Crisis (14 page)
Craig nodded. "I don't mind making an effort. I said I'll try to connect with the jury. I just wish there was something else. Something more tangible."
"Well, there is one other thing that passed through my mind."
"Oh? What?"
"I've thought about calling my brother, Jack, and seeing if he would come up from New York and help."
"Oh, that would be helpful," Craig said sarcastically. "He won't come. You guys haven't been close over the years, and, besides, he never liked me."
"Jack has had understandable difficulty with us being blessed with three wonderful daughters when he tragically lost both of his. It's painful for him."
"Maybe, but it doesn't explain his dislike of me."
"Why do you say that? Did he ever say he didn't like you?"
Craig looked at Alexis for a beat. He'd cornered himself and couldn't think of a way out. Jack Stapleton had never said anything specific; it was just a feeling Craig had had.
"I'm sorry you think Jack doesn't like you. The reality is, he admires you, and he told me so specifically."
"Really?" Craig was taken aback, convinced that Jack's assessment was the opposite.
"Yes, Jack did say you were the kind of student in medical school and residency that he avoided. You are one of those people who read all the suggested reading, somehow knew all the trivial facts, and could quote at length from the latest issue of
The New England Journal of Medicine.
He admitted that awe did breed a certain contempt, but it was actually inwardly directed, meaning he wished he could have dedicated himself as much as you did."
"That's very flattering. It really is. I had no idea! But I wonder if he feels the same after my midlife crisis. And even if he were to come, what possible help could he provide? In fact, crying on his shoulder might make me feel worse than I do now, if that's possible."
"In Jack's second career as a medical examiner, he's had a lot of courtroom experience. He travels all over as an expert witness for the New York ME's office. He's told me he enjoys it. He strikes me as very inventive, although on the negative side, an inveterate risk-taker. As despondent as you are about how things are going, maybe his impromptu inventiveness could be helpful."
"I truly can't see how."
"I can't either, and I suppose that's why I hadn't suggested it before."
"Well, he's your brother. I'll leave that decision up to you."
"I'll think about it," Alexis said. Then she checked her watch. "We don't have a lot of time. Are you sure you don't want to grab something to eat?"
"You know, now that I've gotten out of that courtroom, my stomach has been growling. I could use a quick sandwich."
After they stood up, Craig enveloped his wife in a sustained hug. He truly appreciated her support and felt even more embarrassed about his behavior prior to his legal problems. She was right about his ability to compartmentalize. He'd totally separated his professional life and his family life and put far too much emphasis on the professional. He prayed he'd have a chance to balance the two.
4
BOSTON, MASSACHUSETTS MONDAY, JUNE 5, 2006 1:30 P.M.
"All rise," the court officer called. Judge Marvin Davidson whisked out of his chambers with a swirl of black robes at the exact moment the second hand of the wall-mounted, institutional clock swept past the number twelve.
The sun had moved in its diurnal trajectory, and some of the shades over the story-tall windows above the six-foot-high oak paneling had been raised. A bit of cityscape could be seen, as well as a tiny patch of blue sky.
"Be seated," the court officer called out after the judge had done so.
"I trust you all had a refreshing bite to eat," the judge said to the jury. Most jurors nodded.
"And as I instructed, I trust no one talked about the case in any capacity." All the jurors shook their heads in agreement.
"Good. Now you will hear the opening statement by the defense. Mr. Bingham."
Randolph took his time standing up, walking to the podium, and placing his notes on the angled surface. He then adjusted his dark blue suit jacket and the cuffs of his white shirt. He stood ramrod-straight, using every inch of his six-foot-plus height while his long-fingered hands gently enveloped the lectern's sides. Every single silver hair on his scalp knew its assigned place and had been snipped to a predetermined length. His necktie, with its sprinkling of Harvard
veritas
shields set in a crimson field, was tied to perfection. He was the picture of inbred, refined elegance and stood out in the middle of the shabby courtroom like a prince in a brothel.
From Craig's perspective, he couldn't help but be impressed, and for a few moments he'd gone back to thinking that the contrast with Tony Fasano might be favorable. Randolph was the father figure, the president, the diplomat. Who wouldn't want to trust him? But then Craig's eyes moved to the jury and went from the muscular fireman to the plumber's assistant and on to the inconvenienced businessmen. Every face reflected a reflex ennui that was the opposite of their reaction to Tony Fasano, and even before Randolph opened his mouth, Craig's brief flash of optimism disappeared like a drop of water on a sizzling fry pan.
Yet this rapid flip-flop realization wasn't all bad. It gave validation to Alexis's advice about mind-set, so Craig closed his eyes and conjured up the image of Patience Stanhope in her bed when he and Leona charged into the woman's bedroom. He thought about how shocked he'd been by her cyanosis, how quickly he'd reacted, and everything he'd done from that moment until it was apparent she was not going to be resuscitated. Over the course of the last eight months he'd gone over the sequence numerous times, and although on a few other cases over the years, he could second-guess himself and believe he should have done something slightly different, with Patience Stanhope he'd done everything absolutely by the book. He was confident that if he were confronted with the same situation that very day, he would not do anything differently. There had been no negligence. Of that he was absolutely certain.
"Ladies and gentlemen of the jury," Randolph said slowly and precisely. "You have heard a unique opening statement from someone who admits he has had no experience in trying medical malpractice cases. It was a tour de force with clever, initial self-deprecations which made you smile. I didn't smile because I saw the ploy for what it was. I will not debase you with such oratory tricks. I will merely speak the truth, which I'm certain you will come to understand when you hear the testimony that the defense will present. In contrast to the opposing attorney, I have had more than thirty years' defending our good doctors and hospitals, and in all the trials I have participated in I have never heard an opening statement quite like Mr. Fasano's, which in many ways was an unfair character assassination of my client, Dr. Craig Bowman."
"Objection," Tony shouted, leaping to his feet. "Argumentative and inflammatory."
"Your Honor," Randolph interjected. With annoyance, he made a small, dismissive gesture with one hand toward Tony as if shooing away gnats. "May I approach the bench?"
"By all means," Judge Davidson snapped in return. He waved for the attorneys to come to the sidebar.
Randolph strode up to the side of the judge's bench with Tony fast on his heels. "Your Honor, Mr. Fasano was allowed wide discretion in his opening statement. I expect the same courtesy."
"I only described what I intend to substantiate with witnesses, which is what an opening statement is supposed to prove. And you, Mr. Bingham, objected about every ten seconds, interrupting my train of thought."
"Good God!" Judge Davidson complained. "This isn't a murder-one trial," the judge said. "It's a medical malpractice trial. We're not even through the opening statements and you're at each other's throats. At this rate, we'll be here for months." He allowed what he said to sink in for a beat. "Let this be a warning to you both. I want to move things along. Hear me? Each of you are experienced enough to know what is appropriate and what the other will tolerate, so rein yourselves in and stick to the facts.
"Now to the objection at hand. Mr. Bingham, what's good for the goose is good for the gander. You did object to Mr. Fasano being inflammatory. He has every right to object to you doing the same. Mr. Fasano, it is true you were given wide discretion, and God help you and your client if your testimony doesn't support your allegations. Mr. Bingham will be allowed the same discretion. Do I make myself clear?"
Both attorneys dutifully nodded.
"Fine! Let's continue."
Randolph returned to the podium. Fasano sat back down at the plaintiff's table.
"Objection sustained," Judge Davidson said for the court reporter's benefit. "Continue."
"Ladies and gentlemen of the jury," Randolph said, "motivation is not usually part of medical malpractice proceedings. What is normally at issue is whether the standard of care has been met such that the doctor possessed and used that degree of learning and skill in treating the patient's condition that a reasonably competent doctor would employ in the same circumstance. You will note that in his opening statement, Mr. Fasano said nothing about his experts suggesting that Dr. Bowman did not use his learning and skill appropriately. Instead, Mr. Fasano must bring in the concept of motivation to get his allegation of negligence to be substantive. And the reason for this, as our experts will testify, is that from the instant Dr. Bowman knew the gravity of Patience Stanhope's condition, he acted with commendable speed and skill, and did everything possible to save the patient's life."
Alexis found herself nodding in agreement as she listened to Randolph. She liked what she was hearing and thought he was doing a good job. Her eyes switched to Craig. He was at least sitting up straight. She wished she could see his face from where she was sitting, but it was impossible. Her eyes then went to the jury and her evaluation of Randolph's performance began to erode. There was something about the jurors' posture that was different from when Tony Fasano was speaking. They seemed too relaxed, as if Randolph wasn't sufficiently engaging their attention. Then, as if to confirm her fears, the plumbing assistant gave a long, sustained yawn, which spread through most of the others.
"The burden of proof lies with the plaintiff," Randolph continued. "It is the defense's job to rebut the plaintiff's allegation and the testimony of the plaintiff's witnesses. Since Mr. Fasano had indicated that motivation is his key stratagem, we, the defense, must adjust accordingly and present with our witnesses an affirmation of Dr. Bowman's commitment and sacrifice throughout his entire life, beginning with a doctor kit given to him at age four, to be the best doctor and to practice the best medicine."
"Objection," Tony said. "Dr. Bowman's commitment and sacrifice during his training has no bearing on the particular case at hand."
"Mr. Bingham," Judge Davidson asked. "Will your witnesses' testimony relate Dr. Bowman's commitment and sacrifice to Patience Stanhope?"
"Absolutely, Your Honor."
"Objection overruled," Judge Davidson said. "Proceed."
"But before I outline how we plan to present our case, I'd like to say a word about Dr. Bowman's practice. Mr. Fasano described it as 'concierge medicine' and suggested the term had a pejorative connotation."
Alexis glanced back at the jury. She was concerned about Randolph's syntax and wondered how many of the jurors could relate to the words
connotation
and
pejorative,
and, of those who could, how many would think they were pretentious. What she saw was not encouraging: The jury looked like wax figures.
"However," Randolph said, raising one of his long, manicured fingers into the air as though he was lecturing a group of naughty children. "The meaning of the word
concierge
in its usual sense is help or service, with no negative connotation whatsoever. And indeed that is the reason it has been associated with retainer medicine, which requires a small, up-front fee. You will hear testimony from a number of physicians that the rationale for such a practice format is to spend more time with the patient during appointments and during referrals so the patient enjoys the kind of medicine all of us laypeople would like to experience. You will hear testimony that the kind of medicine practiced in a concierge practice is the kind of medicine all doctors learn during medical school. You will also hear that its origins have come from the economic bind in traditional-practice settings that forces physicians to crowd more and more patients in a given hour to keep revenues above costs. Let me give you some examples."
It was reflex rather than conscious thought that propelled Alexis to a standing position in reaction to Randolph's foray into dull medical economics. Excusing herself, she moved laterally along the church-like pew toward the central aisle. Her eyes briefly met those of the man who was dressed identically to Tony Fasano. He was sitting in the aisle seat directly across as Alexis exited her row. His expression and unblinking stare unnerved her but then immediately dropped out of her consciousness. She headed to the door to the hall and opened it, trying to be as quiet as possible. Unfortunately, the heavy door made a click heard all around the courtroom. Momentarily mortified, she stepped out into the hall and then walked out into the large elevator lobby. Sitting on a leather-covered bench, she rummaged in her shoulder bag for her cell phone and turned it on.