An excerpt from Med Mal.

The attorney for the plaintiff leaned forward, rocking precariously at the edge of his chair while I studied him. Comfortable in my leather armchair on the other side of the table I kept up my observation, somewhat amused although mostly unimpressed, as he betrayed his anxiety over and over again with repeated tapping of his foot and pointless feigned efforts with his pen.  My confidence grew, when arrow after highlighted arrow from his ballpoint tip began to wear a hole in the top sheet of his legal pad. Then his face became more flushed.  He was clearly growing frustrated, as his attempts to link the data points of the medical chart in front of him and to uncover an inconsistency in my testimony were proving fruitless.

A potential five-figure settlement depended on this junior associate’s uncovering the correct questions, then tempting me to admit to one position before confronting me with a record of having done the opposite.  It mattered not if this were to occur by skillful manipulation or dumb luck, but thus far it was neither.  His efforts had been wasted, for he was up against a deposition veteran and someone who would neither rattle nor succumb to trickery.  Still more arrows filled his pad; desperate thought pointing to desperate thought, until he realized his pen now tore clean through to the sheet beneath, and he looked up embarrassedly to finally forge another question.

“D-doctor.  Wh-why did you insert the nasogastric tube into the same nostril as after the first operation?”  He immediately looked to his right and left for approval.  But the only one in the room, aside from his adversaries, was an impartial court reporter dutifully massaging her keyboard.  I was flanked by my own attorney, sitting to my left, and counsel for the hospital to my right.  The numbers were against him, although for now, this was a one on one confrontation.

I stared coldly at him before answering; paying full attention for the first time in order that I might size him up while simultaneously implying I was no one with whom to trifle.  It occurred to me Daniel Randolph Janis wasn’t much to behold.  He was short and thin.  He shrunk his shoulders and avoided eye contact.  Like my attorney, he was the greenest associate in his firm, given the relatively small purse this case could yield, and this was obvious in his manner.  He was apparently naive as well; clearly having been taught the pieces of the lawyers’ game, but without the mastery of its moves.  Nor did he realize I had been schooled in the same game, over some tumultuous years of unexpected and aggravating experience, and therefore I could already be two moves ahead.   Other than my experience, my main advantage was that I knew things about this attorney’s client he wouldn’t be pleased to discover. But I held them back to capitalize on his ignorance at a more opportune moment.

Janis’ client was my former patient Phillip Brown, denizen of Northampton, NY, a Long Islander.  In late fall 2003, my first year of practice, only recently having graduated a general surgery residency in Washington, D.C., our paths would cross.  It would be in the emergency room of the Long Beach Medical Center, where I held my first privileges as an attending, and where I covered surgical call two weeks out of every four.  Mr. Brown had just returned from Las Vegas, so he had told me, where he had presented to another emergency room for abdominal pains and an elevated white blood count.  The doctors there had given him pain medication and antibiotics and sent him on his way.  By the time he presented to the Long Beach emergency room, his abdomen had swelled, and there was a complete lack of bowel sounds.  He also now had a fever and ever-worsening pain.  A hasty CT scan confirmed a watermelon-sized abscess in his abdominal cavity from perforated diverticulitis.

We had no available interventional radiology services at the tiny seaside hospital, and so my only option, of which I had been well trained, was to operate.  I would drain the abscess, resect his sigmoid colon, and create a colostomy.  All this I performed without hesitation and with textbook precision, beginning just before midnight and placing the last staple in the skin at 1:30 the following morning.  As I had promised, I  paid a courtesy phone call to his fiance, even though the sounds of the gentle ocean waves called for me to leave the hospital and start my short walk back to my two-bedroom apartment along the beach.

“What took you so long?! she asked without the slightest trace of appreciation.

This proved due warning of things to come.  I was new to the entitlement of Long Islanders, but would rapidly come up to speed.

Mr. Brown actually recovered quickly; leaving the hospital in just three days.  He would see me in the office often after that, for scheduled and unscheduled visits, all while making suspiciously frequent attempts to befriend me.  He asked after my family or my interests often.  I had no reason to withhold the fact that I was married, living with my wife Nicole in an apartment by the beach.  Nor was it unreasonable for me to reveal that I had two daughters; three-year-old Gabriella and one-month-old Sophia, and that I was fond of the Red Sox, being Boston born and raised.

With this knowledge, Mr. Brown would drop by my office unannounced to offer me box seats to the Yankees – Red Sox at their Bronx stadium, or to promise me a signed copy of Ted Williams’ autobiography.  None of these things would ever materialize, of course, nor would I have accepted them if they had.  Then one day, matter of factly, he asked me if I thought the doctors in Las Vegas had screwed up.

Matthew Brackman is a surgeon and author of Med Mal.

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