Chapter 59: Unfortunately

November 2, 1989, McKinley, Ohio

"Mike, you have a phone call," Nate said to me late on Thursday morning. "Line 3."

I walked over to his desk and picked up the phone.

"Doctor Mike Loucks," I said.

"Good morning, Doctor Loucks. This is Arthur Braun. Is this a convenient time to speak?"

I suppressed a groan because I was sure I knew exactly why he was calling — Krista Sandberg.

"Not really," I replied, "given I have three patients I'm treating at the moment. I'm also not inclined to speak with you about anything, given our history."

"I understand that, but I need to take a deposition from you about Krista Sandberg."

That was going to open a whole can of worms and create a headache for the hospital and medical school. I had a pretty good idea of the kinds of questions Mr. Braun would ask, and the truthful answers I'd have to give would likely help Krista's case.

"I believe you need to speak to Mr. Crowe, the hospital legal counsel."

"I just spoke to him," Mr. Braun said. "I was hoping you would coöperate without a subpoena."

"I think, for my own protection, I'll need you to have a subpoena issued."

"I understand. You'll receive one in the next few days. I look forward to speaking to you."

I certainly didn't look forward to speaking to him, but I felt it was in my best interest not to be too adversarial.

"I'll be in touch when I receive the subpoena," I replied.

"Thank you, Doctor."

"You're welcome."

I replaced the handset in the cradle and went straight to Doctor Gibbs' office to let her know what had just transpired.

"I'm next, I'm sure," she said.

"I'm sure," I agreed. "But you aren't going to help his case; I suspect he thinks I will. I should speak with Mr. Crowe. I'll call him rather than leave the ED."

"All I can say is I'm very glad Shelly Lindsay suggested you record your interactions with her."

"Not nearly as glad as I am!"

I left her office and saw that the consultation room was empty, so I went in, closed the door, and dialed Mr. Crowe's number.

"I was expecting your call," Mr. Crowe said. "Did you agree to sit for the deposition?"

"Not without a subpoena," I replied. "I've tangled with him before, and to be honest, he thinks I can help him."

"To be equally honest, you're the one person who could."

"I won't lie, but I don't want to hurt the hospital or medical school."

"And it would cost me my law license to knowingly suborn perjury, so I don't want you to lie, either. That said, there are many ways to tell the truth."

"Is this where I say 'spoken like a lawyer'?" I asked.

Mr. Crowe laughed, "What else would you expect? If you're willing, we can discuss your deposition beforehand. I can't force you to discuss it with me, but I think you might find it beneficial. How you say something is nearly as important as what you say."

"That's not against any rules?"

"No. Deposition prep is normal in civil cases. It's a bit trickier preparing witnesses in a criminal trial, but civil procedure is not nearly as strict in that regard. And the claims here are all civil. She'd need to convince the County Prosecutor or US District Attorney to file criminal charges, and nothing I've seen would justify those."

"Against whom?"

"Most likely Mark King, but the hospital could be named as a criminal defendant."

"Out of curiosity, who goes to jail?"

"As we're a public institution, the remedies would be strictly limited and would likely simply be a large fine, but if you think about it, that's counterproductive, so it's unlikely any criminal charges would be brought. Civil, perhaps, but that requires a pattern, which she hasn't claimed. It's all about her."

"No kidding," I replied dryly.

"When can you make time to see me? I suspect we'll need two hours."

"Given my schedule, it'll have to be during a shift. If you call Doctor Gibbs, she'll work with you. She's aware."

"She'll be subpoenaed as well."

"She's aware of that, too."

"I'll give her a call. Thanks, Doctor."

"You're welcome."

I hung up and then returned to my regular duties caring for patients. Just before noon, I had a chance to speak to Clarissa, and we stepped out into the ambulance bay despite the crisp November air.

"I'm going to be subpoenaed," I said.

"That can't come as a surprise," Clarissa replied.

"No, it can't, and as Mr. Crowe said, I'm the one person who could help her."

"To basically prove she wasn't given a fair shot."

"Yes."

"Don't you think you can counter that with the false accusation?"

"Maybe. I'm supposed to sit down with Mr. Crowe before I give the deposition, and as he put it, there are many ways to tell the truth."

Clarissa smirked, "The answer to 'Did you think she was being treated unfairly?' is 'Right up until she falsely accused me of demanding sex from her for a passing grade'."

I nodded, "Something like that, though, from what I understand about depositions, and from my experience, they can ask pretty much any question and request 'yes' or 'no' answers, similar to how it works in court."

"Ugh. Do you think she has a chance of winning?"

"I'm not a lawyer and don't even play one on TV, but I think she could win against Mark King. I think she has a tough row to hoe against the hospital or medical school because of the cassette recording I made and her false accusation. And that might even derail her claims against Mark King if he denies sleeping with her, which, all things being equal, I would if I were him."

"You'd lie?" Clarissa asked.

"No, I wouldn't, but he probably should. I'd never advise it or even tolerate it if I knew he was lying, but I don't, and can't, and as such, I think it's in his best interest to deny everything."

"Talk about threading the needle of let your 'yes' be 'yes' and your 'no' be 'no'!"

"Again, I wouldn't advise it; I'm simply saying what would be in both his best interests and the best interests of the hospital and medical school."

"Doctor Mike?" Sophia called out, coming through the doors. "The ankle sprain in Exam 2 is ready for discharge."

"Duty calls," I said to Clarissa.

We went into the ED and returned to caring for our patients.

November 3, 1989, McKinley, Ohio

"Good afternoon, Mr. Crowe," I said when I walked into his office at 3:00pm on Friday.

"Thanks for coming in. Have a seat. Can I get you anything to drink?"

"Ice water is fine, and I see the pitcher, so we're good."

"Great. First, I believe I know the answer to this question, but do you have any first-hand knowledge of any relationships Miss Sandberg had with any members of the hospital staff?"

"No. I've never actually seen her with a doctor except for clinical work. The only information I have is her own admission that she'd had some kind of intimate relationship with two doctors; everything else is basically third-hand. We discussed which nurses and doctors revealed her behavior to me."

"We did, but I wanted to check. One more question on that — did you see any behavior that would lead you to believe she was intimately involved with any specific staff members?"

"No. Not so much as a touch on an arm or a hug. I did see the stereotypical 'hair flip' that indicates a girl is interested."

"You're going to have to explain that to someone who graduated from college in 1952."

"Girls with long hair flip it over their shoulders to flirt. It's a totally 80s thing."

"My girls were in their twenties and married by 1980. Back to the topic at hand, the focus of the deposition is certainly going to be your opinion with regard to Miss Sandberg's treatment. Let's begin with that. I understand you objected to her treatment to several doctors in the ED."

"Yes, along with Doctor Clarissa Saunders, who is my main confidante. And, to some extent, Doctor Shelly Lindsay."

"What led you to speak to them?"

"It began on the first day of Miss Sandberg's Sub-Internship when I noticed her procedure book was light, that is, had very few procedures for someone who was in their second rotation of their Fourth Year."

"What did you do then?"

"I spoke to Doctor Gibbs, who had no input, then went to speak to Leila Javadi, as Miss Sandberg had just completed her cardiology Sub-I."

"And what did Doctor Javadi have to say?"

"She compared Miss Sandberg with Felicity Howard, whom I had mentored and who showed serious improvement. She also said that Miss Sandberg was dangerous and should never be left alone and always kept under a watchful eye."

"Did she say anything else?"

"Only off the record."

"That won't fly in court or for a deposition, even if you felt you promised not to reveal it."

"Leila advised me to never be alone with Miss Sandberg. I later received similar advice from Shelly Lindsay."

"Did either of those doctors say why?"

"No, but the implication was clear."

"What did you do?"

"What I always do," I replied. "I tried to teach Miss Sandberg and turn around what was clearly a failing endeavor. I prefer to make my own judgments and not rely on the judgment of other physicians when it comes to medical students. I'll take what they say into consideration, but I treat negative evaluations as a challenge."

"How did that go?"

"Badly, because I was pressured by my supervisors to accept that Miss Sandberg was going to fail and not give her any procedures. I felt that was completely unfair and said so."

"What was your impression of her work?"

"That she was competent, but that's all. I wouldn't consider selecting her for the Match, barring some significant improvement. Even so, I went to bat for her and arranged with Doctor Northrup and Doctor Mertens to modify Miss Sandberg's schedule and for her evaluation to be held in abeyance until she completed a second Sub-I in trauma, where I was the main Resident who would supervise her."

"Why?"

"Because I felt she deserved a chance," I replied. "Before I did that, I asked her directly about her behavior, and she admitted two intimate relationships with doctors but stated unequivocally they were not doctors on the same service. I accepted those statements as truthful and made the case for what amounted to a second chance."

"When did you discover she was lying to you?"

"A nurse heard I'd gone to bat for Miss Sandberg and pulled me aside to warn me that Miss Sandberg was having an affair with a married emergency medicine doctor, despite denying it, and that she had slept with a doctor to gain a passing grade. I was also informed that Miss Sandberg had, at one point, had designs on me but was warned off by another nurse."

"What did you do?"

"After consulting with Shelly Lindsay, I confronted Miss Sandberg about the lies. I simply said I didn't care about the details or what she did on her own time but that if I ever caught her lying again, I'd bounce her from the program. You heard that on the tape."

"Would you say, then, that she repaid your support with a false accusation?"

"I'd say that's a reasonable conclusion."

"Do you have any theories as to why she'd do that?"

"I believe she was afraid I was going to report her, but I had no such intention, so long as she didn't lie to me and she wasn't committing any violations of the ethics code. As I'm sure you're aware, at the time, the ethics rules only forbade using sex for influencing evaluations or for gaining an advantage."

"Unfortunately for Doctor Mark King, the policy change by the medical school appears to have been in reaction to his changing her grade."

"I assume he denies that?"

"You assume correctly."

"Did he sleep with her?" I asked.

"He claims not to have, but all of us are skeptical. Ten years ago, it would have been chalked up as 'he said/she said', and he'd have been reinstated after a clear denial, absent Miss Sandberg being able to provide some kind of proof."

"Which would actually harm her," I observed. "I mean, if she admitted she slept with him to get a passing grade, she's admitting she didn't deserve a passing grade."

"You need to think like a lawyer," Mr. Crowe said. "The counterargument is that he threatened to fail her if she didn't agree to have sex with him."

"I'd argue the record — her procedure book and evaluations — would be sufficient to counter that claim unless she's claiming she had to sleep with someone on every service to get her grade, which I don't believe for one second! Leila Javadi, Anvi Subramani, and Shelly Lindsay supervised Miss Sandberg and wrote evaluations, and they're all straight! As is Miss Sandberg."

"Do I want to know how you know that?"

I chuckled, "Conversations only, Mr. Crowe."

"You can call me Leland."

"Then you can call me Mike. I also don't believe for a second that Shelly, Anvi, or Leila, even if they were lesbian, would violate professional ethics in that way. And certainly, if Owen Roth or John Cutter knew of it, they'd have dealt with it harshly. Both of them agree with me."

"As do I. I may be part of the 'Old Guard' at age fifty-eight, but I don't agree with the majority of the 'Old Guard' on those topics. There is plenty of outmoded thinking in medicine."

"No kidding," I replied flatly.

Mr. Crowe laughed, "You are certainly outspoken about those things, and between you and me, it's a breath of fresh air. I've been warning about a case such as this one, and nobody took it seriously, or at least not seriously enough to put a stop to what some of the 'Old Guard' thought was a privilege of rank."

I shook my head, "Misogyny has no place in medicine; neither do racism or discrimination against homosexuals. May I say I was very happy to hear that Doctor Cutter will be the new Medical Director?"

"You may. Nothing you say right now will be repeated, not used in any way against you. You know, I'm sure, that you can spin your answers in many ways. Which do you intend?"

"I think Clarissa Saunders summed it up when she proposed the hypothetical question of whether I felt Krista was mistreated and provided a hypothetical answer — 'right up until she falsely accused me of demanding sex in exchange for a passing grade'."

Mr. Crowe nodded, "That approach will very likely succeed because the last thing Arthur Braun is going to want is to go to court and have that tape played. You'd testify that it was authentic, it's clear it covered the entire conversation, and Ohio is a 'one party' state, so they can't exclude the tape nor try to have you charged for making it."

"What is their goal?"

"I'd say a large financial settlement, of course. They could probably win against Mark King if they limit it to that specific event because you can't use an accuser's sexual history against her."

"What about the tape?"

"Mark King would try to introduce it, but it might be ruled as prejudicial if the claims are purely against him. The two things have nothing to do with each other."

"How so?" I said. "It's the exact same thing, only one accusation is clearly false while the other is being contested."

"It would come down to the judge deciding if it was too prejudicial to have proper probative value. If you think about it, she could be making a truthful accusation against Mark King even if she lied about you. Braun would argue her complaint against you was made in panic, have her formally withdraw it, and offer an apology to you. That would, in all probability, allow them to have the tape excluded."

I shook my head, "That seems wrong. It's evidence of her proclivity to lie."

"Yes, it is, but that doesn't mean it would be allowed into a civil trial. In a criminal trial, it would likely be allowed if the defense wanted to introduce it, as criminal defendants have a lot more leeway."

"I think I'll stick to medicine," I chuckled. "The law would drive me nuts!"

"And I'll stick to the law because I can't stand the sight of blood!"

"Is there anything I should be worried about?" I asked. "And should I have my own counsel?"

"I can't answer that second question because I'd have a conflict of interest. I know that sounds strange, but I can advise you as an employee of the hospital and defend you in civil cases related to your role here, but I cannot provide advice for you personally. That said, I'd have a word with Doctor Cutter and let him know how you plan to answer the deposition. That will, in my mind, head off any grief you might get from the administration about not being a 'team player'."

"I have time, so I'll go see him now unless there's something else."

"No. Just be prepared for Arthur Braun to do everything he can to elicit statements from you that harm the hospital."

"Trust me, I know. He came at me pretty hard in front of the Medical Licensing Board in the malpractice case against the psychiatrist who wrecked my friend's life."

"Ninety-day suspension, right?"

"Yes. That was on top of a malpractice payout of just under $350,000 after legal fees."

"All things being equal, a better than average outcome for that kind of situation."

"I agree, though you'll forgive me if I don't think it was sufficient."

"I understand. Let me know if you have any questions. When you receive the subpoena, simply bring it to me, and I'll schedule the deposition, coördinating with the Department Heads as to when their doctors are available."

"Will do," I said. "Thanks."

"You're welcome."

I left his office, walked down the short corridor, then turned to walk down the long corridor which would take me to the Surgical Service. I asked Doctor Cutter's assistant if he was free, and after only a five-minute wait, I was shown in.

"First, allow me to offer my congratulations on your new role," I said.

"Thanks, Mike. Old doctors never die; they just move into admin!"

"Douglas MacArthur, right?" I asked.

"Yes. What can I do for you?"

"I'm going to be subpoenaed for a deposition by Krista Sandberg's attorney."

"Just tell the truth, Mike. We'll take our lumps but only Mark King has anything to truly worry about. I was afraid something like this would happen, and I knew you were as well. It might cost the county some money, but, in the end, it'll create a new policy, and any doctor who tries it in the future will be completely on his own and won't be able to hide behind outdated policies."