After 7 years, a law suit is finally coming to trial. Read the daily account of how it is going!

 
OK, so I lied and said that I would update the log with the verdict first. Sue me. (I know that’s not funny but I am tired). After today, I just really had to go home and hug my kids and kiss my wife. If you are the type who reads the last chapter of Agatha Christie novels before the rest of the book, then skip to the last paragraph below for the results.

So, we had our closing arguments. Really, these were very boring. All of the attorneys for our side focused on different areas of plaintiff’s case. They pretty much tore down Dr. Hayes and Dr. Brownsville bit by bit. They painstakingly worked over the evidence and how inconsistent the two were. Much was made regarding Dr. Hayes’s disregard of solid forensic evidence (core body temperature, no unusual finding with either gross or microscopic analysis of tissues from all major systems, etc. etc.) for anecdotal evidence from the state trooper and photographs of a presumed full rigermortis body. Much was made about how Dr. Brownsville was a research psychiatrist who was the only one to pose a cause of death (while even the plaintiff’s own forensic expert, Dr. Hayes, as well as the toxicologist, forensic pathologist, and medical examiner could not pose a cause of death). He admitted that he should be the last person to trust on a cause of death. As to the lovely and gracious Nurse Ryan (please note extreme sarcasm), she has had no experience whatsoever in detox nursing. Her long, largely administrative career, has been in hospital psychiatric nursing. She had no clue as to what the standards of a freestanding detox were. I won’t even get started on Dr. Green. His credibility (or extreme lack thereof) speaks for itself. All the while, our attorneys built up our testimony and the credibility of our expert witnesses. Their credibility was based on direct patient experience in detox medicine. This credibility withstood the barrage of cross-examination. I believe that the most damaging part of our witness’s testimony was to the safety of the drug clonidine. The fact that there has never been a death due to a dose of 0.1 mg of clonidine, worldwide, was a very solid piece of evidence.

So on charges Mr. Moldanno. He spoke for about 45 minutes and was very weak. To be fair, the man had so little to work with. He made much of the fact that Peter O’Shea was not present for the trial nor did he testify. He “opined” (that is one of Frank’s favorite words) that the jury could and should draw a negative inference about that (see yesterday’s note on the arguments for the Judge’s directions to the jury). He also made much of the fact that Darlene Hudson and Arthur Pachellis did not testify (remember, he can mention this, which he did, very loudly at times, but he can not say that the jury could draw an inference). He spent 15 – 20minutes on my testimony alone. Sig told me that this was because my testimony was extremely credible and memorable. Thus he needed to knock me down a few steps. He stated that my testimony was to be held to skepticism. He had many reasons, but I will highlight three of them. First, said that my testimony is not credible because I stated in interrogatories that Donald was on a watch for benzodiazepine withdrawal. It turns out he wasn’t. ‘Scuse me for be vigilant. He also stated that my testimony was to be viewed with skepticism because nowhere did I write down any of the vital signs that I testified that I had taken (see Thursday’s and Friday’s entries for my response to that). The third thing that he stated made my testimony questionable was that the note I made was based on other people’s observations and not my own (and again, those people did not come in to testify, which by the way was addressed in defense’s closing arguments – we already had enough witnesses and the plaintiffs could have subpoenaed, deposed, or even named those folks themselves – they had equal opportunity and access). These were the three main arguments, all pretty weak. However, (and I have no idea why he did this) he made it very clear that I was not lying, he didn’t think that I was being deceitful, and that he thought that I was indeed telling the truth as I saw it. Mr. Moldanno spent only 2 or 3 minutes on damages – he knew he lost that battle.

So then the Judge gave her instructions. I will not bore you with them. Reading the directions to operating a VCR is far more interesting. She lasted about an hour. Then the case went to the jury at 1:40 pm. At around 3:30 pm the jury asked a question to the judge. They wanted to have transcripts of the interrogatories and depositions. Although the attorneys used these documents in their questions, they never entered them in as evidence (this is very standard). This was denied. At around 4:30 pm, the jury requested that they be able to stay until 5:30. This was granted. At 5:00 pm, we were notified that they had come to a verdict.

To come to a verdict for the plaintiff, they needed to answer two questions in the affirmative. The questions were: 1. Did the defendant act with negligence in the care for Donald Carroll? And 2. Did this negligence contribute to the cause of the death of Donald Carroll? Any “no” answer would be a finding for the defendant. 10 out of the 12 jurors needed to come to a common decision before a verdict could be given. They came to that verdict.

At 5:15 pm it was read and recorded into the record that Gregory P. Johnston did not act with any negligence in the care for Donald Carroll. All findings were for the defendants. We won. I’m tired. I will wrap it all up tomorrow.
posted by Gregory at 11/26/2002 09:46:19 PM

 
Well, we have come a long way, haven’t we! We have gone through 5 plaintiff expert witnesses and 2 other witnesses for the plaintiffs. Including today’s testimony, we have gone through 3 expert defense testimonies, three nurses named in the case, and the medical director named in the case. There were lots of arguing, lots of talking, and lots of hot air to be had on both sides. What really struck me this weekend was my place in all of this. There I was, sitting on a hard (and I mean REALLY hard – a chiropractic nightmare) bench in the gallery while some people castigated me as the worst nurse ever – a nurse who is responsible for the death of a human being. These were people I have never met nor talked to, yet they had formed an opinion on my nursing practice and character. This is quite disconcerting. Equally as remarkable were the people who got up and defended my nursing skill and character. Again, I have never met nor had I spoken with these people. However, there they were defending me. Amazing.

So let’s get to today. It was a pretty short day for me. We started out with Dr. LaPlante finishing his testimony. He actually had finished Friday, but his attorney wanted to freshen the jury’s mind on what his testimony was. Don’t want to have cross-examination be the first thing the jury hears after a weekend. Dr. LaPlante basically reiterated what he spoke about on Friday. Cross-examination was tough. Moldanno was tough. He went after any little inconsistency he could find. He didn’t find any. He made a HUGE mistake though when he was asking Dr. LaPlante about the Faxon detox’s management of their opiate protocol (which I remind you, uses Clonidine). Mr. Moldanno read a portion of this written form that patients were to be monitored and evaluated every 2 –4 hours for signs and symptoms of withdrawal. Dr. LaPlante agreed that is what it said. Moldanno then hypothesized that Faxon felt it necessary to monitor patients on the Clonidine protocol every 2-4 hours. HOWEVER, this form was to be an evaluation for which stage a patient in withdrawal is in. It was done PRIOR TO THE START OF THE PROTOCOL AND NOT DURING THE PROTOCOL! Dr. LaPlante emerged from cross-examination unscathed, actually looking better.

Next witness was our nursing expert, Deirdre Houghtmier, RN. Ms. Houghtmier is nurse at St. Elizabeth’s hospital detox. She has been there since 1984 and had direct care for patients up until 1997. She has treated thousands of patients using Clonidine. She is now the Nursing director of the detox program. She, in essence, backed all of us up with her testimony. She went through all 4 of nurses, speaking to all of our actions during our respective time with Donald Carroll. The basic thing she kept coming back to was that vital signs need not be taken except for once a shift and prior to medication. She stated that this was standard for her detox and all others she has been associated or had contact with. Over and over she stated that it was not appropriate to wake a sleeping patient in the early stages of detox. She confirmed that what we did and did not do were acceptable nursing practices and well with in the standards of care for free standing detoxes in 1995.

On comes Mr. Moldanno, knowing that this is his last witness, knowing that this is his last chance to get something to work with, and knowing that all his prior attempts to get a witness to say the thing he wants them to say has come to complete failure. The man was absolutely ruthless. He bore down on her like an owl on a mouse. Now, to put this in perspective, Ms. Houghtmier has never testified in front of a jury before. She did not have the same experience that Nurse Ryan had. Essentially, the only thing she new how to be was, well, herself. She made a very honest attempt to answer the questions Mr. Moldanno was asking her, but he was asking very confusing and often rapid fire questions. He kept on harping back to how the blood pressure of a patient on Clonidine needed to be taken one hour after administration, a point she steadfastly disagreed with. He wanted Ms. Houghtmier to state that the only way to know if a person has had a bad reaction to Clonidine was to take the blood pressure. She, however, referred to postural hypotension (when your blood drops when you go from lying down to sitting or sitting to standing) and the main thing to look for. He questioned her further on this, trying to get her to say that a nurse needed to take the blood pressure. She stated that all detox nurses are instructed that postural hypotension is the most important thing to look for because a patient can become dizzy and fall. So he asked what the nurse did when postural hypotension occurs (hoping in his heart of hearts that she says take the blood pressure). “Well, you lay the patient back down, because when the patient lays down and puts his feet up, then the blood pressure goes up.” Mr. Moldanno quit soon after that one. God bless Ms. Houghtmier, she came off as very credible and very likeable.

We broke for lunch at 1:00 pm. Came back at 2:00 pm.

The defense rested.

The jury was then dismissed for the day. I was dismissed as well. The arguments that were going to go on after the jury left involved what directions the judge was going to give to the jury tomorrow and what can and cannot be argued in closing arguments. The plaintiffs are arguing that the judge should tell the jury that they can make a negative inference to the fact that Darlene Hudson, Arther Pechellis, and Peter O’Shea were not present for the trial nor did they testify. Sig Adler told me that the judge was more then likely going to agree to Peter O’Shea (since he was named in the suit, but has not been at the trial and essentially cannot be found). But she will not make that instruction for Arther and Darlene since the plaintiffs had all of their information from the very beginning. If they wanted to call them as a witness, depose them, send them interrogatories, or even name them in the suit, then they could have done all of that during the discovery period. They did not. So the plaintiffs will be able to argue the negative inference, but the judge will not state it in her instructions to the jury. Oh, and our attorneys will be arguing for a directed verdict again, which will be denied.

So the schedule tomorrow is laid out. Closing arguments will start at around 9:00 am and last approximately 3 hours. Then the judge will give her instructions to the jury. Then, the jury decides our fate.

I look at it this way, our case is based on fact and actual evidence. The plaintiff’s case is based on hypothesis and emotion. What the jury does is completely out of my control. If they come back for us, super. If they come back for the plaintiffs, then they are a bunch of idiots and I never had a chance from the start. However, this jury is filled with a good bunch of very smart people, so I cannot fathom that they would not rule for the defense.

One last piece of information before I end for today. The plaintiffs will more then likely drop the case against CAB, the agency. Why do that? It is a tactical move. Sometimes jury’s don’t want to find individuals to blame, but want to blame the agency. Because CAB is a non-profit agency, they can only be liable for a maximum of $20,000. That doesn’t even begin to cover the costs of putting on this circus.

So, tomorrow it should end. I will be calling Karry first to let her know the outcome. Some of you I will call to let you know what the outcome is as well (hi Catie, Mom and Dad!), but otherwise I will post the verdict as soon as I get home from Boston. I will post the verdict and then make a separate entry as to the observations of the day. Thanks to ALL of you who have been so supportive!
posted by Gregory at 11/25/2002 06:43:18 PM

 
The second day of my testimony. Mr. Moldanno, the plaintiffs lead attorney continued the cross-examination. My attorney let me know that Mr. Moldanno has basically thrown in the towel for me. It really kind of showed on the remainder of his cross. He was still boisterous and loud with waving hand gestures. But his questions were pretty innocuous. Nothing new was established or discredited. I got on the stand at 9:15 and was off at 10:00 am.

Next on the stand was Dr. Allen Wartenburg. Dr. Wartenburg is an internist at Faulkner hospital and medical director of the detox center there. He has been involved with detoxification for over 25 years and has authored and reviewed many medication protocols. He also has direct experience with free standing detoxes as well as hospital detoxes. His testimony essentially backed up everything that we had been claiming: the protocols were not deficient, the nursing care was completely adequate, and that Donald Carroll’s death was not contributed in any way by the staff or policies of CAB.

During cross-examination, Dr. Wartenburg continued to strengthen his position. He discussed the conditions of Lung Shock and Liver Shock. These are conditions that happen when the blood pressure of a person slowly degrades and lowers to the point of death. The tissues of the lungs and the liver start to die when this happens and large necrotic areas develop. None of this was evident in the autopsy. Mr. Moldanno’s best offense against this was asking if Dr. Wartenburg was a pathologist and if he was taking the autopsy report as face value. He asked if Dr. Wartenburg was assuming that if this state of Liver Shock and Lung shock were present, the pathologist would have noted it, that Dr. Wartenburg had no direct knowledge that this was or was not present. Dr. Wartenburg answered that all he had was the autopsy report and there was no mention of Lung or Liver shock, which is very obvious and would be noted if present by any competent pathologist. Mr. Moldanno, that was really weak. Dr. Wartenburg testified, as I did as well, that there has never been a death due to the level of Clonidine that was given. He also stated that even with OD’s on Clonidine, the medication is not strong enough to drop the blood pressure to the point of death. He also stated under cross examination that if Donald would have had health insurance, he would more then likely have been given Clonidine on an outpatient basis, in which his blood pressure would never be monitored.

Next on the stand was nurse Joyce Piekarski. Joyce was the admissions nurse who admitted Donald. Joyce has not been at the trial because she is caring for her husband who is in the last stages of Lou Gering’s disease. She has been a nurse for 45 years – twenty-two of which has been in detox nursing. Her testimony was that she did Donald’s admission, recorded his stated history and did a physical assessment. She placed him on the Opiate protocol and gave him 0.1 mg of Clonidine along with 50mg of Librium. She reported off to the medication nurse, Renate Callahan, and that ended her relationship with Donald Carroll. One bit of damaging information to Nick Esposito’s testimony was that after she medicated Donald (at 12:00 noon), he went down to lunch as was not back to the floor until 12:30 or 12:45. Remember Nick’s testimony that he woke up at 12:00 and saw Donald snoring? Also, Joyce did not remember who Arther Pechellis was and had never worked with him. I stated that Arther worked on my 3-11 shift. Nick stated that Arther was the one who looked at Donald at 1:00 pm and stated that he had bad breath. Nice try, Nick. Arther wasn’t even on until 3:00.

The cross-examination of Joyce went well for us. She did not back down on her testimony at all. We could tell that Mr. Moldanno was getting frustrated. His voice became louder and his gestures became more and more dramatic. He kept trying to get Joyce (as well as my self when I was on the stand) to admit that we were obligated to take Donald’s blood pressure one hour after the administration of the drug. Our position is that we were only obligated to take the blood pressure prior to the administration of the drug. Dr. Wartenburg and Dr. Lindon’s testimony backed this up. So anyways, Mr. Moldanno, although not getting anything out of Joyce, came off as quite mean to her. Joyce is a lovely, really sweet woman with a tiny voice. She kept it together, but you could see that Mr. Moldanno was intimidating her. In fact, during the lunch break (which was in the middle of Joyce’s cross), it was mentioned to Mr. Moldanno by one of the other attorneys for the plaintiff, that he was coming off as mean and that he needed to tone it down. When we returned from lunch, he tried to tone it down, but he just can’t help himself, I guess.

Next on the stand was Renate Callahan. Renate has been a nurse for 42 years, 20 in detox. Her testimony was that she received report from Joyce, saw Donald in bed around 12:30 pm (sorry Nick), saw that he was asleep at 1:00, and did not medicated him because he was sleeping. She stated that she saw him last at 3:15 pm.

Again, Mr. Moldanno hammered Renate on the obligation to take a blood pressure after one hour. She stuck to the script. She did not waver. Mr. Moldanno, again, looked like he was picking on and trying to intimidate a grandmother. He looked very, very bad.

Next on the stand was Dr. Poul LaPlante, medical director of CAB at the time of Donald’s death. His testimony basically consisted of his credentials, how he developed the protocol, all the training he did with the nursing staff, how he interpreted the orders, and how waking a detoxing patient up to give him sedating medications was wrong. He confirmed that the orders read that vital signs were to be taken prior to the giving of medication and / or once a shift. He praised us as nurses.

This ended the day. Dr. LaPlante’s testimony will continue on Monday along with cross. After he is done, our Nursing expert will be on. Then the defense will rest. Closing arguments will then start and continue into Tuesday. The Judge will give her instructions to the jury. Then the case will be in their hands sometime late Tuesday morning. Boy, do I need a couple of days of my kids jumping on me, football, and sleep!
posted by Gregory at 11/22/2002 07:35:35 PM

 
Day two of Gabriella Hamilton’s testimony. Like I stated yesterday, I will not get into many of the specifics of her testimony. Again, the reason for this is because I really do not want to perpetuate the dirty laundry that she aired during her testimony. Her testimony, to be frank, had very little to do with the facts in the cased so we really do not need to dwell on it.

Two facts did come out during her testimony that can be shared. First, she stated that Nick Esposito’s father and grandfather were both very good friends with Anthony Lansky, Donald Carroll’s Uncle (Gabriella’s brother). Anthony Lansky owned the bakery where Donald worked and Nick Esposito’s father and Grandfather owned the bakery where he worked. The connection was made very clear. The second fact to come out was that Donald did not have a job to come back to at the bakery because Anthony Lansky is now in prison for a narcotics charge. The bakery was closed after he went to be a guest of the Commonwealth.

The defense then rested.

Our side then made motions for a directed verdict form the judge. She took the time to read the motions, heard arguments from both sides, and then denied the motions. The trial goes on.

My lawyer, Sidney Adler, made an opening statement, then Ken Weiss, the attorney for Peter O’Shea (the nurse who was on with me during the shift) made his opening statement. At 12:15 in the afternoon I was called as the first witness for the defense.

Before I get into the meat of my testimony, let me just tell you that if you ever have the opportunity to be a defendant in a trial, and testify before a jury, and then face cross examination, it is my advice that you turn down this particular life experience. Most rectal exams are more comfortable.

I also want to inject here the testimony of Dr. Christopher Lindon. I went on the stand about 12:15 in the afternoon. We broke for lunch around 1:00. When we came on, Dr. Lindon went on the stand and my testimony was suspended (due to a scheduling issue with Dr. Lindon). I went back on the stand at 3:15 pm and we did not finish my cross examination, so we will finish tomorrow.

Dr. Lindon is a board certified toxicologist and ER physician. He still treats patients as well as continues his practice of toxicology. He has been responsible for writing medication protocols for detoxification centers. Lots of credibility as he is able to directly testify to what is standard care for detox centers. His testimony was basically this: the degree of rigermortis is not a reliable factor to determine time of death due to the onset in ½ to 1 hour after death. He also stated that the toxicology report, medical examiner’s report, or the forensic report did not state a cause of death. Cause of death has never been determined. He also stated that the morphine level was consistent with Donald’s last stated use and that the Librium level was consistent with a therapeutic dose. He testified that the Faxon detox gave him much more Clonidine then CAB and that there was no adverse affect on Donald’s blood pressure. The reason it went from the admission blood pressure of 152/100 to 90/60 is because withdrawal symptoms stimulate the central nervous system and agitate the patient. When the withdrawal symptoms are relieved, then the blood pressure goes down to normal. The dose of Clonidine has very little affect directly on the blood pressure. Dr. Lindon testified that he has reviewed thousands of articles and documents concerning the giving of 0.1 mg of Clonidine and 50 mg of Librium and stated that there has NEVER been a death due to these medications given in this amount.

Usually, I would now present the cross-examination. However, the attorney was not able to sway Dr. Lindon from any of testimony. In fact, the attorney did more to solidify Dr. Lindon’s testimony then discredit it. He was an awesome witness.

So up to the stand I go. Here are the basics of my testimony. I arrived at the Center for Addictive behaviors at or around 2:30 in the afternoon on August 29, 1995. It was my custom to go to the nurse’s station and chat with the staff to see how the previous shift went. At or around 2:45 I gathered the med book and the tape recorder to listen to taped report from nurse Renate Callahan, the medication nurse for the 7-3 shift. In the report, it was of special notice to me that the report on Donald Carroll included a history of a head injury that required him to have 2 pillows. He also had a stated history of hypertension that was not treated with any medications. He was to detox from heroin and alcohol and to be watched for benzodiazepine withdrawal.

After report I entered the unit and spoke with a few clients to see how they were doing. I also made a check on Donald to make sure that he had the two pillows in place. They were. I noticed he was sleeping and snoring and appeared to be in no distress what so ever. I then went to the nurse’s station to review the charts for the new admissions that day, including Donald’s.

I went on with my shift, performing my regular duties as a medication nurse (assessing and medicating clients, talking with clients, taking report from Peter on new admissions for our shift). At or around 6:00 pm Donald was scheduled to be assessed to see if he needed more medication. He was sleeping soundly on his right side. I know that he was on his right side because I took his pulse on his left wrist, which I had easy access to. He pulse and respiratory rate were within normal limits. I do not remember the exact pulse and respiratory rate (pulse was in the high 70’s and respiratory rate was 16 – 18). I did not write down these observations. The reasons for this are twofold. First, I did not notice anything unusual, so I was not required to write down the vital signs. Second, I did not medicate Donald, so was, again, not required to write down the vital signs. Giving sedating medication to a sleeping client is contraindicated.

I did not feel that Donald sleeping was all that unusual. Donald was still in the very early stages of detoxification. I knew that Donald would be in for periods of insomnia and discomfort in his later detox stages. Thus, it was very important that Donald get as much rest as possible in the early stages.

I went on with the rest of my shift from there. The AA / NA meeting took place from 7:00 pm until 8:00 pm. During the meeting time, I asked the attendants who went to the meeting and who did not. I remember that an attendant, Darlene Hudson, stated that she had seen Donald get up to get a drink of water at 7:00 pm when we were calling the meeting, and then go back to bed. At or around 9:30 pm, I started writing my shift notes. When I cam to write a note on Donald, I wrote the following note (I have left out Nursing abbreviations): “3-11 Up and Around to Meal, no meeting. No medications per protocol”. I then noticed that we had not yet gotten Donald’s vital signs for the shift. I asked an attendant, Jean Santiago, to go and take Donald’s vital signs. When I heard her repeating Donald’s name, I became concerned and went to check on what was wrong. It was then that I found Donald lying on his stomach, his skin was cool to touch, he was stiff, and there was cyanosis in his lips and fingernail beds. I then told Jean to call 911 and tell the emergency operator that there was a patient in cardiac arrest at CAB. The emergency crew arrived minutes afterwards (they are less then a half a mile away on the Danvers State Hospital grounds) and they took over from there. From that point on I was concerned with moving the other clients downstairs and assigning the attendants to points where they could adequately monitor and take care of the other clients. I never had a chance to write an addendum because the police had the records.

Cross-examination was a little rough. Because I was the first defense witness, the attorney went on a fishing expedition. He was being very picky over my testimony, trying to get me to contradict myself or give him some other information that would be useful for future witnesses. He would ask some very (intentionally I believe) vague questions that I usually asked he to clarify. My demeanor and tone of voice was calm and not different from when my lawyer was asking me questions.. I made eye contact to whomever was asking me questions, and then made eye contact with one or two jurors for my answers. As the questioning went on, and became more inane, and I kept sticking to my testimony, the more the jurors were becoming visibly agitated with the attorney. All of the attorneys on my side stated that they could not advise me to do anything different. They told me I was presenting to the jury as a very credible and honest witness that was now being harassed by opposing counsel. Sig Adler even told me that the attorney would be stupid for keeping me up on the stand because the longer I am up there, the more credibility I was achieving. However, my cross examination continues tomorrow.
posted by Gregory at 11/21/2002 08:42:18 PM

 
Today continues testimony for the plaintiffs. First up was Dr. Emmanuel Green, a Vocational Rehabilitation Psychologist. He prepared the report that went to Dr. Schapp who did the economic calculations. Dr. Green stated that he based his report on an interview with Gabriella Hamilton and her brother, who owns a bakery in which Donald worked from time to time. He also stated that he used Donald’s age, gender, and education level as factors. He also referred to a probation report that stated that Donald worked in Food preparation.

There were two figures that Dr. Green needed to come up with, Potential Wage Earnings and Work Life Expectancy. He had a choice for the wage earnings between Food Preparer ($8.87 / hr.) and Baker ($12.00 / hr.). He chose the Food Preparation wage. He also came up with a figure of 29.7 years for Work Life Expectancy. To put these figures into context, read Dr. Schapp’s testimony from yesterday.

Cross-examination was, well, to put it bluntly, a bloodbath. Dr. Green admitted to not using any independent information concerning Donald’s actual earnings during his working life. Why? Because there were no earnings statements, tax forms, or any other documentation exists. Concerning the Work Life Expectancy, he did not factor in drug and alcohol dependence nor did he factor in incarceration. Why? Because Donald was trying to get sober and “we have to look at things positively that he would control his problem”. Nice rose colored glasses he was wearing. Asked if he saw drug and alcohol dependence and incarcerations determining factors in assessing one’s ability to work, he stated, “I am a rehabilitation psychologist. I don’t see these things as a negative”.

Counsel then produced a letter Dr. green wrote to Donald’s uncle, who was paying Donald under the table. Before the letter was read, Dr. Green was asked if he knew if it was against the law to be paid under the table and to pay someone under the table. He affirmed that it was. Then the letter was read where Dr. Green could get around this status by saying that Donald was being treated as a family member and was just having his expenses covered. That got a laugh out of everyone except for the plaintiffs counsel. He did not know about the letter and you could tell he was pretty unhappy about this.

The last part of cross-examination dealt with Donald’s time in prison. Dr. Green referred to the probation report that stated that he was a food preparer while he was a guest of the Commonwealth. Taking his actual prison record, defense counsel recited all of the violations Donald had. Most of them were for refusing to go to work and that he had been fired from his kitchen job for stealing food. This was the end of Dr. Schapp’s testimony and plaintiff’s counsel was pretty glad to see him go.

Next on the stand was Dr. Bruce Brownsville, a psychiatrist who has specialized in drug and alcohol dependence. It was his testimony that Dr. LaPlante’s standing orders (Dr. LaPlante was the medical director at CAB) were confusing and vague. He also stated that the nursing care was far below standards and led to contribute to Donald’s death. The other part of his testimony was that from the records he had (which was the CAB chart and a medical report from Boston City Hospital) Donald died of Pulmonary Cardiac collapse that was exacerbated by the giving of Clonidine. He stated that the nursing staff should have known that Donald’s blood pressure (98/64) was exceedingly low due to his diagnosis of hypertension.

Cross-examination started with Dr. LaPlante’s orders. Counsel went through them line by line and asked if they were out of the ordinary or vague. Dr. Brownsville admitted, line by line that the orders were standard and not out of the ordinary. Body blow. Next counsel focused in on the diagnosis of Hypertension. What is a normal blood pressure? 90 – 140 / 60 – 90. Donald’s blood pressure was 98 / 64, isn’t that normal? Yes, it is. Is there anything in the records that indicates a diagnosis or treatment of hypertension? No, just Donald’s report. Right cross to the jaw. Is Dr. Brownsville a pathologist, internist, or a specialist in forensics? No. Wouldn’t he rely on those specialties when determining a cause of death, and not rely on the opinion of someone who does not have those specialties? Yes. The forensic report and the autopsy report disagree with your theory, don’t they? Yes they do. The people who prepared those reports are specialized in forensics and pathology, aren’t they? They are. Left jab to the side of the head. Clonidine is metabolized out of the system within 4 hours, isn’t it? Yes it is. So if Donald died in the time frame you suggest, Clonidine could not have been a contributing factor? No, I guess it couldn’t. Body blow. The concept of “if you did not write it down, it didn’t happen” is not necessarily true, is it? It depends. Block and duck. Well, a medical person does not document every single thing that they do over the course of a shift do they? Wouldn’t that be impossible? Yes, it would. Dropping guard. Then that concept is just not true is it? No I guess it isn’t. Right cross to the jaw. Knock out!

Dr. Brownsville also admitted that Donald was in the early stages of withdrawal, and that sleeping during the early stages is not unusual. He also admitted that sleeping does not constitute respiratory distress.

All of this testimony can be yours for the one time low price of $250 / hr. (he received a total of $3,500).

Next on the stand was Gabriella Hamilton. I am going to limit what I say about her testimony for a number of reasons. She has had an extraordinarily difficult life. There are many things that would be very embarrassing for her to have revealed to the public. Even though this is a public courtroom, I don’t feel the need to exacerbate the situation. Let’s just say that the beginnings of her testimony were long on emotion and tugging the heart strings of the jury.

Tomorrow we will finish Gabriella’s testimony. Then the plaintiffs will rest. Defense will ask for a directed verdict, which will more then likely be denied. I will then be the first witness for the defense. Following me will be Dr. LaPlante and then our toxicologist.

As an interesting side note, for those who are fans of folk and blues music. Dr. LaPlante is very good friends with a musician named Chris Smither. Chris stopped by to show his support in the afternoon and spent sometime sitting with us in the gallery watching the trial. He is a great guy and a brilliant musician. http://www.smither.com.
posted by Gregory at 11/20/2002 08:03:43 PM

 
Another exciting day in Suffolk County Superior court. I need to clarify one thing before I get into today’s events. Yesterday I referred to something called an Interrogatory. An Interrogatory is a series of written questions sent by the opposing side to the defendants as a part of the initial discovery process. These questions are answered in writing, but, unlike depositions, they are not sworn testimony. So the Interrogatory I referred to was my written response to the defendant’s questions. They are not my actual testimony.

This morning was redirect and cross redirect of Nurse Ryan. Not much more was established, other then a key bit of credibility (or lack thereof) on her part. My attorney, Sig Addler, established further the concept of a TID order. If you remember from yesterday, TID means three times a day. Nurse Ryan stated that this meant every 8 hours. However, the common practice for orders that are meant to be carried out every 8 hours is Q8 hours. This is a very specific order that must be carried out in that time frame. TID, on the other hand, has more latitude and is not time specific other than the task must be done three times in a 24-hour period. Nurse Ryan would not confirm that this was the technical definition of these two nursing terms and the more Sig pressed her, the more credibility she lost. One thing I (and I hope the jury) noticed was that when answering questions for the plaintiff, she always used definitive answers (yes, no, correct, etc.). But when she answered questions for the defendants, she always gave non-definitive answers (possibly, could be, hypothetically, “I can’t answer that question”, etc.). She was totally sold to the plaintiffs and could not give a strait answer to any of the defendant’s questions.

Next on the agenda was Nick Esposito. Nick was a patient at CAB in the bed next to Donald Carroll. It was his testimony that he woke up sometime around 12:00 pm and Donald was sound asleep next to him, snoring. He stated that it was an unusual snore. He then had about an hour time in which he was either outside smoking, downstairs on the phone, or sleeping next to Donald. He was unsure which. What he did remember was that at 1:00 PM, he noticed that there were flies on Donald and that he was not swatting them away. He also noticed that he appeared to be not breathing. So he consulted another client, a woman named Cookie, to see what might be wrong. He observed that she went to the nurse’s station and told Arther, an attendant, what was wrong. Arther went to Donald, bent down to his face, and said that he was breathing just fine and that his breath stank. He testified that he was in bed most of the rest of the day and that Donald never moved from his position in bed. He also testified that he never saw any other nursing personnel check on Donald.

On cross-examination, Nick tried to keep his testimony consistent, but was unable to. Concerning being in bed all day, Nick stated that he was very anxious and restless. He stated that he took many showers, went outside to smoke on many occasions, went downstairs to use the phone multiple times, attended an AA meeting from 7:00 pm to 8:00 pm, and was downstairs when Donald was discovered. Concerning flies, there were flies all over the building (the detox is located between several large corn fields that had just been harvested, there were always lots of flies around in late August). He also stated that he did not see any flies on Donald other then that one time. Nick’s biggest blunder, however, was stating that he never thought that Donald was in distress (that his snoring really was not that unusual), never told a nurse that he was not breathing, never heard any of the other 30 clients state that he was not breathing, and really didn’t pay a whole lot of attention to Donald. Nick tried to keep it together. He really did not want to testify and it showed. He came off as trying to do the right thing for his boss’s best friend (which is Gabriella Hamilton’s brother – get the connection?), but was not the “Chilling testimony” that the plaintiffs wanted him to be.

Next was a financial consultant, Dr. David Schapp, PhD. Dr. Schapp did the calculations to determine how much Donald would have earned had he not died. He based his calculations on a report that was submitted to him by his partner, Dr. Green (who will be testifying tomorrow). Dr. Schapp based his calculations on two figures that Dr. Green came up with in his report: Estimated Yearly Earnings and Time of Work Expectancy. The Estimated Yearly Earnings was based solely on Donald’s education and past work history (he had a GED and had been a non-skilled food preparer). This figure was around $19,000 / year. He then figured Donald would work for the next 38 years, of that 29.7 years would be the actual time he would be working. This was based on statistics of average working and non working periods for someone in Donald’s educational and vocational category. Dr. Schapp then indexed the two figures for inflation and came up with a figure of around $679,000.

Now, on cross examination, it was determined that Dr. Green, in his report to Dr. Schapp, used only statistics and indexes provided by state and federal resources for coming up with the two figures. He did not use any of Donald’s specific socio-economic information in determining his evaluations. Dr. Schapp admitted that he did not know that Donald was a drug user, was incarcerated for a period of time, or that the sum total of his recorded earnings from 1982 – 1995 was $17,280 (of which there was no reported income from 1991 – 1995). Dr. Schapp admitted that this information would have dramatically affected his calculations. He also did not factor in how much of Donald’s earning would have actually gone to his mother. There are formulas for calculating how much would go to dependents or spouses, but he had never done this for a parent since parents are not usually supported by their children. I think the kicker was when my attorney had Dr. Schapp do some math. A bag of heroin cost $5 in 1995. Donald stated using 20 bags of heroin a day, equaling out to $36,500 / year. What would happen to Donald’s earnings if he spent money in this way? “His earning capacity would be depleted,” replied Dr. Schapp. Dr. Schapp, unlike Dr. Hayes and Nurse Ryan, was very straightforward and did not show any prejudice between the plaintiffs or the defendants. He was very credible and very believable. And at $1,200 for his report and testimony, a downright bargain!

Tomorrow the plaintiffs hope to wrap up with Dr. Green, another medical specialist (whose name I have forgotten), and Gabriella Hamilton. Looks like I am testifying on Thursday.
posted by Gregory at 11/19/2002 05:54:42 PM

 
Before I get into today’s testimony, one thing I want to add from last week is that the good Dr. Hayes was paid over $10,000 for his testimony. Good gig if you can get it.

Today was the Nursing expert for the plaintiff. Nurse Ryan got up to the stand and basically stated how all of the Nurses named in the case performed far below any standard of Nursing. The point that she kept coming back to was the issue of documented vital signs. The first and only set of vital signs taken on Donald Carroll was at 12:00pm. After that there were no documented vital signs taken. This point she stated over and over even during cross. She got the script and she stuck to it.

However, it turns out that Nurse Ryan has had no experience whatsoever with Detox nursing. She had no experience with the standards of care, nor was she familiar with Nursing Practices for detoxification. She has also never had any direct patient care experience with detox patients. After that was established, we go to the meat of her testimony.

She stated that the Nurses at CAB deviated from the doctor’s orders for the Opiate withdrawal protocol. The order reads, “Clonidine, 0.1mg test dose. May repeat in 1 hour if tolerated”. The part she kept leaving out of her testimony was word “may”. She was reading it as a direct order to see if he tolerated the Clonidine. This was not the case. The standing orders also called for vital signs to be taken TID, which in nursing lingo meant three times a day. In practice, this would mean that vital signs would need to be taken once a shift.

So the time frame went something like this (and all of this was entered into evidence): 12:00 Donald is admitted and given his first meds. BP was 98/64 (which all texts say is normal but she refused to call it normal and stuck to saying that it was low) and pulse was 80. Donald was then checked in 1 hour by the day shift medication nurse. He was sleeping and resting comfortably. Two major points were made by Nurse Ryan on this. First, she did not believe that Donald was resting comfortably and sleeping. Second, she felt that the nurse should have woken him up to get another set of vital signs and medicate him. Get that? The nurse should have woken a sedated, sleeping patient, in order to give him sedating medications. The first point, I will address in a little bit. But on with the time line.

In my Interrogatories, (excuse the following legalese, but I need to stick with the evidence that was presented and not my actual testimony) I stated that I came on at 3:00 and checked on Donald. I stated that I had heard in report that he had a history of a head injury and that he required two pillows. I stated that I checked to make sure that he had two pillows (which he did) and noticed he was resting comfortably and sleeping. I stated that I rechecked Donald at 6:00pm, as he was due for medications at that time and he was sleeping, breathing normally, had a normal pulse (the exact value I stated that I did not remember), and respiratory rate (same). I stated that I did not medicate or wake Donald because he was resting and did not currently need sedating medication.

My Nurses note stated thus: “3-11 Up and about to meal, no meeting, no medications per protocol”. In my interrogatories, I stated that an attendant informed me that he had gone down for dinner and that he had gotten up to get a drink of water at 7:00pm. I stated that at approximately 9:30pm, I sent an attendant to check on Donald and to see if we can get vital signs for the shift. This is when he was discovered dead. I stated that I was not able to do any more documentation after that time because the police had confiscated the records and I no longer had access to them. Nurse Ryan rejected this and stated that I should have had access to the chart. I must add that nurses frequently write their shift notes before the end of the shift and add addendums if anything else comes up after the note is written.

Now, here are some things Nurse Ryan neglected to look into, past medical records, detoxes, and medications prescribed. It turns out that Donald was at Faxon detox in Quincy, MA the day before he was admitted. He was there for three days and left Against Medical Advice on August 28th, 1995. He reason for leaving was that he could not sleep because of the environment. On admission to CAB, he did not tell the admissions nurse about this admission. In fact he lied about three key things: His drug use (he denied using cocaine, yet cocaine was found in his system with the autopsy), his medical history (he denied taking any medications, but in fact because of his head injury he was prescribed Dilantin 100mg three times a day to prevent seizures), and his history of detoxes. The time frame was that he left Faxon around noon on the 28th. When he was admitted to CAB on the 29th, he stated that he had been drinking Vodka the night before and had used heroin at 4:00am that morning. So he had three sleepless days at Faxon, was drinking the night before, and used heroin early in the morning. He was given sedating medications at noon. Yet, Nurse Ryan felt that he should not be sleeping nor tired and that the symptoms of detox should have kept him awake. As a point of fact (and to poke at Nurse Ryan's lack of substance abuse experience), detox from heroin doesn't get intense until day 2 or 3. He was less then 8 hours from his last use when he was admitted.

Our attorneys had Nurse Ryan compare the charts from Faxon and CAB. The same practices were in place (in fact there were several 8 hour periods in which Donald did not have his vital signs taken and Clonidine was not given) and essentially the same protocol was in place. His vital signs were roughly the same as at CAB and he received 5 doses of Clonidine through his stay with no ill side effects. Nurse Ryan admitted that she did not consider any of this information when making her judgment. She also admitted to having no experience at all with detox nursing practices.

She was credible through her testimony, and, like I stated before, she stuck to the script of the nurses not documenting vital signs. But our attorneys poked several significant holes into her testimony. Also, it should be noted that she will be paid close to $5,000 for her testimony. Tomorrow, will be redirection and redirect cross for Nurse Ryan. We also expect testimony from Nick Espisito, a patient who was in the bed next to Donald Carroll.
posted by Gregory at 11/18/2002 07:08:00 PM

 
So today starts the meat of the trial. We started off at 9:45 with the Judge giving instructions to the jury. Standard stuff, no big deal. Then came opening arguments. At this point we can get a flavor of the style of the different attorneys. The plaintiffs lead attorney is a very flamboyant and dramatic fellow. He made a very dramatic opening statement that was short on facts and long on emotion. After he made his remarks, three of the five attorneys for the defendants mad theirs. They were straightforward, full of facts as to what the evidence will be, and they all asked the jury to not make up their minds before all of the evidence is heard. My lawyer did not make an opening statement because the plaintiffs have not ever deposed me, so he didn’t want to give any indication as to what my testimony would be.

On came the first witness, Dr. Hayes, a forensic pathologist from NYC. Full of credentials, long on experience, and at face value initially seemed to be a good witness (*Note, I have stated before that I would not discuss the content of the testimony that would be given. However, after talking with my attorney, he stated that all of this is now public record and completely available to anyone)

His initial testimony was that on his evaluation of the evidence, Donald Carroll was dead at least 6 hours before he was discovered. Man, that had me shaking. I felt that this was really damaging to our case. But little did I know just how prepared our attorneys were. They got Dr. Hayes to admit that he based his report on three items: the coroner’s report, the photographs taken at the scene, and the State Trooper’s report. Now follow the logic here: In court Dr. Hayes stated that the time of death was at least 6 hours before discovery, but in his report he quoted a passage out of a standard text on forensic pathology (written, as we learned, by two of Dr. Hayes’ professors in medical school) that stated that full rigermortis comes on usually in 8 – 36 hours.

Next, our attorney decides to have Dr. Hayes decide which parts of the three reports he based his report on, he threw out. Turns out he decided not to accept the core body temperature taken by the coroner (which was 98.8 degrees), a statement by the coroner that there was not rigermortis present, a statement taken by the State Trooper from a worker at CAB stating that she saw Donald Carroll walking to the water cooler at 7:00pm (Donald was discovered at 9:30pm), and that a Nurse checked on Donald at 8:15 PM and pulse and respirations were normal. What he did base his report on was a photograph showing Donald in full rigermortis taken at 10:30pm and the State Trooper’s statement that Donald felt “cool to the touch” when examined at 10:15 pm. Why? Because they were inconsistent with his theory. I almost laughed out loud when this came out. But our attorney wasn’t finished with this guy yet.

Next, the attorney had Dr. Hayes read from the same text, from the same passage, that he took the 8 – 36 hour quote from. The passage he read stated that rigermortis is the worst way to determine time of death due to the fact it can come on instantaneously when there is shock to the system, such as instant death. Did Dr. Hayes think this was an instant death? No! Why? Again, because it is inconsistent with his theory. Now the last part that really put the nail in the coffin. Dr. Hayes read the last section of the passage in the text that stated that core body temperature is the most accurate way to determine time of death. Unbelievable.

There was a very sad part to this day, however. On redirect, the plaintiffs lead attorney took out the photo of Donald in full rigermortis. He unintentionally showed it to Ms. Hamilton. She fell apart sobbing. Very sad. I can’t imagine what it is like to see your child in that state.

Next the State Trooper testified. He stated that he was there, he took the statement, and he made the report. Very basic. Then they bought on their Nursing Expert witness. There was not enough time to get into substantial testimony so we adjourned for the weekend. So that is it for now. More to come on Monday.
posted by Gregory at 11/15/2002 06:55:09 PM

 
As I am staring at the ceiling at 4:30 this morning, some thoughts came to me. Before I go into Boston today and embark on this trial, I need to have a perspective that is not Gregory centered, but is Christ centered. Gregory wants to be bitter, angry, and vindictive towards Gabriella Hamilton (the mother of Donald Carroll, who passed away 7 years ago). However, these attitudes are ones that are not of Christ. God love Gabriella, as He loves me. I stand just as sinful in His sight as she does. I have no place to judge her. Jesus died for her just as He died for me, so I have no place to condemn her. My only responsibility is to pray for her and love her the way God does. My flesh says: “be angry! She is doing a horrible thing to you and your family! You are right to be bitter towards this woman and all she is doing to you”. But what did Christ say on the cross, when all around were mocking Him? “Father, forgive them.” That is the model that He has set for me.

God is sovereign. God is in control. The lawyers and the Judge are just conduits to His perfect will. The only thing that is in my control is my attitude. God, please help me with my attitude. Let me know how much you love my enemies. Help me to love them too.
posted by Gregory at 11/14/2002 05:57:15 AM

 
And so it starts….

I arrived in the courtroom at 8:30am. Waited until 9:30am only to be told that, yet again, there is a criminal case before us. 150 potential jurors were supposed to be available, but only 118 showed up. The criminal case took 85 of those jurors.

There I sat on a hard (and I mean REALLY hard) chair until 11:30am when 33 potential jurors came up. We went through all 33 of them and came to 1:00pm with 13 jurors potentially accepted. However, our side still had 15 challenges and the plaintiffs had 11. Judge said be back at 2:00pm. Lunch at Wendy’s.

2:00pm I was back in the courtroom. 2:45pm we started. Over 70 potential jurors came up this time. Standing room only! We went through all of them. We ended up with a jury of 12, not 14. That means that we have no alternates. The jury is evenly divided between men and women and they seem (to the best of my judgment) to be a pretty decent crew. Oldest is in mid 70’s and the youngest is early 20’s.

Tomorrow starts the meat of the trial with opening statements and first witnesses for the plaintiffs. I won’t be able to get into the substance of the testimony, but will try to give my reactions as to how things are going.
posted by Gregory at 11/14/2002 06:42:58 PM

 
Nothing happened today. I was supposed to be in court today, but there was still not enough people in the jury pool, so the Judge just heard motions form the lawyers. Tomorrow we should be going forward. Will update late tomorrow afternoon.
posted by Gregory at 11/13/2002 03:13:15 PM

 
Not much is going to happen today. There are three criminal trials before our case. They get priority over the jury pool so there won't be a jury selection until tomorrow. I am going into court tomorrow so I will post an update sometime tomorrow late afternoon.
posted by Gregory at 11/12/2002 10:40:12 AM

 
August 29th, 1995, a day I will never forget. I was working at the Center for Addictive Behaviors in Danvers, MA. I was a nurse back then, just 4 months into learning detox nursing. Working the 3-11 shift, I had one other nurse working with me along with three attendants. That night would start a 7-year ride that is finally going to end this week into next.

That night a patient died on my watch. No apparent reason. The mother of the patient has decided to sue me along with three other nurses, the medical director, and the agency. Through this next week, I will spell out all of the details as the trial progresses. The descriptions will not be pretty, but it should be pretty interesting.
posted by Gregory at 11/11/2002 03:49:43 PM