Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

HAYES v. CHA

September 30, 2004.

MARY I. HAYES, et al., Plaintiffs,
v.
DONG S. CHA, M.D., Defendant.



The opinion of the court was delivered by: JOEL ROSEN, Magistrate Judge

OPINION

I. INTRODUCTION

Presently before the court is the defendant's motion for a new trial or in the alternative for remittitur pursuant to Fed.R.Civ. P. 59(a). Also before the court is the plaintiffs' motion to amend the judgment order to include prejudgment interest pursuant to Fed.R. Civ. P. 59(e). The court has rarely witnessed a suit fraught with such complexity, both factual and procedural, as was the medical malpractice suit brought by Mary I. Hayes and her husband, Edward J. Hayes. The complexity derived in part from the difficulty in diagnosing Mrs. Hayes's malady, a diagnosis which was not obtained until nearly two years following the suit's inception. The case chronicled an odyssey of epic proportions borne principally by the Hayes: the lengths to which Mr. and Mrs. Hayes went to discover the source of Mrs. Hayes's injury and the suffering that she and her husband endured throughout the litigation and into today and tomorrow. The jury was apprised of the Hayes's travails and awarded them $20 million in compensation for their suffering. The validity of the jury's finding and the propriety of that award, as well as certain of this court's evidentiary rulings, are at issue in the instant motions.

  After having carefully considered the submissions of the parties, the trial testimony, and the relevant jurisprudence, the court shall deny the defendant's motion for a new trial on liability, grant in part the defendant's motion for a remittitur, remitting the verdict from $15 million dollars to $10 million dollars in favor of Mrs. Hayes, and from $5 million dollars to $1 million dollars in favor of Mr. Hayes, and grant in part the plaintiffs' motion for prejudgment interest. Should the plaintiffs not accept the court's remittitur, the court shall grant in part the defendant's motion for a new trial and order a new trial on damages only.

  II. FACTUAL AND PROCEDURAL BACKGROUND

  On March 7, 2000, Edward and Mary Hayes filed suit against Dr. Dong S. Cha alleging that Dr. Cha committed medical malpractice and failed to supply Mary Hayes with sufficient information to constitute informed consent in connection with the full face-lift plastic surgery performed on Mary Hayes on September 22, 1995. Mr. Hayes asserted a loss of consortium claim. Jurisdiction was based on diversity of citizenship. The trial in the above matter occurred on December 1-5 and 8, 2003 and the instant motions followed. The parties briefed the issues through April 2004. The defendant objects to the verdict and asserts that a new trial is warranted on several grounds: (1) that the overwhelming weight of the evidence negates any reasonable finding of causation between the 1995 surgery and the October 2001 diagnosis of mycobacterium fortuitum; (2) that the plaintiffs failed to carry their burden on informed consent; (3) that the court erred by allowing cross-examination of Dr. Cha with a $50 check which had not been produced in discovery, by allowing cross-examination of Dr. Cha with sterilization standards promulgated in 1998, and by allowing the plaintiffs to exploit the court's ruling regarding the defendant's motion in limine to preclude reference to Dr. Cha's two-month active suspension; and (4) that the jury award shocks the conscience requiring, at the very least, a new trial on damages or a remittitur. The plaintiffs oppose the defendant's motion, asserting that the jury's verdict was reasonable both on liability and on damages. The plaintiffs further maintain that the court did not commit error during the trial. These arguments require a complete review of the evidence presented to the jury.

  Beginning with the opening statement through the closing, the plaintiffs delivered a focused and complete explanation of Mrs. Hayes's injury. The plaintiffs called Mr. Hayes as their first witness. Mr. Hayes's testimony outlined the entire theory of the plaintiffs' case. He was a very credible witness, who observed not only his wife's illness during the course of their day-to-day life, but who attended nearly every one of his wife's doctor appointments with her during the critical period. Mr. Hayes spoke about their life together and how it has changed since the surgery. He also spoke knowledgeably about the development of his wife's illness, their search for the cause, the myriad doctors and diagnoses and treatments, the final accurate diagnosis of mycobacterium fortuitum, and the treatment of that illness.

  Mr. Hayes, a lawyer who splits his practice between general corporate representation and professional baseball player representation, testified about the Hayes's life before the surgery:
Our life was good at the time. Her health was good. We had a very active life. We vacationed generally twice a year. We would travel to Florida in March each year for my — for the baseball portion of my practice to meet with clientele in Florida. My wife would host a party for the players and their parents at Christmas time each year, we always thought it was a good idea for them to get together with one another, for parents to speak to one another. We would host a picnic every year, it used to be called the Hayes Annual Picnic on the Fourth of July where we would have people over. Go out to dinner regularly. Although I'm not a big gambler, we made it a habit of going to the casino to see a show or gamble once a month. We were both very, very active. She at the time was very active with painting and sculpting. After she had stopped working, she had returned to the Moore College of Art and Design for art, which was something that she always wanted to do. So, we had a very active life.
(T. 219:7-25). This testimony was corroborated by two of the Hayes's family friends, Denise Manto and Orlando Terry Anderson. Ms. Manto, a good friend of the Hayes and the wife of one of the baseball players whom Mr. Hayes represents, testified that Mary was the life of the party, very social, an artist, and very instrumental in getting the local players and their families together and in supporting them. (T. 411-412, 415). Mr. Anderson indicated that he was Mary's best friend, and that before the surgery they would see each other, either singly or with their spouses, socially about once a week. He also described Mrs. Hayes as the life of the party. (T. 420).

  Mr. Hayes also testified about his wife's health problems before the surgery, which he described as minimal: "I mean, there was the problem going through the change where she had discomfort, hot flashes. She had some acne that came about the same time as the hot flashes. She had some rheumatoid arthritis in the past that was particularly evident in her hand, her fingers, her knuckles had swollen that made painting difficult for a while. But generally, both of us, thank God, were healthy." (T. 220:1-9).

  Mr. Hayes further testified about Mrs. Hayes's September 22, 1995, surgery by Dr. Cha, all of which testimony Mrs. Hayes corroborated on the record. On the date, given the extensive nature of the full face-lift surgery, Mrs. Hayes was nervous. Indeed, Dr. Cha had prescribed valium for her to calm her nerves before the surgery. Mr. Hayes recalled that Mrs. Hayes did not want to have to wait at the doctor's office for the surgery to begin, so they were scheduled as the first surgery, early in the morning, "eight or nine o'clock." (T. 220:15-19). Mrs. Hayes was not, however, the first surgery performed that day. Upon arrival, the Hayes were told that there was an emergency liposuction and they would have to wait. (T. 221:13-16). Mrs. Hayes was not taken in for surgery until around 11:30 or 12 noon. (T. 221:18-21).

  According to Dr. Cha's testimony, his usual practice is to meet with the patient before the surgery, but Mr. Hayes testified that Dr. Cha did not meet with the Hayes before the surgery that morning. (T. 221:22-222:1). During the surgery, however, Dr. Cha or his anesthetist (Mr. Hayes was not certain which), came to Mr. Hayes and explained that during the course of the surgery, the doctor had "noticed a growth" on Mrs. Hayes's nose: "[E]ither Dr. Cha or his anesthetist came out and said that the doctor during the course of the surgery had noticed a growth on the bridge of my wife's nose, that he was convinced it was cancerous and that he wanted to remove it as part of this process, but that he could not do it without consent. And obviously, since my wife was anesthetized at the time, she couldn't give the consent, would I give the consent. I mean, I was shocked to be told that my wife had cancer on her nose and said absolutely, do what you need to do to take it off." (T 222:7-16). Later tests revealed that the growth was not cancerous. (T. 222:18-19).

  After the surgery, Mr. Hayes testified, he attended several of his wife's post-operative appointments with Dr. Cha. Mr. Hayes further testified that "[s]hortly after the surgery, she developed a redness along the left jawline." (T. 223:12-13). He also recalled an appointment on October 31, 1995, where his wife had a complaint about her earlobe being swollen and red. Mr. Hayes testified that he attended one more appointment after the October 31 appointment and that "[t]here was redness in the jaw" and "lumps under her neck." (T. 223-24). Dr. Cha stated that such redness and swelling was not unusual, and he prescribed a cream, which he sold to Mrs. Hayes. Mr. Hayes testified that his wife returned to Dr. Cha several times after this last visit that Mr. Hayes attended. (T. 224).

  Mr. Hayes testified that his wife would ask him periodically to feel the lumps in her skin, but Mr. Hayes did not want to do it because the skin appeared sore, "it was almost like a brush burn." (T. 224:22-23). Several months after the surgery, a lump "opened as a small sore, and it was different in my mind than what she had been experiencing with the change with a pimple, this was a sore. And it wouldn't bleed, it would drain, they were small, and then over time it would close up." (T. 224:23-225:3). Mr. Hayes testified that the lumps and sores would rise and open throughout 1996. Mrs. Hayes could almost plan the timing of the development and opening of the sores. They started out in the area of her chin, and then spread around her face, finally involving her chin, neck, cheeks, nose, and forehead. During 1996 and early 1997, Mr. Hayes was not concerned because the lumps and sores were small and they would drain and close. Moreover, Mrs. Hayes's estrogen prescription was changing, and the lumps and sores were then attributed to the estrogen and her menopause. (T. 225-26).

  Mr. Hayes began to be alarmed, however, in the summer of 1997. At that time, the sores started getting larger. (T. 226). Mr. and Mrs. Hayes went to see their family doctor, Dr. Glickman, who said it was "the worst thing he had ever seen," confirming Mr. Hayes's concerns. (T. 226). Dr. Glickman referred them to Dr. Abraham, whom they consulted in August 1997. (T. 227:10). Both Dr. Abraham and Dr. Farber, whom Mrs. Hayes consulted once in 1996, diagnosed her with acne and prescribed antibiotic creams to put on the wounds. (T. 227:12-15).

  Between 1997 and 1998, Mrs. Hayes treated with several doctors, all with Mr. Hayes's involvement and participation. They visited Dr. Bondi three times with three different diagnoses: rosacea, then combination of rosacea and acne, then infected hair follicles. Mr. Hayes "really didn't have a lot of comfort." (T. 228:4-5). Then were then referred (through a baseball team doctor) to Dr. Hurley, whom they consulted twice. Dr. Hurley blamed Mr. Hayes for his wife's malady, indicating that Mr. Hayes was "stressing his wife out" and that "[he] was causing it." (T. 228:17-18). Mr. Hayes described how he cried after being blamed for his wife's medical problem. After Dr. Hurley, the Hayes returned to Dr. Milgraum, the physician who had performed Mrs. Hayes's eyelid surgery in 1994. He diagnosed her with rosacea.

  The next notable event in the Hayes's lives was the spring training trip to Florida in March 1998. The day before they were to leave for the trip, a sore on Mrs. Hayes's cheek opened up and expelled a small piece of green wire that resembled fishing wire. This was extremely frightening for the Hayes's and painful for Mrs. Hayes. Mr. Hayes dropped the wire off at Dr. Glickman's office, and the couple left for the Florida trip the following day. The Hayes offered a photograph of this sore into evidence, which the Hayes testified they took only so that Dr. Glickman would be able to observe the wound before it healed, as they were in Florida and believed it could close before they returned from their trip. Mr. Hayes described not only Mrs. Hayes's agony on this trip, but her seclusion from the usual events with the baseball players and their wives. (T. 229-31).

  Because Mrs. Hayes was still not getting relief from her problem, Dr. Glickman referred them next to Dr. Manstein at Jean's Hospital, with whom they consulted twice. Dr. Manstein performed the first biopsy the results of which were inconclusive — Dr. Manstein suggested that Mrs. Hayes's sores were cause either by a herpetic condition or possibly by suture abscess. (T. 232).

  Finally, in 1999 during a gynecological appointment, Mrs. Hayes had some open wounds and the gynecologist recommended another doctor, Dr. Krause. The Hayes's first appointment with Dr. Krause was in August 1999. Dr. Krause believed that the cause of Mrs. Hayes's condition could be silicon that had been injected in her face and was causing the eruptions, but that cutting open her face would not reveal the silicon. Thus, Dr. Krause started interlesional injections. (T. 233). Mr. Hayes testified that for up to a year, "on a regular basis, sometimes weekly, my wife would be taken back into his operating area, sedated, and he would inject her face with needles to try to break up what he believed at that point in time was silicon, at the same time he was doing some biopsies and sending them out for chemical analysis to try to find the presence of silicon." (T. 233:23-234:3). This intensive treatment had a radical effect on their lives:
Our life had changed dramatically by that point in time. We did not go out, she both did not like her appearance during that period of time, also had open wounds through a good part of that time, and didn't want to be seen, quite frankly, out. She did not go out much herself to do things that she had done before, little things like food shopping, little things like cooking, which my wife had done before, she was not doing during this period of time. I mean, she was sick.
(T. 234:20-235:2).

  In 2000, Mrs. Hayes started to complain that she felt strangled by the lumps under her neck, which had continued to be present throughout the progression of her condition. She was at that point admitted to the hospital, and Dr. Krause cut her neck open and pulled the skin down and removed "granuloma." (T. 236:4). She received some relief from the pain in her neck during that period of time. Dr. Krause performed many surgical procedures. (T. 236). Before the diagnosis of mycobacterium fortuitum, he would sometimes relieve the pressure in her face by inserting tubes into her face and allowing the sores to drain. Mr. Hayes described one sore in particular that opened almost down to her cheek bone and was wide enough to insert a quarter. To relieve the pain of this sore, Dr. Krause hospitalized Mrs. Hayes and inserted a tube through the hole and out through the back of Mrs. Hayes's ear to allow the sore to drain. The jurors observed a photograph of this particular sore, along with several other photographs depicting Mrs. Hayes's condition at different times over the past several years.

  In June 2001, the Hayes traveled to the Mayo Clinic, in Rochester, Minnesota, where they consulted with many specialists. One of the specialists suggested that Mrs. Hayes had caused these sores through self-mutilation. Notably, one specialist, whom Dr. Krause later confirmed was the infectious disease specialist, opined that the sores looked like some kind of mycobacterium.*fn1 (T. 327). The doctors at the Mayo Clinic could not do a test because Mrs. Hayes was on antibiotics, and it was Mr. Hayes's understanding that antibiotics mask the presence of mycobacterium. (T. 237). This understanding was later corroborated by the plaintiffs' expert witnesses. (See e.g. Dr. Kirby, T. 327-328; Dr. Huitt T. 372-75).

  The Hayes's doctors ultimately discovered mycobacterium fortuitum in October 2001 during a biopsy taken when Mrs. Hayes was hospitalized for the quarter-sized sore. Dr. Krause then referred the Hayes to Dr. Rausch. At that point, the doctors tested the bacteria for resistance and established that there were three therapeutic drugs that could work on Mrs. Hayes's particular strain of mycobacterium fortuitum. Treatment was started using two of them, Amikacin and Cipro. The Amikacin, a highly toxic antibiotic, requires intravenous injection; thus doctors inserted a "portacath" in her chest. Amazingly to the Hayes, within one week of starting the medications, all the sores on Mrs. Hayes's face started to close. That was unlike any of the other antibiotic treatments Mrs. Hayes had undergone in the past years. The treatment lasted approximately forty-three days of three-hour injections each day. Mr. Hayes would begin the treatment in the morning before he went to work. The medications caused severe nausea and lethargy. Mrs. Hayes took Phenergan for the nausea. It was Mr. Hayes's understanding that Amikacin could cause deafness, so the doctors tested her hearing regularly. Mr. Hayes testified that when the doctors noted a loss in hearing, they took her off of the Amikacin and finished the first round of antibiotics with Cipro and Rifampin. These were both oral drugs, taken twice daily. She finished out the first round of antibiotics and had about a two-month hiatus with no sores.

  The sores returned after two months; the Hayes had been told that this could occur and, indeed, would probably occur. The doctors told the Hayes that they would know the disease had been cured when the sores did not return. That had not yet happened by the time of trial. The Cipro and Rifampin were resumed, in the spring of 2002, and Mrs. Hayes was treated for another several months. The wounds again closed as a result of the second round of treatment. The doctors observed her for a few months and, when the sores did not return, they took out the portacath.

  The sores returned again, but this time after approximately four or five months. Mr. Hayes took this as progress. But the disease had not yet been cured. Mrs. Hayes started again on the Cipro and Rifampin, but this time the sores did not heal, indicating that the bacteria had become immune to one or both of these treatments. There was only one medicine left that would be effective against her bacteria, as revealed in the early resistance testing: Imipenem (or Pramoxine). She was put on Pramoxine and Rifampin. Pramoxine was another intravenous drug, so Mrs. Hayes had to have a pick line inserted in her arm. The medicine required infusions two times per day for a half-hour. This antibiotic gave Mrs. Hayes sweats, clamminess, and nausea, but the nausea wore off after about a half-hour. Prior to trial, Mrs. Hayes began developing pain in her arm. The doctors did not detect swelling, which could be evidence of blood clot formation, but did an ultrasound to be safe. The ultrasound revealed both a blood clot and a fibrous flap over the pick line, and Mrs. Hayes was immediately sent into emergency surgery. What the Hayes believed would be an overnight stay turned into a seven-day hospital stay. After the surgery, Mrs. Hayes continued the antibiotic treatment. This was the regimen that Mrs. Hayes was following at the time of trial.

  In addition to the antibiotic treatment, after the mycobacterium diagnosis, the doctors also treated Mrs. Hayes's sores with "debridement." Debridement is a medical surgical procedure in which the doctor would cut out all of the skin that appeared infected. (T. 236). Also, at a certain point after the diagnosis, Dr. Krause began to attempt a repair of Mrs. Hayes's face, to insert something to replace the part of her face that had been eaten away. Mr. Hayes could not even count the number of surgeries that his wife underwent, there were so many.

  Mr. Hayes then described their lives today:
She is still very lethargic, she's tired most of the time. Obviously, we have a clock, she's got a regiment at 6:30 in the morning and she's got a regiment at 7:30 at night. Our life presently consists of visiting doctors once a week. She still does not like the way she looks, so we do not socialize. We have not vacationed in years. We've cancelled the spring training trip the last few years. We have not had the Hayes Family Picnic for the last couple of years. Her arthritis continues to give her a problem, so if she's down on the floor with my grandson, I often find myself helping her get up. I do the shopping, I do most of the stuff that needs to be done. While she's gotten better considerably from this, we still have a way to go. . . . [Our life is] completely the opposite. My wife, who was as outgoing a person as I've ever seen, who loved to socialize, who loved to entertain, who was the life of the party, is now a recluse. She lives in our house. Other than my son's wedding and just recently our granddaughter's christening, she is not out of the house other than doctor visits. And what we try to do is we take my grandson with us on the doctor visits because we stop at the Cherry Hill Mall on the way back from the doctors, because that's her one time out of the house. So, we spend an hour or two in the Cherry Hill Mall. I'm sorry. That's our social life.
(T. 256:2-257:2). The testimony of the Hayes's friends, Mr. Anderson and Ms. Manto, added that Mr. Hayes should be canonized for the way that he has supported and cared for Mrs. Hayes throughout this ordeal. (See e.g. T. 421:12).

  The plaintiffs' pictoral presentation was no less consistent or compelling. It is said that a picture is worth a thousand words; it would be hard to articulate words sufficient to replace the force of the pictures entered into evidence in this case. The Hayes's and their friends' description of the Hayes's hermit-like retreat from society was quite credible, upon reviewing these pictures. The oozing, large sores reinforced the witnesses's testimony that Mrs. Hayes's appearance was aesthetically unpleasant and that forays away from the home could possibly put Mrs. Hayes in danger of additional infection from wind or rain or sun exposure entering through the wounds. Among the pictures, the plaintiffs submitted as an exhibit a picture of the quarter-size wound that fully corroborated both Mr. and Mrs. Hayes's description of the physical pain that Mrs. Hayes endured, as well as its vast difference from any kind of pimple. Mrs. Hayes herself also provided evidence of the ordeal she has endured and continues to endure. The jurors could observe first-hand the ravages of the disease, which Mrs. Hayes may never defeat.

  That testimony became the foundation of the plaintiffs' case, and no fact or expert witness refuted any of the above information. Even the defendant's experts did not refute the above information; rather, they merely attempted to sever the tie between Mrs. Hayes's complaints beginning just after the surgery and the actual diagnosis of mycobacterium fortuitum in October 2001. The balance of the plaintiffs' witnesses verified, expanded, and corroborated Mr. Hayes's testimony.

  Mary Hayes took the stand and testified very compellingly and convincingly about the development of her disease, including the pain that she has experienced since the surgery, her diagnosis and treatment, and the change her life has undergone since the surgery. Among the facts highlighted by her testimony concerned the plaintiffs' informed consent claim. Mrs. Hayes testified that she initially consulted Dr. Cha to fix sagging in her neck. She did not want anything else done. But Dr. Cha advocated for more surgery — in fact, the entire face lift along with more work on her eyes. She testified that he convinced her to get the full face lift. She further testified that he did not discuss the risk of infection, nor did the booklets explaining the procedure mention infection as a risk of the surgery. Following the surgery, Mrs. Hayes testified that she visited Dr. Cha several times, including two or three visits after the October 31 visit. She complained about the swelling and redness at those visits, but Dr. Cha told her that such swelling and redness was usual and it would go down over time. She further confirmed that Dr. Cha had sold her over-the-counter creams for the swelling.

  Dr. Krause also corroborated and elaborated upon Mr. Hayes's foundation. Dr. Krause testified that he began seeing Mrs. Hayes on August 9, 1999. At that time, she had multiple scars on her chin, forehead, and neck, and open abscesses in some of these areas. (T. 271:4-13). Dr. Krause testified that he had never seen anything like it before. (T. 271:21-22). Initially, he thought that she might have been injected with liquid silicon, had trouble with the silicon, and began to develop granulomas, but he had only seen such infections in pictures. (T. 272:1-4). His first course of treatment involved applying Cordran tape, a cortisone tape that comes in a roll, to the sore areas of her face. That "seemed to give her some relief." (T. 272:9). Thus, he then "embarked on a course of injecting her face with cortisone itself," mixed with novacaine to relieve the pain of the shot, approximately every two weeks. (T. 272:9-13, 273:18). These injections continued from "1999 well into 2001." (T. 272:15). Because Mrs. Hayes complained of intense pain during the injections, Dr. Krause gave her intravenous sedation and pain relief during each session. (T. 273:19-22). Dr. Krause further testified that although she seemed to get some relief, Dr. Krause did not feel that he was treating the cause of the problem. Thus, on several occasions he took a biopsy of her skin. Those early biopsies showed that there was a foreign body, but not what it was.

  Dr. Krause also pursued other avenues for discovering the source of the infection, including sending the tissue to colleagues and to institutions. Dr. Krause arranged the Mayo Clinic visit in 2001 because he had been told that a specialist practiced there who had the ability to chemically analyze whether or not silicon was present in Mrs. Hayes's face. (T. 275). The Mayo Clinic was disappointing not only for Mr. and Mrs. Hayes, but also for Dr. Krause. Just as Mr. Hayes had earlier testified, Dr. Krause also testified that one of the doctors who saw Mrs. Hayes accused her of self-mutilation. Although Dr. Krause could not see how someone could cause the types of sores that he had been seeing, but also not wanting to dismiss a specialist's diagnosis, Dr. Krause testified that he had a frank discussion with the Hayes about self-mutilation. They emphatically denied it to him and he continued to look for alternatives, specifically the possibility that it was a bacterial infection. Dr. Krause testified that he took Mrs. Hayes to get a biopsy and some cultures. This time, the culture was retained and monitored by the lab for two full weeks. The immediate report did not show any organism, but a few days later, something began to grow. A few days after that, the lab reported that a mycobacterium had grown out in the culture. And finally, after two full weeks, the lab confirmed that it was mycobacterium fortuitum. (T. 276).

  Dr. Krause testified that, at the time of trial, his prognosis was "guarded": "I think I have to be sure that her disease is quiet for a significantly long period of time before I can try to do anything to help her further with her facial appearance. What I'm hoping is that eventually I can go in and operate on her and add some tissue in the form of either her own tissue or some other tissue to restore the depressions and scars and things like that all over her face." (T. 279:24-280:5). The scarring occurs because "[t]his particular bacteria tunnels through the cutaneous tissue, that's the fat between the skin and the muscle, and it destroys that tissue. And then the skin sinks in and compresses down against the muscle and results in a scar." (T. 280:7-10).

  Dr. Krause opined about Dr. Cha and his adherence to the standard of care required for plastic surgical procedures. Dr. Krause confirmed unequivocally that, to a reasonable degree of medical certainty, Dr. Cha had deviated from the required standard of care and that the deviation caused Mrs. Hayes to contract the bacterial infection. (T. 280:14-23). Dr. Krause indicated that Dr. Cha had not only done a "standard face-lift" but also performed some liposuction, and that "the bacteria was most likely introduced by the liposuction instruments" and that "they were probably not properly sterilized ahead of time." (T. 281:1-16). This testimony was reinforced by the Hayes's prior testimony that Dr. Cha had performed an "emergency liposuction" just prior to Mrs. Hayes's scheduled surgery, and by the multiple subsequent witnesses who testified, including Dr. Cha himself, that Dr. Cha did not follow required sterilization procedures. These procedures include: (i) wrapping the instruments in tape that is heat-sensitized to change color if the sterilization process was properly completed; (ii) utilizing indicator strips that are placed within the Autoclave*fn2 itself; and (iii) sending certain material to outside facilities once a month to assess the Autoclave's effectiveness. Dr. Krause himself had inspected Dr. Cha's ambulatory surgical facility and the Autoclave, in the early 1990's as an inspector for an organization called the "quad A PSF, [the American Association of Ambulatory Office Facilities for Plastic Surgery] an organization that inspects ambulatory plastic surgery facilities." (T. 282:19-20, 304:20-23). At the time of Dr. Krause's inspection in the early 1990's, the appropriate sterilization records were present. At the time of Mrs. Hayes's operation, the appropriate records were no longer present, the testing was no longer regularly performed.

  Dr. Krause opined that the liposuction instruments — canulas — were the most likely source of the infection because they require a difficult and time-consuming sterilization process including scrubbing the instruments with special brushes and then running the instruments through the Autoclave. Moreover, Dr. Krause indicated that he had seen reports in medical literature that infections were being caused by these liposuction canulas, and the infections were of the mycobacterium variety. (T. 283).

  Dr. Kirby, an expert in microbiology and pathology, who did a two-year research fellowship at Tufts Medical School studying bacteria and bacterial pathogens, further corroborated the earlier testimony. (T. 310). Dr. Kirby testified that he personally operates an Autoclave in his research laboratory to sterilize his equipment. (T. 311). He reiterated the sterilization process outlined by Dr. Krause and then opined that to a reasonable degree of medical certainty that the disease was caused either by a failure in the sterilization practices or in the Autoclave itself. (T. 311-314). Dr. Kirby confirmed the plaintiffs' theory by summarizing the early development of Mrs. Hayes's illness, based on his review of the depositions and medical records. (T. 315:18-25). Dr. Kirby further confirmed the plaintiffs' witnesses's testimony that there was no evidence that Mrs. Hayes had received injections from her doctors between the time of her face-lift surgery by Dr. Cha and the time she treated with Dr. Abraham in September 1997. (T. 316).

  Dr. Kirby described the pathology of mycobacterium fortuitum:
Yeah. Well, they call this organism rapidly growing mycobacterium, but actually there is — it's not that rapid in the grand scheme of things, it neither grows rapidly nor does it cause a very rapid infection. When we often think of infection, we think of something like a typical surgical infection, you become symptomatic within days of your surgery and it becomes very acute, it brings you to the doctor right away and you get treated. Rapidly growing microbacterium are . . . It's rapid comparing to slow-growing microbacterium. . . . Those would be things like the bacteria that causes tuberculosis, that's call microbacterium tuberculosis. There are a number of other slow-growing microbacterium, too. I guess there is mycobacterium lepri, which can[`t] even be grown in the laboratory, so that's a very slow-growing microbacterium. . . . [U]nlike a typical bacterial infection, rapidly-growing microbacterium can take quite some time before symptoms first appeared. And so I think they — in reviewing the literature, they say the median time is about one month after surgery, for example, when the organism was introduced, but it can actually be — or after some sort of trauma was introduced, the organism, but it can actually be quite long. . . . I've seen reports of two years, three years. There is actually even a report of someone who I think stepped on a toothpick and it lodged in his foot and I think about 15 years later developed mycobacterium fortuitum infection. And so it can be — it's a very unusual type of infection and it can be quite a long time between the initiating event and when the symptoms occur. And as you might imagine, it could be very confusing for doctors to try to sort out. You know, they're not necessarily thinking about this organism in relationship to some of that that a patient might have had.
(T. 317:11-319:6). As far as the clinical course of these mycobacterial infections, Dr. Kirby testified that "they tend to be chronic. Patients will, once their symptoms first start to appear, well, there is a very lucky small minority who just get better, but unfortunately, most of the people develop very chronic sores, they'll develop ulcers, abscesses, these lesions which kind of come and go, but basically they'll — infection will essentially persist indefinitely unless some sort of therapy is given. So, it's a chronic progressive infection." (T. 319:9-17). As for treatment, Dr. Kirby testified that "[t]he treatment would be antibiotics. And one of the significant things about treating these organisms is that they require prolonged treatment, courses of six months of therapy. And that's what Mrs. Hayes had, I think she's had an initial six month course of therapy. And sometimes even with what we think is adequate therapy, these infections aren't completely cured and patients may have to be treated again. And it might — therapy alone might not be sufficient and especially with infections that are sort of widespread that involve tissue deeply, you often need to do surgery too in order to help get rid of the infection. It's a very difficult infection to deal with." (T. 319:19-320:5). Dr. Kirby also testified about the origin of the infection in Mrs. Hayes:
Q. Is there any significance to the fact that these sores, ulcers are only located on her face?
A. There is significance to that. In terms of — in reviewing the case matter and trying to figure out how this infection came to be, I made note of the fact that she's (sic) actually has lesions which have developed on many areas of her face, so it's not just a lesion on her right cheek or a lesion on her left cheek, she has had lesions on both cheeks, under her jawline, on multiple areas of her face. And to me, that suggests that there has to be some sort of unifying event where this organism was introduced all at once into multiple locations. And my conclusion, to a reasonable degree of medical certainty, is that unifying event, based upon the time of the development of these lesions, was her original plastic surgery.
(T. 320:6-20).

  Dr. Kirby further discussed the pathology of Mrs. Hayes's disease, as revealed by her medical records at different points. He noted that her biopsy in 1998 revealed chronic inflammation and that this would be typical in a mycobacterial infection, but that the acid-fast stain that would have revealed the mycobacterial infection itself was not done at this time. (T. 322-323). He further noted that the biopsy in 1999 of certain of her neck lymph nodes revealed hyperplasia, which is consistent with an infection and consistent with a mycobacterial infection. (T. 323-324). The biopsy further revealed granulomas composed of histiosities, some of which were multi-nucleated, again consistent with mycobacterial infection. (T. 325). But though these bodily defenses could bespeak a mycobacterial infection, which both sides' experts assert is a very rare occurrence, the doctors initially were focused on the more common possibility, the foreign-body infection. (See e.g. T. 326-327). Moreover, it is very difficult to find mycobacterium, even if you are looking for it: it only shows up in 30 percent of the properly performed cultures, the cultures must be specifically for mycobacterium as they are held much longer than regular bacterial cultures, and if the patient is on antibiotic medication then the chances of discovery are greatly decreased. (See e.g. T. 329-332).

  During direct testimony, Dr. Kirby also refuted the defendant's experts' opinions based on their reports. For example, Dr. Kirby disagreed with Dr. Sanchez's conclusion that the pathology was not consistent with mycobacterial infection. (T. 332-334). Dr. Sanchez opined in his report, and later testified at trial, that the descriptions of the pathology findings, which include foreign body, giant cells, fibrosis and chronic inflammation, are not features of mycobacterium. Dr. Kirby specifically disagreed with this conclusion noting that in his experience, the "foreign body giant cells are found almost always with these types of infections." (T. 334:15-20). Dr. Kirby further opined that a granuloma-type response would be primary evidence of a mycobacterial infection and the more advanced polymorphonuclear leukocytes would not have to be present for a mycobacterium fortuitum infection to exist. (T. 333).

  Finally, the plaintiffs presented Dr. Huitt, Director of the Adult Infectious Disease Care Unit at the National Jewish Medical and Research Center, board-certified in internal medicine and infectious disease. (T. 368). The facility in which she practices is a national and international referral center for the treatment of mycobacterial infections, along with several other disease processes. Her particular specialty is in mycobacteria and infectious diseases, the area in which she practices and teaches, and the center sees roughly between five hundred and a thousand patients per year with mycobacterial infections. Ninety-seven percent of the patients she personally sees clinically have mycobacterial infections. (T. 369). Dr. Rausch contacted the National Jewish Medical and Research Center on its consult line initially, and Dr. Huitt advised Dr. Rausch on the course of treatment for Mrs. Hayes. (T. 371).

  Dr. Huitt testified that Mrs. Hayes's medical history is "extremely characteristic" of mycobacterial infection. (T. 372). For example, the characteristic time course for the pain and redness to develop into a sore and then break open is a few weeks to a few months. That is precisely the course described by Mrs. Hayes. (T. 372). Dr. Huitt further testified that a variety of commonly used antibiotics essentially put the bacteria to sleep, euphemistically speaking. (T. 374-375). Steroid injections can cause two polar reactions: either the infection will quiet down and the pain will subside for a time or the infection will flare up and the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.