Good Medicine - Residency II
Copyright© 2025 by Michael Loucks
Chapter 25: Tough Noogies!
May 25, 1990, Circleville, Ohio
"Give me until noon Tuesday and I'll have that quashed," Melody said. "They cannot deny you choice of counsel. That may mean I become your counsel of record, but I'll try to have it quashed simply so you can ask me questions."
"Thanks for allowing me to be completely vague."
"I totally understand. There is no way the judge knowingly did that. I'm positive they said everyone was being represented by the hospital and that the order says you can't discuss the deposition except with 'counsel of record' and they're defining that as solely the hospital's counsel."
"Thank you."
"I know you use Clarissa as a sounding board, but please do not speak to her, or anyone else, until you can speak to me. You could speak to me now, and I'd win any challenge, but I think it's better to wait."
"Me, too. And I won't speak to Clarissa."
"I'll call you once I have the order signed. It can be ex parte because Volstead & Braun has zero interest in your choice of counsel."
"Thanks again, Melody."
After we said 'goodbye', I hung up and returned to the family room, where Kris was relaxing. On the drive home, I had debated what to say to her, given our 'no secrets' rule, and I felt I had to tell her, despite the threats from Arthur Braun.
"You remember I had my deposition today, right?" I asked.
"Yes. How did it go?"
"A few bad spots. First, they threatened to subpoena you, but backed off when I got up to call Melody Coates."
"Me?! Why?!"
"Because I discussed the case with you. Don't worry; any conversation we had between the two of us is privileged and protected by Ohio law. The second thing is, someone accused Doctor Burnside, the anesthesiologist, of being drunk during the surgery. I was never close enough to him to smell his breath. That was the last question before we ran out of time, but neither of those is the larger problem. The larger problem is that someone leaked what happened in the Mortality & Morbidity Conference."
"That's supposed to be secret, right?"
"Not from hospital staff, so I'd call it privileged, similar to my conversations with you or with Melody. I called her for two reasons — first, because I know the line of attack and I might be implicated; second, because there is going to be a witch-hunt to find out who leaked the information from the M & M."
"Explain, please."
"There are two avenues of attack that I discerned from the deposition. The first is that the patient suffered malignant hyperthermia – an adverse reaction to anesthesia — and we didn't treat it despite seeing signs. The second is that the anesthesiologist was under the influence of alcohol."
"How would it be your fault?"
"The claim would be that I failed to detect the adverse reaction. In the end, though, the two Attendings — Doctor Burnside and Doctor Flynn — are responsible. The problem lies with the fact that the attorneys for the patient's family are refusing any settlement that doesn't involve an admission of liability, and that could lead to a finding of malpractice.
"That is the last thing I want on my record. I had agreed to a joint defense, but now that I know someone is leaking information, I'm not so sure that's a good idea. That's why I want advice from Melody. When I mentioned I was going to do that after the question about Doctor Burnside, my nemesis, Arthur Braun insisted I could speak only to Mr. Crowe, and no one else, including an attorney. Melody says they can't deny my choice of counsel, and she'll get an order from the court in that regard."
"Did you miss something?"
"I don't think so, but I could lay out the facts in a way that a jury of non-medical professionals will think we missed something. I'm positive that's what Arthur Braun intends to do, not to mention the claims about Doctor Burnside."
"Had he been drinking?" Kris asked.
"I saw no evidence of that at all. There was nothing about that in the complaint filed with the court, and Mr. Crowe appeared to be as completely surprised by the question as I was. I was the first one to give a deposition, so I suspect that truly was the first time Mr. Crowe had heard it. And contrary to what Mr. Crowe thinks, I'm not the worst witness for Arthur Braun, I'm the best."
"Best? Why?"
"Because I laid out their entire case for them — that we missed malignant hyperthermia. We didn't, but, as I said, a jury won't see it that way. If they have some kind of evidence against Doctor Burnside, it's going to be ugly. But, as with the M & M leak, someone had to speak to the attorneys outside of the depositions, and that concerns me."
"What you call a 'whistleblower'?"
"Maybe, with regard to Doctor Burnside, but a «стукач» (stukach) with regard to the M & M Conference." ("snitch")
"Michael Loucks speaking Russian?" Kris observed with a goofy smile. "What's next?!"
"'Human sacrifice, dogs and cats living together ... mass hysteria!'" I chuckled.
"Which movie are you quoting?"
"Ghostbusters. In any event, that word fits."
"Do you have a theory?"
"Other than knowing someone shared privileged communications, no. There were around seventy doctors, nurses, and medical students in the M & M, and it could have been anyone. As for Doctor Burnside, it could have been any of the eight people in the OR, or anyone who had seen him in the time leading up to the surgery. No matter what happens with the malpractice suit, there are going to be huge problems at the hospital."
"What are you going to do?"
"Get advice from Melody about the malpractice suit. As for the hospital, just wait to see what happens. I'm sure there will be a pair of investigations."
"How serious is this for you?"
"A medical review board would find we acted properly and within the protocols. As a Resident who was assisting an Attending surgeon, my liability is limited to intentional acts not authorized or directed by the Attending surgeon. So, in that regard, nothing truly bad can happen. On the other hand, it could seriously impact the training program for trauma surgeons. In any event, let's get ready to go meet our friends. Is Rachel with your parents?"
"Yes. Abi is with her, so she's very happy. My sister is on a date, so no French lessons tonight!"
"OK. Remember, not even a hint of this discussion, please."
"«Absolument!» Part of our agreement to never keep secrets between us is also to never reveal anything to others without agreeing first." ("Absolutely!")
We dressed, left the house, and headed to McKinley to have Chinese food with our friends and to see Back to the Future Part III.
May 26, 1990, Circleville, Ohio
On Saturday, after I visited Southern Ohio Correctional Facility to see Frank Bush and the other men, Clarissa, Tessa, Fran, and Jason came to the house to help prepare for the going-away party for Robby and Sophia. It was bittersweet because they both had their dream jobs, but in the San Francisco Bay Area. As with Peter and Maryam, their leaving was necessary, but that didn't make it any easier.
"Pete's bringing a date," Fran said as we prepared fixings for hamburgers in the kitchen.
"That's good. Who?"
"An OB nurse from Riverside Methodist. The four of us had dinner earlier in the week. She had a shift last night, which is why she didn't join us."
"Hopefully, she'll be able to make him happy again. It's been a long four years."
"I think so, but it's not up to us. Have you spoken to Maryam and Peter?"
"I had short calls with them last week just to check in. They're both doing well. In about a year, we need to find a way to get together."
"What about Nadine?"
"Just the Christmas card," I replied. "I'll invite her if we do get together."
"Have any interesting cases?"
"A few, though what stands out are the patients who should have been seen at the Free Clinic."
"A travesty," Fran declared. "I know I might be treading on dangerous ground, but one of the nurses at Riverside Methodist is very involved with Planned Parenthood. I'm sure there are solutions."
"Unfortunately, there is no way I could be involved with Planned Parenthood. Their involvement would only solve part of the problem. That said, let me put you in touch with Candace Forsberg. She won't have the concerns about them that I have."
"Understood. I know Candace. I'll speak to her."
"Good. Hopefully, the new urgent care facilities will help, but that still creates a problem for people who can't afford to pay. Perhaps Clarissa and I can organize some kind of volunteer clinic, though it would be a year or two from now."
"I think you have other things to worry about, including a wife who is going to give birth in less than a month!"
"True, but the loss of the Free Clinic did serious damage to the community. We aren't going to solve it today, though, so let's focus on the party."
The party was a lot of fun, with most of our old gang together, along with some new friends, and, of course, all the members of Code Blue. We skipped Vespers so that the party didn't have to end early, and just before 9:00pm, Robby and Sophia let us know they were going to leave, and I walked them out to their car.
"Thanks for everything," Robby said.
"I should say the same to both of you," I replied. "We have to keep in touch."
"Count on it!" Robby declared.
I hugged each of them, and Sophia gave me a kiss on the cheek. They got into their car and I watched until they had driven away, then I went back inside to rejoin the others. The last of our guests left just after 10:00pm, and because Kris was tired, we went right to bed.
May 29, 1990, McKinley, Ohio
On Tuesday, just before 10:00am, Nate let me know I had a phone call. The consultation room wasn't being used, so I went in and shut the door.
"Doctor Mike," I said when I picked up the handset.
"It's Melody. I have an order from the court allowing you to discuss your situation with the attorney of your choice. It doesn't have to be me, and you might want to use someone who specializes in malpractice."
"For now, I just need advice."
"If you have time, lay it out for me, please."
I took about ten minutes to explain everything that had happened, with Melody asking only a few clarifying questions. When I finished, she provided her opinion.
"As I said, I'm no specialist in malpractice, but it seems to me that the only claim that could be made against you is not recommending administration of the drug to combat the possible condition. As far as I understand, that's not culpable negligence, and as such, any disciplinary action would be against one of the two Attending physicians. That said, a jury might find you guilty of malpractice by omission, and the major impact from that would be higher malpractice rates in the future. I believe you understand why."
"Because, in their minds, along with those of potential future jury members, it would begin to establish a pattern, even if it's not actually true."
"True or not, that is what would be the most likely outcome. With regard to the situation at the hospital, all I can offer is to advise you to discuss it only with Leland Crowe and possibly your mentor. Fundamentally, unless you leaked the information — which you say you didn't — your goal is to simply stay out of the line of fire. You do that by keeping quiet except in response to questions that are part of an official inquiry. Finally, with regard to the anesthesiologist, all you can do is report what you know, and decline to speculate."
"Do you think I need separate counsel?"
"At this point, I think your overall interests are best served in a joint defense. If this does go to trial, then you might want to re-evaluate."
"Thanks, Melody. I appreciate the sanity check."
"Hmm..." she replied
I chuckled, "OK, I failed that because I'm not sane, but you know what I mean!"
"I do. Call anytime. I won't charge you for anything except for the cost of obtaining the writ. Your retainer is sufficiently funded to cover it."
"Thanks. I'm sure I'll call again."
"How are things going otherwise?" Melody inquired.
"Good. Kris is due in about four weeks, and Rachel is happy and healthy. Other than the two things we discussed, I'm just about to finish my first official year, and I'll have a new Resident as of June 1st who will be on the same training program. How about you?"
"Keeping busy and waiting for six years to pass so I can run for common pleas judge."
"Six more years? Or six years total?"
"Six years total. Once you've practiced law for six years, you're eligible to run."
"And you'll be on your way to being the first female Chief Justice of the United States Supreme Court."
"You know it!"
"Sorry to cut this short, but I need to get back to work."
"Me, too. Call me if anything comes up."
"Will do."
We ended the call, and I went back to the lounge to wait for the next EMS run. I had two more days of simply handling consults, then on Friday, I'd begin training Mary on procedures. Doctor Wernher had slightly changed things, and Mary and I would alternate with walk-ins so that one of us was free for consults or EMS runs. That made me happy, as it meant we'd be busier. That said, the number of EMS runs was increasing, having risen by about fifty percent in the five years I'd been in the ED, counting from my first Preceptorship.
Before lunch, I handled two rule-out MIs — one was A-fib, and the other non-STEMI — and both were admitted to cardiology by Leila Javadi. I had lunch with Clarissa, and when I returned to the ED, Nate gave me a message from Leland Crowe. I signed out and headed up to Mr. Crowe's office.
"Come in, Mike."
I walked in and sat down when he pointed to the chair.
"I assume Melody Coates faxed you a copy of the order?" I inquired.
"Yes. Are you retaining her as counsel?"
"No. After discussing everything with her, we believe my interests continue to best be served by a joint defense. There's already going to be trouble over the accusation against Doctor Burnside."
Mr. Crowe nodded, "There is an internal investigation underway, and you'll be asked to answer questions before the end of the week."
"Who's running that?"
"Roth, Wernher, and Baker. They were appointed by Cutter this morning. Chuck Liston isn't involved for obvious reasons."
Chuck Liston was the Chief Anesthesiologist.
"May I point out something about the deposition?"
"What's that?"
"They can piece together a claim that Mr. Webber suffered from malignant hyperthermia, and we failed to administer dantrolene. Upon further consideration, my comment that he showed 'no further symptoms' could be seen as false, given the patient did suffer arrhythmia."
"Did you believe what you said to be true at that specific point in the surgery?"
"Yes."
"That was after the anesthesia was administered but before the surgery began, correct?"
"Yes."
"And at that point, you hadn't seen any arrhythmia, correct?"
"That's true."
"Then your statement was accurate and reflects what you believed at that time. Opposing counsel didn't ask if you had changed your mind or if you thought to administer the drug later. If you have to testify, or they ask to depose you again after they depose the others, we'll deal with it. It's fairly simple to say that your statement was true at that point. Once Doctor Flynn was in the room, it would be his responsibility."
"And yet, knowing opposing counsel, they'll do everything to imply that I failed to raise the concern when the arrhythmia occurred."
"Of course they will! If they do that in a deposition, I'll pose my own questions to ensure the deposition accurately reflects the events and your thinking. I didn't ask any questions in the first deposition because I didn't want to give them any clues about our defense or the weaknesses in their case. I also didn't want them to accuse me of burning their time.
"Remember, I can talk to you at any time, gather any information I want, and prepare you to testify without them being present or even privy to what we discuss. You didn't omit anything from your chronology of the surgery and were forthright in your answers. Trust me, you didn't actually help them, even if they think you did and you think you did.
"If this does go to trial, my cross-examination will ensure your version of events is what the jury hears, and that any attempts to twist it are just that. Braun is a formidable opponent, even though he has never won a case against the medical school. He has won a number of malpractice suits as well as product liability suits. You know the problem there — all he has to do is win once, and the floodgates open. The malpractice and wrongful death floodgates opened long ago."
"The sick part here is that we'll likely pay this off, and the money Volstead & Braun earn in fees will be used to go after other hospitals and doctors."
"Trial lawyers like Braun are some of the biggest contributors to politicians. I think you can work out why we haven't had meaningful tort reform."
"Didn't California pass the Medical Injury Compensation Reform Act?"
"Yes, and it did nothing to control malpractice premiums. They rose about 50% from 1985 to 1988. There is a claim that MICRA caused premiums to drop after that, but that claim is false, as Proposition 103 was passed, forcing an across-the-board 20% decrease in all insurance premiums."
"Magical thinking," I replied. "Voting to reduce the price of steaks will reduce the availability or quality of steak, or both. Price controls do not work and have never worked. All one need do is look at the former East Bloc, Cuba, or our own foolish attempts under Nixon. Wartime rationing is a different story."
"You seem reasonably well versed in economics."
"We had a very good economics class in High School, and a very good civics class. May I ask a question about the suit?"
"Yes."
"Are they claiming failure to diagnose, negligent treatment, or both?"
"Both. Why?"
"The autopsy results don't provide any support for a missed diagnosis or failure to treat. Mr. Webber's creatine kinase, potassium, phosphate, calcium, and myoglobin levels were all within range. That effectively rebuts the negligent treatment or failure to diagnose arguments for the surgical team."
"Exactly. That is part of our defense, obviously, though I'm sure you understand that even with all the facts on our side, we could still lose with regard to the surgery."
"Trust me, I understand. That means their main line of attack is going to be that Paul Lincoln missed the diagnosis, or that Ross Burnside was drunk.
"I concur," Mr. Crowe said.
"Paul followed the protocols."
"He did, but one line of attack is that you would have done an ultrasound. The fact that Wernher changed the policy is sufficient for Mr. Webber's estate to prevail. Think about what that means."
"Two things – more defensive medicine and more resistance to change policies because it opens the hospital to malpractice claims."
"That is the bottom line."
"All this is going to do is make medicine more expensive and even more conservative, leading to increased costs and unnecessary tests and procedures. It won't actually improve overall patient care. From this, I think you can understand why I have no desire to be Medical Director."
"I do."
"Has Mary given her deposition?"
"Late yesterday afternoon. Please do not speak to her about it."
"I won't. I need to get back downstairs."
"I'll keep you posted on any request for a second deposition, but that won't happen until next week, most likely, if it happens at all. You'll hear from the investigators by the end of the week."
I left his office and returned to the ED, and almost immediately was summoned to Doctor Wernher's office.
"I need you to answer questions about the Webber surgery. Shut the door and have a seat."
I did as he asked and waited.
"Were you in the operating room when Doctor Burnside arrived?"
"Yes."
"How was his gait?"
"I didn't take note, so I would say it was normal."
"How was his speech?" Doctor Wernher asked.
"Clear and precise."
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