
“Was there an autopsy, Mrs. Keane?”
“Is that a problem?”
“It is a problem. Without an autopsy, it’s very difficult to tell what happened. There’s almost no way to tell whether your husband had a heart attack or whether there may have been an un-preventable blood clot or stroke that killed him. There’s simply no way to tell if he died because of a surgical error. I guarantee you that if we look at the operative report it will read like any other successful gall bladder surgery.”
“Is there any way to know how he died?” Maura inquired.
“About the only way to know for sure would be to exhume the body.”
“I just can’t do that.”
“Mrs. Keane, I must tell you that unless we have a lock-solid case, we can’t file suit. We put too much money in these cases. By the time we pay experts, have exhibits made and pay for deposition transcripts, it will cost between $50,000.00 and $100,000.00.”
“I can’t believe it. It seems that every time I turn on the news, someone is winning some outrageous lawsuit.”
“That is an outrageous myth perpetuated by the insurance industry. They want people to believe there are too many lawsuits. Did you know that there were only fifty medical malpractice cases filed in this county last year? The second outrageous myth is that doctors leaving the state. That’s just not true. The number of doctors in this state has been increasing by five percent each year. The problem is that these myths make it difficult for us to get a fair trial. Myths or not - juries believe them. Even good cases get bad verdicts.”
“It doesn’t seem fair,” Maura said, although she nodded her head in understanding. She was still angry, but she was also sad. She wondered how many people who had legitimate cases had been turned away by good malpractice lawyers.
#
“So Sammy finally wore you down,” Maura said as she looked at the graduation date on Sean’s law school diploma.
“Well, not really Mrs. Keane,” Sean said. He noticed Maura glancing around the room. “Sorry Mrs. Keane, as you can see, this doesn’t have all the trappings of an established law office.”
“Neither did Lincoln’s, Mr. McDonnell.”
“Thank you for the vote of confidence, but did Sammy tell you my level of experience with medical malpractice cases?”
“Sammy told me you are the best lawyer and racquetball player he knows. And I can see you’ve been out of law school for three years which I hope is just long enough to find some answers on why my husband died.”
Sean wasn’t sure he could get the answers. In torts, the class that teaches law students about medical malpractice, Sean got a “D” which kept him from graduating summa cum laude. When Sean went to an office conference to discuss his final, his professor told him he lacked an understanding of the basic elements of tort law and questioned Sean’s ability to pass the bar examination.
Sean could have listened to his professor, but decided to ignore him. Sean also remembered his college business law instructor advised him not to go to law school. Remembering how he ignored both professors, graduated from law school magna cum laude, and had one of the highest scores on the bar examination, his confidence in his ability to practice law grew. However, it required a whole new level of confidence to take on the Keane case. Trust yourself, he thought.
“Mrs. Keane, we will definitely look for answers,” Sean promised. Putting the shoe on the other foot, he asked Maura, “Do you think you’re ready to pursue a malpractice case, Mrs. Keane? They are extremely risky and require a huge financial commitment.”
“Mr. McDonnell, it hasn’t been easy getting to this point. I can barely remember the last nine months. I’m seeing a psychologist to help me deal with Tim’s death. I have a little more energy, now, but some days it seems like I don’t even have the energy to pack Rachel’s lunch and get her off to school. I’ve lost touch with my friends. I see Tim’s sister, Colleen, every other week, but sometimes I can’t even remember our conversations one hour after we’ve spoken. My family doctor prescribed an anti-depressant. This levels my emotions, but leaves me flat. I spent all morning just getting ready to see you. I’m sorry to ramble on, but no lawyer has asked me how I’ve felt. The best I can answer your question is ‘I think so.’”
Sean felt Maura was uncomfortable, but recognized that he was also uncomfortable, so he changed the subject.
“So Sammy tells me you saw the TV lawyer...”
“Not surprising. No, I didn’t. Sammy tends to exaggerate.”
Sean knew this. He would often tell Sammy stories which Sammy would puff up and retell, sometimes placing himself in the story. Sean knew that if Sammy said “To make a long story short...”, he was in for an hour long tale, and that if Sammy said “It won’t cost you nothing”, it would put Sean out of a week’s pay. You couldn’t help but like Sammy, though. He epitomized the phrase, “He’ll do anything for you.”
“You mean you didn’t see Crash Kilbane?”
“No, but I did see another law firm. I mean, two.”
“Sammy did say that. Who did you see?”
“Tim’s friend referred me to the Thompson firm, and the lawyer that did our wills referred me to Greenwald and Boyer. Mr. Boyer said he didn’t want to take the case.”
Sean’s spirits sunk. If Greenwald and Boyer, the best malpractice firm in town, didn’t want to take the case, how could he win it. He was a third year lawyer going it solo. Sean’s mind raced. He felt he was turning red as his blood pressure was suddenly elevated to critical levels.
“Are you okay?” Maura asked.
“Yes, I’m sorry. Now can you tell me what you remembered happened?” Sean pushed forward trying to re-elevate his confidence level.
As she told her story, Sean had a difficult time absorbing what she was saying. What they didn’t teach Sean or any other student in law school was how to listen. Students in contract, torts, and evidence classes are so used to being drilled by professors that they are constantly thinking of answers in their head to avoid the humiliation of the wrong response. As a result, they never listened to what the professor had to say. Lawyers continued to display this habit in client meetings and even through jury selection and witness examinations. Young and inexperienced trial lawyers are so used to thinking of their next question or the legal theory involved, their minds can’t focus on listening.
Sean attended a trial lawyer’s seminar that discussed the importance of listening, but still wasn’t able to focus on Maura’s story. As Maura went on, all he thought about was the degree of difficulty and extent of financial commitment to the case.
It was not until Maura finished talking about her first meeting with Dr. Sheward that Sean focused on her story and not on his shortcomings. When she told him about the day of the operation, he seemed to remember torts class when the professor discussed informed consent.
“Did Dr. Sheward discuss the risks of the gall bladder surgery with you?”
“What risks?” Maura asked. “He didn’t mention any risks. He said that this was an incredibly safe procedure. He says he’s done hundreds of gall bladder operations without a single injury.”
“The only reason I ask is that most doctors have you sign consent forms,” Sean said. “Do you know what I mean by a consent form?”
“Of course, I know what a consent form is. Do you think I’ve never been in a hospital before?” Maura said. “I’m sorry. I didn’t mean to get upset.”
Sean also couldn’t believe he was acting the way he was. His lack of confidence in this situation was showing. Sean made the first move toward a new relationship. He began by making admissions.
“I’m sorry Mrs. Keane. I have never taken a medical malpractice case before. I’ve never even been involved with one. I’ve only had four trials and they were all drunk driving cases and the jury found my client guilty in two of them. I’m just not sure I’m the right lawyer for your case.”
“Mr. McDonnell, there’s a Billy Joel song about honesty. He says that ‘Honesty is hardly ever heard and it’s most of what I need from you.’”
“Tell me about your case,” Sean said. “And, I’m sorry, from the very beginning.”
Maura repeated the history of her meeting with the family physician, with Dr. Sheward, and the pre-op at the hospital. At this point, Sean interrupted.
“I don’t want to get to a sore subject, but let’s talk about the consent?”
“We didn’t sign one at the surgeon’s office which I thought was odd, so I thought we might sign one when we got to the office at the hospital. We didn’t see the consent form until we were in the pre-op area.”
“Did Tim and you read it?”
“We really didn’t have a chance. Tim was laying in the bed with his IV in. I was sitting on a stool beside him. He was hooked up to the monitors and already sedated. The nurse came into the room and asked Tim to sign it. He was already going under, so I propped his arm up and he put his signature on the third page. He couldn’t read it at that point.”
“Did you read it?”
“No. I didn’t have time. The nurse gave us thirty seconds. I’m a fast reader, but I can’t read three pages of small print in that amount of time.”
“Did your husband say anything to you?”
Maura looked away from Sean, put he head down, and softly said, “Don’t worry, be happy. It’s only a gall bladder operation.”
Sean paused and gave her a box of Kleenex. After a pause, Sean asked quietly, “Can tell me what happened after that.”
“I really don’t remember much. I know I was in the waiting area. I was so upset. I believe I even fainted. I just remember the surgeon saying, ‘We lost him,’ and something about an ‘aberrant artery.’ I really have no idea what he meant.”
“Did the surgeon ever talk to you after that? Sometimes they will have meetings in their office to discuss what happened.”
“No, he never called. But even if I had gone to a meeting, I probably wouldn’t have remembered much. I was never such an emotional mess in my life.”
“That’s completely understandable. Did they give you a death certificate?”
“Yes. I have it in my purse. I thought you might want to see it.”
Sean never thought to ask her about this in advance, but was glad she brought it. He unfolded the cold explanation of the death of Timothy Keane, born May 8, 1970; deceased February 10, 2005.
“It says here that your husband died of cardiopulmonary arrest as a consequence of volume depletion. It doesn’t say anything about an aberrant artery. Did anyone explain to you what the aberrant artery meant?” Sean asked. He had no idea what it meant, and hoped someone had enlightened Maura Keane about the significance aberrant artery in relation to the cause of death.
“No. Nobody offered and I really haven’t asked. I know that sounds strange, but part of me really wants to know, and the other part of me wants to put it completely out of my mind.”
“Can I ask you, Mrs. Keane, to give me some time to think about your case and get back with you,” Sean said.
He had no idea what this case was about and didn’t want to offer any information that would show his ignorance. Up to this point, he was happy she hadn’t asked him whether she had a case.
“Do you think I have a case?”
“Uh . . . well . . . that . . . will be for the experts to determine after we get the records,” Sean said.
“But bad answer,” he thought. “Now I’ve committed to getting the records.”
Maura stood up to leave.
“Thank you so much for listening. You are the first person who has taken the time to do that. Let me know what you find out about the records.”
“That’s no problem. I will be in touch.”
With five quick, unthinking words, Sean McDonnell committed to getting Tim Keane’s medical records and looking at his first malpractice case with no fee contract.
* * * * *
Chapter 6
Sean’s after-work routine changed drastically after Helen was born. He switched his head-clearing four mile run from 6:00 at night to 6:30 in the morning, so he could give Amy a break and spend time with the second love of his life, Helen. After meeting with Maura Keane, all Sean could think about was going for a run to clear his head followed by a beer, or two or three. He squelched the urge to run and drink, and went home. He squeezed Helen, gave Amy a long kiss, then fell onto the couch.
“Tell me about the case,” Amy said as she uncorked their Friday evening bottle of Rosemont Merlot. “And tell me if I should start buying Two-Buck Chuck.”
“Its hard to tell what the case is about other than this guy went into the hospital for a gall bladder operation and died on the table,” Sean explained as he took a glass of wine from Amy.
“Any idea what caused his death?”
“That’s the problem. There wasn’t an autopsy. Which is sort of odd, because I thought everyone who died in the O.R. got an autopsy. If nothing else, but for the surgeon to cover his ass.”
“Why didn’t they get one?”
“I have no idea. Mrs. Keane said the docs didn’t recommend one and that she was too wigged out to second guess them.”
“That’s really bizarre. I don’t want to be a conspiracy theorist, but it sounds like the doctors were trying to cover up something.”
“I don’t know, though it could be. Who knows, though. Maybe the hospital wanted to save the expense, or maybe they wanted to let the poor guy rest in peace.”
“Did she have a death certificate with her?”
“Yeah. She did. But it just said her husband died of a heart attack; cardiopulmonary arrest.”
“I don’t mean to counter your medical knowledge, but that’s everyone’s eventual cause of death, unless they burn up. It’s one of the few things I remember from human biology and anatomy class in undergrad.”
“I didn’t know you took that. I thought you were a retailing major.”
“Well, I was in pre-med for a year. Freshman year ended up being better suited for developing my social skills. Academics were a distant second . . . or third.”
“You know more than me. As a poli-sci guy, I can tell you about Weber, Neitzsche, or Machiavelli, but whether a person died of cardiopulmonary arrest or bored himself silly, I couldn’t tell you.”
“What else did the death certificate say?”
“It mentioned something about volume depletion.”
“That means he lost a great deal of bodily fluids, the main one being blood. It could easily mean that he bled to death.”
“No shit.”
“Did your client say anything to you about blood vessels?”
“The doctor told her something about an aberrant artery, but she never asked him what that meant.”
“Sean, an aberrant artery means an artery that’s out of place. I think Tim Keane’s so called ‘excellent’ surgeon hit a blood vessel.”
Amy used her retailing degree to become one of the top-rated buyer’s of women’s clothing at Trendz, the tony fashion chain headquartered in Genoa County. Her income paid rent, put food on the table, and paid for Sean’s law school. Sean’s reliance on Amy in law school went beyond her income. She drilled, discussed, and debated Sean on Contracts, Criminal Law, and Evidence. By the end of law school, the only thing separating Amy from the practice of law was a degree and a license. She took an extended leave to stay at home with Helen and stayed sharp by reading nonfiction and Sean’s law journals. When Amy made a point of law or fact, Sean listened.
“I knew there was a reason I married you.” Sean said. “Even if Sheward did hit the artery, I still don’t know if I should take the case. I mean . . . she took the case to Boyer, and he wouldn’t take it. There’s a lot of things that could have happened.”
“What did you tell her?”
“I told her I’d get the records. But, I didn’t tell her I would take the case.”
“Is she nice?”
“Very.”
“Then I think you should order the records.”
“Really?”
“Really. I know you’ve never taken a malpractice case before, but the one thing you do well is to improvise. You pick up things very quickly. Except cooking. You suck at that. Anything legal, you catch on fast. You can learn the medical.”
“Do you know how expensive this could be?”
“How much can the records cost? A hundred? One-fifty? Go ahead and do it.”
“I still don’t know. Things are going pretty well the way they are.”
“It’s time to try something different. You are very good at what you do. You’re clients love you, but they don’t pay you. I don’t mind taking a risk.”
“I do.”
“Give me one reason why.”
“The money.”
“That’s not good enough. I’ll go back to work, if I need to.”
“The time.”
“That’s not good enough, either. Turn down a few of the non-paying divorce clients to concentrate on this. The real reason is your lack of confidence. How many times do I have to tell you how good you are. How many times does another attorney have to tell you what a good job you did representing your client? Do this for you. I am with you.”
Sean looked at Helen who was turning the pages of a cloth book and pretending to read at loud. He looked at Cardozo and scratched him under his collar. He folded his arms across his waist and looked at the floor.
“Are you expecting some type of revelation?” Amy asked as she smiled at Sean and softly brushed his hair with her fingers.
“Not anymore,” Sean said as he leaned over and kissed Amy keeping an eye open on Helen.
They tucked Helen in, said her prayers, put a Grover Washington CD in the stereo, and clinked their wine glasses. Before they finished their bottle of Merlot, they decided that the dynamic duo of Sean and Amy were ready to courageously take on the medical profession.
* * * * *
Chapter 7
The next few weeks brought Sean back to his comfort zone in the day to day practice of law. Last week, he helped Shirley Fogel divorce her alcoholic, ne’er do well husband. Yesterday, he persuaded Judge Fulford to give his drunk driving client a much needed alcohol treatment program instead of ten days in jail. This morning Sean helped a couple get rid of five credit card debts and the monthly twenty-two percent interest rate which was forcing them out of their house. Sean had settled into the satisfaction of knowing he made a difference in people’s lives.
Sean’s parents instilled in him the importance of every person. Rich, poor, black, white, employed, unemployed. His mother would always say, “You never know what someone’s story is. You are fortunate to be brought up in a loving family.” His father was a sales rep for a plumbing fixtures company. He was Sean’s little league coach, confirmation sponsor and would probably have been the best man in his wedding. Sean’s mother taught third grade in an inner city school and Head Start. Every day, she told Sean about students who had potential, but were lacking in parental support. The McDonnell’s were old-style, Midwest Republicans; fiscally conservative and socially liberal. That’s probably why Sean was a Democrat.
Amy was right when she pointed out his lack confidence in taking on the Keane case. It was easy to for him take on most tasks that were familiar. With the unknown, it was different. He couldn’t blame his childhood. And he had attacked the unknown before. His parents both died in a tragic car crash when he was a junior in college. His younger brother and his only sibling, Kurt, and he were thrown into the world with $100,000.00 in life insurance money between them. Sean used his share for an education. Kurt used his for drugs. Sean persevered, Kurt self-destructed. Sean accepted a challenge. Kurt accepted a handout. Sean never went to counseling. Kurt was always in therapy. Having dealt with his parent’s death the way he did, Sean couldn’t figure out why he was fearful about taking on certain challenges.
He wondered if his fear was about the financial aspect of the case. The $50,000.00 Sean’s parents left him lasted through college and his first year of law school. The last two years were financed by Amy and loans. You would never know that Amy and he lacked money. Sean felt it was enlivening not to be burdened by its yoke. Their mansion was a two bedroom flat. A night on the town was window shopping, followed by a bottle of wine and a candle on a blanket in the park. Their Mercedes was a ten-year old maintenance-free Honda. Life was good.
#
Late in the afternoon, as Sean sifted through his mail delivery of hearing notices, twenty-five dollar checks from clients, and correspondence from his opponents, he saw a manila envelope from Eastcliff Medical Center. He stared at the envelope awhile, then set it aside. He put the envelope on the corner of his desk and buried it under the daily mail of legal seminar fliers . He succumbed to the curse of the young lawyer. Ignore something important, and it will go away. One our later, the envelope was still there. He stuck his father’s gold-plated letter opener into the seal and slit it open.
Sean looked at the first page. It was the bill for the records, of course; one hundred and fifty dollars. More than the total of all the client checks he received today. He unstapled the chart and began to read the medical records of the last day of Tim Keane’s life. He had never read someone’s medical records before. He looked around the office to see if someone was spying on him. He felt as if he had unlocked someone’s diary and was clandestinely reading about their life. He wondered if nurses, injury lawyers, and insurance adjustors who reviewed these medical charts daily ever thought about the person whose life these records represented. Seeing these cold records in black and white, Sean could imagine that these professionals saw medical writings as merely a summary of the treatment of a claimant as opposed to showing a real human being such as Tim Keane, a devoted husband and father. He wondered whether lawyers who take malpractice cases understood the human element of these records: the Keane’s anticipation of surgery and Maura’s waiting to hear the surgical result. Would they recognize the suffering that Chart No. 05-02-31749 represented?
He studied the chart, wrote down the terms he didn’t know and put it down. He didn’t know how the lawyers at Greenwald and Boyer would review the records, but he felt the only way to go over the chart properly would be to read it with Maura.
#
As Maura sat in Sean’s office across from him, he wondered if going through the chart with her was a good idea. He decided to start with something easy.
“Do you remember the registration process?” he asked looking at the first page of the record.
“Sort of. We were in this young man’s cubicle. I remember his cologne was awful, and I joked with Tim as we were going up to the pre-surgery area that antiseptic smells were better than what he was wearing.”
Sean smiled and looked down at the registration form. It showed Tim’s middle name was Colin, that he lived on 1522 Edgewood Drive in Genoa County and was born on May 1, 1970. Tim was older than he was but much too young to die.
“I read that Mr. Keane worked at Wunder Communications and was a creative accounts manger.”
“Tim was in advertising. He was in charge of Trendz account. He coordinated the copywriters and the artists and did the media buys. He was also in charge of keeping the client’s happy. He was very good at what he did. It was great, because once a year we got to travel to their annual sales meeting. We always took Rachel. She got to se Disney World, the San Diego Zoo, and the Grand Canyon. It was a great job.”
Sean wanted to tell her that Amy worked at Trendz, but also wanted to stay focused.
“I see you’re Catholic. What parish do you belong to?”
“St. Patrick’s. It’s such a wonderful parish. Father Callahan gave a blessing to Tim the day of his surgery. That’s where we had the funeral mass. I couldn’t believe the number of people that were there. All of Tim’s coworkers and all of the soccer kids that he coached; it was amazing. I’m sorry to ramble.”
“No, that’s okay. It sounds like your husband was an amazing man.” Sean thought of his father and the loss that he felt every day. He wondered how Rachel was taking this. It’s never easy losing a parent, but it is even more difficult when you’re young.
Sean was silent a moment as he looked at his father’s letter opener. Then, he reread the next two pages, the history and physical forms. These appeared to be completed by Tim’s family doctor one week before his surgery. Sean was amazed how healthy he was. His doctor recorded that he had a blood pressure of 110/70 and a heart rate of 55. Sean knew that was good, because he always gave himself the sit-down blood pressure check at the pharmacy when he was picking up Amy’s birth control prescription.
“I’m looking at the physical and it seems like Mr. Keane was incredibly healthy.”
“He used the elliptical trainer and a weight machine first thing every morning. You should have seen him at soccer practice. He always did sprints with the girls and played against them in practice. The girls always wanted to see if they could beat Mr. Keane.”
The physical reported he had no contraindications to gall bladder surgery and was not on any medications. Sean smiled as he read that Tim smoked a cigar about once every six months, had a beer or two on the weekends and that his only injury was a clavicle fracture sustained in high school lacrosse.
Sean looked over pages four through six of the chart which were the consent forms. Unless one was a valedictorian from the Hooked on Phonics School of Speed Reading, absorbing these three pages in the allotted thirty seconds was next to impossible.
The first consent form was the anesthesiologist’s consent. This document was a hospital/risk management driven form drafted by the facility’s paid legal staff. The anesthesiologist’s name was Chen. Dr. Chen’s staff typed in a blank spot that the condition to be treated was gall stones and the procedure to be performed was a “laparoscopic cholecystectomy.” Someone later penned with a carat insertion “and a possible laparotomy”. The same procedures were written in the surgical consent forms.
Before meeting with Maura, Sean went to the medical dictionary he bought yesterday at Borders Book Store for the very purpose of looking up terms which were foreign to him. Sean surmised that laparoscopic was a surgery performed with a scope, therefore he looked up cholecystectomy. Cholecystectomy is the medical term for gall bladder removal. Sean then thumbed from the C’s to the L’s to look up laparotomy. Laparotomy was defined as a surgery involving the abdomen where the abdomen was opened up. Sean immediately questioned why a surgeon would need to open up the abdomen when everything should be done by a scope.
Sean felt like he did the first day he opened up his first law textbook. In his first semester, every other word was foreign to him. Words like ‘stare decisis’ and ‘ipse dixit’. Reading a single paragraph took an hour; half of the time spent trying to grasp a concept and the other half plodding through the legal dictionary. Reading these medical records made Sean’s head began to heat up again, his rise in blood pressure telling him he took on too big of a task.
“Do you know what a laparotomy is?”
“That’s the surgery Tim had.”
“Actually, Mr. Keane had a laparoscopy. In a laparotomy, the surgeon opens up the abdomen with an incision. He makes a long cut in the abdomen.”
“No. I mean I’ve heard about surgeries where the doctors open up the abdomen. Like a hysterectomy. But I’ve never heard the term, laparotomy.”
“The consent form says that Mr. Keane and you agreed to a laparotomy and the operative report says that is what was done.”
“There is no way. We did not agree to that. Dr. Sheward said everything would be done by a scope. Nobody ever told us that Tim would have an incision. What else did it say,” Maura said shaking her head in disbelief.”
“The consent also says that one of the risks is ‘possible iatrogenic arterial rupture.’”
The medical dictionary defined “iatrogenic” as “due to the action of a physician or a therapy the doctor prescribed.” An example given in the dictionary said “If in the course of a procedure, an artery is compromised and bleeds, that is an iatrogenic event.” When Sean first read this, the dictionary fell out of his hands.
“I have no idea what that means.”
When Sean explained the meaning of iatrogenic to her, Maura turned red, shook her head, and said, “No, no, no.”
Sean nodded and turned over the pages, until he got to a typewritten summary titled, “Operative Report”. The three page report listed James Sheward as the surgeon, listed the patient’s name as Tim Keane and the surgery date as February 8, 2005.
“Mrs. Keane, I don’t know if this is such a good idea. I’m giving you an awful lot of information. Maybe we should take a break and go over this in another meeting,” Sean said his forehead started to sweat.
“I think I want to hear this. The reason I started to look for a lawyer was to find out what happened. Let’s go on.”
The first major heading of the operative report was the preoperative diagnosis: cholestasis. Sean found out cholestasis was gall bladder disease. The second heading stated: “Attempted Procedure: Laparoscopic Cholecystectomy.”
When Sean first read this, he said to himself out loud, “Attempted?! That was supposed to be the procedure. Not the attempted procedure.”
The next heading in the report was “Post-operative diagnosis: Cholestasis. Ruptured aorta with attempted repair.” Sean knew the aorta. It was the largest artery in the human body. His reaction to reading that was, “Holy shit!”
Sean took a breath and spoke to Maura. “Did Dr. Sheward say anything to you about repairing Mr. Keane’s aorta?’
Maura looked at him and asked quietly, “What are you telling me?”
“Sometime during the operation, Mr. Keane’s aorta was damaged. He tried to repair it, but he couldn’t. I think that either Dr. Sheward or one of the people in the operating room damaged your husband’s aorta.”
Before he could express any feelings of empathy, Maura’s eyes closed and her body slumped limply into the chair. Tim ran to his bathroom, soaked some paper towels, and put them on Maura’s head.
Upon feeling the cool, wet paper on her forehead, Maura opened her eyes and said, “I’m sorry. I’m sorry.”
I am, too,” Sean said relieved that he did not tell her the operative report showed Tim lost over one half the blood in his body.
* * * * *
Chapter 8
“Amy, you’re not going to believe this.” Sean said, accidentally slamming the door as he entered the apartment.
“Sean, take Helen. She is absolutely driving me crazy, today. And try not to slam the door,” Amy said with Helen in her outstretched arms.
“Sorry, honey. You’ve got to listen to this.”
“Sean, I would love to, but right now the best thing you can do for me is to take Helen out. To the park, for a drive, to a strip club. I don’t care. I really need some space.”
As excited as Sean was, he knew there was only one thing to do. Delay gratification, put the excitement on hold, and take Helen, who was arching her back and screaming in the middle of a full-fledged tantrum, out of the house for some father-daughter quality time.
When Sean and Amy recited their vows, they agreed to put their lives and the lives of their children before their jobs. And when Helen was born, Sean recommitted that he would be a father and husband first, and a lawyer second. This contract was now being put to the test.
Sean’s parents had attended his entire little league games, track meets, and band concerts. They never criticized when he missed a note, a gate or a fly ball. There was always time at night for a game of monopoly or a family discussion. In contrast, Amy’s parents were involved socially and politically. When Amy needed a ride to her soccer matches, a friend’s parents took her. When there was a school function, her Grandmother went. When it was game time, young Amy settled into a game of solitaire. Sean vowed to be like his parents; Amy vowed never to be like her parents.