Doctored Evidence Page 3

  When Anne told Karen her story, Karen realized that the burnt-out lightbulb in the parking lot was probably the seed of Anne’s compulsiveness about making certain the hospital premises were free of hazards. After the attack, Anne left Chicago for the safer, if duller, confines of Jefferson. Raasch Evangelical’s loss, our gain, thought Karen. If Anne Delaney, instead of being paid her modest salary, received a fraction of a percent of the money she saved the hospital, she’d be a millionaire.

  When Karen saw Anne waiting for her, she hesitated, uncertain whether she and Anne were obliged to hug and console each other over the death of their coworker. Karen deeply respected Anne’s competence and diligence and was very fond of her personally. Nevertheless, she was uncomfortable with displays of emotion in the workplace, finding it difficult to resume a crisp, professional demeanor afterward. She decided to avoid sentimentalism if possible.

  “Hi, Annie,” she said with little expression.

  Anne turned from the window with her arms crossed and pressed against her body, as if she were chilled. “Oh, Karen,” she said with obvious mournfulness. Anne’s instinctive empathy and willingness to share the emotional pain of others were valuable qualities since she had to meet regularly with families overwhelmed by some calamity.

  Karen’s hand shot up, palm out. “I won’t cry if you don’t. Deal?”

  The right corner of Anne’s mouth drew up slightly. Part of being a professional sympathizer was knowing when to back off. And like Karen, Anne was always pressed for time and preferred to get right down to work. “Deal,” she said. From the desk table she picked up a reddish brown folder already labeled “Larry Conkel—Wrongful Death Claim,” and sat down in one of the two guest chairs facing Karen. “Got a couple of problems with this one,” she said, opening the folder.

  “Why am I not surprised?” Karen mused, grabbing a yellow legal pad and a ballpoint pen and taking her place behind the desk. The high-backed chair made her look even smaller than her 108 pounds. She held the yellow pad on her lap and tapped on it with the ballpoint. “Fire away.”

  “I met with Paula this morning,” said Anne, stressing the name “Paula” with mild derision.

  “And how is the merry widow?” Karen plucked the cap of the ballpoint off with her teeth.

  “She had Ben McCormick with her.”

  “What!” exclaimed Karen, bouncing forward in her chair and spitting out the plastic cap of the pen. “You’re kidding me. Boy, she doesn’t waste much time, does she? The body’s not even cold. I wonder how she got an appointment with McCormick so fast? I wouldn’t have thought that was possible.”

  Ben McCormick was the most well-known, most successful, and most feared plaintiff’s personal injury attorney in the county. His incessant television ads trumpeted that he held the state records for the largest malpractice verdict, $50 million, as well as the highest number of verdicts over $1 million. His one-third share of the money awarded to his clientele of amputees, widows, and basket cases had enabled him to live in Babylonian opulence, acquiring the largest, most expensively decorated home in Jefferson, and a twenty percent ownership of an NFL franchise. Ben had also acquired a succession of stunning wives, each one more junior in age to Ben than her predecessor, no small accomplishment for a man who, although tall and imposing, walked with the aid of a cane and had the face of a gargoyle. He owned a vintage Ferrari that was older than any of his wives. Although his ethics were sometimes questioned, no one doubted his effectiveness. The letter advising an insurance company that Ben McCormick represented someone making a claim doubled the amount of money the liability insurer would reserve to pay that claim.

  “So, Annie,” said Karen, “I suppose your attempt at goodwill ambassadorship didn’t exactly leave the bereaved Mrs. Conkel with the warm fuzzies.”

  “Paula didn’t say more than two words the whole time,” said Anne. “McCormick handed me a retainer letter and he did all the talking. I laid it on about how sorry the administration and staff are about what happened. Which in this case is absolutely true. Everybody here liked Larry. I told her we were all devastated. I even offered to have the hospital pick up the cost of grief counseling in our Psych Department for her and the children, even though the accident was not the hospital’s fault in light of the defective catheter.”

  “Did McCormick have anything to say about that?” asked Karen.

  “Oh, yes,” said Anne. “He said he was certain there was plenty of fault to go around. He said that he expected St. Francis Medical Supply, which sold us the catheter, to be involved, as well as both Bernard and Herwitz. And he said the hospital, as the ultimate vendor of the catheter, could not wash its hands. Those were his words. He said the hospital had a duty to inspect and test the supplies and equipment it uses. He also said the hospital had probably been negligent in granting Dr. Bernard privileges to do the procedure.”

  Karen sat back and rocked in her swivel chair. A flash of red drew her eyes to the window. A male cardinal alit on a branch of the sugar maple tree, nodded his head twice for no apparent reason, and streaked away.

  “Good old Ben,” Karen said, shaking her head. “He goes into attack mode right out of the blocks. He’ll come at us with everything he’s got.” She smiled with bemused admiration. “How does he already know the manufacturer of the catheter?”

  “He asked, I told him,” admitted Anne.

  “Well, that’s the last free information he’s going to get.”

  Karen made a note to arrange for a letter from Shoreview’s law firm to be faxed to McCormick, advising him that the hospital had retained counsel on the claim. Under the canons of legal ethics, receipt of such a letter would require McCormick to go through those lawyers before contacting anyone at Shoreview, and thus protect the employees from further probing. “Did he say anything else?”

  “Yes,” said Anne, “he declined my offer on the counseling. He said he would arrange for competent therapists to treat Mrs. Conkel and the children, and would retain psychiatric and other experts not affiliated with us to evaluate the children’s emotional damage and Paula’s damages for loss of consortium.”

  “Ha!” erupted Karen. “That’s a good one. From what I know about the Conkels’ marriage, Paula will wear dancing shoes to the burial. According to Larry, there was no consortium to be lost, not for years.”

  “Lucky for Larry,” observed Anne. Both women laughed. Years of dealing with tragedy and loss on a recurring basis had given each of them a well-developed sense of gallows humor.

  The cardinal returned to the maple tree and hopped from branch to branch. Snow was beginning to accumulate on the steps below. Karen gazed out the window.

  “Well, I’m not going to get too worked up about this thing yet, at least as far as our liability is concerned. We’ll cross-claim St. Francis Medical Supply. Whatever McCormick does, we’ll get indemnification on the manufacturer’s warranty. So, Annie, you said you had a couple of problems. What’s the other one?”

  “The manufacturer’s warranty,” said Anne.

  Karen frowned. “Oh? Don’t tell me the product was expired.”

  “No, but it contains a caveat that might be relevant. Take a look at this.” Anne took a long sheet of white paper out of her claim folder and handed it to Karen. It was a package insert from St. Francis Medical Supply Corporation for the type of catheter used in Larry Conkel’s biopsy. Anne had highlighted a portion of it in yellow. She chewed a strand of her hair while Karen read:

  CATHETER MAY BE USED ONLY ONCE. DO NOT REUSE. DO NOT RESTERILIZE. RESTERILIZATION MAY RESULT IN FAILURE OF CATHETER AND VOIDS ALL WARRANTIES, EXPRESS OR IMPLIED.

  Karen looked up with a weary expression in her eyes. She realized the hospital’s legal position would be jeopardized if the warning had been ignored. She also realized that at Shoreview Memorial and other hospitals, single-use medical devices were sometimes reused, either to save money or to save the trouble of restocking, or just because somebody forgot to reorder and let the supply ru
n out. She propped her elbow on the arm of the desk chair and cradled her chin in the heel of her hand. “Now you’re going to tell me some bozo resterilized the damn thing.”

  “We don’t know for sure yet,” said Anne. “Central Supply tells me we have resterilized catheters in the past, but the practice was stopped. I’m having tests done on what’s left of the one they used on Larry. We may have a report by tomorrow, and it will be here on Friday at the latest.”

  “I won’t be in on Friday,” said Karen. “I don’t work the Friday after Thanksgiving. But have the report addressed to me, anyway. It can’t hurt to preserve the argument that it is a privileged attorney-client communication. Make no copies, and put what’s left of the catheter in safekeeping. I’ll arrange for an outside expert to review the medical record and the angiogram.” Karen sighed. “If worse comes to worst, the hospital will only go down for the $50,000 deductible. Anything above that will be covered by our malpractice insurance. Thank God for the malpractice insurance! Any other problems, Annie?”

  “Just one,” Anne mumbled.

  “And that would be?”

  “The malpractice insurance.” Anne cast her eyes down to the folder in her lap. She picked up a one-page letter and handed it across the desk without comment and without looking up.

  The letter was addressed to Joseph P. Grimes, CEO, Shoreview Memorial Hospital. It was from the State Mutual Insurance Company, which provided the hospital’s malpractice insurance. It stated that Shoreview’s quality control program did not meet state requirements, and hence, the hospital’s malpractice insurance was void retroactive to the first of the year. If correct, this meant that Shoreview Memorial had no insurance coverage for a large malpractice claim.

  “This letter is almost three weeks old. Why don’t I know about it?” Karen demanded.

  “Mr. Grimes claims he didn’t receive it until last Wednesday. He sent me a copy Friday. I didn’t want to ruin your weekend. Then Monday, this thing with Larry …”

  “I see. Well, maybe this won’t hold up.” Karen flipped the letter in the air. Both women had heard Larry’s last report to administration on the hospital’s financial condition: nearly $2 million of red ink expected for the fiscal year. At that rate, Shoreview would have to close its doors in less than six years. An uninsured, multimillion-dollar judgment would be the coup de grace. The survival of the hospital now appeared to depend on Karen’s ability to successfully defend her late friend Larry Conkel’s lawsuit.

  Karen pinched her chin between her thumb and forefinger and gazed out the window again. The front steps of the hospital were blanketed with snow. The cardinal was nowhere in sight.

  “If State Mutual is right and we’re bare on this,” she said, “we better hope nobody cooked that catheter, or we’re all unemployed.”

  CHAPTER

  5

  Karen and Jake made love that night. Most couples would have considered it a mutually satisfactory union, each doing what the other expected with warmth, openness, and a deftness that was the cherished result of years of steadfast practice and attention, the two hurrying to a deep and unrestrained simultaneous climax. But by their standards, Jake and Karen knew that the rite lacked ardor and spontaneity. Karen was anxious and tense, and Jake would have taken another rain check but for Karen’s temperature chart, which indicated that eros was mandated, lest a month’s fertility medication go to waste. Karen and Jake had not used birth control for half of their fourteen years of marriage. After thousands of acts of unprotected intercourse, they remained childless. They had tried virtually every medically accepted treatment short of major surgery to remedy the situation, without results. Karen was forty years old; time was running out. Now, the onset of each menstrual period was interpreted by the couple as a defeat, an occasion for despair and the recalculation of increasingly long odds.

  Afterward, they lay apart, each aware that the other had noticed it was not one of their better efforts. “I’m sorry, Jake,” Karen apologized. “Larry’s death has everybody at work neurotic. Me, too, I guess.”

  “No importa, we’ll bounce back,” consoled Jake. “Speaking of Larry, did you already give him his birthday present?” Jake sounded sheepish. A few days before Larry’s death, Jake had suggested to Karen that they do something special for Larry’s fortieth birthday. Knowing that Larry collected beer mugs. Jake had proposed giving Larry one of his and Karen’s most prized possessions, a souvenir beer mug with a hand painting of the great blues harp player, Little Walter. Little Walter had written the song that Jake and Karen considered “their” song, “Blues with a Feeling.” It embarrassed Jake to admit that, with Larry’s sudden passing, he now regretted this act of generosity.

  “I was wondering when you’d ask about that,” said Karen. “Yeah, unfortunately, I gave it to him Friday. He loved it.” She poked Jake in the ribs with a knuckle. “Remember, it was your idea to give away our hand-painted, one-of-a-kind souvenir beer mug from the Chicago Blues Festival, the one with the name of our song on it, the one you spent all the money you had to buy.”

  “I know. But how many people do we know who collect beer mugs? What’d he have, a hundred? The guy was a stein fetishist.”

  Karen laughed. “Jake, you’re generous to a fault.”

  “I always thought of Larry as generous to a fault,” said Jake. “He was always giving people things. Just last week, he gave me those Bulls tickets.”

  “The Bulls aren’t what they used to be.”

  “Who is?”

  “Anyway, you were right to give him the mug. Maybe we can buy it back from Paula.”

  “Or steal it back,” said Jake.

  Wednesday morning, Karen called Carl Gellhorn, M.D., the former pre-med student she was dating when she met Jake and with whom she had remained friendly over the years. Carl was now a professor of cardiovascular medicine at Johns Hopkins University, so Karen asked him if he would review a case from Shoreview Memorial that appeared to be headed to court and give her his candid impressions of the care rendered. Carl agreed, and she obtained a copy of Larry Conkel’s medical record and the tape of the angiogram, which she had earlier placed in safekeeping, from the Director of Medical Records. She instructed her secretary, Margaret, to package the copy of the medical record and the tape and to send the package via Federal Express to Dr. Gellhorn, without a cover letter. Karen noticed that Margaret, who usually showed a touch of irritation whenever Karen asked her to do any work, demonstrated an unusual level of interest in the medical record of the recently deceased hospital CFO.

  In spite of Karen’s intuition that Joe Grimes would not under any circumstances allow her to implicate Shoreview Memorial doctors—especially not any “big admitters”—she was determined to get an objective opinion about the performance of Bernard and Herwitz. It was her job to defend Shoreview Memorial, and she couldn’t do it without knowing the truth. Besides, she felt a compulsion to learn whether her interference in Larry’s choice of hospital had really caused his death. She could keep her friend Carl’s opinion to herself, if necessary.

  Karen then reviewed the voice-mail message she had received from the surgical nurse who relayed Larry’s final message. She listened to it twice and then called the nurses’ station in surgery and asked for Deb Jazinski.

  “This is Deb.”

  “This is Karen Hayes in the Legal Department. About that message you left on my voice mail.”

  “Oh. Yes. I suppose that seemed sort of strange.”

  “Putting it mildly.”

  “Yes. But that’s what Mr. Conkel said to tell you. Look in on Walter.”

  “Is that all he said?”

  “Yes.”

  “But your message said he prefaced it with, ‘if I don’t make it’ or words to that effect.”

  “Oh. Right. He did say that.”

  “Were those his exact words?”

  “I’m not sure I remember his exact words. Something like, ’If I don’t make it out of surgery, tell Karen Hayes to look in
on Walter’.”

  Karen suppressed a growing impatience. She did not want to say anything to make Nurse Jazinski defensive or nervous. She wanted the most accurate view possible of Larry’s message. Friendly voice now, she told herself, friendly voice.

  “Did Larry say anything else?”

  “No, not to me. But I heard he told a dirty joke in the cath lab.”

  Typical Larry. Already, in retrospect his constant joking seemed more endearing and funnier than it did when he was alive. But the fact that Larry joked in the cath lab told Karen nothing. He would have joked regardless of what he thought was happening.

  “What was Larry’s mood like when he gave you the message?” asked Karen.

  “His mood? Bad, I would guess. He was about to have emergency surgery.”

  “I don’t want you to guess.” Karen paused. Was that unfriendly? “I’m sorry,” she said, “but this is really important. How was Larry acting when he said ‘if I don’t make it out of surgery’? Did he seem confused about what was happening to him?”

  “Confused? No.”

  “Was he …” Karen felt a fullness well up in her throat and behind her eyes. “Was he frightened?”

  The line was silent for a moment. “No,” said the nurse. “Now that you mention it, he didn’t seem frightened. Actually, now I remember thinking at the time that Mr. Conkel didn’t seem scared, or even like he was covering up being scared, like you’d expect a patient to be in a situation like that.”

  Karen sensed that her witness was now back in the moment, where she might yield a glimpse of the event as she had perceived it at the time, clear of the distortions of recollection.

  “How did he seem?”

  “He seemed … determined.”

  When she returned from lunch, Karen found an envelope on her desk, addressed to her and marked “Confidential.” It displayed no postage, so Karen figured it had been hand-delivered. Inside was a memorandum from Gilbert Austin, a consultant at Jefferson Engineering, Inc., the company Anne Delaney had hired to test the catheter that had dissolved in Larry Conkel’s veins and killed him. After the date, November 24, the report read: