West Virginia lawyer, Jack Fabian, is a battle-hardened, hard-drinking personal injury trial lawyer concentrating his practice in medical malpractice plaintiff’s cases. Fabian, who has developed a penchant for big spending, expensive airplanes, top-shelf booze, and luxury vacations finds himself in 2005, feeling the adverse effects of the recently enacted repressive medical malpractice tort reform law in his state that has dulled his enthusiasm for the practice in general and plaintiff’s malpractice law in particular. Through a series of unforeseen circumstances, Fabian reluctantly finds himself teamed up with former adversary, Benjamin Darnell, a recently deposed partner in a large insurance defense law firm and becomes embroiled in a case against a young neurosurgeon who, the two contend, botched his first surgery since completing training.
Preferential Treatment is a story of two former foes pitted against the litigation section’s chairman of Darnell’s old firm and his young associate in a case that could make or break each of their small practices. The book gives the reader a bird’s-eye view of the rough and tumble of the practice of law in a dying West Virginia town and the risks few lawyers dare to take—the difficult, time-consuming, and expensive practice of medical malpractice litigation.
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Read an Excerpt
A Medical-Legal Novel
By William Parsons
AuthorHouseCopyright © 2016 William Parsons
All rights reserved.
Jack Fabian woke to the scream of the clock radio. In the darkness, Mick Jagger wailed. A single thought welled up inside Fabian's alcohol soaked brain: he really hated the Rolling Stones and Jagger in particular.
"Fuck!" Fabian rolled his six-foot-four frame out of bed and staggered in the direction of the blaring box. "Jesus fucking Christ!"
He slammed his ham-like hand on the top of the radio attempting to stop the torture. His head pounded as he struggled to remember where he was and why he was there.
The assault on Jagger was futile. The radio continued to howl. "I can't get no satisfaction! I can't get no satisfaction!" The clock's scarlet numerals seared his matter-crusted eyes. 5:00 a.m.
Fabian grabbed the radio and hurled it against the wall. The plastic exploded into dozens of pieces. He glowered at the ruins scattered on the floor, silent at last.
Although foggy on the specifics of the past eight hours, only two of which involved sleep, Fabian knew he had consumed too much scotch and had abused his body beyond belief.
"Dumb sonofabitch," Fabian chastised himself, the cobwebs beginning to clear. He ran his fingers through his thick, black curly hair. He squinted, struggling to acclimate himself to his surroundings. Only the lights from the street below illuminated the room. On the desk where the now-defunct radio had sat, Fabian spied a book that, upon closer inspection, he recognized as a Gideon's Bible.
Okay. I'm in a hotel. The fuzzy-brained Fabian tried to piece together the puzzle that was the previous afternoon and evening. New Orleans, French Quarter, strip joint, and a shitload of booye. Okay, I'm in a New Orleans hotel room. And, oh yeah, I'm a hell of a lot better off today than I was this time yesterday.
Fabian's eyes began to adjust to his dimly lit quarters. He peered through the open door to an adjoining room. Sprawled across the bed, clad only in his boxer shorts and mouth agape, lay a young Santino Fuscardo.
"Poor bastard," muttered Fabian. He stumbled toward the bathroom, his bladder begging for relief. "Hope he feels better than he looks."
Through the alcohol fog, Fabian recalled that it was less than twenty-four hours ago, November 15, 2004, that he was making last minute plans for what was certain to be a long and difficult medical malpractice trial set to begin the following week.
The cause for the previous night's celebration and Fabian's consequent horrific hangover was his reward for having concluded Hanratty v. Saad, M.D., a medical malpractice case that he had worked on for the past five years.
In the lawsuit, Fabian had alleged that Dr. Rashid Saad, a pediatrician, failed to properly diagnose and timely treat spinal meningitis in his patient, Wendy Hanratty, the only child of Fred and June Hanratty. Because of Saad's malpractice, according to Fabian, the four-year-old had died.
The loss of the Hanratty's child, in and of itself a tragedy, was amplified by the fact that Mrs. Hanratty was no longer able to bear children. After two years of investigation and three years of litigation, the case had dragged on with little hope of a settlement; and for the past thirty-five months, much of Fabian's professional time and a substantial chunk of his two-lawyer firm's money had been invested in the case. Until yesterday, it was a foregone conclusion that a jury trial was the only way the case would ever be resolved.
That all changed in Baton Rouge, Louisiana, during the deposition of Thomas W. Young, M.D., the expert pediatrician hired to testify on Dr. Saad's behalf. Fabian had spent days pouring over medical charts, medical journals, and pediatrics textbooks preparing for Young's deposition, the most important deposition in the case. His hard work paid off.
After six hours of grueling cross-examination by Fabian, Young had conceded that Saad committed malpractice in his care of the Hanratty's child. The unanticipated admission, a tremendous surprise to Saad's defense lawyer, Benjamin Darnell, and an unexpected windfall to Fabian, had completely changed the case's landscape and opened the door for the possibility of settlement.
Fabian remembered the look of surprise and disgust on the cocky, self-assured Darnell's face when his expert and, as a consequence his client's case, went down in flames. He had not felt such exhilaration since he played in and helped win the 1981 Peach Bowl when his West Virginia University Mountaineers football team stunned the Gators of the University of Florida.
Fabian managed a grin and examined himself in the bathroom's mirror. Maybe I look like shit now, but fuckin' Darnell looked ten times worse yesterday.CHAPTER 2
The unexpected defection of Darnell's expert laid the groundwork for Fabian's self-inflicted condition. After the deadly admission by Young became irrevocably etched into the record of the case, Benjamin Darnell's stomach began to churn violently. He detested losing.
Darnell quickly excused himself from Young's conference room, ostensibly to answer nature's call. In reality, his goal was to pop a couple of antacids and place some urgent telephone calls. He needed to salvage a settlement in the case before it was too late.
Darnell strode down Young's office hallway and spied a brass plaque on a door that stood ajar. The plaque bore the name "Thomas W. Young, M.D." Quickly, Darnell ducked into the vacant office. A large green executive-type leather chair stood proudly behind the desk. On the wall behind Young's oversized mahogany desk hung more than a dozen impressive frames that displayed diplomas, accolades, and honors bestowed upon Young.
Darnell scowled at the self-aggrandizing display. Must have bought them at Wal-Mart, he mused.
Darnell spun Young's chair with contempt and plopped into it. He pushed back from the desk, propped up his feet, and made himself comfortable. He knew the next few minutes were going to be uncomfortable.
Darnell's client, Saad, was the first of two on his list of people to call. Under the terms of Saad's malpractice insurance policy, Darnell was required to secure his client's consent prior to entering into settlement negotiations with the plaintiffs. He knew it was going to be tough to get.
Ever since the case had been filed, Saad had been adamant that he would not settle under any circumstance. He had emphatically instructed Darnell that his insurance company was not to pay a single dollar for a death he believed he did not cause. To settle for any amount, no matter how paltry, would be tantamount to an admission of professional incompetence and would be a horrendous personal embarrassment, Saad believed.
Saad's greatest concern, however, was that a federal law required his insurance carrier to report any malpractice settlements made on behalf of its insured physicians to the National Practitioner Data Bank. The NPDB was created by Congress in 1986 to serve as a repository for reports of adverse actions taken by entities such as state medical licensing boards against physicians. Adverse medical malpractice verdicts and settlements against doctors were also required to be reported to the Data Bank by the doctors' malpractice insurance companies.
Since 1990 when the NPDB was activated, this information was often considered by hospitals when determining whether privileges to practice in their institutions would be granted to a physician. State medical licensing boards also utilized the information to determine whether licenses should be granted to doctors who attempted to transfer their practices from one state to another. The reported information was also available to specialty boards such as the American Academy of Pediatrics by which Saad had been certified.
There was not unrestricted access to this information, however. Ironically, Congress denied prospective patients and their loved ones the luxury of access to this important information when choosing a doctor to treat them.
Because of the NPDB, doctors across the nation had banded together through their various state medical associations to negotiate "consent to settle" clauses into their malpractice insurance policies. This provision gave a doctor the right to refuse to settle any claim against him and insist that the insurance companies defend his case, through jury trial if necessary. Saad had such a clause in his insurance policy.
Doctors often exercised their rights under this provision, especially when they had been successfully sued by an injured patient in the past. According to national statistics, seventy percent of medical malpractice jury trials were decided in favor of the health care providers. Statistically, a doctor knew he had a much better than fifty-fifty chance of winning at trial. Consequently, many doctors preferred to take the odds and refuse to settle their cases, even if obvious malpractice had been committed.
As for Saad, he had feared that at some point too many adverse reports could cause him to be denied hospital privileges, denied the right to be a participating HMO panel doctor, denied the right to maintain his specialty certification as a board certified pediatrician, or any combination of the three. He had already been reported to the NPDB once before. While one or two settlements may not have any detrimental effect on him, he was painfully cognizant of the fact that there was a risk that too many adverse reports could become an impediment to his continuing to make a very comfortable living.
During the ensuing contentious conversation with the shocked and bitter Saad, Darnell deftly placed the blame for the case's collapse squarely on the shoulders of the defense expert, Dr. Young. While it was hard for Saad to believe it was one of his own who had trashed his defense, Darnell used his best skills of persuasion to redirect Saad's ire from his perception of the incompetence of his lawyer to Saad's own colleague's lack of mental toughness under the fire of a skilled plaintiff's lawyer's cross-examination.
Despite this, Saad continued to protest violently; but Darnell had one more card to play.
"Look," barked Darnell. "You can take this to trial if you insist. But consider this — we've got a dead kid on our hands. The only one these folks could ever have. You've got $1 Million in insurance coverage. If a jury thinks you screwed up and that the kid is worth more than that, then you're on the hook for the excess. Do you really want to take that chance? If you do gamble and lose, which I'm telling you you have an excellent chance of doing, don't complain if they take your house and sell it to pay the difference your malpractice policy doesn't cover."
Once this reality had been explained, it took only minutes for Saad to capitulate.
One down, one to go.CHAPTER 3
Susan Pavlik, the insurance adjuster for Saad's malpractice insurance company, was the next to get the bad news. Pavlik controlled the purse strings in the Hanratty v. Saad case and had the final say in whether it would settle or be tried despite Saad's agreement to wave the white flag. Pavlik also had the discretion to determine how much money would be offered if settlement were attempted.
Darnell reluctantly punched in the insurance company's number on Young's desk phone.
"American Physician Indemnity Corporation. How may I direct your call?" a husky female voice inquired.
"Yeah, uh, Susan Pavlik, please," Darnell said, barely above a whisper.
"One moment, please."
An impatient Darnell drummed his fingers on the desk and waited. Obnoxious elevator music played in his ear.
"Susan Pavlik," a business-like voice said.
"Susan, this is Ben Darnell."
"Hey, Ben. How's it going?"
"Not so good, Susan."
Stony silence. Pavlik took bad news on her cases personally.
"We've got a little problem with Dr. Young, our expert in the Hanratty v. Saad case. I'm calling you from his office."
"Yeah, what's the little problem?"
"Plaintiffs' counsel, Jack Fabian, is taking his deposition today. We're on a break," Darnell said.
Darnell drew in a long breath. "Long story short, he went south on us. Folded like a tent in a wind storm."
"How did that happen?" asked Pavlik through tight lips.
"I'm not sure. Lost his guts, I guess. He was one hundred percent behind us in our theories last night during our preparation. I had him tuned like a violin. No equivocation. I grilled him hard to see if there were any chinks in the armor and didn't find any. Today was a different story. After Fabian locked him into all his theories, he pulled out some medical literature that totally contradicted some of Young's opinions. The articles were from some throw away journals, but when Young was confronted with them he lost his cool and caved — agreed with Fabian that Saad blew it. Of course, I was objecting like a sonofabitch, but Young didn't take the hint. Kept agreeing with Fabian on everything he asked him about. I've only seen this happen once before in my twenty-eight years of practice. Couldn't believe it. Bottom line — we've got a serious problem here, and I don't know if the case can be salvaged."
Pavlik knew Fabian. He had stung APIC in malpractice cases twice before. She abhorred the thought of being stung by him again and loathed the idea of lining his pockets with any more money.
"Can you do anything to fix it?"
"I seriously doubt it. Fabian really nailed him. I'm afraid that if I ask Young any questions and try to rehabilitate him, it'll only get worse. In my judgment, he's toast — finished. I just called Dr. Saad and explained what happened. He wasn't too happy, but he understood how Young's testimony torpedoed the case. His main concerns were that settling made him look like he admits malpractice and, of course, his having to report the settlement to the Data Bank; but he gave his consent to settle once I explained to him that his personal assets could be taken if he lost at trial. I'm sure he doesn't care about the money since it comes out of APIC's pocket, not his."
Pavlik knew the mindset. They never do care about our money, she thought. All they worry about is protecting their huge egos and being reported to the NPDB and what effect that could have on their pocketbooks. They screw up now and it has to be reported to Uncle Sam. Big Brother watching the medical profession. Incompetents watching incompetents. How ironic.
"What's it worth?" asked Pavlik. She paused briefly, but did not give Darnell time to respond. "What will Fabian take is the better question?"
"I did some checking on him earlier. He's got a reputation for being a pretty good trial lawyer."
Pavlik looked at the telephone receiver and frowned. Pretty good the man says. He evidently kicked your butt today.
"He has a reputation for being a bird-in-the-hand kind of guy though," Darnell continued. "He's been up to his ears in this case for quite a while, and he's invested a lot of time and his own money getting it this far. We've probably taken twenty depositions to date. Today's the fourth one we've taken in four different cities in the last five days. My guess is he's spent over ten thousand in travel and expert fees in the last few days and has sunk over sixty grand of his own money in this case all tolled. If we go to trial, he'll have another twenty to thirty grand in it. All of his out-of-state experts will have to travel to West Virginia for the trial. That's expensive, especially since the trial's in the middle of nowhere. It'll be a logistical and economic nightmare for him to get all his witnesses there. My information from some lawyers that know him is that his little twoman firm is operating on a shoestring right now, and probably this case represents a large part of its cash flow problems. His business is feast or famine; you know the type — typical small town law shop. And the book on Fabian is that he can't hold onto his money even though he's had a fair amount of success — burns a hole in his pocket; so I doubt he has enough of a war chest to keep bank rolling this case and keep his lights on too."
Darnell paused momentarily. "And he knows that even if he wins and scores big, I can keep the case tied up for months on appeal."
"Uh-huh," Pavlik said with growing impatience. I ask this guy the time and he builds me a goddamn clock!
"If his back's to the wall, though, he'll try the case; he's tried them before when he's had to. In my opinion, now is a good time to try to settle, if that's what you want me to do. I think I can get him to take something below the one million that Saad has in coverage. If you want me to try to settle it, I'd like the authority to settle for the limits; but I'll do my best to beat him down. I'm pretty sure, under the circumstances he's faced with, he'll take less."
"Any chance of getting another expert — one with a backbone?" Pavlik asked.
Excerpted from Preferential Treatment by William Parsons. Copyright © 2016 William Parsons. Excerpted by permission of AuthorHouse.
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