Harmful Intent (5 page)

“No,” Jeffrey said with forcefulness.

“Did you take morphine on the day you administered anesthesia to the unfortunate Patty Owen?”

“Absolutely not,” Jeffrey said.

“Are you sure, Dr. Rhodes?”

“Yes!” Jeffrey shouted.

“No more questions,” Davidson said, and he returned to his seat.

Randolph had done what he could on cross-examination, emphasizing that the addiction problem had been minor and short-lived, and that Jeffrey had never taken more than a therapeutic dose. Besides, Jeffrey had volunteered for treatment, had been certified “cured,” and had not been subjected to any disciplinary action. But despite these assurances, Jeffrey and Randolph had both felt his case had been dealt a death blow.

Just then, Jeffrey was brought back to the present by the sudden appearance of a uniformed court officer at the door to the jury room. His pulse shot up. He thought the jury was about to be announced. But the court officer made his way over to the door to the judge's chambers and disappeared. Jeffrey's thoughts drifted back to the malpractice trial.

True to his word concerning its relevancy, Davidson brought the addiction issue back with further testimony that had been totally unexpected despite the discovery depositions. The first surprise came in the form of Regina Vinson.

After the usual introductory questions, Davidson asked her if she had seen Dr. Jeffrey Rhodes on the fateful day of Patty Owen's death.

“I did,” Regina said, staring at Jeffrey.

Jeffrey knew Regina vaguely as one of the evening OR nurses. He didn't remember seeing her on the day that Patty died.

“Where was Dr. Rhodes when you saw him?” Davidson asked.

“He was in the anesthesia alcove for operating room eleven,” Regina said, keeping her eyes directly on Jeffrey.

Again, Jeffrey had a premonition that something detrimental
to his case was coming, but he couldn't guess what it would be. He remembered working in room eleven for most of the day. Randolph leaned over and asked in a hushed voice, “What is she leading up to?”

“I haven't the foggiest,” Jeffrey whispered, unable to break eye contact with the nurse. What disturbed him was that he could sense real hostility in the woman.

“Did Dr. Rhodes see you?” Davidson asked.

“Yes,” Regina replied.

All at once, Jeffrey remembered. In his mind's eye he saw the image of her startled face as she pulled the drape aside. The fact that he was sick that fateful day was something besides his addiction problem that he had failed to tell Randolph. He'd considered it, but had been afraid to tell him. At the time he thought of his behavior as evidence of his dedication and self-sacrifice. After the fact, he'd not been so sure. So he'd never told anyone. He started to reach for Randolph's arm, but it was far too late.

Davidson was looking at the jurors, one after another, as he posed the next question: “Was there something strange about Dr. Rhodes being in the alcove of operating room eleven?”

“Yes,” Regina answered. “The curtain was closed and operating room eleven was not in use.”

Davidson kept his eyes on the jurors. Then he said, “Please tell the court what Dr. Rhodes was doing in the anesthesia alcove of the empty operating room with the drapes closed.”

“He was shooting up,” Regina said angrily. “He was injecting himself intravenously.”

An excited murmur rippled through the courtroom. Randolph turned to Jeffrey with a shocked expression. Jeffrey shook his head guiltily. “I can explain,” he said lamely.

Davidson went on. “What did you do after you saw Dr. Rhodes ‘shooting up'?”

“I went to the supervisor, who called the chief of anesthesia,” Regina said. “Unfortunately, the chief of anesthesia was not reached until after the tragedy.”

Immediately after Regina's damaging testimony, Randolph had been able to get a recess. When he was alone with Jeffrey he demanded to know about this “shooting-up” episode. Jeffrey confessed to having been ill that fateful day, and said that no one but he had been available for the delivery. He explained everything he'd done in order to keep working, including giving himself the IV and taking paregoric.

“What else haven't you told me?” Randolph demanded angrily.

“That's all,” Jeffrey said.

“Why didn't you tell me this before?” Randolph snapped.

Jeffrey shook his head. In truth, he wasn't completely sure himself. “I don't know,” he said. “I have never liked admitting when I'm sick even to myself, much less anyone else. Most doctors are like that. Maybe it's part of our defense about being around illness. We like to think we're invulnerable.”

“I'm not asking for an editorial,” Randolph practically shouted. “Save it for the
New England Journal of Medicine.
I want to know why
you
couldn't tell
me,
your lawyer, that you were seen ‘shooting up' on the morning in question.”

“I guess I was afraid to tell you,” Jeffrey admitted. “I did everything possible for Patty Owen. Anyone can read the record and attest to that. The last thing I wanted to admit was that there could be a question of my having been in top form. Maybe I was afraid you wouldn't defend me with the same intensity if you thought I was even remotely culpable.”

“Jesus Christ!” Randolph exclaimed.

Later, back in the courtroom, during the cross-examination, Randolph did as much damage control as he could. He brought out the fact that Regina did not know if Jeffrey was injecting himself with a drug or merely starting an IV to rehydrate himself.

But Davidson was not done yet. He brought Sheila Dodenhoff to the stand. And just like Regina, she glared at Jeffrey while she testified.

“Miss Dodenhoff,” Davidson intoned, “as the circulating nurse during Mrs. Owen's tragedy, did you ever notice anything strange about the defendant, Dr. Rhodes?”

“Yes, I did,” Sheila said triumphantly.

“Would you please tell the court what you noticed,” Davidson said, obviously relishing the moment.

“I noticed his pupils were pinpoint,” Sheila said. “I noticed it because his eyes are so blue. In fact, I could barely see his pupils at all.”

Davidson's next witness was a world-famous ophthalmologist from New York who'd written an exhaustive tome on the function of the pupil. After establishing his eminent credentials, Davidson asked the doctor to name the most common drug to cause pupils to contract to pinpoints—miosis, as the doctor preferred to call the condition.

“You mean a systemic drug or an eye drop?” the ophthalmologist asked.

“A systemic drug,” Davidson said.

“Morphine,” the ophthalmologist said confidently. He then commenced an incomprehensible lecture about the Edinger-Westphal nucleus, but Davidson cut him off and turned the witness over to Randolph.

As the trial dragged on, Randolph had tried to rectify the damage, proposing that Jeffrey had taken paregoric for diarrhea. Since paregoric is compounded with tincture of opium, and since opium contains morphine, he proposed that the paregoric had caused Jeffrey's constricted pupils. He also explained that Jeffrey had given himself an IV to treat flu symptoms, which are frequently caused by dehydration. But it was apparent that the jury did not buy these explanations, especially after Davidson brought a well-known and respected internist to the stand.

“Tell me, Doctor,” Davidson said unctuously, “is it common for doctors to give themselves IVs as it has been suggested that Dr. Rhodes had done?”

“No,” the internist said. “I've heard some scuttlebutt about gung-ho surgical residents doing such a thing, but even if such reports are true, it's certainly not a common practice.”

The final blow in the trial came when Davidson called Marvin Hickleman to the stand. He was one of the OR orderlies.

“Mr. Hickleman,” Davidson said. “Did you clean OR fifteen after the Patty Owen case?”

“Yes, I did,” Marvin said.

“I understand you found something in the biohazard disposal container on the side of the anesthesia machine. Could you tell the court what you found?”

Marvin cleared his throat. “I found an empty vial of Marcaine.”

“What concentration was the vial?” Davidson asked.

“It was .75%,” Marvin said.

Jeffrey had leaned over and whispered to Randolph, “I used .5%. I'm sure of it.”

As if he'd overheard, Davidson then asked Hickleman: “Did you find any .5% vials?”

“No,” Marvin said, “I did not.”

On cross-examination, Randolph tried to discredit Marvin's testimony, but only made things worse. “Mr. Hickleman, do you always go through the trash when you clean an operating room and check the concentration of the various drug containers?”

“Nope!”

“But you did on this particular case.”

“Yup!”

“Can you tell us why?”

“The nursing supervisor asked me to.”

The final coup de grace was delivered by Dr. Leonard Simon from New York, a renowned anesthesiologist whom even Jeffrey recognized. Davidson got right to the point.

“Dr. Simon. Is .75% Marcaine recommended for obstetric epidural anesthesia?”

“Absolutely not,” Dr. Simon said. “In fact it is contraindicated. The warning is clearly labeled in the package insert and in the
PDR.
Every anesthesiologist knows that.”

“Can you tell us why it is contraindicated in obstetrics?”

“It was found to cause occasional serious reactions.”

“What kind of reactions, Doctor?”

“Central nervous system toxicity.”

“Does that mean seizures, Doctor?”

“Yes, it has been known to cause seizures.”

“What else?”

“Cardiac toxicity.”

“Meaning . . . ?”

“Arrhythmias, cardiac arrest.”

“And these reactions were occasionally fatal?”

“That's correct,” Dr. Simon said, pounding in the final nail of Jeffrey's coffin.

The result had been that Jeffrey and Jeffrey alone was found guilty of malpractice. Simarian, Overstreet, the hospital, and the pharmaceutical company had been exonerated. The jury awarded the Patty Owen estate eleven million dollars: nine million more than Jeffrey's malpractice coverage.

At the end of the trial, Davidson had been openly disappointed that he'd done such a good job destroying Jeffrey. Since the other defendants and their deep pockets had been exculpated, there was little chance of collecting much above and beyond Jeffrey's insurance coverage even if Jeffrey's income was attached for the rest of his life.

For Jeffrey, the result was devastating, personally no less than professionally. His whole image of himself and his self-worth had been predicated on his sense of dedication, commitment, and sacrifice. The trial and the finding by the jury destroyed that. He even came to doubt himself. Maybe he
had
used the .75% Marcaine by accident.

Jeffrey could have become depressed, but he didn't have time to submit to depression. Between the widespread news reports of Jeffrey's having “operated under the influence” and the fierce antidrug sentiment of the times, the district attorney had felt compelled to file criminal charges. To Jeffrey's total disbelief, he now found himself charged with murder in the second degree. It was on this charge that Jeffrey was now awaiting the jury's verdict.

Jeffrey's musings were again interrupted by the uniformed court officer as he reappeared from the judge's chamber and slipped back into the jury room. Why were they drawing it out like this? It was torture for Jeffrey. He was plagued by an all-too-real sense of déjà vu, since the four-day criminal trial had not gone much differently than the previous civil trial. Only this time the stakes were higher.

Losing money, even if he didn't have it, was one thing. The specter of a criminal conviction and mandatory prison term was something else entirely. Jeffrey truly did not think he could withstand life behind bars. Whether it was due to a rational fear or an irrational phobia, he didn't know. Regardless, he'd told Carol he'd spend the rest of his life in another country rather than face a prison term.

Jeffrey raised his eyes to the empty judge's bench. Two days previously, the judge had charged the jury before they'd retired for their deliberations. Some of the judge's words reverberated in Jeffrey's mind and fanned his fears.

“Members of the jury,” Judge Janice Maloney had said, “before you can find the defendant, Dr. Jeffrey Rhodes, guilty of second-degree murder, the Commonwealth must have proved beyond a reasonable doubt that Patty Owen's death was caused by an act of the defendant which was imminently dangerous to another person and evinced a depraved mind, indifferent to human life. An act is ‘imminently dangerous' and ‘evinces a depraved mind' if it is an act that a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another. It is also such an act if it comes from ill will, hatred, or harmful intent.”

It seemed to Jeffrey that the outcome of the case hinged on whether the jury believed he had taken morphine or not. If they believed he had, then they would find he had acted with harmful intent. At least that was how Jeffrey would find if he were one of the jurors. After all, giving anesthesia was always imminently
dangerous. The only thing that distinguished it from criminal battery was the informed consent.

But the judge's words to the jury that had most threatened Jeffrey involved the part about punishment. The judge had informed the jury that even a conviction of the lesser charge of manslaughter would require her to sentence Jeffrey to a minimum of three years in prison.

Three years! Jeffrey began to perspire and feel cold at the same moment. He wiped his brow and his fingers came away damp.

“All rise!” the court officer called out, having just stepped out of the jury room. Then he stood aside. Everyone in the courtroom scrambled to his feet. Many craned their necks, hoping to get a glimmer of the verdict from the jurors' expressions when they appeared.