“I ran into Homer.” Alan froze at Gordon’s words. “He thought you’d want to know, but he didn’t feel comfortable coming to you directly.”

“I’m surprised he’s allowed to talk to anybody, with all that legal paranoia.”

“I didn’t ask for the cause of death, just what he found in the heart. No vegetations, just slight retraction of the aortic valve. Beginning mitral stenosis too. Postmortem blood culture grew out Staph aureus, same as when she came in.”

“No endocarditis.”  Alan breathed a sigh of relief. “I wouldn’t have had the nerve to ask.”

Gordon looked at him. What a strange reaction, he thought, recalling the conversation at the FLYNT. The girl’s dead and he’s relieved the valve wasn’t infected. Lord, he was even afraid to ask! What difference did it make? Eden had been practically in shock. It was an emergency if ever there was one. The valve was a long-term worry ― if she survived the crisis, which she didn’t. And why was Alan relieved? Why not upset that she died with a condition less serious than he’d feared? Didn’t that make her death all the more tragic?

But Alan had another worry. “Karen’s on my back to file a lawsuit. Between you and me, I’m not disputing the negligence. But suing my own hospital’s a different matter. Win or lose, I’d get kicked off the staff. And even if I didn’t, nobody’d want to associate with me.”

“You wouldn’t get kicked off this partnership; that I can promise. And nothing in the by-laws says you can kick a doctor off staff for filing a lawsuit. Maybe that’s academic if they’re going to ostracize you. . . . It just isn’t fair to make a man choose between his legal rights and his career, especially after a loss like yours.”

“What would you do in my shoes?”  Alan asked.

Gordon didn’t hesitate. “I’d sue. They’d settle, and there wouldn’t be any publicity. If you wanted to protect Rick you could just name the hospital. That’s where the liability is anyway. I also think the medical staff would be sympathetic. All they have to do is imagine a child of theirs being treated like that. Remember, your house staff is their house staff too.” He put a piece of candy in his mouth. “You’re not running much risk. Especially if you leave Rick out.”

Protect Rick? Leave him out? OK, Rick was entitled to rely on the house staff. But then, why was he being so evasive? Was Alan really supposed to buy that story about being out of town, an excuse delivered with such perfunctory regret? No, Rick was hiding. But then, Alan didn’t want to be driven by the wrong motive. He’d give Rick the benefit of old friendship. Let him stew in his own recriminations. And let the hospital involve him as co-defendant in the suit if they wanted; it wouldn’t be his doing.

“Do you really think they’d settle?”

“I would if I were the one being sued. But I’m not a lawyer.”

“I have no intention of going on the witness stand,” Alan said.

“You might get more from a jury. They’d identify, especially if they have children.”

~~~~~~~~~~

“Looks like Gordon’s on your side.” They had just finished dinner.

“How do you mean?”  Karen asked.

“About suing. He thought, one, that the hospital was liable—”

“Of course,” Karen interrupted. “They’re all hospital employees ― except Rick.”

“— Two, we could leave Rick out if we wanted. Three, the staff would be sympathetic. Four, the hospital would settle. Five,—”

“Let me guess. A jury would award at least five times what they’d be willing to settle for.”

“He didn’t give numbers.”

Karen smiled. “He’s probably been around lawyers a bit. Has he ever been sued?”

“I don’t know where he gets his information, but you think he’s right, don’t you?”

“Absolutely. I’ve been wanting to ask if you’d had any more thoughts, but I’m just as glad you brought it up. If you ask me, the only way we can lose is to accept a cheap settlement.”

Alan’s look cautioned her not to go too far. “Even if I do agree to a lawsuit, and I haven’t yet, we’ll take the best settlement your lawyers can get and leave it at that.”

“Alan,” she said quietly, “you’re the bereaved father. No defense lawyer’s going to antagonize the jury by giving you a hard time on the stand. I have no hesitation.”

“I won’t. That’s all there is to it.”

His intransigence irked her, but she kept an amiable tone. “Better not let them know, else they won’t even settle. Without at least the threat of a trial we have nothing.”

“I wasn’t planning to tell them. I’m telling you.”

“It’s OK, then, to ask for the chart?” she asked. “You’ll sign the release?”

“I don’t want you to think I condone their actions, I just detest the process.”

Karen couldn’t help herself. “‘The process’ ― that’s my career. Lawyers don’t have it in for the medical profession, and there’s no need for doctors to have it in for us. We serve the same patients they do ― or claim to.”

Her hand went to her mouth, too late. He waved her off. “OK, OK. Just review the chart.”

~~~~~~~~~~

“Here it is,” Frank said, holding up Eden’s chart. ‘Diagnoses: 1. Anaphylaxis. 2. Drug allergy, oxacillin. 3. Staphylococcal bacteremia. 4. Infected abrasion, right knee. 5. Rheumatic heart disease, aortic insufficiency, mitral stenosis.’ I want to send this off to Nancy Olson.”

“Good. She’s my age ― probably has teenage kids. She’d be good on the witness stand.”

Frank smiled. “If it ever goes that far.”

“I don’t think we should settle for less than a couple million,” Karen said.

“I don’t want to close any doors this soon. We’ll decide on strategy as we go.”

Nancy Olson was unequivocal.  “He should’ve known. Interesting, he wrote his note after she died. He could’ve said ‘Denies allergies’ without fear of being contradicted, but he didn’t. Either too honest or too stressed out. Describes her as alert, cooperative, oriented times three, meaning she knew the date, where she was, and who she was. No way he could claim she was too out of it to tell him. Did you know she was in last year with an anaphylactic reaction to Bicillin? She’d be bound to tell him that. I’m surprised. New interns usually write pages and pages of history, like they’re afraid of missing the most trivial detail, and look what he missed.”

“Wasn’t he supposed to be supervised?”  Frank asked.

“Absolutely. And I don’t see a supervisor’s signature, or a resident’s admission note, anywhere. What’s more, without it the nurse shouldn’t have carried out the orders. An intern isn’t licensed to prescribe.”

“I may have to depose that nurse, or her supervisor. Write it up for me, please.”

A week later Olson’s letter arrived. It contained the following summary:

This patient died from an anaphylactic reaction to oxacillin, a member of the penicillin family. Less than a year earlier she had been admitted to Cresheim Valley Hospital with a similar though less severe reaction to benzathine penicillin G (Bicillin), a related antibiotic. Her penicillin allergy was a matter of record. Furthermore, this information was certainly known to the patient and to the patient’s mother, either of whom could have told the admitting doctor if he had asked. Because of this history, administration of any penicillin drug was absolutely contraindicated.

In summary, it is my opinion, to a reasonable degree of medical certainty, that Eden Avery would not have died if she had not been given oxacillin, and that giving oxacillin in the face of her known penicillin allergy was a deviation from accepted standards of care.

“Pretty straightforward, isn’t it?”  Karen said.

“Yes.”  Frank put his elbows on the desk and rested his chin on his fingertips. “It’s clear to you and me. The question is ― it always is, as you well know ― what’ll they come up with?”

“How can they defend it? It’s so blatant.”

“We’ll see. We file suit. We show them our expert report, they show us theirs. Then we’ll know. Besides, we’d better hope that they do defend it.”

“Why?”

“Didn’t you say you don’t want a settlement?

“I said I’d accept a couple million.”

“Don’t count on them offering it. They might even try to get off altogether.”

Doctor Olson, a board-certified specialist, would be a powerful witness. Still, Frank knew that, as a matter of routine, the hospital would deny liability, and he expected their expert to cast Olson’s analysis as irrelevant without bothering to deny the undeniable. Then the haggling would begin, ending in court if no agreement was reached. The defense expert in Eden’s case was a specialist in infectious diseases from the Hospital for Infants, Children, and Adolescents. A copy of his report reached the office of Frazier & Drummond some two months later.

~~~~~~~~~~

On the day Frank sent for Eden’s chart, a meeting took place in the hospital administration suite. Seated around the table were Cora Hamilton, M.D., Chair, Department of Pediatrics; Richard Harmon, M.D., practicing pediatrician; Patrick Small, Esq., legal counsel to the hospital; Bruce MacAdoo, Esq., from Burns, MacAdoo and Ferguson, representing Healers Protective, the hospital’s insurer; and Sherman Andrewes, Esq., from Filmore, Means, Smythe and Bannister, representing Doctor Harmon. No lawsuit had been filed, but they believed in being prepared. Because of the father’s association with the hospital, there might not even be a suit. Still, the case illustrated the risks that it was their job to minimize. Not all the conferees defined risk the same way, but all agreed that the events leading to Eden Avery’s death could not be condoned.

“I don’t have a crystal ball,” Patrick Small said, “but we’re wide open on this one. Just look at this. August 17, 1987: ‘Anaphylactic reaction to Bicillin.’ Right on the face sheet. July 12, 1988: ‘Anaphylaxis. Drug allergy, oxacillin.’ McCrae’s admission note. Not a word about a history of allergy. It doesn’t even say he asked. Now look at the time of his note ― after her death. This guy needs tutoring. His defense was right there ― could’ve said anything he wanted ― and he blew it. Resident’s admission note, I don’t see any. Order for Prostaphlin ― which, for those who don’t know, is oxacillin. No resident’s initials, only C.B., Constance Bader, the nurse. Medication record showing the first dose given, also initialed by C.B.” He looked around.

Harmon spoke: “Maybe they won’t sue. Alan Avery’s on staff here. He’s the father—”

“I know he’s the father,” Small said irritably.

“—and I don’t know how he feels about suing the hospital. He does have to work with the staff. But he’s an internist. Maybe his colleagues don’t care about suing a pediatrician.”

Hamilton addressed Harmon: “I heard they had a memorial service. Were you invited?”

“Yes,” Harmon said.

Small’s face lit up. “Maybe there’s hope yet, at least for you. The parents don’t seem to be holding anything against you, else they wouldn’t have invited you. How was the service?”

“I didn’t go.”  A dead silence. Finally Andrewes asked softly: “Any particular reason, Doctor? Were you on an emergency? Out of town? Sick?”

“I told them I’d be out of town.”  Andrewes exhaled noisily and looked around. All eyes were on the tabletop. MacAdoo was shaking his head. Small was clenching his teeth. Finally Andrewes said, “That could hurt your case. Pat’s right, the invitation was a positive message. Not going looks like avoidance. Little things like that make a difference if people aren’t sure whether or not to sue. How many years had you been taking care of Eden Avery?”

“All her life.”

Andrewes pursed his lips. “Well, you had to be out of town and so you couldn’t be there. I’m sure you conveyed your regrets in convincing fashion.”  He looked at Harmon to confirm his conjecture. Harmon, his eyes narrowed threateningly, rose from his chair, placed his hands on the table, and leaned across to face Andrewes.

“I’ll tell you what happened, Sherman, and why,” he said in a tone of controlled fury. “I was at the mortality conference two days after Edie’s death. Right there, with her body barely cold, already there was talk about a lawsuit. Ask Cora, she ran the meeting. And you’ll hear that we were all instructed, ‘Don’t talk about this where anyone can hear you.’ Right, Cora?” Hamilton signaled agreement. “Now you tell me, how in God’s name do I face my friends of twenty years, whose child I’ve cared for all her life? Tell them ‘No comment’? Or ‘I’ve been instructed not to talk about it’? Or do I refer them to my lawyer? Huh? You tell me!”

He slapped the table and the conferees reflexively reached for their water glasses.

“I loved that girl. Now I’m scared to run into her parents, because I’m forbidden to admit the truth. I’m not trained in the art of straight-faced evasion. And what’s more, I don’t plan to learn.”  His voice rose with each sentence. “And if you must know, number one, I probably did a lousy job ‘conveying my regrets in convincing fashion,’ as you so delicately put it; and number two, I wasn’t on any emergency or out of town. Right in my backyard, in perfect health.”

“All right, Doctor, don’t get upset—” Andrewes said, but Harmon was not finished.

“You know what I want to do? I want to tell them we all screwed up. McCrae was too inexperienced to be left on his own; Friedman abandoned his post and ought to be relieved of his position; and I, Richard Harmon, had a duty to warn the house staff before they killed that girl. How does that sound?”  He looked around, daring anyone to answer.

MacAdoo took up the challenge with studied calm. “Sounds honest to me, and probably true. But please don’t repeat it outside this room. I’m sure you know better.”  Silence.

Hamilton addressed MacAdoo. “I understand my medical colleague’s feelings. Our world is one of real people, bodies and souls, pain and suffering, the joy of birth and the grief of death. When we lose a child, we feel the pain and loss too. I didn’t know this girl or her family, but I have no difficulty putting myself in Doctor Harmon’s shoes. Dissimulation, evasiveness, silence don’t fit into our relationships with people. If they’re the only way to survive in our litigious climate, and I tell my staff just that, then so be it. But don’t expect us not to be upset.”

Small nodded. “Most of us have families, children. We appreciate what you doctors do for us. I don’t doubt for a minute, Doctor Harmon, that you feel for the girl and her family. But consoling you isn’t going to be their top priority. Lethal acts of negligence were committed, which you’ve described better than I could, and we’re probably facing a lawsuit ― the hospital and you too. Our job’s to represent your interests, which in the long run helps keep you in practice. We use legal strategies for our work just as you use medical strategies for yours. Some of the things you have to do to achieve your goals aren’t all that pleasant either; your patients accept that. Now I ask you to accept what we have to do. We’re on your side, you know.”

“On our side, sure,” Harmon said sarcastically, “pitting us against our own patients.”

This was too much for Small. He stood up. “Excuse me, Doctor,” he said, his face red and the blood vessels on his temples bulging, “the conflicts between you and your patients are not of our making. Do I need to say more?” Silence. “OK. Our job’s to keep you out of legal trouble; and if we can’t keep you out, as we anticipate here, then to bail you out. You’re not making it easy.”  He sat down.

“Let’s take a break.” Ten minutes later, with tempers cooled, they reassembled.

“Now,” Small said, “if the suit comes, do we cave in, or is there a way to defend it?”

“We never start by caving in,” MacAdoo said with a derisive laugh. “Ordinarily I’d say, wait till we hear from them, then we’ll know what they’re cooking up. But we’ve already heard the charges right here.”  The others cringed, fearing violence, but the moment passed. “Obviously what happened is a matter of record, so there’s no denying it. As I see it, our best defense is along two lines. One, plead emergency: Even if they argue that it doesn’t take long to ask about allergy, we say our people were so struck with the girl’s state that there was no time for anything else. A jury might buy that. Two, reduce the impact: We know she had heart disease. We can argue that her days were numbered. True, she didn’t have to die at this time, but it’s not as if we took away sixty-five years of her life. Even if the jury did find against us, they’d reduce the damages. Naturally, our settlement offer, if any, should reflect that.”

“With all due respect,” Harmon said, “nowadays they’re pretty good with open-heart surgery. A new valve and she could be set for a long, long time.”

“Still,” Andrewes said, “there is a risk, isn’t there? I mean, if all goes well, fine. But who guarantees that all goes well?”

“Nobody guarantees,” Harmon said, “but she has a chance, a good one in fact. That’s what’s been taken from her. I might be pretty generous if I were on that jury.”

Small breathed a sigh of relief that that couldn’t happen. “Juries are unpredictable,” he said. “But you’re right, Bruce. I can’t think of anything else right now. Can you, Sherman?”

Andrewes had been leafing through the chart. “There’s something here about endocarditis. That means infection on the valve, doesn’t it?”  Hamilton nodded. “We can argue that the risk of this valve getting infected makes treatment even more urgent. Bolsters your first argument, Bruce. And that risk follows her the rest of her life ― even if she gets a new valve, I believe.”

“Good points,” said Small. “You should ask your expert to look at all those things.”

Within days word reached Small that Eden’s records had been formally requested by the law firm of Frazier & Drummond. When notice of the lawsuit didn’t arrive for four weeks, he wondered, hopefully, if the plaintiffs’ first-choice expert hadn’t supported them and they’d had to go to a second. Maybe their case wasn’t solid. He expressed his optimism to MacAdoo.

“Means nothing,” MacAdoo said. “They’ve got two years. I’m surprised it came this fast. May have to do with the mother being a lawyer herself. Anyway, I’ll give Shaw a call.”

Next day he called Newton Shaw at the Hospital for Infants, Children, and Adolescents. Doctor Shaw was a treasured resource, an effective witness with the right opinions.

“Newt? Bruce MacAdoo here. Can you review a case for us?”

“I’m pretty busy. I have four others. What’s the time frame? I’d need at least a month.”

“OK.”  MacAdoo knew that for Shaw a month did not mean a month and a day.

“What kind of case is it? Complicated?”  Shaw asked.

“Too simple for my comfort. Girl, seventeen, given oxacillin and had a fatal reaction.”

“Did they know she was allergic?”

“The intern didn’t, but plaintiff’s arguing he should’ve. She’d had a reaction once before.”

“Then you don’t have a case.”

“We don’t know what state the girl was in, whether she could give a history.”

“Was she conscious?”

“Yes, and oriented.”

“Seventeen years old, conscious, and oriented? You don’t have a case.”

“She also had a bad heart valve, reduced life expectancy. High fever, low blood pressure.”

“So it’s not all that simple. I’d better not say any more without seeing the chart.”

“I’ll get it out to you today.”

“Remember. For the record, if I don’t think this is defensible, I won’t support you.”

“I know I can count on you to be honest and up front with me. You always have been.”

MacAdoo hung up. Shaw never failed to make it clear, “for the record,” that he wouldn’t support a bad case; and in the two dozen cases he’d reviewed, he’d never failed to support the firm’s claims. Shaw’s reports and deposition testimony ― he had been called to court only once ― had stood Bruce in good stead. Shaw was worth the fees he charged.

One month later to the day, Shaw’s report arrived. It brought a smile to MacAdoo’s face. MacAdoo was ready to exchange expert reports with Frank Frazier and wait.

~~~~~~~~~~

Hospital for Infants, Children, and Adolescents

Department of Medicine, Division of Infectious Diseases

Great! HICA gets all the sickest kids from Cresheim Valley, so of course one defends the other. Frank read the letter and laughed out loud. An hour later, looking solemn, he handed it to Karen.

This unfortunate girl had severe heart disease. Her aortic valve was insufficient, her mitral valve stenotic, and she faced imminent heart failure. Surgical replacement of one or both valves was inevitable if she were to have any chance of avoiding early death, and this operation itself poses a significant risk of operative death as well as later valve breakdown. Further, both her native valves and their replacements would have been constantly susceptible to infection. This very complication was in its incipient stages during Eden Avery’s final illness, as attested by the positive blood cultures. Most important, she was in septic shock, facing death in hours.

Given the life-threatening emergency, the most aggressive intervention with antibiotics was indicated. In fact, one might ask why the knee infection, which had been handled in the patient’s home for days, had not been referred to a physician sooner for proper care. This was obviously the portal of entry for the sepsis. In sharp contrast to the prior neglect of this patient, the vigorous institution of therapy by Doctor McCrae is to be commended. Her tragic reaction could not have been prevented under these circumstances, where every minute counted.

In summary, it is my opinion, to a reasonable degree of medical certainty, that the care rendered to this unfortunate patient lived up fully to accepted medical standards.

The letter was signed by Newton Shaw, M.D., Professor and Head, Division of Infectious Diseases. Karen stared at it for almost a minute before throwing it on the desk. “This is outrageous!  How can they do such a thing?”  She was on the verge of tears.

Frank nodded knowingly. “Yes, outrageous. And dishonest. But not surprising.”

“Plaintiffs’ experts get all the bad press,” he had once explained. “Doctors love to use words like ‘hired guns,’ ‘prostitutes,’ and whatnot. They’d have the public ― which of course includes jurors ― believe the typical plaintiff’s expert sells the attorney any opinion he wants. Now there’s a few rotten apples in any barrel, but guys like that are dangerous on the stand. What the public doesn’t hear about is defendants’ prostitutes, and that’s a whole barrel full of rotten apples. And no wonder. Look at the incentives. To testify against your own convictions is risky, no matter whose side you’re on, because you’re not going to do well on cross-exam.  For the plaintiff’s witness that’s a problem. He could embarrass his lawyer in court and not be called again. And he’s already compromised his standing in the medical community. Most docs are too smart to fall into that trap. For the defense expert, lying’s no problem at all. Win or lose, he makes points with the other docs, he can wallow in his loyalty, and his referrals pick up. It’s easy to see why most docs would rather come to their buddies’ aid than testify for a patient. Then there are the spin-offs, like the agencies that recruit plaintiffs’ experts from afar because the locals won’t testify. Unscrupulous defense lawyers can easily make out-of-town witnesses look like hired guns. No wonder the defendants win four out of five cases in court.”

“Why hasn’t there been more publicity about this?”

He leaned back and grinned. “Ever heard of the American Patients’ Association?”

“OK, I get it, there’s no such thing. But don’t you really think most defense experts are honest?”

“Most potential defense experts are, but who’s going to ask them to testify when there’s been real malpractice? If the hospital had called Nancy Olson, she’d have told them the same thing she told us, and they’d have shown her the door. Shaw is much more obliging.”

“So they’ll take us to court?”

“I doubt it. They know as well as we do that Shaw’s report is fraud.  And they know that we know it.  Once they’re convinced that we’ll take them to court, they’ll settle.”

Neither one mentioned Shaw’s comment about the knee infection.