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The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
The State of Texoma v. Duey Cheetam
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The State of Texoma v. Duey Cheetam

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  • 1. 1 Texoma v. Cheetam  A Case of Criminally Negligent Manslaughter Prosecution Witnesses: 1. Sam Powers – Surviving Parent 2. Jessie Spano – Attorney 3. Kelly Kapowski – Medical Examiner Defense Witnesses: 1. Duey Cheetam – Defendant 2. Ricki Belding – Insurance Adjuster 3. Dr. Pat Spock – Doctor for Insurance Company Statement of Stipulated Facts – Page One On or about July 1, 2006, Bobby Powers was walking his bicycle in the crosswalk in the intersection of Main and First street in the city of Republic in Texoma when he was hit by a vehicle driven by Mario Lopez. As a result of the collision, Bobby Powers suffered a closed head injury. During the course of recovery, Bobby Powers underwent physical therapy and medical testing. His family filed a lawsuit after hiring Jessie Spano as Bobby’s attorney. The lawsuit was brought by Bobby’s parent, Sam Powers, as next friend for Bobby Powers. As the lawsuit lingered on, the insurance company hired an attorney named Duey Cheetam, who is the defendant in this case. Cheetam, at some point in time, requested an independent medical examination be performed to determine the nature and extent of Bobby Powers’ injuries. As a result of the independent medical examination, Bobby Powers’ case was settled for the sum of $100,000. Four days after signing the final paperwork to settle the case, Bobby Powers’ condition deteriorated as he suffered a brain hemorrhage known as a myocranial infarction (fictional medical condition). As a result of the hemorrhage, Bobby died. Duey Cheetam is charged with criminally negligent manslaughter in the death of Bobby Powers. The State of Texoma alleges that Duey Cheetam had information that would have prevented the death of Bobby Powers, and Cheetam knowingly or recklessly withheld such information from Bobby Powers which resulted in the death of Bobby Powers. The law of criminally negligent manslaughter has been provided. The relevant penal code sections have been provided together with the Texoma Rules regarding Ethical Attorney Conduct. If a lawyer violates such rules, he or she may be subject to a grievance
  • 2. 2 and disciplinary action by the Texoma Bar Association. Breech of confidentiality is grounds for disbarment. The exhibits are authenticated. They are a summary autopsy report, a memo from Dr. Spock to Belding, and an e-mail from Belding to Cheetam.
  • 3. 3 Prosecution Witness Statement – Sam Powers - Page One My name is Sam Powers. I am 30 years old, and I work as an electrician. On July 1, 2006, my son Bobby Powers was hit by a car driven by Mario Lopez. I hired Jessie Spano to represent my son in the claim against Mr. Lopez. Bobby was taken to the hospital from the scene of the accident and received emergency room care. He never really fully recovered. Since I did not have health insurance at the time, I was not able to get Bobby all of the medical care he probably needed. The litigation dragged on for almost one year. All along we had been demanding to settle the case for $100,000 based upon the advice of our attorney. The emergency room diagnosis was a concussion. He continued suffering headaches for about 8 months. I probably should have had him seen by someone. We just didn’t have the money and hoped the insurance company for Lopez would pay the claim quickly. At some point and time, my attorney contacted me to have Bobby appear in a doctor’s office for an independent medical examination performed by Dr. Pat Spock. I went with Bobby, and Dr. Spock did a brain scan and within a few days of the independent medical examination, I was called by my attorney and informed that we had settled the case for $100,000, which was the amount we had been demanding since September of 2006. I felt that it was peculiar that the insurance company did not try to negotiate the settlement at that point; they just agreed to pay what we were demanding. We signed the paperwork on May 5, 2007, and on May 9, 2007, Bobby died. He wasn’t feeling well and complained about vision problems, and about 3 hours later he was gone. We later learned that the attorney for the insurance company, the insurance adjuster, and the doctor all had information that they failed to disclose concerning the condition of my son. I believe that all three were responsible for my son’s death. They killed my son. About six months prior to the car wreck, Bobby had fallen off the monkey bars at the elementary school. He suffered a concussion then also. He complained of headaches from that day forward, until his death. Signed the 15th day of March, 2008.
  • 4. 4 Prosecution Witness Statement – Jessie Spano – Page One My name is Jessie Spano. I am 42 years old, and I am a practicing attorney in the State of Texoma. I have been licensed for 20 years. I was hired by Sam Powers to pursue a claim for Bobby Powers resulting from an automobile accident. Bobby Powers was struck by an automobile driven by Mario Lopez. I filed a lawsuit, and we began pursuing the claim. We had demanded $100,000 to settle the claim based upon Bobby’s diagnosis and injury. It appeared that Bobby had suffered a closed head injury that did not seem that serious. The doctors reports and medical records indicated that he would get better over time and with therapy. He went through therapy and progressed well. The insurance company contacted me in late April 2007 and requested that an independent medical examination be performed. We agreed and sent Bobby to Dr. Pat Spock’s office for the procedure. They did a brain scan and within a few days they contacted me to settle the case for $100,000. I asked to look at the results of the brain scan and they asked, “Why? We are willing to pay your demand.” So we accepted the payment. Four days after accepting the settlement, Bobby died from sort of condition in his head. I was curious afterwards to find out what the defense attorney, insurance company, and the doctor all knew that led to the decision to settle the case suddenly after over six months in litigation. It seems they had information that they failed to disclose to us at the time we settled the case. It is my understanding that my colleague, Duey Cheetam, is charged with criminally negligent manslaughter. Cheetam could have and
  • 5. 5 should have revealed the confidences of his client to avoid the death of Bobby. Our state rules regarding ethical lawyer conduct provide two exceptions to the actions -of Cheetam in hiding behind the attorney-client privilege. I believe a fraud was being committed, and now we are certain that revealing the confidence would have prevented an imminent death. Signed the 15th of March, 2008.
  • 6. 6 Prosecution Witness Statement – Kelly Kapowski, M.E. – Page One My name is Kelly Kapowski. I am 50 years old. I have been a licensed physician for 21 years in the State of Texoma. My specialty is that I am a forensic medical examiner. As a result of the death of Bobby Powers, I was asked to perform an autopsy. A summary of my autopsy report is provided as part of this case. In performing the autopsy, it was discovered that Bobby Powers died as a result of a myocranial infarction. Myocranial infarction is a condition in which the blood vessels in the brain area become damaged due to a trauma. It is common to see such injuries in persons that have had a head trauma or a concussion. I have seen this condition as a result from athletes playing football and skate boarders hitting their heads. After I determined the cause of the death, I requested all medical records pertaining to Bobby Powers. It is further my opinion that the brain scan procedures did not proximately cause the death of Bobby Powers. In the initial review of emergency room records that were produced by Jessie Spano, the records were of such poor quality that we were unable to see the evidence of thinning of the vessels in the brain area. However, when I reviewed the records provided to me by Dr. Spock, it became immediately clear Bobby Powers had a condition in the brain area that needed immediate and urgent attention. It is my opinion that if Bobby Powers had received immediate and urgent attention he would have had a 90% chance of survival. He would have had to undergone immediate brain surgery. It is also my opinion that the problem with his head was caused by the automobile accident which occurred on July 1, 2006. Without surgery, it is my opinion that the risks were such that Bobby would have definitely had a myocranial infarction within one year of the July 2006 accident.
  • 7. 7 If brain surgery had been performed on Bobby Powers, there was less than a 10% chance he would have died during the surgery. The cost of such a procedure would have been approximately $100,000. I believe the condition observed on the records provided to me by Dr. Spock were of such an emergency and imminent nature that hesitation in telling the family about the condition is criminal. I believe Duey Cheetam is criminally negligent in failing to alert the family of the grave condition of Bobby Powers. Signed this 15th day of March 2008.
  • 8. 8 Defense Witness Statement – Duey Cheetam – Page One My name is Duey Cheetam. I am an attorney licensed to practice in the State of Texoma since 1980. I am 52 years old. I was hired by Badhands Insurance Company, specifically by insurance adjuster Ricki Belding, to defend the insurance company and Mario Lopez in a lawsuit that was brought by Sam Powers. As a result of the lawsuit and the ongoing investigation of that lawsuit, I defended the insurance company the best that I could. During the course of that investigation, it is common for a defense attorney to request an independent medical examination. We requested that of Sam Powers and Bobby Powers. The independent medical examination was performed by Dr. Pat Spock, the company’s doctor. On or about April 30, 2007, Dr. Pat Spock advised me that Bobby Powers likely had an aneurism developing in his brain area. The likely cause of the aneurism was due to the trauma suffered on or about July 1, 2006. Dr. Spock further advised that Bobby Powers needed reasonably urgent medical attention or he would die if the vessel burst. During this meeting, I called Ricki Belding. I told Ricki Belding that we had a duty to tell attorney Jessie Spano. Ricki advised me that I represented the insurance company, and that I was not free to divulge such information. Ricki informed me that if I divulged such information, he would see to it that the state bar would take my bar card. Dr. Spock estimated that it would cost $200,000 in medical treatment to perform brain surgery to correct the problem in Bobby Powers head. Dr. Spock also informed me that the change for recovery from brain surgery of this type for a 7 year old child was 90%. The decision was made to settle the case as fast as we could and then encourage Bobby Powers to go to a specialist when it was over. We had not figured out how we would get Bobby Powers to a specialist, but we knew we
  • 9. 9 wanted the case to be settled before we did that to avoid the cost to the insurance company of an additional $1,000,000 to settle Bobby’s case. On May 1, 2007, I called Jessie Spano and got a signature on the settlement papers. I then requested a check, and in the process of trying to get the checks issued and documents finalized and sent to the court, I was informed that Bobby died due to myocranial infarction. I do not believe that this is my fault. I believe that Bobby Powers would have died whether I revealed the information or not. I do not believe that I was the cause of Bobby’s death. I believe that the cause of death was the fact that he was involved in a pedestrian automobile accident on July 1, 2006. Therefore, I should not be held criminally responsible. I received a message from Dr. Spock regarding the seriousness of Bobby’s condition. That was followed up with the e-mail from the insurance adjuster to me basically threatening me if I told Bobby’s family. As a lawyer, I felt obligated to maintain my client’s confidences. I feel bad that Bobby died, but he might have died
  • 10. 10 Defense Witness Statement – Duey Cheetam – Page Two anyway. I did not cause the death, and I am not sure I could have prevented it even if I had told what I knew. Signed this 15th day of March 2008.
  • 11. 11 Defense Witness Statement – Ricki Belding – Page One I am Ricki Belding. I am an insurance adjuster, and I have worked for the Badhand Insurance Company for 40 years now. I was the adjuster on the case of Bobby Powers, as a result of being assigned to the case, I investigated facts and details of this case. Mr. Powers hired Jessie Spano to file a lawsuit. When the lawsuit was filed, I hired our attorney, Duey Cheetam, to defend the insurance company in the case. During the course of the investigation, we had our doctor perform an independent medical examination. As a result of the independent medical examination, it was determined Bobby had a serious situation with his head. I questioned our doctor about the corrective measures needed and was informed that brain surgery would be required. Since Bobby had lasted almost 10 months without a problem, we figured that he would last a few more weeks. I learned that the cost of brain surgery could reach $200,000. That would result in a cost to my insurance company that I was not willing to accept. We gambled and thought that little Bobby would be okay. It seems we were wrong. But was it really our fault? Bobby’s parents should have sought better medical care. Although I do not believe the situation was imminent, we felt it was important enough to get this case settled as fast as we could. We immediately settled the case and intended to have Bobby Powers checked out after everything was said and done. Unfortunately, Mr. Powers died prior to the final settlement of the paperwork. We do not believe the situation involving Mr. Powers was imminent such that he could not have waited a few weeks to have the treatment necessary. We did intend to tell Mr. Powers of his condition. We just never got around to it.
  • 12. 12 I have not been offered immunity from prosecution for my testimony. I do not believe any of us did anything wrong considering the circumstances. Signed this 15th day of March 2008.
  • 13. 13 Defense Witness Statement – Dr. Pat Spock – Page One My name is Pat Spock. I am a medical doctor, and I am licensed to practice medicine in the State of Texoma since 1996. In the course of my work as a medical doctor, I had been hired by Badhand Insurance Company to perform independent medical examinations. I was asked to review the file of Bobby Powers. Bobby Powers was a 7 year old child who was involved in an auto pedestrian accident in July 2006. On or about April 26, 2007, I reviewed the file of Bobby Powers and performed a brain scan. After reviewing the brain scan, I detected a noticeable problem with the results. Bobby Powers seemed to be suffering from bruising and potential rupturing of the vessels at the base of the brain stem. I informed Ricki Belding and Duey Cheetam that Bobby Powers had a significant and serious condition that needed immediate attention. I sent a short memo to Ricki. A copy of the memo has been provided as part of this packet. Ricki asked if the condition was such that it could not wait a few weeks. I explained that since the condition had probably been present since the day of the accident, there was no telling how long it would last. We decided that it would be best for our company to try and resolve the claims of Mr. Powers and then inform the family of the condition of Bobby Powers’ head. Duey Cheetam was informed to immediately settle the claims of Mr. Powers and notify the opposing attorney that the claims would be settled for what they demanded. Apparently, after the paperwork was signed and finalized, but before the Powers family was informed of the situation, Bobby Powers suffered a myocranial infarction resulting in his death. I understand that Duey Cheetam is charged with criminally negligent manslaughter. I do not believe that Duey Cheetam was criminally negligent in this matter. He could not have known how fast the
  • 14. 14 aneurysm would occur. He could not have prevented the aneurysm from occurring unless he had told the family immediately. I understand that as an attorney he had obligations not to disclose certain information that he learned in the course of his attorney-client relationship. He should be excused for his actions in this matter. In addition, the cause of the death was the automobile accident in July of 2006, not Cheetam’s failure to inform. I have agreed to testify in this case in exchange for complete immunity from prosecution for any criminal acts that may have been committed by me. Signed this 15th day of March 2008.
  • 15. 15 Texoma Lawyer Rules of Ethical Conduct – Page One Anything learned in the course of representation is privileged, and can’t be revealed except: 1. When the lawyer has been expressly authorized to do so in order to carry out the representation. 2. When the client consents after consultation. 3. To the client, the client’s representatives, or members, associates, and employees of the lawyer’s firm, except when otherwise instructed by the client. 4. When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texoma Disciplinary Rule of Professional Conduct, or other law. 5. To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client. 6. To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer’s associates based upon conduct involving the client or the representation of the client. 7. When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act. 8. To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used. 9. To the extent necessary to prevent death or imminent bodily injury to any person.
  • 16. 16 Texoma Penal Code Excerpts – Page One 10.05 Criminal Negligence A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. 10.06 Recklessly A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. 19.05 Manslaughter A person commits an offense if he recklessly causes the death of an individual. 19.06 Criminally Negligent Manslaughter A person commits an offense if he causes the death of an individual by criminal negligence.
  • 17. 17 Exhibit One – Autopsy Report of Bobby Powers – Page One Autopsy Report of Bobby Powers Office of Chief Medical Examiner Republic County Medical Examiner’s District Republic County, Texoma 200 Feliks Gwozdz Place, Republic, Texoma 88888 PHONE (555) 437-3323 FAX (555) 437-3324 AUTOPSY REPORT Name: Bobby Powers Case No: 981110T Approximate Age: 7 Years Height: 42 inches Weight: 38 pounds Sex: Male We herby certify that on the tenth day of May 2007, pursuant to Statute 49.25 of Texoma Criminal Code, an autopsy on the body of Bobby Powers was performed at the Republic County Medical Examiner’s Office in Republic, Texoma, and upon investigation of the essential facts concerning the circumstances of the death and history of the case, we are of the opinion that the cause of death was as follows: FINDINGS: I. Sudden death associated with: a. Myocranial Infarction secondary to trauma, 7/06 COMMENT:
  • 18. 18 Mr. Bobby Powers was 7 years of age at the time of his death. He had been involved in a pedestrian/automobile accident in July of 2006. The collision left damage to the brain stem which ruptured causing the death. CAUSE OF DEATH: Sudden myocranial infarction death due to trauma. Signature, Kelly Kapowski, M.D.
  • 19. 19 Exhibit Two – Electronic Mail Communication – Page One Date: Friday, April 27, 2007 (6:32 p.m.) From: rbelding@bandhandinsurance.com To: dcheetam@cheetamandhow.net Subject: Bobby Powers Duey: Bad news from the doc. Bobby is going to die very soon if he doesn’t have brain surgery. Doc said he called you and told you the urgency of it. We need it settled like yesterday. Pay whatever they ask for. Do not share with their attorney the results of the independent medical exam. It is privileged by the attorney client and/or as attorney work product. If they find out, they will want $1,000,000. I don’t think it is our obligation to tell them ever. We will address the disclosure issue once the case is settled and we have the signatures. RB Exhibit Three – Memorandum – Page One MEMO From: Pat Spock, M.D. To: Ricki Belding Date: 4/28/07 Re: Independent Medical Exam of Bobby Powers Just finished the exam and received the brain scan results. SERIOUS problem. If Bobby is not put in surgery immediately, vessels in his head will rupture and he will probably die. We need to inform him. I have left a message with our attorney. I cannot believe that a person
  • 20. 20 in his condition has lived this long with that condition. He is on borrowed time. Call me as soon as you can. If you want me to inform the family, I will. Thanks.

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