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When the Romans came up with the idea of the rule of law they were overcoming the rule of the College of Pontiffs, the priests who ruled everything. Law and fact was supposed to be a movement away from loyalty to institutions and groups overriding truth, justice, fairness, and the common good. In the beginning, the laws applied only to Romans and not to non-Romans, but they grew out of that. So how can it be that two millennia later lawyers in the United States of America who have sworn to protect their clients and obey the law will violate every possible sense of what is true, legal and just, and instead sabotage them out of a pre-civilized loyalty to an institution and a group?
Blacky was baptized Edmund Black White, Junior. His father, Edmund White married Carol Black. To carry on her family name, they named their son Edmund Black White, Junior. To avoid confusion with Edmund senior, they called him Blacky. Whenever he appeared in court or was recorded in a deposition, a moment was taken to explain that his name was Edmund White, Esquire, but everyone called him Blacky. Sometimes they would explain why.
What Aaron knew about him was that he had been recommended by another lawyer. He did not know Blacky's religious affiliation. A normal person does not think that a lawyer's religious affiliation will be more important to than the law to that lawyer. A normal person trusts that when a lawyer accepts to defend a case, the lawyer will do that and not the opposite. But a normal person doesn't understand how a community can protect pedophiles at the expense of its own children either.
There is a weed, called a sea rocket, that grows on beaches in the Great Lakes of North America. It is small and scraggly with lavender flowers and has the ability to recognize kin and give them preferential treatment. When the plants growing around it are unrelated it aggressively spreads roots to sap the nutrients from the soil that would have nurtured those plants. But when it recognizes kin, it loyally restrains itself. In other words, it ramps up nasty behavior against those it doesn't recognize as kin - a behavior that is prehuman, and early human, but that in a democracy founded on laws, not allegiances, we are supposed to have risen above. Especially lawyers. And doctors. And other licensed professionals.
Blacky was from a community that places loyalty above all else, the opposite of fighting for the right without question of heart. This was, after all, the community that incarcerated Don Quixote. From Opus Dei to the Templar Code blind obeisance was the way of sanctity. That undermines a civil and just society and produces a community that does not even protect it's own children from sex abuse. Why would anyone imagine that it would protect Aaron?
Blacky treated Aaron so contemptuously, and overrode his requests and interests so routinely, that Aaron desperately wanted to find a different attorney, but for a normal person often there is no way to do that. He had tried to find tolerable lawyers before. When he had wanted to find one to help him patent the tools he had designed, he called the Cincinnati Bar Association's Lawyer Referral Service. They asked him his zip code. He replied that it would be all right if the lawyer were downtown, or someplace else that it would be more likely for a patent attorney to have an office, rather than his suburb, but they wanted his zip code. He gave it to them and they gave him the names of two lawyers in his area.
Aaron called the first lawyer and discussed what he needed. Aaron had done some research on the patenting process and knew what to ask. In a few minutes he figured out that he knew more about patents than the lawyer and asked if he ever had done any patent work before. He had not.
Aaron called the second lawyer. Same thing. He called the Cincinnati Bar Association again and asked how they determine the fields of expertise of the lawyers they recommend. They said that the lawyers who sign up for the Lawyer Referral Service fill out a form explaining the areas in which they would like to work. He said that it did not sound like a good way to determine someone's expertise, but asked for two more referrals. They told him they can give only three referrals per year to an individual, so he could have only one more that year. He took the one more, called the man, and got the same result.
Without knowing how else to proceed, he decided to wait until he stumbled on a solution. A year later, without yet having stumbled on anything, he called the Lawyer Referral Service and got three more referrals. One of them began writing the description of the invention during their first phone call. He was showing Aaron what the patent description might look like. Part of what the lawyer included in the description was the substance of which the tool would be made. Even Aaron knew that including that in the description limited the patent to protecting only items made of that same substance, but identical items made out of slightly difference substances would be not be protected. It was as wrong a thing to include in the patent as could be imagined. Aaron did not know what else might be wrong to include in the description. That's why he was hiring a lawyer rather than writing it himsel. He wanted someone who knew more than he did, but he was unable to find a lawyer who did.
Now that he wanted to replace Blacky, where was he going to find a lawyer who knew how to defend him?
When he tried to sue the surgeon for assaulting him, he had gone through the yellow pages calling every law firm that would talk to him. But when he told them the issue was assault, they said they don't prosecute criminals, they defend them. To prosecute a criminal, you have to go to the county prosecutor. But he already had done that. The police had sent him to the county prosecutor. The county prosecutor had sent him back to the police. Both said the other was the party to call. Finally, Aaron had given up on them and searched for a lawyer. But that made things seem even more hopeless. As a last ditch effort he called the estate attorney who had worked on wills for his family. That attorney talked to a friend, James Shackly, who called Aaron, took a retainer of thousands of dollars, and then did nothing. Aaron called every week. Every week Shackly said that they had to find an expert witness. Every week Aaron called to ask if Shackly had found one yet. After each phone call Aaron wondered if Shackly was doing anything to find one. Aaron was doing everything he could to find one.
Finally Shackly said that there was doctor in
Indianapolis he had used as an expert witness once before. He wanted Aaron to
send a copy of the timeline to him.
Aaron did some research on the physician, Dr. Bunt, and called Shackly back saying that that Bunt did not have the expertise to diagnose these particular injuries. Aaron had been living with these injuries for a long time and was familiar with physicians who allow you to make appointments for things about which they know little or nothing. Shackly said he had used this physician before and wanted him to review it. Aaron argued that it was a waste of his money to show anything to that physician. He had been living with these injuries long enough to be experienced at this, and this physician was a waste of time. And that aside, "the timeline?"
Shackly insisted so Aaron did as he was told. He had Aaron enclose a check for a thousand dollars in with a copy of the timeline of all the appointments and all the diagnoses he had gotten. As he had predicted, the physician did not have the expertise to diagnose the injuries and instead indulged in speculations about how the drugs in the IV might have altered Aaron's perception and put him in a dreamlike state in which he would have imagined the whole thing. Bunt also said that no surgeon would assault a patient and so Aaron needed a psychiatrist. The idea that no physician would assault a patient was so commonly believed in medicine that Aaron wished he could get someone to bet him that the next physician would say the same thing.
Aaron asked Shackly if they now could proceed to find a physician who had the appropriate expertise and move forward with this case. This went on month after month as the statue of limitations came closer and closer to running out. When Aaron had been trying to find a lawyer to take this case, one of them had reminded him that he had only until the one year anniversary of the last appointment with the surgeon to file the suit. In Ohio, that was the statute of limitations. He had known that previously, but this was confirmation that he was right. Aaron kept reminding Shackly of that, but Shackly kept saying he was using some other date as the deadline. It was a date that made no sense to Aaron. After the passing of the date that Aaron believed was the deadline, Shackly said he could not work on the case anymore because a physician had told him that the assault never had happened.
"What does that physician know? He wasn't there. He is incapable of deciphering the arteriography that show the injuries. He's just guessing. We need to find an expert who can speak from the basis of knowledge."
Shackly said, "Okay."
"And besides, why didn't you tell me months ago if you thought that now you could not work on my case? Now the deadline has passed. And what have you done during all these months? What have you done for that retainer?"
Shackly said he could not find Aaron's case file and so could not give him an answer at the moment. This went on for a couple of years until Shackly pronounced it permanently lost.
When Blacky became Aaron's lawyer, one of the first things Aaron asked was what could be done about Shackly. Each time Aaron asked, Blacky said either to give him some time to think about it or that he was going to talk to someone about it or that he was working on it. Years later Aaron finally realized that these were delay tactics to stymie him. Losing a client's file is all that is necessary for a client to get the bar association to discipline the lawyer by suspending his license. Missing a deadline also is enough for that. Without a case file, it could be hard for Shackly to defend himself against additional charges that Aaron legitimately could bring. And there were additional reasons for Aaron to complain. Shackly took advantage of Aaron. He took thousands of dollars from him and then shuffled Aaron's case around until there was no way for Aaron to pursue it, and then he dismissed Aaron.
Blacky was doing the same thing. Aaron just didn't know it yet. Blacky was committing violations worthy of getting his license suspended. So he was not about to teach Aaron how to file a grievance to discipline an attorney. It would be a rare attorney who would even if he were on his client's side. Doctors are not the only group who protect their own at the expense of their clients. In many professions, turning on a colleague can bring subtle and unsubtle rebuke. Shackly wasn't even Catholic. Shackly was not even known to Blacky. But Blacky was not going to do anything that might enable Aaron to appear reputable by succeeding with anything. So Blacky told Aaron that he was working on it when he wasn't. That was Blacky's routine. He would say he was working on many thing, or that he needed to think about them, or that he would take care of them, when he wasn't doing anything about them at all. Time passed. Trails grew cold. Aaron's health deteriorated. Aaron's situation became more hopeless. And that was what Blacky was taking care to make sure happened.
* * *
The first time they met, Aaron arrived at Blacky's office with a list of things that needed attention. One was to subpoena HJ's notes.
In nursing school nurses often are taught to keep notes at home about events that occur at work. This is to protect themselves. Commonly lawsuits and complaints take years to make their way through the system. An operating room nurse like HJ assists on 2000 operations per year. Three years later it is impossible to recall a specific operation. So notes are important to jog memories. Without them, there actually is no institutional memory of events that happen during operations.
That is why, when nurses graduate from nursing school and get on the job, they are pressured not to make notes. Hospitals do not want an institutional memory. They do not want records that can be subpoenaed. They want amnesia. Medicine is set up to erase and forget that which could result in liability. But HJ kept notes at home. The first time Aaron met with Blacky he told Blacky that they must subpoena her notes to see if they contain anything useful. If pages were missing or showed evidence of having been altered around the date in question, even that would be helpful. An assault in an operating room is exactly the kind of thing a nurse was supposed to note in her private notes at home. There is no place in the hospital records where nurses note that kind of thing. They note it every time a prescription is administered or a tube changed, but there is no box to check for when a surgeon intentionally injures a patient. In fact, making an official record of that can end a nurse's career. Her private notes at home were the only place likely for such a record to have been made.
Blacky said he would take care of it. Aaron continued to ask about that and Blacky continued to lead Aaron to believe that he was working on it. Two years later, right before the trial in the second suit brought against Aaron, when he demanded that they get those notes, Blacky emailed back saying, "Are you suggesting that her deposition testimony might be different than what she recorded in her notes? If so, we still can subpoena her to bring them to trial."
That is how Blacky kept Aaron under the impression that now, at long last, Blacky was going to do this extremely important thing for which Aaron had been asking for two years. Aaron emailed back, "Yes. Yes. That is what I am saying. Get those notes." When he arrived in court, Aaron discovered that Blacky still had not done it.
That is how Blacky sabotaged, on many fronts, the client he had sworn to defend. He never said that he would not do these things. He represented himself as doing thing that he never did. Blacky wanted Aaron so thoroughly crushed that he would crawl away someplace dark to hide, if not do something life-ending to himself - a thought that eventually Aaron would have to postpone daily if not hourly.
* * *
Another thing Aaron asked for the very first time he met with Blacky was to depose the witness who could prove that Aaron accurately remembered the conversation in the operating room. Medical malpractice cases have been won on the basis of the patient being able to prove that he or she accurately recalls the conversation in the operating room. It proves lucidity and memory. The nurse had been getting ready to go sailing for the first time in her life. The conversation had been about that for an extended period of time. They could prove that by deposing her and subpoenaing her credit card records.
He also asked Blacky to approach everyone who possibly could sue or otherwise be interested in what he said on the web and offer to let them review it before he replaced it on the web. This probably would have prevented HJ from ever filing a suit. She was one of the people Aaron named on the site. He wanted Blacky to approach HJ's lawyer with an offer to let HJ see the next draft of Aaron's web site before it was posted. Aaron tried and tried to get Blacky to make this offer. Blacky kept putting him off. After depositions it became clear that this was going to be an issue in court. Aaron's attorney's should have addressed this pretrial and prevented it from being brought up. In court, Aaron wondered why his counsel did not stand up and show all of the emails and faxes Aaron had sent to them trying to get them to make that offer. But attorneys cannot do that. They have to handle that pretrial. But they didn't.
The suit that HJ brought against Aaron could be brought because Aaron had had poor judgment about what could be said on the Internet. The first time Aaron met Blacky, the thing that Aaron stressed and repeated the most was for Blacky to substitute his judgment for Aaron's by checking everything Aaron had on the web to make sure that nothing else could be a problem. Aaron asked him to do that three times a week for the first half of a year. Then twice a week. Then once a week. Blacky never did it (until after the trial was over when it could be of no help). And there were things Aaron still had on the web that were damaging in court.
In fact, Blacky did worse than just not check for problems. After HJ filed suit, Aaron called Blacky and said that he thought he should delete everything he had on the Internet until the trial was over to make sure none of it became a problem. Blacky told him to freeze it "for now." Aaron argued with him about that. Aaron wanted it checked at the least. Blacky led him to believe he would do that, but told him to freeze it for now. Which was worse than merely not doing what was necessary to protect Aaron. It was setting him up. Statements that could damage Aaron could be pulled up from his current web site and shown to the jury during the trial because Blacky told him to freeze everything and never responded when Aaron asked if it would be okay to unfreeze it and delete it now.
During the operation, one of the things that had made the surgeon angry was all the attention and laughter Aaron got. Dr. Sales, like many surgeons, expected to be the center of attention, expected to everyone to defer to him and look up to him. For Sales, the operating room was his domain. Many surgeons do not appreciate it when someone else captures the spotlight in their domain. Some get jealous.
Aaron long had had a problem with causing other men to feel competitive. Like the time in the lobby of Music Hall during intermission when he bumped into Cece, a woman he knew who was with someone she was dating now. Aaron said something that caused her to laugh and her date glared at Aaron. But her laughter caused other people to look in their direction and someone who looked up recognized Aaron, came over and said Hi. So Aaron could not address the glare from Cece's date. Instead he introduced people to each other, making himself even more the center of attention, and while doing so caused more laughter.
Another couple he had not seen for a long time approached. The woman hugged him hello. Over her shoulder during the hug he smiled at Cece and whispered something that made her giggle and cover her mouth. Her date gritted his teeth and glared at Aaron. A while later when Cece and her date turned to re-enter the hall, as she walked on to lead her date back to their seats, her date turned to Aaron, stepped toward him and did as much to physically challenge him as one can do without raising fists or voices. Aaron sighed. If the guy had punched Aaron he would have done no more. His inclination and goal in life was to bring peace to earth. Punching someone back was not in his vocabulary.
However, he had enough experience with people whose goals were more or less the opposite. Sometimes he recognized when he had come across another one like that. Lying on the operating table listening to the chatter of the operating room staff, he interjected a comment that made everyone laugh - everyone but the surgeon. A while later he did it again and got even more laughter, but nothing from the surgeon. The conversation turned to the sailing vacation. That nurse never before had been sailing, but she and her husband were going on a charter with three other couples in the Caribbean. Two of the other men were experienced sailors and had done what was necessary to get certified for barefoot cruises. The women began talking about what she was going to pack for such a trip. The nurse was worried that there wouldn't be room to take much.
Aaron asked, "Is it a catamaran?"
Dr. Sales interrupted him and Aaron knew that this was one of those guys. Some of what Sales said at that point did not make sense. Aaron was a sailor and knew what he was talking about. From what Sales said, Sales didn't know about this. Sales was talking about dangers and injuries on the sea and what to watch out for. Aaron half wanted to say that those are things to watch out for if you are in a hurricane in the Pacific, but in the Caribbean when it is not hurricane season, they really are not a concern. But this was not about correct information. This was about dominance and ego. When a nurse whispered something to another nurse during this, Sales interrupted her and commanded that everyone pay attention to him. Aaron remained silent until Sales appeared to be finished. When a moment of silence had passed, Aaron said, "This is great - get operated on and get sailing tips at the same time." It got the loudest laugh of anything else Aaron said during that operation. After what preceded it, it was hilarious. Aaron had worried for a split second about saying that, but it seemed to him to be an inclusive quip that put Sales in a good light. Sales didn't see it that way. So he made sure it was the last laugh and the last of the chatter during that operation in a moment seared into Aaron's brain forever. The watershed of his life.
HJ had been groping him during the procedure. The nurse's hands are all around the patient's private parts during this procedure. Although it might have been possible to have made all that contact just with wrists and open palms positioned to appear innocent from above, down below where Aaron was it felt as though she had her fingers wrapped around his private parts at least some of the time. It is a sensitive area for a man. Things that go on there are things of which men are acutely aware.
When HJ laughed at that last quip, she leaned back but kept her hands where they kept his private parts covered. But then, almost as an afterthought, she came up with one more chortle and pretended to lift her hands as though by accident. When she did, it was so that Sales could see Aaron's condition and what she was doing. HJ was one of those women who naturally manipulated men to get rises out of them one way or the other. Sales was a man who wanted the nurses in his domain to virtually worship him. HJ could test how much she had his interest and attention by provoking him with jealousy. This was not the first time she had done that to Sales. It only was the first time she had done that by showing him that she was giving the patient the equivalent of a hand job during an operation. Sales knew that if she was doing that this time, she had done it many times. He flew into a rage and made it so that later Aaron would wish that Sales simply had killed him.
When Aaron hired Blacky, the first time he spoke to him he told Blacky that there was a witness who could corroborate the the subject of the conversation in the operating room. It was a nurse who had gone on a sailing vacation for the first time shortly after the operation. To confirm the dates, her credit card receipts and other billing could verify it. Cases had been won in the past when victims could prove they were lucid enough in the operating room to recount what the conversation had been about. Aaron could do that if Blacky would subpoena that nurse. Blacky said he would do it. Every week Aaron asked Blacky how that was coming. Every week Blacky said he was working on it, just like he led Aaron to believe that he was working on lots of things that he never worked on. Like the witnesses to the blacklisting.
* * *
Ask anyone in medicine about blacklisting. They don't believe in it. Even while they are doing it, they don't believe in it. Jeercurz didn't believe in it and Jeercurz was telephoning the specialists to whom he sent Aaron and telling them not to give Aaron any diagnoses that could be used as evidence because Aaron might use them to indict one of their colleagues. But Jeercurz did not regard this as blacklisting.
When Aaron first went to Jeercurz about the pain and disabilities he now was experiencing, Jeercurz asked him when this began. Naively Aaron said, "Ever since that operation." A normal patient does not know that a phrase like that guarantees not getting treatment, or even diagnosis of, the injuries. That phrase guarantees that the medical community collectively will unite against the patient.
The first specialist to whom Jeercurz sent Aaron was one Aaron requested, the surgeon who had operated on his father's inguinal hernia. That one had been done laparoscopicly. That physician listened to Aaron describe his problems and sent a note to Jeercurz telling him to get a specific kind of CAT scan with dye of the area that was injured. Aaron kept asking Jeecurz when he was going to get that test. Every time Jeercurz told him he was sending him to another specialist who he thought could help him. And then Jeercurz called that specialist and told him not to diagnose or treat the injuries. Aaron had witnesses who would testify to that- hostile witnesses, but still people working in medicine who would say in court that Jeercurz had telephoned their office and told them not to treat Aaron.
Aaron demanded of both of his attorneys that those witnesses be brought to court. They weren't. They went into court without one single witness to testify for Aaron other than his wife. In fact, his attornies made a deal with the plaintiff in which Aaron would bring no expert witnesses.
When you consider that one of the purposes of Aaron's website had been to help him fine expert witnesses, it is hard to imagine how anyone could think Blacky actually was trying to defend him after making a deal like that behind Aaron's back, in direct opposition to Aaron's requests, efforts and demands to get witnesses. HJ would bring a team of experts to testify for her side. When Aaron went to the police to report the crimes committed against him in the operating room, the first thing the police said was that there was no point in reporting it because the people in the operating room were going to stick together. Most of HJ's witnesses were from the operating room. And they did stick together.
Still there were diagnoses and documents on his side, if only his attorneys would obtain them, and point out the ones already in evidence. But to defend Aaron would be to indict yet another Catholic bureaucracy of covering up sex abuse. And they were good Catholics. So they didn't.
If there is anything people like Blacky like to do, it is hate other people. Groups of people like him join together to hate other people. They feel righteous in doing so. Joining others who will hate in unison with them is part of what they take as confirmation that they are doing the right thing. It is a way to vouch for each other. Four centuries ago he would have hated Galileo, offered to represent him in his legal troubles, and then made sure that the church prevailed against him. And he would have felt good about doing that. Now he defeated the person who could have verified blacklisting for the world making one of the most important statements necessary to get the patient safety movement on a track that could save thousands of lives every year. And Blacky felt good about doing that.
Blacky violated the oaths of his profession, violated every possible concept of what is right and good and true and just, and protected, emboldened and enriched criminals who prey on patients. And felt good about doing that. It is difficult for people on the other side of the fence to imagine that this still goes on. And it is politically incorrect to suspect conspiracy.
After helping to shepherd Aaron's defeat in court, Blacky went to a bar and ordered an Irish Whiskey, but not Bushmills. A friend had described Bushmills as having a deep, lasting flavor and almost complete lack of burn on the way down. But Blacky never would try it. It had been strained through the wrong Bible. It was made by Northern Irish Protestants. How he would like to represent them in a case that could ruin them.
. . . Under construction
It's not just the thousands of clergymen who were evil, and not just the thousands of priests who protected them, and not just the many more who were cowardly and silent. It's not just some bishops violating laws and commandments to cover it up. It is the entire community. It is civilians at every level of society, including lawyers like Blacky, who will sink as low as humans can sink in order to defeat victims of abuses in order to protect Catholic perpetrators. Aaron spoke to a victim who, after complaining about what was done to her in a Catholic hospital, received death threats and had to hire body guards.
Cronyism by Omission
. . . Under construction
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Persons, places, events, names and situations in this story are purely
Rough Draft / Under Construction
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