Chapter 41: AA Batteries

November 30, 1987, McKinley, Ohio

The only returning members of the Ethics Board were Nelson and me, as the three Fourth Years had graduated. In their place were three other Fourth years, Lena, Nickie, and Steve. We took our places at the table set aside for us, and promptly at 2:00pm, Lena, the chairwoman, called the meeting to order. As with the previous meeting, there were several faculty members, including Doctors Mertens, Warren, and Roth, and about four dozen students. That was more than the previous hearing, most likely because of the salacious nature of the charges.

“Good afternoon,” Lena said. “This hearing is to address a failure to respond to a code call. Is Gerald Kirby here?”

“Yes,” a male student said, standing up.

“Do you wish to make a statement, or would you prefer for us to hear the testimony against you first?”

“I’ll wait,” he replied, then sat down.

“Then we’ll begin by hearing from Doctor William Collins, Chief of Internal Medicine.”

“Good afternoon,” Doctor Collins said. “On Tuesday, November 3rd of this year, Fourth Year Student Gerald Kirby was on duty at Moore Memorial Hospital, and assigned to my service. He was working under the direct supervision of Doctor Paula King, PGY2, and assigned to the code team. At 9:45pm, a code was called, and all pagers activated, in addition to the usual overhead announcement of a ‘code blue’ in room 208. All members of the code team responded, except for Gerald Kirby.

“When Mr. Kirby failed to respond, Doctor King, per protocol, asked Nurse Tanya Metcalf to locate him while the code team worked on the patient. Ms. Metcalf went to the on-call room and found Mr. Kirby engaging in coitus with nursing student Cyndi Bauer. Ms. Metcalf immediately called Janet Dowd, the nursing supervisor, and then reported to Doctor King. At the end of the code, Doctor King confirmed the facts, and then reported to me.

“Per hospital policy, Ms. Dowd and I interviewed Ms. Bauer and Mr. Kirby separately, then interviewed Ms. Metcalf. Based on those interviews, I recommended an immediate suspension of Mr. Kirby to the Medical Director, who confirmed the suspension and reported Mr. Kirby to Doctor Worth. Ms. Dowd followed the protocols for nursing students, placing a reprimand in Ms. Bauer’s file, but applying no other penalties.”

“Doctor Collins,” Steve asked, “did the code patient survive?”

“No.”

“Was the absence of Gerald Kirby a factor in the death of the patient?”

“No. He never had a shockable rhythm and per the pathology report prepared by Doctor McKnight, the patient suffered a myocardial infarction which was not survivable.”

“Thank you.”

“Are there any other questions?” Lena asked.

“I have one,” Nelson said. “Is there an overhead speaker in the on-call room?”

“Yes, though there’s a switch so it can be turned off if the on-call Resident is sleeping.”

“What happens in that case?”

“The protocol calls for a nurse to wake the Resident. The on-call Resident is never part of the code team, because he or she has responsibility for covering ER consults as well as responding to patient needs.”

“Where was the on-call Resident?”

“In the ER on a consult to admit a patient suffering from acute ketoacidosis.”

“Thank you, Doctor Collins.”

There were no further questions, and next Doctor King gave a statement confirming the events as Doctor Collins had described them, including sending Nurse Metcalf to find Gerald Kirby, and speaking to both of them after the fact.

“Has anyone else ever missed a code?” Nelson asked.

“Yes,” Doctor King replied. “And in each instance, the Resident in charge of the code team seeks out the individual and determines if proper protocol was followed.”

“What would be a legitimate excuse?” Nelson asked.

“Being involved in another life-saving procedure or sudden onset of illness. Both would be verified.”

“And it’s usual practice to send a nurse to find a member of the code team?”

“If they’re on my service, yes. If they’re on another service, then after the code is completed, a call would be made to the doctor or charge nurse supervising the person assigned to the code team.”

“How many people are on the code team?”

“Four, not including me. This was my patient, so I responded along with the code team.”

“Who was on the team?”

“Doctor Turner, cardiology PGY3, Nurse Evans, Nurse Miller, and Gerald Kirby. Nurse Metcalf, the nurse responsible for the patient, responded as well, with her student.”

“Did sending Nurse Metcalf to find Gerald Kirby have any effect on running the code?”

“No. There were two doctors, two nurses, a medical student, and a nursing student in the room. A code can be run by three people if necessary.”

“Thank you.”

There were no further questions, and Nurse Metcalf was called to give her statement, which once again confirmed the events as the two doctors had relayed.

“Remembering decorum,” Lena said, “would you describe what you saw?”

“Gerald had his pants down around his ankles, and I saw his bare buttocks. Cyndi was naked, though her body was shielded because Gerald was on top of her. Cyndi’s smock and pants were on the floor next to the bed, along with Gerald’s medical coat. He was still wearing his shirt.”

That seemed fairly conclusive, unless Nurse Metcalf was lying, which I didn’t sense she was.

“Were they involved before the incident?” I asked.

“I honestly don’t know,” Nurse Metcalf said. “But Gerald had a reputation with the nurses.”

“A reputation?”

“For chasing skirts, if you know what I mean.”

“I’m sorry to ask this, but were you one of the skirts he chased?”

“Yes, but I’m married.”

Which didn’t appear to mean much at the hospital.

“So you weren’t involved with him?” I asked.

“No. I’ve never cheated on my husband.”

Which eliminated any possible wiggle room Gerald Kirby might have had if they had been involved.

“What did you do then?” Lena asked.

“Quickly shut the door to the on-call room and reported to Doctor King.”

“When did you see Mr. Kirby after that?”

“Not until after the code had ended, and Doctor King called him into a consultation room.”

There were no further questions, and the next witness was Cyndi Bauer, who was obviously reluctant, and had to be questioned by Doctor Worth to confirm that she had, indeed, been intimately involved with Gerald Kirby, and that they had, on several occasions, had intercourse while they were on duty.

“Just to be clear,” Steve said. “You were actively engaged in sexual intercourse when Nurse Metcalf came to the door?”

“Yes.”

“Did you see Nurse Metcalf?”

“Yes. She absolutely saw us having sex.”

“Thank you.”

“Miss Bauer,” Nickie said, “you had multiple encounters with Gerald Kirby while you were on duty?”

“Yes.”

“And you only received a reprimand in your file?”

“That was the decision of the nursing supervisor.”

“Do you consider that fair?” Nicki asked.

I didn’t think it was fair at all, but fairness was, in fact, irrelevant.

“Hang on,” I interrupted. “Ms. Bauer is not the subject of this hearing, and we have no authority to question the decisions of the nursing supervisor.”

“Mike is correct,” Doctor Worth quickly added. “The decisions of the nursing supervisor are not relevant to our inquiry.”

“Doctor Worth,” I said, “I do have something that actually might be relevant to ask, but might be off-limits.”

“What’s that, Mike?”

“Was Miss Bauer’s discipline contingent on her testimony here today?”

“I think we should know that answer,” Steve interjected.

Doctor Worth was quiet for a minute, then nodded, “Miss Bauer?”

“I was required to give truthful testimony during any investigation or hearing, or be subject to further discipline.”

“Does that answer your question satisfactorily, Mike?”

“Yes,” I replied. “Thank you.”

“Are there any further questions?” Lena asked.

There were none, and it seemed to me that the case was ironclad. It was obvious that neither valid excuse — being involved in another life-saving procedure or sudden onset of illness — had been true, and both his sex partner and a witness had confirmed they were having sex. I’d read the investigation report, and unless something new was presented, I couldn’t imagine the Ethics Board would not confirm the expulsion. In my mind, the only thing Gerald Kirby could reasonably do was, in effect, beg for mercy.

“Good afternoon,” Gerald said. “Thank you for hearing my appeal of what I feel was extreme discipline, given it was the first blemish on my record, and in light of the simple reprimand issued to the nursing student. I do not deny the version of events presented, but I wish to offer mitigation.

“First, you’ve heard that the overhead speaker in the on-call room is controlled by a switch. I was not aware that the switch had been turned off, so I didn’t hear the code call. Second, my pager was not properly functioning. I discovered, after the code, that the batteries had died, even though I’d recently changed them. I understand this does not excuse me, but I believe it does warrant either a disciplinary letter or a suspension, not expulsion.

“I made a mistake, and I regret it. My grades have been exemplary, and I’ve received at least a grade of 4 on every evaluation during my rotations. I also have three letters of support, which I’d like to submit. One is from Doctor Frank Preston, one is from Doctor Eugene Cosby, and the third is from Nurse Wendy Dixon, all of which support a disciplinary letter, rather than expulsion. All three list the disparate punishments handed down as a primary reason, but also cite my grades and performance on my rotations.

“I ask the members of this Ethics Board to please take all of this into account, including my admission that I violated medical school and hospital policy with regard to a code, and reduce the punishment to a letter of discipline, or, in the alternative, a suspension. In closing, I would refer you to the case of Doctor Thomas Dobbs, who received a thirty-day suspension for a similar infraction. Thank you.”

I had one obvious question and was able to ask first.

“Mr. Kirby, when did you last change the batteries in your pager? I mean, before the incident?”

“I don’t know exactly, but probably about two weeks before. They always last at least two weeks.”

“Thank you.”

“How many nurses or nursing students have you had intimate relations with?” Nickie asked.

“I don’t see how that’s relevant,” I objected. “There are no rules against relationships like that.”

“Mike is correct,” Doctor Worth said. “Whatever we might personally think of those kinds of relationships, they are not prohibited. There have been no accusations of trading sex for grades or procedures, which would violate the ethics rules.”

Nickie scowled at me, but I didn’t care, because I saw no possible means of escape for Gerald Kirby, and there was no need to go further into the salacious details. It had been the approach I’d suggested with regard to Bishop ARKADY, and I believed it was the correct one then, as it was in this case.

“Wasn’t Doctor Dobbs dismissed after he missed a page?” Lena asked.

“Not for missing the page,” Gerald countered. “He was dismissed because he used his position to entice a Fourth Year into an affair with a promise of a positive evaluation.”

That actually was relevant, and at least opened the door to a discussion of the appropriateness of the punishment, based on how Doctor Dobbs’ case had been resolved.

“Doctor Worth, do you have anything to add?” Lena asked.

“No. I believe the evidence speaks for itself, and the disciplinary action I recommended is appropriate.”

“Then the Board will adjourn to make our decision,” Lena said. “Members, we’ll take a ten-minute comfort break, then gather in the small conference room.”

I used the facilities, went to the cafeteria to get more coffee, then went to the conference room.

“Is there any point in discussion?” Nickie asked.

“I think there are two points we need to address,” I said. “First, his mitigation, and second, how Doctor Dobbs’ case was handled. OK if I go first?”

“Go ahead,” Lena agreed.

“Thanks. The claim about the overhead speaker is totally irrelevant. We all know from the protocols that the overhead announcement is optional, and is usually never made after 10:00pm. Granted, it was 9:45pm, but we know we aren’t to rely on those announcements which really are to inform others on the service that a code is in progress.

“More importantly, though, is the situation with his pager. Each time I went on a new service, I was reminded to change the batteries every week, without fail. Gerald Kirby admitted he hadn’t done that, which is a violation of protocol on its own, and is the proximate cause of him missing the page.”

“The proximate cause of missing the page was him fucking a nursing student!” Nickie protested.

“Which isn’t against the rules,” Steve said.

“It ought to be!” Nickie growled.

“Fine,” Steve countered, “but we can’t base our decision on that, or on the fact that he has a reputation as a Lothario.”

“I’ll also point out something he didn’t,” Nelson said, “and that is that what he was doing is not only tolerated, but almost expected. We all know there’s a lot of sex at the hospital.”

“And it takes two to tango,” I replied. “And I’ll point out that I’ve been hit on by nurses. So our distaste for his behavior can’t really factor into this. I’d love to see the rules changed, but until that happens, we have to follow the rules.”

“Can’t you guys just keep it in your pants?” Nickie asked, sounding exasperated.

“Some of us can,” I replied. “Can you girls keep your panties on?”

“Oh, come on!” Nickie protested.

“What?” I asked. “I won’t name names, but a certain nurse made a point of changing scrubs every time I was in the locker room during one Preceptorship, and she also made a point of wearing translucent underwear, AND made it obvious she wanted to have sex. And she did that despite the fact I was married.

“Look, I don’t care who has sex with whom, really, though I would like rules prohibiting it if there is a supervisory relationship. But we’re not here because Gerald Kirby and Cyndi Bauer had consensual sex. We’re here because Gerald Kirby missed a page for a code. And he missed that code because he didn’t change the batteries in his pager as we’ve all been instructed to do. Have any of you ever not changed the batteries in your pager on a weekly basis?”

The other four shook their heads and said ‘no’.

“And neither have I. It wouldn’t have mattered if he was in the bathroom, asleep, running to the lab, taking a smoke break, or whatever. The fact that he was having sex is, in effect, irrelevant. Let’s focus on the missed page and not try to put a scarlet ‘A’ on anyone’s scrubs.”

“He has a point,” Steve said. “And I think we’re better served if we don’t worry about what he was doing when he missed the page, just that he missed it.”

“What about the comparison to Doctor Dobbs?” Nelson asked.

I’d thought about it while we had our discussion, and had decided it actually wasn’t a mitigating factor.

“I think that’s a point we have to consider,” I replied. “That said, I also think it’s as irrelevant as the discipline handed down for Cyndi.”

“How so?” Nelson asked.

“The hospital has their rules for doctors and nurses, and they apply those rules according to their policies. Discipline for medical students and nursing students is left to the medical school and nursing school, though the hospital can suspend someone pending action by the medical school. The nursing supervisor didn’t refer Cyndi for an ethical violation because she didn’t break any rules. Doctor Collins did refer Gerald to the medical school, not because he was having sex, but because he missed the page for the code.”

“So there’s a double standard?” Nickie asked accusingly.

“Not at all,” I countered. “I have first-hand knowledge about Doctor Dobbs, and what he missed was a page for a consult in the ER. When he didn’t respond in the required fifteen minutes, despite multiple pages, I personally went to Neurology and spoke to the Attending to get a consult. That’s different enough from missing a code that I don’t think we need to consider it as disparate treatment.

“The thing to remember is that there is far more leeway on consult pages than on code pages. I’m sure the rest of you have experienced delays in consults, and had to escalate. That’s what happened in my case. The investigation turned up evidence that he’d used his position to entice the Fourth Year into having sex, and that is an absolutely clear ethical violation, for which he was dismissed. I’m positive his medical license will be revoked when the State Medical Licensing Board hears the case.

“All of that is to say that Gerald Kirby, despite receiving good grades and good evaluations, and having letters of support, is not suited to be a doctor because he failed to follow the most basic instructions and basic protocols. He was not available, through his fault, and only his fault, in a critical situation. To me, that says we can’t substitute our judgment for Doctor Warren’s.”

“You don’t think a suspension is warranted?” Steve asked.

“It would be, but let me ask you this — have you ever let the batteries in your pager run down or ever missed a page or a call? Or dilly-dallied when dealing with labs or radiology? Or spent time flirting when you should have been going about your training?”

“Of course not.”

“Neither have I,” I replied. “I think the penalty is harsh, but I don’t want someone that cavalier about being on a code team anywhere near patients!”

“I thought you were going to defend him,” Lena said. “I was mistaken.”

“I want him to have a fair hearing before we hang him,” I replied with a slight smile. “And he tied the noose himself when he answered my question about the batteries. Had he changed them anytime in the previous week, I’d be inclined to give him a benefit of the doubt and recommend against expulsion. I’ve personally opened a fresh pack of batteries and found them dead.”

“Yeah, me, too,” Nelson agreed. “I always check the dates on the batteries now.”

“Same here,” I said. “All it takes is a bit of improper stocking of the supply room to have old batteries still on the shelf.”