The Law of Second Chances

39

Miami, October 1999

It had been a long day, and Jack Tobin was tired. He’d been on his feet for hours presenting evidence to the Florida Board of Professional Responsibility, and he still wasn’t done. It wasn’t unusual for him to be on his feet all day. Hell, he’d had trials that lasted months. But this fatigue was different. This was emotional fatigue. This was ripping open a wound that had not yet healed, a wound that was festering with infections and pus and all sorts of bad things. This was, in every sense of the word, gut-wrenching.

Now Jack was making his summation to the board.

“As you know, I have been before you many times in the past on the other side of this issue-representing physicians-so I have literally seen both sides. The evidence I have put before you today shows, I believe, that Dr. Hawthorne is unfit to continue practicing medicine. I have presented to you four other instances where Dr. Hawthorne missed the diagnosis of ovarian cancer even though the patient exhibited classic symptoms of the disease. Many individuals never have symptoms. That is why it is often referred to as the ‘silent killer.’ These five women, however, all had multiple symptoms-abdominal pain, fatigue, bloating, and weight loss-over an extended period of time. Only one of these women, Ms. Eliot, survived, and in that case, where the diagnosis was missed for a precious eight months, the positive outcome was considered a miracle. She told you that herself earlier today. In the case here before you, the diagnosis was missed for more than nine months, and when the proper diagnosis was finally made, it was too late. The cancer had metastasized into multiple organs.

“One blood test could have revealed the problem. An ultrasound could have confirmed the diagnosis. In every one of these five situations, this doctor did nothing. Early detection was the only real chance these women had.

“Everybody makes mistakes, ladies and gentlemen, but when you do it in life-and-death situations and you do it consistently, there have to be severe repercussions. That’s why I’m asking you to take Dr. Hawthorne’s license.”

It was short, sweet, and to the point. And more important, it was devoid of emotion. If Jack had let his emotions enter into the presentation, there was no telling what would have happened.

Dr. Hawthorne’s attorney, Ken Cooper, now had his opportunity to present the doctor’s side. As Jack sat down, Ken stood to address the board.

This was not the setting where these gentlemen usually worked. They were trial lawyers, and their arena was the courtroom. This administrative hearing was in a ballroom at the San Juan Capistrano Hotel in downtown Miami, and the “court” consisted of a panel of about thirty physicians and other professionals who were going to pass judgment on Dr. Hawthorne’s professional future.

Ken did exactly what Jack expected him to do. He pointed out to the board that the symptoms of ovarian cancer are the symptoms of so many common ailments. “It is not a deviation from the normal standard of care not to jump to the conclusion that everyone who has persistent stomach pain or bloating has ovarian cancer. If that were the case, doctors would spend their days sending people to have diagnostic testing, from ultrasounds to CT scans. That’s the type of medicine that is already driving up medical costs.” After that, Ken read from portions of the five expert depositions that he had submitted earlier as evidence. “Five of the most prominent physicians in this area and in the country have told you that Dr. Hawthorne did not deviate from the usual standard of care. That is evidence you cannot ignore.”

It was a good argument, and it was the argument Jack would have made and had made many times before, but Jack still had an almost uncontrollable desire to get out of his seat, grab Ken Cooper by the throat, and squeeze as hard as he could. The only reason he didn’t was that Ken was a longtime friend who was only doing his job. He also knew that Ken-like himself when he’d represented physicians, delusional as he may have been-actually believed what he was saying. He wasn’t so sure about the doctors at the large, elevated, U-shaped table in front of him.

It was Jack’s turn for rebuttal. He stood and put his hands in his suit jacket pockets, something he had never done in his entire career as a trial attorney. He took a deep breath to relax. His heart was in his throat. Maybe I should have gotten someone else to do this. Maybe I’m too close to the situation. But it was too late now. He had believed nobody else could make the case like he could. Maybe he was right. Certainly nobody else could have felt as strongly about it as he did.

“Ken made a good argument,” he began. “He always does. Ken is a good lawyer. He comes prepared. When I handled these cases-and as you know, if you’re going to represent physicians in medical malpractice lawsuits, you’re going to represent them in administrative hearings as well-I did exactly what Ken has done. I presented the testimony of the best experts in the country. That is why I gave you evidence of actual cases where people have lost loved ones or, as in Ms. Eliot’s case, where someone almost lost her life-all under Dr. Hawthorne’s care. So what’s it going to be? Are you going to rule in favor of people, or are you going to rule in favor of the experts?”

There was much more he wanted to say, but he knew instinctively that it was time to sit down and shut up. They had the point. They were either going to buy it or they weren’t. As the discussion proceeded around the U-shaped table, Jack quickly got his answer. Most of the doctors and other professionals on the panel quickly adopted the opinions of the experts while expressing their heartfelt condolences to the families of the victims of the good doctor’s care. Their chairman, Dr. Robert Green, summed it up well:

“Our hearts go out to you family members who have lost loved ones. However, sometimes doctors can do everything possible and people still die. I believe that’s what happened in this case, and that’s what our experts have told us.”

Jack wanted to puke. He’d been present at numerous such proceedings in the past but felt like he was going through it for the first time, because now he was one of those family members and the case involved the death of his own wife. How could I have been so blind for so long? he asked himself as he sat there listening to men and women who liked nothing more than the sound of their own voices supporting the system that fed them so well.

One of the newer and more naive members of the panel actually had a question for Jack. “Why haven’t you filed a lawsuit, Mr. Tobin? If your case has merit, you could present it to a jury of ordinary people.”

To his credit, Ken Cooper did not object to Jack’s answering the question. He could have successfully argued that the evidence stage of the hearing was over and that the lawyers were no longer allowed to speak. But he didn’t.

“Well,” Jack replied, remaining seated, “it’s a simple question but a complicated answer-an answer I’ve thought about a great deal. The only thing civil suits can do is compensate people with money. There is a great deal of propaganda in this country right now about those malpractice suits: it talks about greedy trial lawyers tricking juries into awarding huge sums of money and poor doctors having to pay high insurance premiums. The doctors have jumped in bed with the insurance industry, and it remains to be seen who will get the top position in that little affair. On the other hand, many lawyers have abused the system. The people who have been intentionally excluded from this discussion are the victims, because they have no power.

“I don’t need money. And I don’t want this discussion to be about all that crap I just mentioned. I want it to be about people and how they’ve been harmed by this doctor. If you want to limit lawsuits, then you have to discipline your doctors. You can’t have it both ways. That’s criminal in my mind.”

“Mr. Tobin,” Chairman Green said as soon as Jack finished, “I understand you’ve had an unfortunate loss, but that is no reason to make accusations and use inappropriate analogies.”

Jack only heard the first part of the sentence. He exploded from his chair. “Did you just call the death of my wife-her name was Pat, by the way, in case you don’t have it on your cheat sheet up there-did you just call her death ‘an unfortunate loss’?” Before the stunned doctor could respond, Jack was at him again. “How about if I come up there and wring your skinny little neck? What adjective do you think your colleagues would supply for that loss?”

“You’re out of order, Mr. Tobin,” the chairman shouted.

“Out of order? You think I’m out of order? I’m not out of order. This is out of order.” Jack threw himself over the table that was in front of him and started toward the chairman, who looked like he was about to wet his pants and with good reason. Jack was a hell of a lot bigger than he was.

As he started forward, a huge hand reached out, grabbed him by the shoulder, and pulled him back. The shoulder and arm attached to that hand wrapped themselves around Jack’s body.

“Hold on, brother,” Henry said soothingly. At the same time, four uniformed security officers were moving toward them. Henry spoke to them as calmly as he had spoken to Jack.

“Hold on now,” he said. “Me and Mr. Tobin here were just leaving. I assure you, you don’t want to get in our way.”

Perhaps it was the way he said it, or perhaps it was the size of the man-they could see how firmly he held Jack-or perhaps it was the look in his eyes. Whatever it was, the guards stopped in their tracks. Henry and Jack left the ballroom unimpeded.

Jack was in a rage, oblivious to his surroundings. Henry didn’t let go until they were in the parking lot. Even then, he stood between Jack and the entrance to the hotel.

“Don’t worry, Henry,” Jack told him. “I’m not going back in. I’ve said all I’m going to say to those people.”

“If it makes you feel any better, Jack, people like that never listened to me either.”

“C’mon, let’s get a beer,” Jack said.

“Sure thing,” Henry replied.

Not long after Henry regained his freedom, Jack had filed a claims bill with the Florida state legislature requesting that the state of Florida compensate Henry for the seventeen years he’d spent on death row. Henry and Jack were invited to a hearing before a legislative committee of state senators and representatives. Jack had witnessed enough closing arguments by plaintiffs’ lawyers in his years as an insurance defense attorney to know how to uncork the tear ducts of even the most jaded politicians. By the time he was through telling the story of Henry’s near-execution, there were very few dry-eyed members of the committee left. They awarded Henry three million dollars.

Henry was forever grateful to Jack. After Pat’s death, he stayed at the home in Bass Creek for a couple of months before buying his own place in Miami. However, he still came out to Bass Creek to spend the weekends.

Henry had made a promise to Jack to work with him on his death penalty projects in any capacity he needed. Henry knew how to do legal research, and he could investigate in places Jack could never go. He could even serve as a bodyguard if necessary. His performance at the San Juan Capistrano proved that even when he was outnumbered, people did not want to mess with Henry Wilson.

Jack was on his fifth beer when the melancholy set in. Henry was used to it.

“It’s been a year, Henry, but it’s like I lost her yesterday.”

“A year isn’t very long, Jack, when you love someone as much as you loved Pat.”

“Yeah, but I can’t seem to get on with things. It’s like I’m stuck in place. If Pat were here she’d give me a good swift kick.”

“I was stuck in place for as long as I can remember, Jack. You’ll come out of it soon. I can see the early stirrings already. Dr. Green was part of that. I can still see his face as you started toward him.”

That got a smile out of Jack.

Maybe Henry’s right, he thought. Maybe I am coming out of it.