Suzy's Case: A Novel Read online

  “Never do it.”

  “Correct. Now, listen. You’ll have no questions when I’m done. You’re going to earn your fee if you can get Bert Beecher to sign off on the proposed settlement. It was Betty who was injured as a result of some cosmetic surgery she had on her face—chin, nose, brow lift, lips, eyelids. The perimenopausal fab five. At the start of the procedure the surgeon placed hard plastic protective lenses in her eyes for intraoperative shielding. You know, so nothing got in her eyes. These were inserted after Betty was under the effects of anesthesia so she had no idea she had a foreign body covering her baby blues. At the end of the procedures, the surgeon forgot to take out these nonporous cornea shields and she was discharged home with them in, stuck to her eyeballs. She had no clue about the shields because her eyes were swollen shut from the eye job itself, or so she thought. After ten calls to the surgeon over four days, he finally took a minute out of his busy surgical schedule to see her. He immediately identified the problem and had to remove the shields, stat, so he strapped her down to his exam table, then jabbed forceps in her eyes, ripping the shields out. I say ripping, because they became glued to her corneas from the lack of moisture. The malpractice took place about six months ago and she’s got permanently scratched corneas. The problem is, Bert, her good-for-nothing ex-husband, is insisting he get half the client share of the money for his claim for loss of services on behalf of the uninjured spouse.”

  Henry stops talking, and more than a nanosecond later, I inquire, “If I ask you a question now, will I be cutting you off?”

  “No,” Henry explains. “I paused in excess of the acceptable break time between sentences, so a question is fair game.”

  “Why am I getting the case if it’s already settled for digits like that? That’s a big number for scratched corneas.”

  “Bert knows I can’t practice civil law anymore. He knows I can’t institute a formal legal proceeding because of the problem I had and he’s using that as leverage against me. Bert says either I get his ex-wife to give him half her recovery as payment for his claim or make up the difference out of my fee. I don’t take kindly to ultimatums, especially from a Louisiana hick like him.” A hick HIC, I think to myself, that’s too funny. If Henry only knew. He continues.

  “I told Betty I was referring the matter to you. I explained to her that you’d start the formal lawsuit by serving a summons and complaint on the surgeon and see it through to conclusion to ensure she gets the client’s share of the money to the exclusion of her extorting ex-husband. If it goes to a jury, Bert won’t get a penny, not with his rap sheet, which happens to include a criminal conviction for attempted murder. So, if you can get him to sign off, you pocket half the fee for doing nothing. A gift. If not, you’ll have to work on the case, knowing it’s a guaranteed payday because I was already offered six hundred thousand in response to my claim letter to the insurance carrier. That’s your verbal. Have fun. And don’t underestimate Bert, he’s smarter than he looks. By the way, if your interruption earlier was to say you thought I couldn’t practice civil law anymore, I’ll have you know that settling a case in claim by writing a simple letter is not considered the formal practice of law according to how I interpret the applicable regulations. You need to file suit for your conduct to be considered the practice of law.”

  Henry reaches down and picks up one of the other three folders, which I assume is the sickle cell case. It’s not skinny like Beecher’s file. It’s thick and heavy, like the other two remaining on the floor. As I take it, I note the date of accident penned on the outside of the folder. With that date of loss, way before Henry and I ever met, I should’ve gotten this file when I got the rest of the HIC cases. Our deal was a take-all-or-take-none proposition, meaning I’ll give you my big-dollar cases but you must also take the crappy ones. So obviously, Henry had held this one out, putting a dagger through the heart of our deal. That ain’t right.

  But what’s more significant about this date of loss is that it is six years ago. This lawsuit should be over and done with by now. It’s a stale case and there’s always a reason for that, and there’s always a disgruntled client because of the unreasonable wait.

  Anyway, I’ll never forget his words when I asked him if he wanted to put our agreement in writing. “A guy like me, with clients like mine, doesn’t need a piece of paper to enforce a deal,” he’d said then. “I trust you. You trust me. That’s the only thing we have to lose here.” Yeah, right. I’m angry but say nothing, not a word. I mean, he’s giving me a gift on the Beecher case that’s worth no less than a hundred grand in my pocket and he’s handing over the one he’d been holding out on me. I guess I’m ahead of the game. It’s just his attitude toward trust that bothers me.

  “This is the Suzy Williams file,” Henry says, “the girl who sustained brain damage from her sickle cell disease when she was six.”

  “Right, the one you told me about.”

  “Yes, the one I told you about.”

  “I’m listening. No interruptions, I promise.”

  “Yes, the verbal. Well, uh, the verbal on this case is there is no case.”

  “I thought you told me they mismanaged her condition in the hospital.”

  “Yeah, that’s what I told you.”

  “So, what changed?”

  “Defense counsel served me with a motion to dismiss the case, so I had to pay for an expert medical review. My expert said no case. There’s a memo in the file from my expert doctor, attached to the defendant’s motion for summary judgment seeking dismissal.”

  “What am I missing here? Are you telling me you didn’t have the case reviewed by a qualified medical expert before you started the lawsuit to avoid this exact scenario?” I pause, giving him time to respond. Nothing. “Henry, you know that rule ensures you don’t sue a doctor or hospital that doesn’t deserve it and, more important, so that you don’t give the injured client false hope of recovery.”

  “Don’t bother me with details,” Henry says dismissively. “You know I don’t like details. Just handle things … somehow.”

  “By ‘somehow’ are you suggesting I make a cross-motion to the court requesting that you be relieved as counsel?” He kind of looks up toward the gold ceiling with a “that’s not such a bad idea” expression, then brings his head down and deadeyes me with force and authority.

  “You’re their lawyer now. And by ‘their’ I mean the injured child, whose name is Suzy, and her mother, June. Since you’re their lawyer and my good name is on the legal documents, just get us relieved as counsel as gracefully as possible.”

  “I’m on it, Henry. No worries,” I offer confidently.

  “Good, now get out of here. I’m having a get-together with a young Asian girl I met on Match.com. She kept giving me the wink, so I thought I’d give her the opportunity to give me more. Now get going.”

  “On my way, Henry.” He immediately starts looking over and around me to anybody and everybody the way he did on my approach. Two steps into my escape, I hear Henry.

  “And one more thing.” I pivot one-eighty on my wing tips.

  “Listening, sir,” I reply, playing into his ego.

  “I saw the way you looked at the Williams file when I handed it to you,” Henry continues, “the date of loss, that is. It was a holdout. I was handling the case the day you received delivery of the rest of my files and I held this one out.” Henry pauses and waits for a response. I don’t accommodate him. When he realizes this, he fills in the gap. “This little girl was a child prodigy who became a spastic quadriplegic with severe brain damage as a result of what happened in that hospital. She’s badly brain damaged, permanent feeding tube and all. So I thought they’d be throwing the money at me. You and I both know the money follows the injury in an emotional case like this. I didn’t know you could end up like her from sickle cell, without somebody doing something wrong. I appreciate your not calling it to my attention, the holdout status of the case, that is. And yes, on this one I was practicing law. Tha
nks for saying nothing about that, too.”

  Surprised to hear Henry say the word I before the word appreciate, I flash him the Beecher file and a smile. “And I appreciate you giving me half the fee on this settled case.”

  As my cab cruises through the six-block stretch that constitutes Fourth Avenue, the forgotten way, before it turns into Park Avenue, the famous way, I think to myself maybe one day Henry will find it in himself to say “I’m sorry,” and how I’m glad I didn’t make an issue about the Williams holdout since it’s a turndown anyway. The hardest thing for a lawyer to learn is to know when not to talk. The second thing I and my fellow attorneys are most guilty of is talking too much but saying too little.

  The trouble is that it’s a serious no-no in the state of New York to commence a medical malpractice case without first obtaining an affidavit of merit from a duly licensed physician. In my mind such a failure is just as bad as bringing a fraudulent claim altogether, and so now it’s time to begin dealing with the dilemma Henry has thrust me into.

  An attorney in New York must obtain court approval to withdraw as counsel once litigation has commenced. Getting court approval to withdraw from a noninfant case is a fifty-fifty proposition, the court’s logic being that if there wasn’t a legit case to begin with you shouldn’t have brought suit. That means: live with your error and associated expenses until the jury throws you out. Infants, on the other hand, are technically wards of the court. Getting court approval to drop an infant’s case, where the judge has an obligation to protect the child, is even more difficult. Once you proceed to factor in the tender age of Suzy Williams at the time of her injury and her brain damage, withdrawing as counsel gets harder still. Then add to the equation the fact that the attorney was supposed to obtain an affidavit of merit vouching that malpractice had been committed prior to starting the suit in the first place and you have a case that is nearly impossible to withdraw from as counsel. Thanks, Henry, and I’m not done yet. The problem continues.

  In my application to be relieved as counsel, I’ll be required to give the court an affidavit from a medical expert stating that the case lacks merit. This will raise the question of who the doctor was who opined the case had merit before the lawsuit was commenced and therein lies the conundrum; there was no affidavit of merit in this case in the first place.

  The worst part is that you have to serve your papers requesting the court’s permission to withdraw on the client. So when you go to court to plead your cause, you have to argue right in front of your client why you don’t want to be his or her attorney any longer. If and when the judge denies your motion, you then have to continue being the client’s attorney in a situation where the client no longer has any faith in you. Great.

  Benson’s put me in a fucked-up situation, being the attorney of record for Suzy Williams as I now am. I’ll have to find a really creative legal or medical argument to get out of this one.

  On the flip side, Suzy Williams is a brain-damaged child and obviously not an HIC. I won’t have to worry about being threatened, stabbed, or otherwise assaulted and battered, at least by Suzy, although I’m sure I’ll find out at some point along the way who the criminal is who’s connected to the Williams family and therefore landed Little Suzy in the legal hands of my distinguished colleague, Henry Benson.

  The cabbie interrupts my train of thought. “Where did you say you were going?”

  “I didn’t. I just said uptown,” I reply, then pause.

  “Would you like to give me an address?” the driver responds.

  “Lenox Hill Hospital,” I tell him. I have other problems, too. Only, I know how the next one will end.

  You Look Good in That Suit

  I enter Lenox Hill Hospital on East Seventy-Seventh and casually walk past the two guards toward the elevator bank. Over the years I’ve become an expert in legal matters, in medicine, and especially on liars and their lying habits. I’ve also become an expert on entering hospitals without being stopped by security or having to wait in line to get a visitor’s pass. It’s part of the craft of being a successful personal injury attorney.

  I go up to the surgical ICU and wash my hands before entering, just like the sign instructs. “Where’s my mommy?” I ask the nurse who’s keeping a beady eye on my every move.

  Her look is skeptical, a clear rebuff to my innocent attempt at humor. “Come this way,” she orders. As we walk down the hall, she starts issuing the usual laundry list of the dos and don’ts, such as don’t get too close to the hospital bed, don’t disturb the patient, keep away from the medical equipment, etc. Maximum care means maximum regs. I cut the lecture short.

  “I’ve been through the drill, nurse. Many times. I promise I know the rules.”

  She stops walking. Turning to me, she puts her hands on her hips and attacks. “I don’t care what you think you know. You listen to me. It’s my job, understand?”

  I back off. “Yes, yes. Sorry.” She shakes her head, then continues leading me to the room where my mother lies recovering from her incredibly serious cancer operation.

  Before I enter, my sidekick reiterates an order in a firm tone. “Don’t disturb her. She’s in and out of consciousness at this point. She needs her rest.”

  “Okay,” I say meekly. But the nurse, instead of dismissing herself, just stands there giving me an unfriendly look, which I really don’t think I deserve. We have nothing left to say, and so I break the silence. “Anything else?”

  “No, nothing. Just don’t bother her.”

  “Thank you, nurse, I assure you I won’t.” She looks me over, hesitant about leaving me alone with my own mother.

  Mom is lying propped up with tubes and monitors everywhere. Her eyes are closed and she looks peaceful. The oxygen mask covering her face reminds me of the scene from Blue Velvet where Dennis Hopper does the asphyxiation thing just before he’s about to have sex. Jesus, even with my own mother clinging to life before my very eyes, I inexplicably make this association. I repulse myself sometimes.

  At least I admit it.

  I’ve played my role in this hospital scene many times during my mother’s twenty-year battle. It started with breast cancer and now metastatic ovarian has been added to the cell-destroying mix. The thing is, she’s never looked this lifeless. I quietly approach and inspect the mechanicals. There’s an IV drip line connected to a Flowmaster fluid monitor and a bundle of plastic-coated cardiac monitor lead wires emerging from beneath her sheets. The wires run into a single plastic housing that is connected to some cable. For whatever reason, this connection has some separation and I feel compelled to push the two pieces together to close the quarter-inch gap. I reach over, grabbing it, and just as I do, my new best friend enters the room.

  “What are you doing back there? Trying to kill her?” Nurse Hostile screams. “Call security! Someone call security!”

  “Relax, relax,” I say. “I thought the monitor cable looked a little loose. Everything’s under control. I was just—”

  “Out of the room! Now!”

  Ten minutes later, after my mother’s been evaluated by a doctor, for no good reason, her watchdog comes out.

  “You can go back in now, but it’s against my better judgment,” she scolds. “Keep quiet. I mean it! She’s one day post-op and needs her rest. And don’t touch anything again. Got it?”

  “Got it, nurse. Sorry about before.” I go in and sit on the far side of the room nowhere near Mom. There are two visitor chairs, for some reason, and I’m sitting in the one directly across from the foot of her bed. Mom’s still resting peacefully in a state of unconsciousness. Or so I hope.

  After fifteen minutes of sitting, watching, and waiting for her to open her eyes, I decide to check out one of the Suzy Williams files, simply from curiosity. I pull out the defendant’s motion to dismiss, with Henry’s expert review memo clipped to it, just like he said. I take the memo off and put it under the motion, which I intend to read first.

  The attorneys defending both the Brooklyn Cath
olic Hospital and Dr. Richard Wise are my old friends Goldman & Goldberg. I used to have a lot of cases with them as defense counsel, but we haven’t had any contact now for a while. I call them my friends because after I beat both of them—Goldman and Goldberg, in different cases, each by jury verdict—they started sending me the plaintiffs’ cases they couldn’t handle because of interest conflicts with the medical insurance carriers paying their bills. In the field of medical malpractice litigation you can’t wear both hats. You either sue doctors or defend them, period. Reason being, the carriers don’t want to pay attorneys to defend their insureds if they’re just going to turn around and sue one of them.

  I chose to represent the victims of medical malpractice because my mother never should’ve ended up this way. There was a two-year delay in diagnosing her breast cancer, taking her from completely curable to years of otherwise unnecessary pain, suffering, and insidious yet life-prolonging medical treatments and operations. A wretched battle that didn’t need to be fought and that will soon be lost.

  In any event, the papers indicate that the firm’s name is now Goldman, Goldberg & McGillicuddy. Where have I heard that name before? I check out the attorney’s affirmation in support of the motion to dismiss and see it’s been written by one Winnie McGillicuddy. I don’t know her, but wonder if she’s as cute as her name sounds. My mind wanders and I recall McGillicuddy is the maiden name of Lucy Ricardo from the I Love Lucy show.

  I see the motion is returnable next Friday, one week from today. Thanks again, Henry, for waiting until the last possible moment to put me in a bind. It’s crunch time, considering I’m currently in the middle of a trial. I also note the judge assigned to the Williams case is Leslie Schneider, who’s way too stingy about giving adjournments. Be ready or be dismissed. The worst part about appearing before Judge Schneider is her voice. I think I even settled a case a few bucks short just so I wouldn’t have to spend a week in her courtroom listening to that nerve-pinching whine.