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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Then I discovered Marchioni’s other lawsuit. Earlier this year, she filed a discrimination complaint in federal court against the City of Chicago’s board of education and the principal of her elementary school. Marchioni alleges that the principal made aggressive sexual advances on her, then suspended her as retribution when she filed a complaint with the Equal Employment Opportunity Commission. As in her case against Keyes, she also alleges battery and intentional infliction of emotional distress.

The school board has countered that the principal suspended Marchioni after ordering an investigation into “numerous complaints of verbal threats and abuse by [Marchioni] towards her students”—an allegation that Marchioni calls outrageous. The case has yet to be resolved. But as I pored over the file, I began to wonder if Marchioni was someone who always turned to the courts to remedy life’s wrongs.

“It’s amazing, isn’t it? That I get to meet two of these guys,” Marchioni said when I asked about her second lawsuit. “It’s the left jab and the right hook. But I can’t just walk away Too many people have.”

Just as Marchioni’s rough edges were showing, though, so was Keyes’s fabled arrogance. Despite his complaints about the litigiousness of patients, he had filed his share of lawsuits, too. Most appeared to be small claims actions against patients who skipped out on their bills. But he also sued his moving company in 1989, his life insurance company in 1995, and his home insurance company in 2001.

In our conversations he made it clear he believed Marchioni wasn’t the only person who had it in for him. “Let me ask you a question. Anybody who you’ve talked to face, where was the big problem?” he asked, referring to his former patients who had filed suit. I thought of Rose, whose right eye is noticeably bigger than her left. I thought of Diaz’s scarred and misshapen chest.

“Anyone who sues you, they throw the book at you. They call it battery you name it. They say everything they possibly can to show you in a bad light,” he said. “Why do you have to write a story about just me when there’s so much out there? Why don’t you take a few other plastic surgeons in town and look at their lawsuit histories? To single me out because of this woman, to let her manipulate the media, is not fair.”

But who was manipulating whom? Hadn’t he used the media to capitalize on Linda Tripp? “There are volumes to be written about that situation,” he said, adding that should this article turn out to his liking, he might consider telling all about Tripp. “Someday, maybe, I’ll give some consideration to giving you a very interesting story” he said, “because I was privy to of stuff.”

ALTHOUGH MARCHIONI filed her suit in September 2001, she didn’t retain a lawyer until early 2002. “I’d thought I’d find someone who was going to be as outraged as I was. They were going to get on their white charger and take this out of my hands,” she says. A Los Angeles attorney named Pete Lesser took the case for four months. They parted ways after what Lesser told the court was a “breakdown in communication.” She next teamed up with Laura Kail, a San Diego trial lawyer with nearly 20 years’ experience, and it was Kail who helped her make the most chilling allegation against Keyes.

“The simplest explanation for the assertion of facts made against the defendant, could be explained by the use of sadism in the practice of medicine,” read a declaration, filed with the court, by a Michigan forensic psychologist named Dr. Richard D. Walter. He had come to this opinion after reviewing declarations filed by several other Keyes patients. He had never met Keyes. But he asserted that Keyes showed signs of a”deviancy called ‘picquerism.’ … In practice, the ‘picquer’ derives pleasure from cutting and penetration of body with foreign objects.”

Kevin Hillyer, Keyes’s lawyer in the Marchioni case, called Walter’s allegation ridiculous and said he was confident that no judge would allow it to be used at trial. “Surgeons operate on people,” he says. “If you’re a surgeon and you enjoy your job, does that make you a sadist?” If anyone was deriving pleasure from the surgery and its aftermath, he suggests, it was Marchioni herself.

Keyes and his attorney were particularly incensed by Marchioni’s Web site, which lists the case numbers of all the suits that have been brought against him. They had asked Marchioni to take it down. She refused. Bill Moore, the site’s administrator, says that later he received an anonymous phone call. “It was a man,” Moore recalls. “He said, ‘We just suggest you remove the site.’ He said it was a defamation of character. I said, ‘Funny I thought it was a declaration of character.’ That didn’t seem to go over too well.”Two weeks later, Moore says, a hacker shut down his server twice, deleting Marchioni’s Web site and about 240 others and knocking out a backup server.

The case was getting murkier. What was becoming clear, though, was this: The courthouse is a lousy place to seek the truth. Just because a malpractice plaintiff loses a case doesn’t mean she got the medical treatment she deserved. Just because there are complications in the operating room doesn’t mean the doctor is to blame. Both Keyes and Marchioni spoke in absolutes. To her, Keyes was a doctor gone bad. To him, Marchioni was a vindictive liar. What was most vexing was that it seemed next to impossible for a patient to determine which doctors to avoid. And vice versa.

Marchioni thought the best way to find a reputable doctor was to call the Medical Board of California. She was mistaken. According to a government investigation completed last year in Sacramento, even as complaints from patients to the board increased, enforcement activity declined. Too many cases were closed without investigation, and there was no mechanism to ensure that the board’s records of doctor misconduct were kept current. In fact, the inquiry found, the medical board was misleading the public.

“The Board keeps entirely secret from the public information about potentially dangerous doctors in the Board’s possession,” reads a fact sheet on a bill designed to address some of the problems. Also kept secret: “… information about physicians who have repeatedly paid significant sums in medical malpractice settlements. Notably, every other stakeholder—hospitals, medical groups, and medical malpractice insurers—not only are able to obtain this information, they insist upon it as a pre-requisite of doing business with a doctor. Only the patient—the only stakeholder who could die—is kept entirely in the dark.”

Legislation that took effect this past January promises improvements, including disclosure of doctors who have paid three, four, or more medical malpractice settlements over $30,000. But as the new law seeks to close loopholes, it opens new ones. For example, the actual amounts of medical malpractice settlements are not disclosed—each is simply listed as having been above average, average, or below average. The board’s database does not include settlements that were reached before this year.

Given that, Marchioni says the best advice she has for someone considering plastic surgery is: “Go to the courthouse and check the records.”

But doctors, too, are at risk. “People sit in our chairs, we don’t know who they are,” Keyes says at one point. “We try to evaluate their mental stability and all types of things surrounding their rationale for coming to see us. But one of the hardest things to analyze is sociopathy. You can miss a sociopath. “He pauses, letting his words sink in. “I’m not making any implications about anybody. I’m just giving you a broad, general discussion of what we go through. But sociopaths are very clever. They may purposely try to fool you in order to get what they want.”

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