Harmful Intent Read online

  When they had first married eight years ago, it hadn’t seemed important that Carol was extremely social and outgoing while he tended toward the opposite. It also hadn’t bothered Jeffrey that Carol wanted to put off having a family while she advanced her career in banking, at least until Jeffrey found out that her idea of postponement meant never. And now she wanted to head west, to Los Angeles. Jeffrey could have lived with the idea of moving to California, but he had trouble with the family issue. Over the years he’d come to want a child more and more. To see Carol’s hopes and aspirations move in an entirely different direction saddened him, but he found he didn’t hold it against her. Jeffrey had fought the idea of divorce at first, but had finally given in. Somehow, they just weren’t meant to be. But then, when Jeffrey’s legal problems materialized, Carol had graciously offered to hold off on the domestic issue until Jeffrey’s legal difficulties were resolved.

  Jeffrey sighed again, more loudly than before. Randolph shot him a disapproving glare, but Jeffrey couldn’t see that appearances mattered at this point. Whenever Jeffrey thought about the sequence of events, it had a dizzying effect on him. It had all happened so quickly. After the disastrous death of Patty Owen, the malpractice summons had arrived in short order. Under the current litigious climate, Jeffrey had not been surprised by the lawsuit, except perhaps by the speed.

  From the start, Randolph had warned Jeffrey that it would be a tough case. Jeffrey had had no idea how tough. That was right before Boston Memorial suspended him. At the time, such a move had seemed capricious and unreasonably vicious. It certainly wasn’t the kind of support or vote of confidence Jeffrey had hoped for. Neither Jeffrey nor Randolph had had any inkling of the rationale for the suspension. Jeffrey had wanted to take action against Boston Memorial for this unwarranted act, but Randolph had advised him to sit tight. He thought that issue would be better resolved after the conclusion of the malpractice litigation.

  But the suspension was only the harbinger of worse trouble to come. The malpractice plaintiff attorney was a young, aggressive fellow named Matthew Davidson from a firm in St. Louis specializing in malpractice litigation. He was also associated with a small general law firm in Massachusetts. He’d filed suit against Jeffrey, Simarian, Overstreet, the hospital, and even Arolen Pharmaceuticals, who’d manufactured the Marcaine. Jeffrey had never been the subject of a malpractice action before. Randolph had to explain that this was the “shotgun” approach. Litigators sued everybody with “deep pockets” whether or not there was any evidence of direct involvement in the alleged incident of malpractice.

  Being one among many had initially provided some solace to Jeffrey, but not for long. It quickly became clear that Jeffrey would stand alone. He could remember the turning point as if it were yesterday. It had happened through the course of his own testimony in the early stages of the initial civil malpractice trial. He had been the first defendant to take the stand. Davidson had been asking cursory background questions, when he suddenly became harder hitting.

  “Doctor,” Davidson said, turning his thin, handsome face toward Jeffrey and putting a pejorative cast to the title. He walked directly to the witness stand and placed his face within inches of Jeffrey’s. He was dressed in an impeccably tailored, dark pinstriped suit with a light lavender shirt and a dark purple paisley tie. He smelled of expensive cologne. “Have you ever been addicted to any drug?”

  “Objection!” Randolph called out, rising to his feet.

  Jeffrey had felt as if he were watching a scene in some drama, not a chapter in his life. Randolph elaborated on his objection: “This question is immaterial to the issues at hand. The plaintiff attorney is trying to impugn my client.”

  “Not so,” Davidson countered. “This issue is extremely germane to the current circumstances as will be brought out with the testimony of subsequent witnesses.”

  For a few moments silence reigned in the crowded courtroom. Publicity had brought notoriety to the case. People were standing along the back wall.

  The judge was a heavyset black man named Wilson. He pushed his thick black-rimmed glasses higher on the bridge of his nose. Finally he cleared his throat. “If you’re fooling with me, Mr. Davidson, there’s going to be hell to pay.”

  “I certainly wouldn’t choose to fool with you, Your Honor.”

  “Objection overruled,” Judge Wilson said. He nodded toward Davidson. “You may proceed, Counselor.”

  “Thank you,” Davidson said as he turned his attention back to Jeffrey. “Would you like me to repeat the question, Doctor?” he asked.

  “No,” Jeffrey said. He remembered the question well enough. He glanced at Randolph, but Randolph was busy writing on a yellow legal tablet. Jeffrey returned Davidson’s steady glare. He had a premonition that trouble was ahead. “Yes, I had a mild drug problem once,” he said in a subdued voice. This was an old secret that he’d never imagined would surface, especially not in a court of law. He had been reminded of it recently when he had to fill out the required form to renew his Massachusetts medical license. Yet he thought that information was confidential.

  “Would you tell the jury what drug you were addicted to,” Davidson asked, stepping away from Jeffrey as if he was too revolted to remain too close to him for any longer than necessary.

  “Morphine,” Jeffrey said with almost a defiant tone. “It was five years ago. I had trouble with back pain after a bad bicycle accident.”

  Out of the corner of his eye, Jeffrey saw Randolph scratching his right eyebrow. That was a previously arranged gesture to signal that he wanted Jeffrey to confine himself to the question at hand and not offer any information. But Jeffrey ignored him. Jeffrey was angry that this irrelevant piece of his past was being dredged up. He felt the urge to explain and defend himself. He certainly wasn’t a drug addict by any stretch of the imagination.

  “How long were you addicted?” Davidson asked.

  “Less than a month,” Jeffrey snapped. “It was a situation where need and desire had imperceptibly merged.”

  “I see,” Davidson said, lifting his eyebrows in a dramatic gesture of understanding. “That’s how you explained it to yourself?”

  “It was how my treatment counselor explained it to me,” Jeffrey shot back. He could see Randolph frantically scratching again, but Jeffrey continued to ignore him. “The bicycle accident occurred at a time of deepening domestic strain. I was prescribed the morphine by an orthopedic surgeon. I convinced myself that I needed it longer than I actually did. But I realized what was happening in a few weeks’ time and I took sick leave from the hospital and volunteered for treatment. And also marriage counseling, I might add.”

  “During those weeks, did you ever administer anesthesia while . . .” Davidson paused as if he were trying to think how to word his question. “ . . . while you were under the influence?”

  “Objection!” Randolph called. “This line of questioning is absurd! It’s nothing short of calumny.”

  The judge bent his head down to look over the top of his glasses, which had slid down his nose. “Mr. Davidson,” he said patronizingly, “we’re back to the same issue. I trust that you have some cogent reason for this apparent excursion.”

  “Absolutely, Your Honor,” Davidson said. “We intend to show that this testimony has a direct bearing on the case at hand.”

  “Objection overruled,” the judge said. “Proceed.”

  Davidson turned back to Jeffrey and repeated the question. He seemed to relish the phrase “under the influence.”

  Jeffrey glared back at the plaintiff attorney. The one thing in his life that he was absolutely sure of was his sense of professional responsibility, competence, and performance. The fact that this man was suggesting something else infuriated him. “I have never compromised a patient,” Jeffrey snapped.

  “That is not my question,” Davidson said.

  Randolph got to his feet and said, “Your Honor, I would like to approach the bench.”

  “As you wish,” the judge
said.

  Both Randolph and Davidson went up to the judge. Randolph was obviously incensed. He began talking in a hoarse whisper. Even though Jeffrey was only ten feet away, he could not hear the conversation clearly although he did hear the word “recess” mentioned several times. Eventually, the judge leaned back and looked at him.

  “Dr. Rhodes,” he said, “your counsel seems to think you need a rest. Is that true?”

  “I don’t need any rest,” Jeffrey said angrily.

  Randolph threw up his hands in frustration.

  “Good,” the judge said. “Then let’s get on with this examination, Mr. Davidson, so we can all get out for some lunch.”

  “All right, Doctor,” Davidson said. “Have you ever administered anesthesia under the influence of morphine?”

  “There may have been one or two times . . .” Jeffrey began, “but—”

  “Yes or no, Doctor!” Davidson cut in. “A simple yes or no is all I want.”

  “Objection!” Randolph called. “The counselor is not letting the witness answer the question.”

  “Quite the contrary,” Davidson said. “It’s a simple question and I’m looking for a simple answer. Either yes or no.”

  “Overruled,” the judge said. “The witness will have a chance to elaborate on cross-examination. Please answer the question, Dr. Rhodes.”

  “Yes,” Jeffrey said. He could feel his blood boil. He wanted to reach out and strangle the plaintiff attorney.

  “Since your treatment for your addiction to morphine . . .” Davidson began, walking away from Jeffrey. He emphasized the words “addiction” and “morphine,” then paused. He stopped near the jury box, turned, then added: “ . . . have you ever taken morphine again?”

  “No,” Jeffrey said with forcefulness.

  “Did you take morphine on the day you administered anesthesia to the unfortunate Patty Owen?”

  “Absolutely not,” Jeffrey said.

  “Are you sure, Dr. Rhodes?”

  “Yes!” Jeffrey shouted.

  “No more questions,” Davidson said, and he returned to his seat.

  Randolph had done what he could on cross-examination, emphasizing that the addiction problem had been minor and short-lived, and that Jeffrey had never taken more than a therapeutic dose. Besides, Jeffrey had volunteered for treatment, had been certified “cured,” and had not been subjected to any disciplinary action. But despite these assurances, Jeffrey and Randolph had both felt his case had been dealt a death blow.

  Just then, Jeffrey was brought back to the present by the sudden appearance of a uniformed court officer at the door to the jury room. His pulse shot up. He thought the jury was about to be announced. But the court officer made his way over to the door to the judge’s chambers and disappeared. Jeffrey’s thoughts drifted back to the malpractice trial.

  True to his word concerning its relevancy, Davidson brought the addiction issue back with further testimony that had been totally unexpected despite the discovery depositions. The first surprise came in the form of Regina Vinson.

  After the usual introductory questions, Davidson asked her if she had seen Dr. Jeffrey Rhodes on the fateful day of Patty Owen’s death.

  “I did,” Regina said, staring at Jeffrey.

  Jeffrey knew Regina vaguely as one of the evening OR nurses. He didn’t remember seeing her on the day that Patty died.

  “Where was Dr. Rhodes when you saw him?” Davidson asked.

  “He was in the anesthesia alcove for operating room eleven,” Regina said, keeping her eyes directly on Jeffrey.

  Again, Jeffrey had a premonition that something detrimental to his case was coming, but he couldn’t guess what it would be. He remembered working in room eleven for most of the day. Randolph leaned over and asked in a hushed voice, “What is she leading up to?”

  “I haven’t the foggiest,” Jeffrey whispered, unable to break eye contact with the nurse. What disturbed him was that he could sense real hostility in the woman.

  “Did Dr. Rhodes see you?” Davidson asked.

  “Yes,” Regina replied.

  All at once, Jeffrey remembered. In his mind’s eye he saw the image of her startled face as she pulled the drape aside. The fact that he was sick that fateful day was something besides his addiction problem that he had failed to tell Randolph. He’d considered it, but had been afraid to tell him. At the time he thought of his behavior as evidence of his dedication and self-sacrifice. After the fact, he’d not been so sure. So he’d never told anyone. He started to reach for Randolph’s arm, but it was far too late.

  Davidson was looking at the jurors, one after another, as he posed the next question: “Was there something strange about Dr. Rhodes being in the alcove of operating room eleven?”

  “Yes,” Regina answered. “The curtain was closed and operating room eleven was not in use.”

  Davidson kept his eyes on the jurors. Then he said, “Please tell the court what Dr. Rhodes was doing in the anesthesia alcove of the empty operating room with the drapes closed.”

  “He was shooting up,” Regina said angrily. “He was injecting himself intravenously.”

  An excited murmur rippled through the courtroom. Randolph turned to Jeffrey with a shocked expression. Jeffrey shook his head guiltily. “I can explain,” he said lamely.

  Davidson went on. “What did you do after you saw Dr. Rhodes ‘shooting up’?”

  “I went to the supervisor, who called the chief of anesthesia,” Regina said. “Unfortunately, the chief of anesthesia was not reached until after the tragedy.”

  Immediately after Regina’s damaging testimony, Randolph had been able to get a recess. When he was alone with Jeffrey he demanded to know about this “shooting-up” episode. Jeffrey confessed to having been ill that fateful day, and said that no one but he had been available for the delivery. He explained everything he’d done in order to keep working, including giving himself the IV and taking paregoric.

  “What else haven’t you told me?” Randolph demanded angrily.

  “That’s all,” Jeffrey said.

  “Why didn’t you tell me this before?” Randolph snapped.

  Jeffrey shook his head. In truth, he wasn’t completely sure himself. “I don’t know,” he said. “I have never liked admitting when I’m sick even to myself, much less anyone else. Most doctors are like that. Maybe it’s part of our defense about being around illness. We like to think we’re invulnerable.”

  “I’m not asking for an editorial,” Randolph practically shouted. “Save it for the New England Journal of Medicine. I want to know why you couldn’t tell me, your lawyer, that you were seen ‘shooting up’ on the morning in question.”

  “I guess I was afraid to tell you,” Jeffrey admitted. “I did everything possible for Patty Owen. Anyone can read the record and attest to that. The last thing I wanted to admit was that there could be a question of my having been in top form. Maybe I was afraid you wouldn’t defend me with the same intensity if you thought I was even remotely culpable.”

  “Jesus Christ!” Randolph exclaimed.

  Later, back in the courtroom, during the cross-examination, Randolph did as much damage control as he could. He brought out the fact that Regina did not know if Jeffrey was injecting himself with a drug or merely starting an IV to rehydrate himself.

  But Davidson was not done yet. He brought Sheila Dodenhoff to the stand. And just like Regina, she glared at Jeffrey while she testified.

  “Miss Dodenhoff,” Davidson intoned, “as the circulating nurse during Mrs. Owen’s tragedy, did you ever notice anything strange about the defendant, Dr. Rhodes?”

  “Yes, I did,” Sheila said triumphantly.

  “Would you please tell the court what you noticed,” Davidson said, obviously relishing the moment.

  “I noticed his pupils were pinpoint,” Sheila said. “I noticed it because his eyes are so blue. In fact, I could barely see his pupils at all.”

  Davidson’s next witness was a world-famous ophthalmolo
gist from New York who’d written an exhaustive tome on the function of the pupil. After establishing his eminent credentials, Davidson asked the doctor to name the most common drug to cause pupils to contract to pinpoints—miosis, as the doctor preferred to call the condition.

  “You mean a systemic drug or an eye drop?” the ophthalmologist asked.

  “A systemic drug,” Davidson said.

  “Morphine,” the ophthalmologist said confidently. He then commenced an incomprehensible lecture about the Edinger-Westphal nucleus, but Davidson cut him off and turned the witness over to Randolph.

  As the trial dragged on, Randolph had tried to rectify the damage, proposing that Jeffrey had taken paregoric for diarrhea. Since paregoric is compounded with tincture of opium, and since opium contains morphine, he proposed that the paregoric had caused Jeffrey’s constricted pupils. He also explained that Jeffrey had given himself an IV to treat flu symptoms, which are frequently caused by dehydration. But it was apparent that the jury did not buy these explanations, especially after Davidson brought a well-known and respected internist to the stand.

  “Tell me, Doctor,” Davidson said unctuously, “is it common for doctors to give themselves IVs as it has been suggested that Dr. Rhodes had done?”

  “No,” the internist said. “I’ve heard some scuttlebutt about gung-ho surgical residents doing such a thing, but even if such reports are true, it’s certainly not a common practice.”

  The final blow in the trial came when Davidson called Marvin Hickleman to the stand. He was one of the OR orderlies.

  “Mr. Hickleman,” Davidson said. “Did you clean OR fifteen after the Patty Owen case?”

  “Yes, I did,” Marvin said.

  “I understand you found something in the biohazard disposal container on the side of the anesthesia machine. Could you tell the court what you found?”

  Marvin cleared his throat. “I found an empty vial of Marcaine.”

  “What concentration was the vial?” Davidson asked.

  “It was .75%,” Marvin said.

  Jeffrey had leaned over and whispered to Randolph, “I used .5%. I’m sure of it.”