James Sheehan - The Law of Second Chances

Despite the gauntlet laid down by the governor, Sal was confident as he stepped into the elevator on the fifth floor of his apartment building to head for the courthouse and his rendezvous with destiny. Maybe after this I’ll buy another house-bigger and better than the last one. I’m never getting married again, though. I ain’t gonna give this one up .

Sal’s confidence stemmed from tempered expectations. He wasn’t looking for victory. He knew Benny wasn’t going to get off-that was a little too much to hope for. But he did have a shot at saving him from the death penalty, which would be considered a victory by most observers in the know and would enhance his reputation. He had Dr. Donald Wong all set to testify as an expert on Benny’s behalf, and he had some new evidence that would definitely surprise the state.

All this was going to turn his life around eventually. He only owed Beano Moffit about thirty thousand, which would be chicken feed once he got rolling again.

Sal leaned back against the rear wall of the elevator and started reading his notes for the opening statement. It was his routine to write out the opening statement in longhand and practice it several times in his skivvies in front of the full-length bathroom mirror. When he felt confident he had it down, he reduced it to an outline. He was reading his outline when the elevator door opened on the third floor and someone stepped in. Sal didn’t even look up. When the door again opened at the lobby, Sal started to walk out, his head still buried in his notes. He felt something cold pressed to the base of his skull. Before he could react, he heard a noise, like a pop. His whole head was burning and his legs went limp. He tried to stay up but couldn’t. Then everything suddenly turned calm and peaceful. He was unconscious before he hit the floor.

The shooter stepped over the body, which was lying half inside the elevator and half out, turned, and fired two more shots for certainty.

Miami, October 1999

It had been a long day, and Jack Tobin was tired. He’d been on his feet for hours presenting evidence to the Florida Board of Professional Responsibility, and he still wasn’t done. It wasn’t unusual for him to be on his feet all day. Hell, he’d had trials that lasted months. But this fatigue was different. This was emotional fatigue. This was ripping open a wound that had not yet healed, a wound that was festering with infections and pus and all sorts of bad things. This was, in every sense of the word, gut-wrenching.

Now Jack was making his summation to the board.

“As you know, I have been before you many times in the past on the other side of this issue-representing physicians-so I have literally seen both sides. The evidence I have put before you today shows, I believe, that Dr. Hawthorne is unfit to continue practicing medicine. I have presented to you four other instances where Dr. Hawthorne missed the diagnosis of ovarian cancer even though the patient exhibited classic symptoms of the disease. Many individuals never have symptoms. That is why it is often referred to as the ‘silent killer.’ These five women, however, all had multiple symptoms-abdominal pain, fatigue, bloating, and weight loss-over an extended period of time. Only one of these women, Ms. Eliot, survived, and in that case, where the diagnosis was missed for a precious eight months, the positive outcome was considered a miracle. She told you that herself earlier today. In the case here before you, the diagnosis was missed for more than nine months, and when the proper diagnosis was finally made, it was too late. The cancer had metastasized into multiple organs.

“One blood test could have revealed the problem. An ultrasound could have confirmed the diagnosis. In every one of these five situations, this doctor did nothing. Early detection was the only real chance these women had.

“Everybody makes mistakes, ladies and gentlemen, but when you do it in life-and-death situations and you do it consistently, there have to be severe repercussions. That’s why I’m asking you to take Dr. Hawthorne’s license.”

It was short, sweet, and to the point. And more important, it was devoid of emotion. If Jack had let his emotions enter into the presentation, there was no telling what would have happened.

Dr. Hawthorne’s attorney, Ken Cooper, now had his opportunity to present the doctor’s side. As Jack sat down, Ken stood to address the board.

This was not the setting where these gentlemen usually worked. They were trial lawyers, and their arena was the courtroom. This administrative hearing was in a ballroom at the San Juan Capistrano Hotel in downtown Miami, and the “court” consisted of a panel of about thirty physicians and other professionals who were going to pass judgment on Dr. Hawthorne’s professional future.

Ken did exactly what Jack expected him to do. He pointed out to the board that the symptoms of ovarian cancer are the symptoms of so many common ailments. “It is not a deviation from the normal standard of care not to jump to the conclusion that everyone who has persistent stomach pain or bloating has ovarian cancer. If that were the case, doctors would spend their days sending people to have diagnostic testing, from ultrasounds to CT scans. That’s the type of medicine that is already driving up medical costs.” After that, Ken read from portions of the five expert depositions that he had submitted earlier as evidence. “Five of the most prominent physicians in this area and in the country have told you that Dr. Hawthorne did not deviate from the usual standard of care. That is evidence you cannot ignore.”

It was a good argument, and it was the argument Jack would have made and had made many times before, but Jack still had an almost uncontrollable desire to get out of his seat, grab Ken Cooper by the throat, and squeeze as hard as he could. The only reason he didn’t was that Ken was a longtime friend who was only doing his job. He also knew that Ken-like himself when he’d represented physicians, delusional as he may have been-actually believed what he was saying. He wasn’t so sure about the doctors at the large, elevated, U-shaped table in front of him.

It was Jack’s turn for rebuttal. He stood and put his hands in his suit jacket pockets, something he had never done in his entire career as a trial attorney. He took a deep breath to relax. His heart was in his throat. Maybe I should have gotten someone else to do this. Maybe I’m too close to the situation . But it was too late now. He had believed nobody else could make the case like he could. Maybe he was right. Certainly nobody else could have felt as strongly about it as he did.

“Ken made a good argument,” he began. “He always does. Ken is a good lawyer. He comes prepared. When I handled these cases-and as you know, if you’re going to represent physicians in medical malpractice lawsuits, you’re going to represent them in administrative hearings as well-I did exactly what Ken has done. I presented the testimony of the best experts in the country. That is why I gave you evidence of actual cases where people have lost loved ones or, as in Ms. Eliot’s case, where someone almost lost her life-all under Dr. Hawthorne’s care. So what’s it going to be? Are you going to rule in favor of people, or are you going to rule in favor of the experts?”

There was much more he wanted to say, but he knew instinctively that it was time to sit down and shut up. They had the point. They were either going to buy it or they weren’t. As the discussion proceeded around the U-shaped table, Jack quickly got his answer. Most of the doctors and other professionals on the panel quickly adopted the opinions of the experts while expressing their heartfelt condolences to the families of the victims of the good doctor’s care. Their chairman, Dr. Robert Green, summed it up well: