You also have to find a doctor to come to court to testify that you were a victim of negligence. Finding such a doctor is a very difficult task. The code of silence among doctors is strong. Even if you do succeed in finding such a doctor, the defense will find ten times as many doctors that will support the negligent doctor's actions.
If you are victim of a plastic surgery error, not only will you have difficulty finding a doctor to support your claim of negligence, you will have great difficulty finding a lawyer to represent you. Victor Bergman, an attorney in Kansas City, was quoted in The Kansas City Business Journal in a 1997 article entitled, "Cosmetic Surgeons are Hard to Combat in the Courtroom," as saying, "I think that's one area of medicine [plastic surgery] where they [doctors] routinely get away with negligence. I've turned down almost every case I've gotten. Lawyers are less likely to take a medical negligence case against a plastic surgeon because jurors tend to have less sympathy for a person whose injury is a result of elective plastic surgery." Mr. Bergman's comment about jury bias is true, and as a result, malpractice suits involving plastic surgery are rarely filed. A Harvard Medical School malpractice study found that only one in sixteen people that files a medical negligence lawsuit will recover any money. Data reported in 2000 by Jury Verdict Research (a private research firm) states that for medical negligence cases that go to trial, doctors win eighty percent of the time. The Harvard study suggests that there is more malpractice being committed than is being recognized, litigated, or compensated.

The Institute of Medicine reports that more than 200 people die every day from medical errors, equivalent to a jumbo jet crash per day (ABCNEWS.com April 5, 2003). A Harvard medical malpractice study puts that figure at TWO jumbo jet airliners crashing every day (www.doctors-malpractice.com).

When a malpractice suit is filed, the doctor's malpractice insurance generally provides attorneys from powerful law firms. You are not likely have such an attorney representing you.

Your case will not be won or lost based upon the merits. Winning your case will hinge upon who has the better attorneys and experts. The jury selection process is a joke. It does not result in you having an educated and fair jury. The odds of winning a medical malpractice trial are NOT in the victim's favor.

At the age of 13 I had developed large breasts. I was experiencing problems with breast lumps, requiring biopsies frequently. At the age of 22, after years of breast lumps and biopsies, I was told by my surgeon, Dr. Edward Zucker of Merrillville, Indiana, that I should have subcutaneous mastectomies. In the place of my breast tissue I would have implants placed. Dr. Zucker stated that that would end my breast lump problems, the endless biopsies, and the risk and fear of one of these lumps being malignant. I trusted my doctor and agreed to have the plastic surgery performed.

Cosmetically my breasts looked completely normal. The breast lump problem did end. However, I had a whole new world of problems with my breasts and endured a number of surgeries to change the implants. It was determined that Dr. Zucker had chosen an implant that was too small, because it did not fill out my skin properly. It was replaced by a larger implant to make my breasts the size they were before the mastectomies. Later I had a suspected rupture, an actual rupture, an implant that had flipped over with a valve becoming painful to my breast and several times the implants hardened by scar tissue building up around them.

After approximately 14 years of having implants, I developed symptoms of lupus. A rheumatologist that I was seeing for my problems suggested removing the silicone implants from my body and replacing them with saline implants. I went to see Dr. Robert S. Kagan in Elk Grove Village, Illinois, to discuss the recommended surgery.

Dr. Kagan was recommended to me by a woman that he had performed surgery on. I called the Illinois Department of Professional Regulation to check whether Dr. Kagan had ever had complaints filed against him or had ever been professionally disciplined. They said that he had not. I later learned that the Department of Professional Regulation would only tell you that a doctor had had a complaint filed against him if he were found guilty. They would not tell you if the doctor had had twenty complaints filed against him if none were sustained, which is often the case. Doctors are rarely found guilty of any charges.

Dr. Kagan agreed that I should have the implants exchanged. Dr. Kagan offered me a procedure called a Benelli to have at the same time. I had never heard of a Benelli and Dr. Kagan explained to me that it was a breast lift that leaves the patient with minimal scarring. I did have rather large breasts that were somewhat sagged. After having the procedure explained to me by Dr. Kagan, I told him I would think about it.

When Dr. Kagan walked into the exam room on my last visit before the plastic surgery, he said "what are we going to do." I said I don't want the Benelli and I have more questions about the implant exchange. He said "okay." I then asked my questions and he answered them. My plastic surgery was scheduled for one week later. I did not have medical insurance, as after my divorce I could not find an insurance company to cover me due to the fact that I had breast implants. I paid Dr. Kagan for the breast implant exchange surgeon's fee, the new implants, the hospital stay, and other charges related to my plastic surgery and left the office.

I needed to find a new doctor and did not know which of the Chicago plastic surgeons to trust. My orthopedic resident friend talked to a Chicago plastic surgeon at the hospital he worked at about my problems. This surgeon was Dr. Richard T. Caleel D.O. from Chicago, Illinois, and he agreed to see me.

I went to Dr. Caleel's office in Chicago, Illinois four weeks after Dr. Kagan's surgery with my medical records and many medical problems resulting from the surgery. Dr. Caleel, the Chicago plastic surgeon, said that he was amazed that Dr. Kagan did a Benelli on me due to the lack of tissue in my breasts. He stated that my implants were not filled adequately. My wounds still were not healing and were spitting sutures and dripping puss and blood. Dr. Caleel instructed his nurse Elana to take photographs of my burn. During the time Elana took the photographs of my burn she said to me "I hope you are suing the doctor that did this to you." She told me the name of a lawyer that Dr. Caleel liked, and I went to the suggested lawyer for counsel against Dr. Kagan's medical malpractice.

Dr. Caleel D.O. and Elana discussed their negative opinions of my surgery and the outcome with me and my orthopedic surgeon friend regularly.

I saw Dr. Caleel for many months as he assisted me with the wounds that would not heal, the burn, and the suture problems. In May, five months after the surgery performed by Dr. Kagan, Dr. Caleel instructed Elana to take pictures of the hideous condition my breasts were still in. After five months of having open wounds, the wounds remained bright red, tender, and very painful, as well as my breasts were rippled with crooked nipples.

At this point, my attorney wanted to speak to Richard T. Caleel D.O. about my medical situation and Dr. Kagan's medical malpractice. I asked Dr. Caleel to speak to him. Dr. Caleel met with my attorney voiced criticisms of the surgery that Dr. Kagan performed on me, but stated that he did not want to get involved. I later learned that Richard T. Caleel D.O. has been sued for medical negligence and does not cooperate with plaintiff's attorneys.

I immediately went to another Chicago plastic surgeon who told me that I should go to Mayo Clinic in Rochester, MN. Clearly this doctor did not want to get involved. I did not follow his recommendation because I did not think that it would be wise to go to a doctor whose office was a twelve hour drive away. I knew that it was going to take many visits to the new doctor to get all my problems addressed and Rochester, MN. was just too far away to travel repeatedly while feeling so ill.

I stopped seeing Dr. Caleel because I was shocked and appalled by the conversation that he had with my attorney. I lost all respect for Dr. Caleel as a doctor and a person. I could not find any Chicago plastic surgeons that would cooperate. In my search for an honest and qualified doctor to help me I had to leave the state of Illinois and go to Indianapolis, Indiana. It was there that Dr. John J. Coleman became my doctor. He was recommended to me by a highly respected Indiana doctor. When I first saw Dr. Coleman he said that he could not do any surgery to correct the plastic surgery mistakes Dr. Kagan created until he stopped the wounds from opening and dripping blood and puss. The puss meant there was infection in my breasts. Operating on my breasts in that condition would likely spread the infection throughout my breasts, and Dr. Coleman said that would cause the loss of both breast implants. Dr. Coleman first did a small operation that he said was the "removal of foreign bodies" (probably suture material). I then had to remain on strong antibiotics to stop the puss and allow the open wounds to heal, which took about five months. I had to place very warm cloths on my breasts two or three times a day to draw the puss and sutures to the wound site. Then Dr. Coleman would remove the sutures that were hanging out of the wounds. It was disgusting and painful. Finally, the sutures stopped coming out, the blood and puss stopped dripping, and the wounds healed. After five agonizing months, Dr. Coleman felt that it was time to schedule my surgery. Dr. Coleman did one eight-hour surgery and then several small surgeries to fix the surgical mess that I had been left with by Dr. Kagan.

Dr. Coleman stated that as a result of the plastic surgery mistakes, my implants were not properly placed and were pushing into the nerves in my armpits, which was the cause of my arms constantly going numb. My implants were also under-filled by Dr. Kagan which caused them to look wrinkled. My wounds would not heal because Dr. Kagan should not have done a Benelli procedure on me at all—Dr. Coleman stated that without any breast tissue and with my breasts having such thin skin, the Benelli procedure had compromised the blood supply in my breasts. He stated that I was lucky that I didn't lose my nipples. I definitely came close to losing them during the year that it took them to heal.

The entire time my wounds were not healing, they were bright red, stinging, burning, tender, and very painful. After Dr. Coleman operated on me placing the implants in the proper position and filling them adequately, I was relieved of the numbness in my arms and he greatly improved my breasts cosmetically, however my nipple areola area still was painful and had stinging sensations. I was afraid that there had been a plastic surgery mistake. I was sent to a pain specialist, Dr. Michael Stanton-Hicks at the Cleveland Clinic.

I took all my medical records to Michael Stanton-Hicks M.D. He examined me, and I described the pain that I was experiencing. Dr. Stanton-Hicks stated that I had chronic neuropathic breast pain due to the nerves in my breasts having been severed. He stated that the nerves were permanently damaged. This was the result of plastic surgery mistakes.

Beacuse of these plastic surgery mistakes, I spent years on many different medications to try to get relief from the nipple and areola pain. It was unlike anything that I had ever experienced. It interfered with every aspect of my life.

After years of not having much success with the medications, Michael Stanton-Hicks M.D advised me of the option to surgically place a spinal cord stimulator in my body to ease my pain. Dr. Stanton-Hicks stated that he believed I would have this breast pain for the rest of my life.

Not only was I horrified that my breasts were permanently disfigured from the plastic suregery mistakes, I felt overwhelmed that I would have this breast pain for the rest of my life. There hasn't been a day in my life since Dr. Kagan operated on me that I have been free from pain in my breasts.

Attorney Jay Paul Deratany, from Chicago, Illinois represented me in my breast implant medical malpractice lawsuit against Dr. Robert S. Kagan. Dr. Kagan was represented by attorney Michael Tarpey from Chicago, Illinois.

At the time I hired Mr. Deratany, he had a small law firm with two young attorneys working for him. Mr. Tarpey is a very experienced lawyer having worked for Baker & McKenzie for six years, one of the world’s preeminent law firms with over 200 attorneys just in the Chicago office. Mr. Tarpey then became one of the founding members of the law firm Donohue, Brown, Mathewson & Smyth with approximately 24 attorneys employed there. The web site for Mr. Tarpey’s firm states that Mr. Tarpey “specializes in defending medical negligence cases.” On the Trial Results page of their web site there is page after page of the firms examples of defense verdicts that they have won in defending doctors accused of medical negligence and medical malpractice.

Dr. Kagan had no limit on funds to prepare and try his case, as it was all being paid for by his medical malpractice insurance company. Dr. Kagan was being represented by a premier medical malpractice defense law firm. I, on the other hand, was being represented by a very small law firm, working from my very limited budget. I was told at the time that I hired Mr. Derantany that I would be required to pay the costs of my case as the costs were incurred. By the time my trial was over I had spent well over $40,000.00.

When attorneys say that you do not pay any attorney's fees unless they win your case, they are talking about the percentage of your judgement that they get. This does not mean the expenses incurred in preparing and taking your case to trial. You will be paying those costs, win or lose, and the costs are astronomical!

During the years that I waited for my case to go to trial, I was in frequent disagreements with my attorney about the way he was preparing my case for trial. Among other issues, I was very unhappy with the fact that he had sent a very young associate from his firm to take the depositions of several of my treating doctors. I felt those depositions were too important to be done by a young associate and should have been done by Mr. Deratany himself.

The basis of my case was that I did not consent to the Benelli procedure. The consent form did not say that I was having the Benelli procedure done. The consent form stated that my implants were to be exchanged: nowhere was there a mention of the Benelli procedure being performed. I felt that we needed to present an expert to explain to the jury the nature of legal consent. I felt that we should have obtained the testimony of the Administrator of the hospital where Dr. Kagan operated on me, Alexian Brothers Medical Center in Elk Grove Village, regarding the hospital's consent policy. Certainly the Administrator would not agree with Dr. Kagan having done such a procedure on me without the proper consent. Certainly the Administrator would dispute Dr. Kagan’s claim that it was the hospital rule to “hurry up and wheel them in to surgery” rather than take the time to get legal and proper consent. The day before trial was to start when I was again expressing to Mr. Deratany how unhappy I was that he did not explore getting the expert on consent that I wanted him to, Mr. Deratany said that maybe we could dismiss the case, start over and get another expert rather than just using my physician, Dr. Coleman, as our sole expert on consent. When he explained all the legal repercussions should we decide to do that, I saw that I really had no choice but to go forward with the trial with the medical malpractice lawsuit.

None of my treating doctors were very cooperative in speaking with my attorney. They all charged from $350.00 an hour up to $1,000.00 an hour to speak to my attorney and to give testimony.

There were several doctors who did examine me, but refused to testify. For example, I was examined by Rod Rohrich M.D from Dallas, Texas. Rod Rohrich M.D refused to testify that his medical records did state that due to my lack of breast tissue a breast lift should not be performed on me, as there was a great risk of losing my nipples. When I asked Rod Rohrich M.D. to please help me by testifying, he claimed that he sees these surgeons at meetings and would not get involved.

I spent many years as a court reporter working medical malpractice cases and had witnessed so very many doctors refuse to testify regarding other doctor’s mistakes, especially plastic surgery mistakes. Dr. Rod Rohrich’s position was very upsetting to me because he did say and put in writing that the procedure that was the basis for my complaint should not have been performed on me. Dr. Rod Rohrich practiced in Dallas and these were Chicago plastic surgeons. How do these doctors sleep at night when they know patients that come to them are victims of medical malpractice yet refuse to simply tell the truth about their findings? I was also examined by Rodger Peilet M.D. from Chicago, Illinois. Rodger Pielet M.D. also agreed with my position but was unwilling to testify. Knowing what I know from my court reporting career Dr. Rodger Pielet’s position didn’t surprise me, because he did practice in the same community with other Chicago plastic surgeons. In spite of knowing this it still didn’t make it any easier to swallow.


We chose a jury from prospects that were not good. The jury selection is not a fair process and is a real crapshoot as to what type of jury you will end up with. It is not like on television in the high profile cases where selection goes on and on until you find an impartial jury. You are permitted to excuse a fixed number of potential jurors and whoever is left sitting in the jury box is your jury. I did not end up with a smart, fair, and impartial jury. For example: I actually had a Hispanic juror that told the court that she had trouble with the English language, yet was still told to remain on this case that would consist of mostly medical testimony. Another juror was the son of a doctor. Another person that sat on my jury was a young woman who made her living selling pharmaceuticals to doctors. She smiled and nodded her head at Dr. Kagan and his attorney frequently throughout the trial.

I took the stand and testified that I had never heard of a Benelli before seeing Dr. Kagan. I explained that I did not want, nor did I consent to the Benelli. I further explained that I told each and every doctor I saw after Dr. Kagan that Dr. Kagan did a breast lift on me without my consent. None of my treating doctors wanted to talk about my legal complaint of having surgery performed on me without my consent but concentrated solely on my medical complaints. I complained to every doctor about the pain in my nipples which they attributed to the fact that I had open wounds dripping blood and puss for a year. I described how I had to change my bra and shirts multiple times per day due to the blood. I woke up every morning in a bloody mess. I had to sleep sitting up for an entire year because leaning back even slightly caused my implants to go further into my armpits causing my arms to go numb. I slept so poorly because of that problem that I was always tired. I could not workout and jog as I had done for years before Dr. Kagan operated on me. I had gotten married after the surgery and my painful breasts made my sex life with my new husband very difficult. I spent an entire day on the stand often feeling humiliated by the defense attorney, Mr. Tarpey. I finished my testimony feeling victimized by Dr. Kagan yet again.

Mr. Tarpey made rude and degrading comments about me to my attorney often. Mr. Tarpey blew up a picture of my breasts to giant poster size that he had with him in the courtroom. It appeared by his having that photograph in the courtroom that he was planning on using it as an exhibit to show the jury during the trial. Mr. Tarpey apparently changed his mind about using the blow up at trial, but left it sitting along the wall in the courtroom where people could clearly see it. I was horrified. I just thank God he didn't admit that into evidence because I don't know how I would have dealt with the embarrassment of having that size picture of my breasts sitting on display in open court for all to see.

Dr. Coleman testified in my trial by video deposition. Dr. Coleman made it very clear during his testimony that he was not happy about being involved in my lawsuit. Dr. Coleman did however give a truthful opinion of the surgery Dr. Kagan performed on me, in spite of the fact that Dr. Kagan flew to Dr. Coleman's office in Indianapolis and sat there staring at him during his entire testimony. I have the utmost respect for Dr. Coleman for being honest in giving negative opinions of the surgery that Dr. Kagan performed on me, in spite of the fact that it is so distasteful for doctors to speak against each other. Dr. Coleman testified that my implants were not placed in the proper position based upon what he found when he operated on me and that he placed them in the proper position. When asked by Mr. Tarpey if it is indicated in his notes anywhere that I told him I "underwent a Benelli without ever consenting to it or authorizing it? I know you said she told you that. I want to know if you noted it anywhere, because I didn't see it?" Dr. Coleman answered "Probably not. I tend not to record stuff like that." Dr. Coleman was then asked "After reviewing the operative record, the office notes, and the consent form, was there anything in those records that indicated that Shellie Beverlin consented to the Benelli procedure performed on her?" Dr. Coleman answered "I didn't note anything." He was then asked in his opinion if I gave consent for the Benelli procedure and he responded that in his opinion I did not. Dr. Coleman was asked if he had an opinion "as to whether or not it was a deviation from the standard of care (malpractice) for Dr. Kagan to perform a Benelli procedure on Shellie Beverlin?" He responded that it was a deviation from the standard of care. He went on to say "that would be a very dangerous procedure" to perform on Ms. Beverlin.

At a pretrial hearing, Jay Paul Deratany told the judge that Richard T. Caleel DO told him he thought Dr. Kagan shouldn't have done the Benelli. The judge was also informed that Dr. Caleel didn't want to go to court, didn't want to testify, and would not be giving any opinions. (I had to pay Richard T. Caleel DO $375.00 for that conversation). Nonetheless, Michael Tarpey subpoenaed him to court. At trial Dr. Caleel was asked many, many questions by Jay Paul Deratany about my breasts and the surgery performed by Dr. Kagan, to all of which he replied that he had no opinion. Finally Jay Paul Deratany asked, "Doctor, you've been performing plastic and reconstructive surgery for some 25, 30 years…," and Dr. Caleel responds, "I've been doing surgery for more than that." Yet he had no opinions. His nurse Elana was the one that took the pictures of my bleeding and disfigured breasts at his direction and she repeatedly urged me to sue Dr. Kagan. I asked her to testify, but she refused saying that she couldn't afford to lose her job. Mr. Tarpey called Dr. Caleel as a witness to ask him if I ever complained to him that a breast lift was done without my consent and of course Richard T. Caleel D.O. said that there was nothing in my medical record stating that I told him that. Based upon that, Michael Tarpey would have the jury believe that I must be lying, because as you can see from his testimony, Richard T. Caleel D.O. is such a forthright doctor. Richard T. Caleel D.O. gave testimony that demeaned and degraded me.

Michael D. Cohen M.D. of Baltimore, Maryland also testified for Robert S. Kagan MD. Dr. Michael D. Cohen stated that when he saw me for Robert S. Kagan MD, "All wounds were healing nicely." I was in his office in tears with sutures hanging out of my wounds, dripping blood and puss. Dr. Cohen considers that to be "healing nicely"? Dr. Cohen was asked if he remembered my being upset during the visit and he answered "somewhat." Michael Cohen M.D. notes state that "after much hand holding and reassurance patient felt better about this otherwise normal postoperative course of events." I found Dr. Cohen's "hand holding" statement very demeaning. My postoperative course was anything but normal.

John Q. Cook M.D. of Chicago, Illinois, was the expert witness for Robert S. Kagan MD. John Q. Cook M.D. testified that he has reviewed 10 to 15 cases mostly for defendant doctors. That he knew Dr. Kagan from as far back as when they were surgical residents together. That Dr. Kagan has referred patients to him, while he has not referred patients to Dr. Kagan (Why?). That Dr. John Q. Cook had charged $350.00 an hour for his work in this case and to date had earned about $7,000.00 for his involvement. He testified that Dr. Kagan's version of the events was more credible than mine (he has never met or spoken to me). John Q. Cook M.D. stated that Dr. Coleman's opinion of my surgery and problems is "ludicrous". Dr. Coleman is a Harvard Medical School graduate, the Professor of Surgery at Indiana University School of Medicine, the Chief of the Plastic Surgery Section of the Department of Surgery and is Chairman of the American Board of Plastic Surgery. Dr. Coleman examined me, operated on me several times, and took care of my medical problems for years after Kagan's surgery. Dr. Coleman did not have a relationship with Dr. Kagan. Dr. Cook has never examined me, has only reviewed medical records and is a friend of Dr. Kagan. John Q. Cook M.D. testified that based on the photographs taken by Richard T. Caleel, Dr. Kagan's surgery IMPROVED the appearance of my breasts. Dr. John Q. Cook testified that, "it improved the position of the nipples and the balance the size and balance." I couldn't help but wonder if John Q. Cook M.D. was confused as to which were the before and which were the after pictures. Or was the desire to help a doctor and colleague accused of malpractice so strong that he was unwilling and incapable of seeing things as they really were.

Michael Stanton-Hicks MD charged $700.00 an hour for his testimony—which I had to pay for along with Jay Paul Deratany’s expenses of going to Cleveland on four separate occasions. Dr. Michael Stanton-Hicks required that the attorneys make four trips to Cleveland Clinic to get his complete testimony over a one-year period. The first time he testified, he stated that he reviewed the thick stack of medical records the patient supplied him, but he was not sure how thoroughly and that I suffer from neuropathic pain. He believed at the time that he first saw me I had had four previous breast surgeries. The second time Michael Stanton-Hicks MD testified he said that he believes all my surgeries have caused some pain in my breasts but that the "proximate cause to the neuropathic pain of which the patient now complains is the surgery where the areolas were taken away [by Dr. Kagan]." He testified that he expects me to have this pain for the rest of my life. The fourth time that Dr. Stanton-Hicks testified was the testimony that the jury heard and saw by video (they will never hear or see the first two). During the testimony the jury heard, Dr. Michael Stanton-Hicks testified that he did not know about all my previous surgeries. He only knew about the initial mastectomies and the surgery performed by Dr. Kagan. He testified that he was never supplied with my medical records. Once again, I was put in a very demeaning light by another doctor, Dr. Michael Stanton-Hicks, who was incorrect and contradicted his own previous testimony. To add insult to injury, I had to pay $5,000.00 to Dr. Michael Stanton-Hicks M.D. for his involvement in this case.

Dr. Kagan testified at his deposition before trial that he has previously reviewed records for defendant doctors. There is no shortage of doctors willing to review patient records in an effort to defend another doctor accused of malpractice. When your case involves plastic surgery mistakes while testifying you will be the target of questions from the defense attorney that will shock you. This very same doctor that you went to for him/her to perform your plastic surgery is now going to make you appear as a vain and unreasonable person. The very same doctor who discussed all these safe and wonderful procedures to enhance your looks is now going to attack you in ways you never dreamed of for having plastic surgery. This of course is going to be done by the defense attorney, not the doctor himself. By the time you are done testifying and leave the stand you will be at the very least holding back tears, if not actually crying. You will be feeling attacked and publicly humiliated. I had my surgery out of medical necessity but that didn’t stop that kind of attack on me. As a court reporter I have witnessed plaintiffs that have had elective plastic surgery gone wrong and have seen how they have been brutalized on the stand. Most victims of plastic surgery mistakes will never find an attorney to take their case. My website receives endless emails from such people asking if I can help them find an attorney.

While testifying, Dr. Kagan was shown my receipt from his office that details the charges for the implant removal and replacement of new implants that I paid to him at the cost of $1,800.00. It does not show a charge for the Benelli breast lift, or mention a Benelli procedure at all. Dr. Kagan reviewed the document and was asked to explain the charges, and he said, "I can't interpret this." Dr. Kagan is asked what he charges for a breast lift and various other procedures to which he replies that he has no idea. (Dr. Kagan is on a web site titled www.smartbreastaugmentation.com where it states that a breast lift is $3,505.00, not including hospital and other related fees. Dr. Kagan testified at his deposition that he did the Benelli procedure on my breasts for free. Dr. Kagan testified at trial that the breast lift charge was included in the $1800.00 that I paid him before surgery.

Questions were then asked of Dr. Kagan regarding the surgical consent document. The form does not include consent to perform a Benelli breast lift anyplace on it. Dr. Kagan was asked, "…on December 14th, 1994, (the day of the surgery) when you did sign this document, did you in fact read what the consent form listed as the procedures you would be performing?." He answered, "I believe not completely." The procedures listed consisted of eleven words. He was asked, "And why would you not do that?" He answered, "Because it's usually right before surgery, I'll take a look at it and sign it. Because it's the hospital's rule that as they wheel them into the operating room, to hurry up and sign it." He was asked "In fact, there is no mention in the Consent to Operation of doing a Benelli lift?" He answered, "correct." He then testified that he considered a form he has in his office and calls the "Breast Implant Patient Review and Advisory" his consent to do the Benelli (even though it doesn't talk about the Benelli). He stated that he reviewed all 45 items listed on it with me before he took me into surgery, and I signed it. He stated he usually goes over that form with the patient in his office and does not know why he went over it that morning with me in the surgery holding area.

I had asked Mr. Deratany numerous times, beginning with when I hired him to represent me, then by telephone, fax and email, to secure the testimony of hospital administration to show how truly dishonest Dr. Kagan was in his testimony regarding the "hospital rule." I firmly believe that hospital administration would have vehemently denied that the "hospital rule is to hurry up and wheel them in" before getting proper consent. Mr. Deratany stated he did not believe that hospital administration would willingly help us and go against one of their own doctors. Mr. Deratany never even attempted to speak with them. I finally stopped trying to get Mr. Deratany to contact hospital adminstration when in response to an email I sent him asking him to do so yet again he responded on 8/19/01 "discovery has closed." That means the date has passed for discovery and that we could not introduce any new witnesses or evidence for the upcoming trial. I responded in an email on the same date with "Could you use administration or risk management as impeachment witnesses?" An impeachment witness means that you can bring in a witness or witnesses at trial that were not previously listed to testify during discovery to show that a witness that has testified during the trial lied. Mr. Deratany did not respond to that question.

Dr. Kagan also testified during discovery that I had previously had my nipples/areolas cut on. He claimed that he only went through the preexisting surgical sites—implying that if I was injured there it was by another surgeon.

At the trial, Dr. Kagan gave testimony that differed from his deposition testimony given prior to trial, at least four times. Dr. Kagan testified at trial that he was mistaken during his deposition testimony when he said I had scars around my areolas when I first came to his office. It defies logic that Dr. Kagan, a plastic surgeon, was mistaken as to whether or not my areolas were cut prior to his doing so. How could a trained plastic surgeon make a mistake with such an obvious question? Is there a scar, or not? I believe he realized that his deposition testimony made him look dishonest because no surgeon had ever removed my nipples/areolas before him, so he decided to change his testimony at trial. That is a pretty important fact to be "mistaken" about. I believe his changed testimony makes Dr. Kagan look dishonest and incompetent.

After Dr. Kagan did the Benelli procedure to me that I did not wish to have, I phoned five different Chicago surgeons to see how much that procedure costs. I was quoted prices ranging from $3,500.00 to $5,500.00 for that procedure. Based on the judges ruling, I was not permitted to tell the jury that or ask any of the testifying doctors what they charge for the Benelli breast lift. Dr. Kagan was asked and he answered that he didn't know what he charged at the time of my surgery for that procedure.

My attorney Jay Paul Deratany summed up the case for the jury by saying that we were before the court because Dr. Kagan performed a surgery on me that the records show I did not consent to. Dr. Coleman called doing the procedure on me "dangerous." He pointed out that Dr. Kagan was discredited several times, in that his trial testimony differed from his discovery deposition. Jay Paul Deratany did however say to the jury, "nobody is stating that Dr. Kagan is a bad man, or that he's a bad doctor. We are stating simply in this case and in this situation, he made a mistake." Jay Paul Deratany pointed out testimony that didn't seem credible given by Michael D. Cohen M.D., Richard T. Caleel D.O. and John Q. Cook M.D. Mr. Deratany then talked about my pain and suffering and the permanent damage to my body as the result of the operation that Dr. Kagan performed on my breasts and asked for a verdict in my favor.

Mr. Tarpey's closing arguments were brutal and misleading to the jury. He started out by saying that Mr. Deratany and whoever else was involved mislead and misinformed my doctors. He then misrepresented the testimony that Dr. Coleman gave. When Mr. Deratany objected, the judge overruled the objection and told the jury if what Mr. Tarpey is saying varies from their recollection, they are free to disregard what he is saying. Mr. Tarpey then went through points of my testimony where I couldn’t recall information to answer his question and said, "You can't have selective memory for some things and not as to others. That's precisely what she's done in this case." The surgery was eight years before my case went to trial. When Dr. Kagan didn't remember every detail of what transpired eight years earlier, he said it was due to the lengthy time frame. Mr. Tarpey found it acceptable for Dr. Kagan to not recall information from eight years ago, but when I had the same problem, according to Mr. Tarpey, I should lose my credibility.

In spite of the fact that Dr. Coleman, Dr. Caleel, and other doctors testified that they likely would not write down my legal complaints, Mr. Tarpey still mislead the jury by saying that it's not in their records because "that conversation didn't happen, Shellie's credibility?" He repeated throughout his closing that I had no credibility. Mr. Tarpey ended with "Dr. Kagan doesn't document anything about the Benelli, Cohen doesn't, Caleel doesn't, Coleman doesn't because she never, never made those complaints." Mr. Tarpey had again misrepresented the evidence. Mr. Tarpey then told the jury that up until the time I filed the lawsuit there is no evidence that I complained about having the Benelli performed on me. His final claim was that I filed the lawsuit because of "disappointed expectations" and that I had no credibility. Who lacks credibility here? He totally disregarded the black and white fact that a Benelli was never mentioned on the Consent to Operate form. The Consent to Operate Form that both Dr. Kagan and I signed that gave him permission to operate on me and spells out exactly what procedure he will perform does not mention the Benelli.

Jury deliberations then commenced after over a week of mostly medical testimony. After deliberating for about 30 minutes, a question was sent to the judge. The attorneys returned to the courtroom and the question was read: "When did Ms. Beverlin file her lawsuit?" That question was shocking as that issue was never testified to during the trial. The only time the jury heard anything about that issue was during Mr. Tarpey’s closing argument, which Mr. Deratany objected to at the time as improper and the judge overruled his objection. In response to the jury’s question Mr. Deratany asked that the judge instruct the jury, "You have no information as to when the lawsuit was filed and that is not a proper matter for the jury to consider." The judge refused Mr. Deratany’s request and instead sent back an instruction saying, "You have all the evidence; continue your deliberations," leaving the jury believing that the improper and false statement Mr. Tarpey made during his closing argument as to when I filed my lawsuit was evidence. The jury was obviously considering that information, and the answer was important enough to them to send a question to the judge. The jury was deliberating on a matter that was not in evidence and the judge did nothing about it. Mr. Deratany and I were horrified by this event.

Approximately an hour later the jury reached a verdict. The verdict was read and in favor of Dr. Kagan. I was stunned. I couldn't help but wonder if the jury was even listening to the lengthy medical testimony or were they just too uneducated to understand it. Mr. Deratany immediately asked the court for a mistrial based upon Mr. Tarpey's improper closing arguments to the jury and the judge's refusal to properly respond. That request was denied.

At the time the verdict was read I felt like I was going to pass out and was holding back tears. I waited until the jury was excused back to the jury room and left the courtroom with my head up. I was not about to let Dr. Kagan and Mr. Tarpey see me in the pain that they caused me by misrepresenting the facts and being rewarded with a verdict in their favor.

Several days later the court received a letter from a juror's friend saying that I did not receive a fair trial and gave reasons for that opinion. A copy of the letter was sent by the court to Mr. Deratany and Mr. Tarpey. Mr. Deratany went before the court asking for a mistrial again which the court denied. Mr. Deratany asked the court for the opportunity to conduct a court supervised questioning of the jurors. I asked that the FBI be called to investigate, as I was told that that frequently happens when there is a questionable situation with a jury. The court had a hearing on the matter and at that time Mr. Tarpey stated that the letter could have been written by me or my family in a desperate attempt to overturn the verdict. Mr. Tarpey said that that explanation is plausible because "during the pendency of the lawsuit plaintiff has written letters to certain witnesses expressing her disappointment and disapproval with these witnesses upon learning of their testimony." He went on to say that I wrote a "very offensive and disturbing letter" to Dr. Caleel's office after he gave testimony and expressed his opinions. I found that accusation ridiculous in light of the fact that Dr. Caleel didn’t have any opinions in spite of his thirty plus years of being a surgeon. Mr. Tarpey's representations to the court were completely untrue. His statements slandered my family and me. Mr. Tarpey was once again able to attack me with his lies and distortions of the truth, and I was not even in the courtroom to defend myself against these ugly and false accusations. The court again denied Mr. Deratany's motion for a mistrial, as well as his request to conduct a court supervised questioning of the jury. Mr. Deratany filed a post-trial motion asking for a new trial based on seven different allegations of error in the court's rulings throughout the trial. That motion was also denied.

I was not surprised by the court's endless rulings against us during the trial and after. At the time that I learned my trial was assigned to Judge Lynn Egan, I was told by many attorneys who were familiar with her that she just came to the bench after being a defense attorney and that she is a defendant's judge. That was an understatement; it felt to me like Judge Lynn Egan was part of Dr. Kagan's defense team.

I could have lived with the verdict had I gotten a fair trial, but I believe I did not get a fair trial.

Mr. Tarpey portrayed me to the jury as a dishonest woman attempting to get some money by lying about poor Doctor Kagan. Dr. Kagan - who was kind enough to do a free surgical procedure on me. Dr. Kagan - who got a lawsuit filed against him in return for his kindness, due to my “disappointed expectations.” According to Mr. Tarpey, I went to doctor after doctor to carry out my plan to file a lawsuit against Dr. Kagan because of my "disappointed expectations." According to Mr. Tarpey, Mr. Deratany also lied to and manipulated my treating physicians, again only to get money from poor Dr. Kagan because of my "disappointed expectations."

It was a living hell to sit quietly and listen to the defense's endless lies and misrepresentations during that trial. My being called a liar over and over throughout the trial was almost unbearable. I was first victimized by Dr. Kagan on an operating table, unconscious and unable to defend myself, and then over and over again during the trial.

The malpractice suit that I filed against Dr. Kagan was not about money. If the verdict came back in my favor, the amount of money that the jury would have awarded me in damages would not have mattered. I just wanted Dr. Kagan held accountable for what he did to me.

There was a lot of information that we were not permitted to present to the jury as such information could cause them to feel "sorry" for me. There were many pictures of my breasts after Dr. Kagan’s surgery that the defendant fought to keep the jury from seeing and won. It would have been "prejudicial". I don’t understand how such pictures could be considered to be prejudicial against Dr. Kagan as the pictures showed my breasts after they were operated on and disfigured by Dr. Kagan? The jury never learned that I did not have and could not get medical insurance due to my having breast implants. As a result of being uninsured, I was forced to spend over $50,000.00 on medical care and related expenses from the time of my surgery by Dr. Kagan through the time of the trial.

The costs that I paid in taking Dr. Kagan to trial were approximately $40,000.00 out of my pocket. After losing the trial, Mr. Deratany had repeatedly billed me for an additional $9,000.00 of expenses that I believe I do not owe. At a later date he stated to me and then to my husband “you do not have to pay the remainder of the expenses.” Mr. Tarpey told the jury that I filed a lawsuit against Dr. Kagan because of "disappointed expectations." I cannot imagine that anybody would spend so much money and put themselves through the horrendous stress of a trial due to "disappointed expectations." I can imagine someone putting themselves through that kind of stress and expense looking for justice, because that is exactly what I did. Perhaps the jury would have found Mr. Tarpey’s statement as to why I sued Dr. Kagan as absurd as it really was if they had known all the information. Mr. Tarpey did a great job in making sure that didn't happen. I saw first-hand why Mr. Tarpey advertises himself as specializing in defending medical negligence cases and why Dr. Kagan hires Mr. Tarpey's firm each time he gets sued for malpractice.

I continue to live every day of my life, as Dr. Stanton-Hicks testified that I likely would, with pain in my breasts. It is very hard to accept that I have to live with this pain due to a surgery that I did not want and did not consent to. The last option offered to me that possibly would give me some pain relief is to have a spinal cord stimulator surgically implanted in my body. Since there are risks involving that option that I am not willing to take, including paralysis, I am currently just trying to live with the pain.

I have valid issues to appeal the verdict and initially filed a notice of appeal. I then learned that the appeal would cost a minimum of $25,000.00 and to retry the case, should we win the appeal, would cost at least another $25,000.00. I cannot afford this financially or emotionally. I made the decision to drop the appeal and to walk away. Welcome to our justice system!

Commentary Regarding Elective Surgery

I would urge anyone thinking of surgery when the surgery is not absolutely medically necessary to reconsider. Even in doing all the research available to you on your prospective physician you likely will not have complete information on the doctor. That fact is a frightening reality, as you will literally be putting your life in his/her hands.

Commentary Regarding Filing a Lawsuit

Should you become injured by a doctor's negligence, choose your attorney wisely. After the loss of my medical malpractice case, I would advise a plaintiff not to hire an attorney from a small firm. They don't have the time or staff to completely focus on and prepare your case. In an article titled, "Small Firm Attorneys Face the Most Disciplinary Actions," Robert Wiener writes, "Unfortunately, the bulk of the complaints is against small solo practitioners." Ellen Pansky, a partner in a California firm, said, "Small firms do not have enough support staff to keep track of all the phone calls and letters they receive. If a lawyer is involved in another trial, goes on vacation, or gets sick, there may be no one there to take care of the client's problems." As with a prospective doctor, check out your prospective attorney through your state's governing agency regulating attorneys . In Illinois that governing agency is the Illinois Registration & Disciplinary Commission. Do not expect much from them. The Illinois Registration & Disciplinary Commision receives approximately 6000 complaints a year and only investigates 2%. Unfortunately, it is a very similar scenario as in checking out your doctor. You will only be told of complaints against the lawyer if the lawyer has been found guilty of the matter complained of.

As I previously stated, the Illinois Registration & Disciplinary Commission will likely not investigate an attorney that you may file a complaint against. Do not let that deter you from finding justice. Do speak to an attorney that specializes in legal malpractice. You will certainly find similar difficulties in bringing a legal malpractice claim just as you do in bringing medical malpractice claims. It is also very hard to find an attorney that specializes in legal malpractice. Again, do not give up in finding justice. Be diligent and you will find a legal malpractice attorney to listen to your claims and decide if you do have a valid complaint. I believe that we should all stand up for ourselves when we have been harmed. In doing so you may save another person from become victim to these same people.

Commentary Regarding Being Sued By My Attorney

As I mentioned above, the attorney who represented me in my suit against Dr. Kagan, Mr. Deratany, is now suing me for the publishing of this web site and for legal fees he says I owe him.

In light of the fact that Mr. Deratany has chosen to sue me, a friend of mine forwarded an interesting article to me recently entitled, "Suits for Legal Fees Seldom Worth Risk of Malpractice" and he suggested that I place a link to the article from my site (click the article title to read). As the title suggests, this brief article offers the advice, "We recommend that attorneys not sue clients for fees."

Consent to Operation - The first two lines of handwritten text in section 1 list the specific procedures to be performed. "Removal bilateral breast implants, Replacing bilateral saline implants." The last two lines are a list of risks written by Dr. Kagan. This document says nothing about the Benelli procedure.

Breast Implant Patient Review and Advisory - This form lists the risks that Shellie and Dr. Kagan discussed. Shellie signed it as she was wheeled into the operating room. The illegible writing you see is by Dr. Kagan. This document also says nothing about the Benelli procedure. However, Dr. Kagan testified that it gave him permission to do the Benelli.

Facts Regarding Shellie's Case and Medical Malpractice in General