Shellie’s Medical Malpractice Nightmare
and her
Fight for Freedom of Speech
Trial - well sort of.............
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 do so. I spent a significant amount of money to pay them to just talk to my attorney. Not one of them would agree to give any type of testimony. Due to the fact that he was my treating doctor, Dr. Coleman gave a deposition that was used at trial . He wasn't happy about it but he did it because he is an honorable doctor and man.
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 stated that he sees these surgeons at meetings. Dr. Rohrich refused to get involved. Even if you have the doctor's medical records that show you were indeed harmed by another doctor you cannot introduce them into a trial as evidence without the doctor verifying that those records are in fact a correct copy.
I spent many years as a court reporter working medical malpractice cases. I had personally 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? They will gladly take the money to fix your medical problem, just don't expect them to do the right thing if you need their help in proving that you were a victim of medical negligence.
I was also examined by Rodger Pielet M.D. from Chicago, Illinois. Rodger Pielet M.D. also agreed with the other doctors that said that the Benelli should never have been performed on me, but was also 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 that this is an every day occurrence in the medical community doesn't make it any easier to swallow.
Jury selection - what a joke! We had to choose a jury from prospects that were not good. I think that there may be some truth to, "smart people get out of jury duty."The jury selection is not a fair process and is a real crap-shoot as to what type of jury you will end up with. You will not end up with a jury of your peers. It is not like on television in the high profile cases where selection goes on and on until you believe that you have found a fair and 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. A 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 breast lift 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 harmed me 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. Why would they want to talk about that, I was there for medical not legal advice? I complained to every doctor about the pain in my nipples which they attributed to the ongoing open wounds dripping blood and puss. 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 and it was hard to function in my daily life. 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.
My daughter gave testimony during the trial. All that she was needed to testify about was what she had witnessed in terms of my health before and after the surgery performed by Dr. Kagan. During her testimony Mr. Tarpey spoke to her as if she were a criminal on trial. Mr. Tarpey was unnecessarily rude.
We called a witness who couldn't make it to trial so he testified by video on my behalf. While this witness is a doctor, he was not involved to give medical testimony. This witness is a D.O. just like Dr. Richart T. Caleel, is a D.O. That means a doctor of osteopathy. Tarpey said to him during his testimony on the record, "you are not a medical doctor, you are a D.O., isn't that right doctor?" Mr Tarpey showed a great deal of irreverence toward this doctors because he is a D.O. Doctors that are D.O.'s are in fact medical doctors. Of course Mr. Tarpey made sure that the jury didn't hear this because he subpoenaed Dr. Richard T. Caleel D.O. and needed the jury to respect Dr. Caleel as a real doctor. Michael Tarpey struck a deal with Mr. Deratany not to show his attack on doctors of osteopathy in court to the jury in exchange for something that he wouldn't bring up in court in front of the jury. Something that I didn't care about being brought up during the trial. I wasn't happy about that as I wanted the jury to see the real Mr. Tarpey.
I spent an entire day on the stand often feeling battered and humiliated by the defense attorney, Mr. Tarpey. I was asked questions that I found to be ridiculous, unnecessary, embarrassing and inappropriate. The inferences that one could make from the way that Michael Tarpey worded some of the questions that he asked me was mortifying. I was drained by the way Tarpey was twisting my words as he was trying to make me appear as though I was lying. I finished my testimony feeling victimized by Dr. Kagan yet again. I had respect for Mr. Tarpey as an attorney just doing his job during the discovery process of this case. However, I lost all respect for Tarpey after seeing just how misleading and ruthless I found him to be during the trial. By the time this trial ended I truly believed that Tarpey would say and do almost anything that it took to see that his client was not found liable for what he did to me.
Michael 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 poster in the courtroom that he was planning on using it as an exhibit to show the jury during the trial, otherwise why was this poster there? Mr. Tarpey apparently changed his mind about using the blow up at trial, but left it sitting sideways on the floor propped up against the wall in the courtroom for well over an hour where some people could clearly see it. I am not sure if that was intentional for me to see and then be upset by. If it was, it worked because I was horrified. Knowing defendant doctor's attorneys like I do I believe that that was done intentionally to unnerve me. I just thank God he didn't admit that poster 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. This was 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. It is my belief that that was a calculated move on the part of Tarpey and Kagan in hopes that having Kagan sitting there staring at Dr. Colman would cause Dr. Coleman to go easy on him. I have the utmost respect for Dr. Coleman for being honest in giving negative opinions of the surgery that Dr. Kagan performed on me, as it is so distasteful for doctors to speak against each other, and Kagan was sitting there 8 feet away from him staring at him. 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 then 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 informed the judge, Judge Lynn Egan, that Richard T. Caleel DO previously told Mr. Deratany that he thought Dr. Kagan shouldn't have done the Benelli. Judge Egan was also informed by Mr. Deratany that Dr. Caleel didn't want to go to court, didn't want to testify, and made it very clear that he 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. Why not, with this information calling Dr. Caleel as a witness could only be a win, win for his client, Dr. Kagan. For 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 with great arrogance, "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, honest doctor. Richard T. Caleel D.O. gave testimony that demeaned and degraded me. Dr. Caleel did not tell the truth about my visits and conversations with him. This is a surgeon and person that I believe truly does not have a conscious.
Michael D. Cohen M.D., currently in Baltimore, Maryland, but at that time worked with Dr. Kagan, also testified for Dr. Kagan. Dr. Michael D. Cohen stated that when he saw me for Robert S. Kagan MD, "All wounds were healing nicely." How odd because 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," seriously? Dr. Cohen was asked if he remembered my being upset during the visit and he answered"somewhat."Michael Cohen M.D. notes from the day that he saw me for Dr. Kagan say, "after much hand holding and reassurance patient felt better about this otherwise normal postoperative course of events.I find that statement to be an absolute fabrication because I asked for a copy of all my medical records to be given to me right then and there. I was very upset. Dr. Cohen said that I needed to talk to Dr. Kagan about getting my records. I argued that I wanted my records, that I had a right to them and after my continuing insistence I was finally given some of them. I found Dr. Cohen's "hand holding" statement very demeaning. My postoperative course was anything but normal as can be clearly seen by the photographs and the fact that the wounds did not heal for a year. Since Dr. Cohen had just finished his training shortly before he saw me for Dr. Kagan was he was just too inexperienced to see what a mess I was? I doubt it, it never stops amazing me as to how far doctors will go to support another doctor accused of negligence.
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 medical malpractice 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?). Dr. John Q. Cook stated that he 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 were more credible than mine (he had never met me, spoken to me and had never examined me - he only reviewed whatever medical records of mine that were given to him by Kagan). 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. 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 (see photographs page). 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 - he had to have been. I ask, who would seem to be the more credible surgeon? The paid expert witness, John Q. Cook M.D., who knew Kagan since they were surgical residents together, was paid thousands and thousands of dollars to testify on behalf of Kagan, who had never spoken to me, met me or examined me. Or, Dr John J. Coleman who had met me, examined me, operated on me several times during about a two year period. Not to mention Dr. Coleman did not know Kagan, was not a friend of Kagan and was not a paid "expert."
Michael Stanton-Hicks MD charged $700.00 an hour for his testimony—which I had to pay for along with Jay Paul Deratany’s firm'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 the patient suffers 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 any of his previous conflicting testimony). During the testimony the jury heard, Michael Stanton-Hicks M.D. testify 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 also 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 for seeking plastic surgery. 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 for the surgery that he performed on me which was given to me by his office. It detailed the charges for the implant removal and the replacement of new implants. It reflected that I paid to him in cash the amount of $1,800.00 for the removal and replacement of the implants ONLY. It does not show a charge for the Benelli breast lift, or mention a Benelli procedure at all on the document. 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 told me the cost for each and every procedure that he discussed with me during my consultation (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 $1,800.00 that I paid him before surgery. I don't know which of Dr. Kagan's explanations is more ridiculous. The one from his deposition where he explains that he charged me $1,800.00 for exchanging my implants and then performed a $3,505.00 operation on me for free, or the trial explanation that he did $5,305.00 worth of plastic surgery on me for $1,800.00?
Surgery Consent Forms:
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.
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." Why would that be true when the procedures listed to be performed consisted of eleven words. Kagan 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 at the time that 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 sign the consent while you wheel them in"rather than taking the time to get proper consent. Mr. Deratany stated he did not believe that hospital administration would willingly help us and go against one of their own doctors. Perhaps he was correct, but why not at least attempt to get their testimony? Mr. Deratany never even attempted to speak with them. I finally stopped trying to get Mr. Deratany to contact hospital administration 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 around my areolas that it was by another surgeon.
While testifying at the trial Dr. Kagan was impeached at least four times - in other words - his honesty and credibility were called into question for giving testimony on the stand that differed from his deposition testimony. 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 off prior to his doing so. How could a trained plastic surgeon make a mistake with such an obvious finding? Were there scars already around my areolas or not? There definitely would have been scar tissue when he operated on me, so was there, 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 made Dr. Kagan look dishonest and incompetent.
Shortly after Dr. Kagan performed the Benelli procedure on me which I did not wish to have, I phoned five different Chicago plastic surgeon's offices 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 Judge Lynn Egan's 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.