Face-off: The Confounding Case of Marchioni v. Keyes

One woman sued Keyes alleging that a piece of a surgical instrument was left lodged in her face. Another woman sued alleging that an eye-lift performed by Keyes left her unable to shut her eyes.
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Dennis Sievert (Keyes plaintiff no. 5) met Keyes after he fell off a 40-foot ladder, crushing his jaw. After Sievert’s most serious injury—a partially severed artery in his neck—was repaired, he complained repeatedly to Keyes about discomfort in his leg. Keyes downplayed his symptoms, saying it was natural to be sore after a fall, according to Sievert. Keyes never ordered an X ray. Finally, after three weeks of excruciating pain, Sievert’s wife, Lydia, insisted they find an orthopedist.

“Sure as shit, the leg is broken,” says Sievert, a general contractor in Chicago. When he went back to Keyes for a follow-up on his jaw, he says, the doctor noticed his new cast. “He says, ‘What happened?’ I said, ‘Well, it was broken.’ He goes, ‘No.’ I still remember how cocky he was. I mean, he just gave you that impression of ‘I’m the best there is.’ He wanted you to know that he was different than everybody else.”

Lydia Sievert says when Marchioni and her husband get on the phone, it’s as if they are speaking a language that only Keyes’s patients can understand. “We ought to have, like, a club—a little reunion at the Hilton or something,” she adds, only half joking.

These former plaintiffs, however riveting their stories, are easy to malign. They are self-interested. They have an ax to grind. They have no surgical training. Legally speaking, they are probably irrelevant because most judges would exclude their testimony as prejudicial. By banding together, some argue, they diminish their credibility. “There’s a lot of creative lawsuiting going on right now in terms of patients seeking out other patients and trying to bring together a posse, if you will, that is then in a lynching mode,” says Dr. James H. Wells, president of the American Society of Plastic Surgeons.

Keyes goes even further, claiming that the reason his accusers so often seem to corroborate one another is that, at Marchioni’s urging, they tailored their stories for maximum impact. “She went to everyone who ever sued me, and she colluded with some people,” he says. ‘There was collusion: ‘Let’s make these declarations fit so we can really achieve what we want to achieve.'” Marchioni and her fellow plaintiffs deny this.

There are also those who are willing to speak on Keyes’s behalf. “His reputation is excellent,” says Wells, a Long Beach surgeon who vouches for Keyes’s credentials while noting that he’s never seen him work.

Dr. Richard Ellenbogen, a plastic surgeon whose office is four floors below Keyes’s, says, “He’s a super surgeon and a super nice guy.” Ellenbogen has consulted on patients with Keyes, though he, too, has never observed him during surgery. “There are some bad dudes in town—real hacks. But he isn’t one of them,” says Ellenbogen, who sends students in his advanced aesthetic surgery seminar to watch Keyes work. “On a one to ten scale, with me being a ten and all the other plastic surgeons being below that—I’m just kidding, of course—he’s close to a ten.”

Dr. Richard Sperling, who supervised Keyes in the late 1970s when he was a plastic surgery resident at University of Illinois Chicago Medical Center, calls Keyes “a very capable guy”

Several other doctors and nurses who have worked closely with Keyes and were asked to comment on his strengths and weaknesses either didn’t return phone calls or let their assistants answer for them. Apparently they didn’t want to get involved. “Sorry” said one nurse, having checked with her boss. “He won’t talk to you about him.”

“A lot of times doctors don’t want to testify'” says David Olan, a Los Angeles attorney That only makes malpractice cases more difficult to win. In 1998, Olan sued Ellenbogen and Keyes on behalf of a family whose daughter had died on the operating table while getting a nose job (the case against Keyes was quickly dismissed; Ellenbogen settled). “But 80 percent of cases have a defense verdict at trial, in part because you not only have to show negligence, you must prove that a doctor breached the standard of care in the community—a much more subjective thing,” he says. These days, Olan rarely represents malpractice plaintiffs. Like Feldman, he says that California’s cap on pain-and-suffering awards makes these cases, which can take years, a costly gamble.

Of the patients who sued Keyes over the years, several had difficulty finding doctors who would testify against him. Taft Gradman (Keyes plaintiff no. 6), a 24-year-old Chicago woman, was five feet four, weighed 69 pounds, and was in the hospital being treated for anorexia when Keyes performed a breast reduction on her, court records show. Her family pursued the lawsuit even after their daughter died in a car accident in 1988, determined to show that Keyes should not have operated. But they couldn’t find a doctor who would say that on the stand.

“You don’t take an anorexic and start doing breast reduction surgery I mean, are you nuts? But that’s not good enough” to prove malpractice, says John Lally the Gradmans’ attorney In the absence of expert testimony, Lally recalls, the judge ruled from the bench, siding with Keyes “because we didn’t have any expert to say he shouldn’t have performed the surgery”

Andrea Rose (Keyes plaintiff no. 11) faced a similar hurdle. She filed suit in 1987, alleging that an eye-lift performed by Keyes left her unable to close her eyes. Another doctor partially repaired the lids, but she still sleeps with an eyeshade and has problems keeping her eyes lubricated. “They tear. They’re sensitive to light. They still won’t close all the way” says Rose, who currently runs her own beauty products company. Her suit went nowhere. “My lawyer could not get a reputable doctor to stand up in court and say, ‘It was definitely a botched job. The guy took too much out,'” she says. Every doctor she approached agreed she’d had a “bad result,” she recalls. But none would go so far as to say Keyes had committed malpractice. Her lawyer told her to drop the case. “He said, ‘I can’t take this to trial because we won’t win.'”

Several former patients of Keyes found that even the doctors who had repaired their alleged injuries were unwilling to testify. The Sieverts claim that Keyes’s attempt to reconstruct Dennis’s shattered mandible was a failure that left him unable to chew solid food. After he found a new doctor and underwent extensive reconstructive surgery, he sued Keyes, the ladder company, and others.

Both Sievert and his wife recall that just after the reconstructive surgery his new doctor—a woman to whom he says he owes his life—wrapped his head tightly and gave careful instructions to the nursing staff: Leave the bandages in place for 24 hours.

“She told everybody there, ‘Nobody takes this bandage off but myself.’ Well, the day after the surgery; who comes walking into my room at 6 a.m.? Dr. Keyes,” says Sievert. “He took the bandage off to see what she did, then tried to wrap it back up like nobody had done anything to it. When she came in around 9 a.m., she knew. She was mad.” (Keyes denies Sievert’s story).

Nevertheless, the new doctor told the Sieverts she wouldn’t testify. Eventually, they dropped Keyes from the suit in order to speed up the settlement.

Only one doctor has spoken openly about her reservations concerning Keyes. Dr. Dawna Gutzmann, an Illinois psychiatrist, was a resident at Chicago’s Ravenswood Hospital in the late 1980s and assisted Keyes during surgery between five and ten times, including the breast reduction Keyes performed on Diaz. While Gutzmann cautions that she is not a trained surgeon, she says what she observed of Keyes’s surgical style sticks in her mind more than 15 years later.

“Most surgeons that I’ve worked with, you feel like you’re in the presence of a true artist who treats his material as though it were sacred—like a sculptor approaches a piece of marble: lovingly as flit were fragile,” Gutzmann says. “You get the sense they have a reverence for the body, for the delicacy of the tissue. The surgeons that don’t have that attitude, it shows in the way they touch the person. Keyes is a charming person. And I think in some ways that charm probably invites confidence from his patients. But to me his confidence exceeded his actual ability. I’m not saying that he was performing malpractice. It was just how he handled the tissue. When I compare his technique to other surgeons I’ve worked with, he wasn’t in the top ten.”

We’re in the vanity business. We make people feel better about themselves,” says a plastic surgeon in the new television series Nip/Tuck. His partner corrects him: “What we do here is let people externalize the hate they feel about themselves.” A billboard advertising the show has gone up on Sunset Boulevard, not far from Keyes’s office. It shows a woman’s face wrapped in gauze, with fresh stitching visible around one eye. “Truth,” says the slogan, “is only skin deep.”

For Keyes, the truth of this case lies deeper. “I have empathy for any patient with any problem,” he says. “But the way things are said can make any situation sound terrible.” Take Andrea Rose, who can’t shut her eyes. Keyes says—and eye specialists confirm—this is not an uncommon result of eye-lift surgery “That can happen with any plastic surgeon,” he says. “It doesn’t mean the result of the surgery is 100 percent bad.”

What of someone like Elizabeth Madearis, who had a chin implant inserted and then removed? “You hear ‘A chin implant was taken out.’ People say ‘Oh, my goodness, that’s awful,'” says Keyes. “Well, that’s a five-minute operation, taking a chin implant out. You just go right through the same incision and pull it out. Do you think there’s anyone who does chin implants or breast implants or any of these procedures who doesn’t have to take them out from time to time? It’s the nature of the beast. And it’s not because anything wrong was done.”

“Remember this,” he says. “If I had lost those suits, you could give credibility to the people making these statements. But they didn’t prevail.”

Doctors who specialize in performing nonessential surgeries have to be persuasive, and Keyes is particularly so. “What you should do is schedule a consultation,” he told me when I first asked to meet with him to discuss the Marchioni suit. The best way to get to know him, he said, was to see through the eyes of a patient. “We’ll pretend you want to do something, and I’ll do it just like I do it,” he said. “I’m the perfect person to talk about what’s going on in health care today.”

While Keyes was coming on strong, Marchioni was behaving oddly. It was impossible to know whether this reflected her true personality or signaled that the stress of the case and the long odds she was facing were finally getting to her. Conversations with her began to feel more like a trip through the looking glass. She seemed increasingly paranoid. There was talk of Keyes having paid off plaintiffs’ lawyers—charges she had no evidence to support. Then Marchioni got a call from the Los Angeles County Coroner’s office about a death allegedly involving Keyes. She called me, certain that a new case had prompted the inquiry. When I called Lieutenant Erik Arbuthnot, a supervising coroner investigator, he confirmed he had opened—and closed—an investigation.

“Kay Marchioni called the L.A. County Fire Department to find out how many ambulance responses there had been to [Keyes’s office] address,” Arbuthnot said. “They asked why She said this doctor was doing things that he shouldn’t be doing.” Then Marchioni mentioned the woman who had died during a nose job. In fact, though Keyes had been named as a co-defendant in that case, he was not involved in the surgery (the suit against him was dismissed). But the fire department official she’d reached didn’t know that. “They immediately put her on hold and called Sheriff’s Homicide,” Arbuthnot said. “Since it was involving a death in L.A. Country, they called me.” He looked into the case and found the coroner had already evaluated it. He closed the file.

Marchioni was hearing her own echo. It was as if she were running up a flight of stairs, hearing footsteps behind her. But even after I told her of Arbuthnot’s explanation, she seemed unconvinced that the footfalls were her own.

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