Crisis

2

Tony Fasano gripped the edges of the podium as if he were at the controls of a mammoth video game. His pomaded, slicked-back hair had an impressive sheen. The large diamond in his gold ring flashed as it caught the sunlight. His gold-nugget cuff links were in full view. Despite his relatively short stature, his boxy build gave him a formidable appearance and his robust, swarthy complexion gave him a look of health despite the courtroom's sallow-colored walls.

After hiking a tasseled loafer onto the podium's brass rail, he began his opening statement: "Ladies and gentlemen of the jury, I want to express my personal appreciation of your service to allow my client, Jordan Stanhope, his day in court."

Tony paused to glance back at Jordan, who remained impassive and motionless, as if he were a mannequin. He was dressed impeccably in a dark suit with a sawtooth white handkerchief peeking out of his breast pocket. His manicured hands were folded in front of him, his countenance expressionless.

Facing around, Tony regained eye contact with the jurors. His face assumed the expression of the bereft. "Mr. Stanhope has been in deep mourning, barely able to function after the regrettable, unexpected passing nine months ago of his lovely, dutiful wife and life's companion, Patience Stanhope. It was a tragedy that needn't have happened, and it wouldn't have happened except for the disgraceful negligence and malpractice of my opposing counsel's client, Dr. Craig M. Bowman."

Craig reflexively stiffened. Randolph 's fingers promptly wrapped themselves around Craig's forearm, and he leaned toward the doctor. "Control yourself!" he whispered.

"How can that bastard say that?" Craig whispered back. "I thought that was what this trial is about."

"It is indeed. He's permitted to state the allegation. I do admit he's being inflammatory. Regrettably, that is his reputed style."

"Now," Tony said, pointing ceilingward with an extended index finger, "before I provide you good folks with a road map of how I will substantiate what I've just said, I'd like to make a confession about myself. I didn't go to Harvard like my esteemed opposing colleague. I'm just a city boy from the North End, and sometimes I don't talk that great."

The plumber's assistant laughed openly, and the two polyester suits cracked smiles despite their apparent pique.

"But I try," Tony added. "And if you're a little nervous about being here, understand that I am, too."

The three housewives and the retired schoolteacher smiled at Tony's unexpected admission.

"Now, I'm going to be up-front with you good people," Tony continued. "Just like I've been with my client. I've not done a lot of malpractice work. In fact, this is my first case."

The muscular firefighter now smiled and nodded approval of Tony's candor.

"So you might be asking yourself: Why did this wop take the case? I'll tell you why: to protect you and me and my kids from the likes of Dr. Bowman."

Mild expressions of surprise registered on most of the jurors' faces as Randolph rose up to his full, patrician height. "Your Honor, I must object. Counsel is being inflammatory."

Judge Davidson regarded Tony over the tops of his glasses with a mixture of irritation and surprise. "Your comments are pushing the limits of courtroom decorum. This is an arena for verbal combat, but established rites and rules are to be followed, especially in my courtroom. Do I make myself clear?"

Tony raised both beefy hands above his head in supplication. "Absolutely, and I apologize to the court. The problem is, occasionally my emotions get the better of me, and this is one of those cases."

"Your Honor…" Randolph complained, but he didn't finish. The judge waved for him to sit while ordering Tony to proceed with appropriate propriety.

"This is fast becoming a circus," Randolph whispered as he took his seat. "Tony Fasano is a clown, but a deviously clever clown."

Craig regarded the attorney. It was the first time he'd seen a crack in the man's glacial aplomb. And his comment was disturbing. There was a definite element of reluctant admiration.

After a brief glance at his cards in the crook of the lectern's top, Tony returned to his opening statement: "Some of you might wonder why cases like this aren't settled by learned judges and accordingly question why you have to interrupt your lives. I'll tell you why. Because you have more common sense than judges." Tony pointed at each juror in term. He had their full attention. "It's true. With all due respect, Your Honor," Tony said, looking up at the judge. "Your memory banks are jammed full of laws and statutes and all sorts of legal mumbo jumbo, whereas these people" – he redirected his attention to the jury – "are capable of seeing the facts. In my book this is an absolute maxim. If I ever get into trouble, I want a jury. Why? Because you people, with your common sense and your intuitional ability, can see through the legal haze and tell where the truth lies."

Several of the jurors were now nodding agreement, and Craig felt his pulse quicken and a cramp grip his lower bowels. His fear about Tony connecting with the jury was seemingly already coming to pass. It was indicative of the whole sorry affair. Just when he felt things couldn't get any worse, they did.

"What I'm going to do," Tony continued, gesticulating with his right hand, "is to prove to you four basic points. Number one: By the doctor's own employees, I am going to show that Dr. Bowman owed a duty to the deceased. Number two: With the testimony of three recognized experts from three of our own area's renowned institutions, I will show you what a reasonable doctor would do in the circumstance the deceased found herself in the evening of the fifth of September, 2005. Number three: With the testimony of the plaintiff, of one of the doctor's employees, and of one of the experts who happened to be involved in the actual case, I will show you how Dr. Bowman negligently failed to act as a reasonable doctor would have acted. And number four: how Dr. Bowman's conduct was the proximate cause of the patient's sad death. That's it in a nutshell."

Perspiration appeared on Craig's forehead, and his throat felt suddenly dry; he needed to use the restroom, but he didn't dare. He poured himself some water from a pitcher in front of him with an embarrassingly shaky hand and took a drink.

"Now we are back on terra firma," Randolph whispered. He obviously was not as moved as Craig, which was some consolation. But Craig knew there was more.

"What I have just outlined," Tony continued, "is the core of a garden-variety case of medical malpractice. It's what the fancy, expensive lawyers like my opponent like to call the 'prima facie' case. I call it the core, or the guts. A lot of lawyers, like a lot of doctors, have a fondness to use words nobody understands, particularly Latin words. But this isn't a garden-variety case. It's much worse, and that's why I feel so strongly about it. Now, the defense is going to want you to believe, and they have witnesses to suggest, that Dr. Bowman is this great, compassionate, charitable doctor with a picture-perfect nuclear family, but the reality is far different."

"Objection!" Randolph said. "Dr. Bowman's private life is not an issue. Counsel is trying to impugn my client."

Judge Davidson stared down at Tony after taking off his reading glasses. "You are straying afield here, son. Is the direction you are taking relevant to this specific allegation of medical negligence?"

"Absolutely, You Honor. It is key."

"You and your client's case are going to be in a lot of hot water if it is not. Objection overruled. Proceed."

"Thank you, Your Honor," Tony said before reconnecting with the jurors. "On the night of the fifth of September, 2005, when Patience Stanhope was to meet her untimely end, Dr. Craig Bowman was not snuggled in his cozy, posh Newton home with his darling family. Oh, no! You will learn by a witness who was his employee and girlfriend that he was with her in his in-town love nest."

"Objection!" Randolph said with uncharacteristic forcefulness. "Inflammatory and hearsay. I cannot allow this type of language."

Craig felt blood rush to his face. He wanted to turn and connect with Alexis, but he couldn't get himself to do it, not with the humiliation he was experiencing.

"Sustained! Counsel, stick to the facts without inflammatory embellishments until the witness testifies."

"Of course, Your Honor. It is just hard to rein in my emotion."

"You'll be in contempt if you don't."

"Understood," Tony said. He looked back at the jurors. "What you will hear testimony to is that Dr. Bowman's lifestyle had changed dramatically."

"Objection," Randolph said. "Private life, lifestyle – none of this has relevance to the issue at hand. This is a medical malpractice trial."

"Good lord!" Judge Davidson exclaimed with frustration. "Counsels, approach the bench!"

Both Randolph and Tony dutifully went to the side of the judge's box, out of earshot of everyone in the courtroom and, most important, beyond the range of both the court reporter and the jury.

"At this rate, this trial is going to take a year, for Christ's sake," Judge Davidson groused. "My entire month's schedule will have to be trashed."

"I cannot allow this farce to continue," Randolph complained.

"It's prejudicial to my client."

"I keep losing my train of thought with these interruptions," Tony grumbled.

"Pipe down! I don't want to hear any more pissing and moaning out of either one of you. Mr. Fasano, give me some justification for this excursion from the relevant medical facts!"

"It was the doctor's decision to go to the deceased's home on a house call instead of agreeing to the plaintiff's request to take his wife directly to the hospital even though, as the doctor himself will testify, he suspected a heart attack."

"So what?" Judge Davidson questioned. "I assume the doctor responded to the emergency without undue delay."

"We're willing to stipulate that, but Dr. Bowman didn't make house calls before he had his midlife crisis, or 'awakening', as he calls it, and before he moved into town with his lover. My experts will all testify that the delay caused by making the house call was critical in Patience Stanhope's death."

Judge Davidson ruminated on this. As he did so, he absently rolled his lower lip into his mouth such that his mustache reached halfway down his chin.

"Provider lifestyle and mindset are not the issues in medical malpractice," Randolph asserted. "Legally, the question is simply whether there was a deviation from the standard of care, causing a compensable injury."

"Generally you are right, but I believe Mr. Fasano has a valid point, provided subsequent testimony supports it. Can you say that's unequivocally the case?"

"To the letter," Tony said with assurance.

"Then it will be up to the jury to decide. Objection overruled. You may proceed, Mr. Fasano, but I warn you again about inflammatory language."

"Thank you, Your Honor."

Randolph returned to his seat, ostensibly annoyed. "We're going to have to weather the storm," he said. "The judge is allowing Fasano unusual discretion. On the positive side, it will add fodder for the appeal if there is ultimately a finding for the plaintiff."

Craig nodded, but the fact that Randolph, for the first time, was voicing the possibility of a negative outcome added to Craig's growing despondency and pessimism.

"Now, where the devil was I?" Tony said after regaining the podium. He shuffled through his note cards briefly, adjusted the sleeves of his silk jacket so that his shirt cuffs presented just enough and his clunky gold watch was just visible. He raised his eyes. "In the third grade, I learned I was terrible speaking in front of groups, and it hasn't changed much, so I hope you give me a little slack."

A number of the jurors smiled and nodded in sympathy.

"We will present testimony that Dr. Bowman's professional life changed dramatically almost two years ago. Prior to that, he had essentially a traditional fee-for-service practice. Then he switched.

He joined and has essentially taken over a successful concierge practice."

"Objection!" Randolph said. "This trial is not about style of practice."

Judge Davidson sighed with frustration. "Mr. Fasano, is Dr. Bowman's style of practice germane to the issue we discussed at the sidebar?"

"Absolutely, Your Honor."

"Objection overruled. Proceed."

"Now," Tony said, engaging the jury, "I'm looking at a number of faces here that look a little blank when I mention the term concierge medicine. And you know why? Because there are a lot of people who don't know what it is, including me before I took on this case. It's also called retainer medicine, meaning those patients who want to be included in the practice have to cough up some big bucks up front each and every year. And we're talking about some big money with some of these practices, upwards of twenty thousand dollars a head per year! Now, Dr. Bowman and his mostly retired partner, Dr. Ethan Cohen, don't charge that much, but they charge a lot. As you can well imagine, this style of practice can only exist in wealthy, sophisticated areas like some of our major cities and posh locales like Palm Beach or Naples, Florida, or Aspen, Colorado."

"Objection!" Randolph said. "Your Honor, concierge medicine is not on trial here."

"I disagree, Your Honor," Tony said looking up at the judge. "In a way, concierge medicine is on trial."

"Then relate it to the case, counselor," Judge Davidson said irritably. "Objection overruled."

Tony looked back at the jurors. "Now, what do people in a concierge practice get for all this up-front moola besides getting kicked out of the practice and abandoned if they don't come up with the dough? You'll hear testimony for what they supposedly get. It's going to include guaranteed twenty-four-seven access to their doctor, with the availability of the doctor's cell phone numbers and e-mail address, and a no-wait guarantee for their appointments, both of which I personally think people should get without having to fork over retainer fees. But most important of all in relation to this current case, they get the possibility of house calls when appropriate and convenient."

Tony paused for a moment to let his comments sink in. "During the trial, you will hear direct testimony that on the evening of September fifth, 2005, Dr. Bowman had tickets to the symphony for himself and his live-in girlfriend while his wife and darling daughters were moping at home. With him currently back in the family manse, I'd love to have the doctor's wife as a witness, but I can't because of spousal confidentiality. She must be a saint."

"Objection," Randolph said, "for the very reason cited."

"Sustained."

"You will also hear testimony," Tony continued with hardly a break, "that the known standard of care when a heart attack is suspected is to get the patient to the hospital immediately in order to initiate treatment. And when I say immediately, I'm not exaggerating because minutes, maybe seconds, count between life and death. You will hear testimony that despite my client's pleading to take his stricken wife to meet Dr. Bowman where she could be treated, Dr. Bowman insisted he make a house call. And why did he make the house call? You will hear testimony that it was important because if Patience Stanhope did not have a heart attack, even though from his own testimony you will hear that he suspected it, if she didn't, then he would be able to get to the symphony on time to drive up in his new red Porsche, walk in and be admired for his culture and for the young, attractive woman he had on his arm. And therein, my friends, lies – or lays, I'm never sure which – the medical negligence and malpractice. For in his own vanity, Dr. Bowman violated the standard of care that dictates a heart attack victim get to a treatment facility absolutely as soon as possible.

"Now, you will hear some different interpretation of these facts from the efforts of my more polished and experienced colleague. But I am confident that you people will see the truth as I believe the Massachusetts tribunal did when they heard this case and recommended it for trial."

"Objection!" Randolph called out, leaping to his feet. "And move to strike and request the court to admonish counsel. The tribunal's findings are not admissible: Beeler versus Downey, Massachusetts Supreme Judicial Court."

"Sustained!" Judge Davidson snapped. "Defense counsel is correct, Mr. Fasano."

"I'm sorry, Your Honor, " Tony said. He stepped over to the plaintiff's table and took a paper offered by Ms. Relf. "I have here a copy of Massachusetts Laws, Chapter two thirty-one, section sixty B, saying the panel's findings and testimony before the panel are admissible."

"That was overturned by the case cited," Judge Davidson said. He looked down at the court reporter. "Remove the reference to the tribunal from the record."

"Yes, sir," the court reporter said.

Judge Davidson then engaged the jury. "You are directed to disregard Mr. Fasano's comment about the Massachusetts Tribunal, and you are instructed that it will play no role whatsoever in your responsibility as triers of fact. Am I understood?"

The jury all nodded sheepishly.

The judge glanced down at Tony. "Inexperience is not an excuse for not knowing the law. I trust there will be no more slipups of this sort, or I will be forced to declare a mistrial."

"I will try my best," Tony said. He returned to the podium slab-footed. He took a moment to gather his thoughts, then looked up at the jury. "I am confident, as I said, that you will see the truth and find that Dr. Bowman's negligence caused the death of my client's lovely wife. You will be then asked to award damages for the care, guidance, support, counsel, and companionship that Patience Stanhope would be providing today to my client if she had lived.

"So thank you for your attention, and I apologize to you as I did to the judge for my inexperience in this particular arena of law, and I look forward to addressing you again at the conclusion of the trial. Thank you."

Gathering his cards from the lectern, Tony retreated back to the plaintiff's table and immediately launched into a hushed but intense conversation with his assistant. He was flaunting the paper she had recently handed him.

With a sigh of relief that Tony had finished, Judge Davidson glanced at his watch before looking down at Randolph. "Does the defense counsel wish to make an opening statement at this juncture of the proceedings, or after the plaintiff's case in chief?"

"Most definitely now, Your Honor," Randolph replied.

"Very well, but first we will take a lunch recess." He smartly smacked the gavel. "Court's adjourned until one thirty. Jurors are instructed not to discuss the case with anyone or among themselves."

"All rise," the court officer called out like a town crier as the judge got to his feet.