Cookie's Case (16 page)

Her crying now reaches epic proportions, indicating it was well overdue.

“Here, let me get you a tissue. Please.”

“No, I'll get it.” She starts a labored shimmy to the edge of the couch.

“No,” I say, “I'll get it. You just relax. Where's the bathroom?”

“Over there,” she responds, pointing behind her, finger over her shoulder. I look and see two doors. I walk back to check. “This one?”

“Yeah, that one.” But she isn't, in fact, looking.

I open the door and it's a bedroom. A female bedroom. “In here?”

“Yes, in there.” She's still not looking.

I enter.

PRETTY FAR-FETCHED

So they definitely don't share a bedroom. This is Cookie's alone. Suddenly the edge of my jacket gets caught on a decorative plant holder, tipping it forward. I catch it before it topples over but not before several pots fall and crash to the floor. Shit. Now there's a bunch of depotted prickly plants surrounding my feet with soil dust mushrooming up.

“What was that?” Cookie calls out.

“Um, I accidently knocked a few plants off your plant stand. It was top-heavy and—”

“Plant holder? You've got the wrong door,” she corrects me.

“Sorry. No worries. I'll take care of it.” I'm hoping I can restore order before she has a chance to see what a mess I made. And even more importantly, before Major arrives to find me in her bedroom. I slide the plant rack back into position, then quickly pot and reshelve four of the strange-looking thorny flowering plants. The soil is dry and dusty, not moist. As I reach down to finish repotting the last three, I hear the front door open.

Holy Aphrodite! Crap! Major!

“Cookie! I'm home!” he yells. “Everything okay? I saw I missed your calls and rushed right back. My cell had run out of battery … and I understand we have a visitor.”

“I'm fine,” she says. “Don't worry.” She's pulled herself back together. Thank God. I'm now shoving dirt into the next to last pot as fast as I can, ignoring the dust permeating my nostrils and the lenses of my contacts.

“Hey, Cookie,” he says, “Where's …” Starting to ask where I was, he's suddenly distracted before completing the sentence. “Hey! What's your door doing open?”

This question has a troubled tone. I hear determined footsteps approaching. Uh-oh. I have one plant in hand and one still to go. Plus the dirt I have to wipe up.

Tell me this isn't happening.

As he enters, I'm on my hands and knees in midscoop. I look up.

“Hi.”

“What happened here?”

Even I can't wait to hear what my explanation sounds like. “Well, Cookie needed a Kleenex, and I mistakenly thought this was the bathroom. My jacket got caught on the pointed metal leaf on this iron thing and tipped it over and I just …”

“I see,” Major says, seeming sympathetic to my plight. “You can put that plant down, and I'll take care of the rest later.” I do as I am told. I walk out past him, and he closes the door with authority. He doesn't slam it, merely closes it with a firmness, as if to say, “You stay shut.”

We walk over to Cookie. She's miraculously herself again and looks as if she hadn't just broken down feeling the strains and conflicts of her situation. However, since she obviously wouldn't want Major to know what we were talking about, let's hope he isn't interested in exploring why she needed a tissue.

I felt like a kid who got caught with his hand in the Cookie jar, if you'll pardon my pun.

“So, what brings you here?” he inquires. Reasonably, I might add.

“Well, I was in the neighborhood after meeting with my expert radiologist to review the case. So I didn't think you guys would mind if I dropped by and gave you an update.”

“That's fine.” Good, he's not mad, and I'm in the clear. “Do you drop by all your clients' homes to update them on their cases?”

Hmm. Maybe I jumped to the wrong conclusion.

“No, I don't, actually. But there's something here I'm still struggling with. And since you're a doctor, in addition to everything else, I'm hoping you'll be able to offer guidance. I just know I'm going to hear from the insurance carrier on the issue,” I add.

I'm also thinking that at some point during this meeting, I'm obligated to tell them about the withdrawal of the offer. But not now. I have to set it up first.

“The thing is, I'm going to need a good counter to what I anticipate as their position.”

“Well, I'll do the best I can. What, specifically, did you go over with this radiologist?”

“Cookie's imaging studies. What they show and what they don't show.”

“Then let's see if I can help. However, as you know, I'm not a radiologist.”

“Yes, I appreciate that,” I answer. “But do you read MRIs?”

“Not to any degree that I'm comfortable with.”

“Okay, well here's the deal. We're claiming there's a mechanical obstruction at the C4 level that's acting like a dam, causing CSF to back up into Cookie's skull. Right?”

“Yes, I believe that to be the mechanics. But don't forget McElroy put a screw into an unintended joint space, as well.”

“Yes, of course. This I know, and it was imaged—meaning, we have objective proof of this. Yet, according to the subsequent surgery report, that error was corrected. So the largest part of the damages here is the permanency associated with lifelong continued spinal tapping. Correct?”

“It would certainly seem that way.”

“Okay. Now it's a given that McElroy caused an injury and a CSF leak at the C4 level at the time of his surgery. And it's also a given that there was a fluid collection at this level on the immediate post-op MRI. The presence of fluid imaged at C4 clearly supports our position. But the thing that troubles me,” I go on, “is that none of Cookie's studies to date, inclusive of this first MRI, show strong evidence of an arachnoid membrane tissue abnormality at this level that could cause such a backup. So, to me at least, it's kind of a mystery as to what's causing the need for the spinal taps.”

“I see what you mean. Is your expert a neuroradiologist?” This is a brilliant inquiry.

“No.”

“Is there
any
evidence of a tissue abnormality at this level at all?” Brilliant question number two.

“The answer is yes. There's a hint of an abnormality at C4, but my expert cannot say what this finding is with a reasonable degree of medical certainty. And whatever it is, she doesn't believe it could cause a backup of fluid into the skull given its small size.”

“I see. Did any of the MRIs image an unusually large collection of CSF within the skull?”

“Yes, but my expert couldn't identify the source or reason for the excessive amount of fluid.”

“I see. Then why don't we just wait and see if the insurance company makes an issue of it?” This question is almost, but not quite, a reasonable one.

“That's one approach. But I'd rather be fully prepared right from the start in the event it does get raised. It's my nature. Besides, putting the lawsuit aside for a second, let's focus, instead, on Cookie's health and well-being. My expert, although not a neuroradiologist, is the best reader in town. When she became board certified, there was no such subspecialty, but she possesses the same qualifications. She allows that there could be alternate explanations as to why this problem is occurring. Maybe it would be in Cookie's best interest to have a full workup. You know, cerebral spinal fluid culture and a bunch of other stuff to see if this is an overproduction or a failure-to-drain issue, rather than mechanical blockage.”

“That's an excellent suggestion,” Major replies without hesitation. He turns to Cookie. “I'll send some of your fluid to the lab after the next tap and have it analyzed as a first step. Then, we'll take it from there.”

She nods and he continues, “I guess we should be thankful that we have such a thorough lawyer on our side. The issue was never even raised by Chris Charles. But, quite frankly, it's not such a mystery, as you put it.”

“I'm listening. Educate me. I know when they view that video they're going to go balls-out in denying any causal connection to the malpractice.” I'm choosing my words carefully but, given that I framed Cookie's perfect lovelies, it ain't easy.

“So, let's hear it,” I continue. “Oh, and before I forget, it's my obligation to inform you of any material developments, and so you need to know that they have withdrawn that two-hundred-and-fifty-thousand-dollar offer.”

There, it's out. The idea was to gain a bit of advantage by telling them the MRI evidence isn't supporting their case, and implying that fact accounts for the withdrawal of the offer. Even if there's no relation between the two. To further distract, I then was asking this retired doctor, a guy with no expertise in reading MRIs, to present an alternative explanation.

I'm not proud of taking this approach, but I had to do something.

Cookie doesn't look happy. She hops right on it.

“Did you just say they took the money off the table?”

“Yes, yes I did.”

“Um, Mr. Wyler, when did they take the money off the table?”

“I received the letter today. But not to worry. I also delivered our tap video today, together with Major's records. So, before this morning, the only thing they had relative to our largest item of damages was a mere statement in a legal pleading, and a medical history of recurrent tapping documented in the medicals. Now, with the exchange of Major's records and the video, it is very real to them. I'm confident the money will flow and will flow big.”

“Are you sure?” she asks. Her tone is one of disbelief.

“Positive, don't worry.” I don't blame her, though. Her prior attorney works the case for three years and achieves a two fifty offer. I'm on the case for just a short stint and that money's now gone. Not to mention that, in the last ten seconds, I've told her defense counsel will go balls-out in denying a causal connection for the tapping, yet at the same time promising the money will flow big. The rules of evidence call this prior inconsistent statements. The legal inference is not good. Talking out of both sides of my mouth to my clients is something I promised myself I'd never do. But I do it now.

What's worse, it's in my own defense, and that makes me a shithead.

At least I admit it. But this admission gives me no solace.

She's not done.

“The thing is, I remember Mr. Benson saying their threat to pull the money off the table was just a negotiation ploy, that it never happens, and that the money would always be there—and you agreed. Twice.”

I feel like a heel. Such a sum probably represents more than she's earned in her entire life. “But not to worry. I assure you that video we made tells a chilling story.”

I turn back to Major, hoping to move away from this sore topic and the guilt I'm trying to ignore. The only way I can remedy this is to fight hard and achieve a large recovery for her. “So, picking up where we left off”—I'm now addressing Major—“tell me why the MRI finding isn't such a mystery.”

Like Cookie, he's not happy. But he clears his throat. “Well, first, the MRIs could be false negatives. You have to appreciate we're talking about a microscopic injury, so it could be present but just not imaged. You see, the only definitive way to identify the abnormality would be to do a study while her syndrome was in progress—in real time. And that cannot be done without substantial risks, given the technical difficulties presented in performing an MRI during the course of evolving cranial pressure and tapping. Do these explanations help you out any?”

“Yes, they do. But it'd still be nice to have a recent objective test confirming the injury I'm claiming has occurred.”

“Well, she has the clinical manifestations of her injury. That's pretty objective, as you've seen for yourself.”

“That's true. But, like I said, what's on my mind now is our little homemade video. It should set the scene for a big payday, but at the same time it will undoubtedly also trigger an aggressive defense. They may even seek to compel Cookie to have further medical examinations at their behest. The best way they could defend this horrible aspect of the damages would be to claim that the repeated and continued tapping is unrelated to the care Dr. McElroy rendered to her. A black-and-white causation defense.

“In a medical malpractice case in the state of New York,” I begin to explain, “you have to prove both that the doctor departed from good and accepted medical practice in his care and treatment of his patient, and that this departure was a substantial factor in causing injury to the patient.”

Major gives me a look. “I'm not a lawyer, but a causation defense sounds pretty far-fetched.” For emphasis, he even gives me a snort of contempt. “Before McElroy's surgery, Cookie never had a tap. He cut into the arachnoid membrane causing a CSF leak at the time of the surgery. A fluid collection is imaged at the level of injury in the immediate MRI. Within a short time after, she began to require weekly tapping. Your own expert finds a tissue abnormality at C4, albeit, just a hint. It seems pretty open and shut.”

“I admit you share the opinion of another of my experts, who came to the same conclusion. But, all I can say is: welcome to my world. In a malpractice case, the use of a causation defense is the best way to disassociate the malpractitioner from the worst of the injuries. Here, according to my radiology expert, a causation defense would involve Cookie somehow overproducing CSF or there being a compromise in her ability to drain the cerebral spinal fluid, both unrelated to McElroy's operation and both arising from some other trigger.”

“That seems a bit out there.” Major, I sense, is just a little uneasy.

“Out there, maybe. We'll just have to wait and see what happens.” I look at Cookie and see she's still upset about the two fifty.