One physician's malpractice battle: Dr. Diakos on trial

The Illinois ob-gyn says the whole courtroom experience has prompted her to take even more detailed accounts of patient exams and surgeries.

By Tanya Albert amednews correspondent — Posted March 22, 2004

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Not more than 10 feet away from the defense table where obstetrician-gynecologist Rose Diakos, MD, sits, a potential juror clad in red jogging pants walks by, steps up into the jury box and sits facing her.

A tall, thin man in khakis and a plaid button-down shirt follows, a serious look on his face. Next, a smiling woman in her mid-20s strides by in high heels. Another eight potential jurors, a cross-section of people from Chicago and its Cook County suburbs, fill the box. Two dozen more potential jurors line the three rows of plain wood benches along the back of the room, many look bored.

Dr. Diakos, though, watches them with interest.

She knows 12 citizens will decide whether she is guilty of the malpractice she's stood accused of for nearly four years. A former patient who became pregnant after a tubal ligation has claimed Dr. Diakos was negligent.

It's 1:30 p.m. on a Thursday in courtroom 2006 in Chicago's Richard J. Daley Center. It's a drab room with a wall of 1970s-style wood paneling behind the judge's bench, three beige walls with no more than a clock and the words "In God We Trust" gracing them. The carpet is gray.

"Is there anything to prevent you from awarding damages for pain and suffering if the plaintiffs prove their case?" Cook County Circuit Judge Thomas Chiola asks potential jurors. "If the plaintiffs don't prove their case, would it be difficult to not send them home with any money?"

The plaintiff and defense attorneys follow up with their questions.

"Do you know anyone who has had a sterilization procedure?"

"Over the years in working with doctors, is there anything that gives you a negative attitude toward them," one lawyer asks a nurse.

"Have any of you already made up your mind about the case based on what the judge has told you about it?"

One woman says she thinks the doctor must have done something wrong if the woman got pregnant. She's excused.

Another woman's cousin recently gave up obstetrics because he couldn't afford the insurance. She doesn't think she could be impartial. She's sent home, too.

But at 3:40 p.m., 12 jurors -- six men and six women -- are selected. Among them are a nurse, a bank teller and a retired police officer. Some have children. Some do not. And one man's wife was born after her mother had a tubal ligation.

They'll begin hearing testimony at 9 a.m. Friday.

"My concern when the final jury was selected was not that they wouldn't be fair," Dr. Diakos said. "My concern was that people wouldn't understand the subtleties of the case."

8:45 a.m. Friday: Opening statements

Dr. Diakos and her attorney, Norman J. Barry, wait at the defense table. Former patient Earlene Morris and her husband, Dannie, are seated at the plaintiff's table about an arms-length away. Before opening statements, the judge excuses a juror who realizes that Dr. Diakos' expert witness has been her gynecologist for 25 years. The remaining 11 jurors -- a bit more dressed up today -- shuffle in at 9:20 a.m.

The judge tells them they must decide what evidence is proved and which witnesses are credible. "Use your common sense," Chiola says before opening statements begin.

The Morrises' attorney, William Coughlin, is first.

After two healthy children, a miscarriage and an ectopic pregnancy, the couple decided not to have any more children, Coughlin explains.

In September 1997, Dr. Diakos suggested tubal ligation. A resident performed the procedure, with Dr. Diakos watching and instructing.

"In late May, early June 1998, Mrs. Morris' pants are getting tight. She feels sick. She takes a home pregnancy test," Coughlin tells the jury. "It's positive. She's upset."

The plaintiffs' attorney says their expert will acknowledge there is a failure rate for tubal ligations but he will say that in this case surgical mistakes caused the sterilization to fail. Coughlin tells jurors that an expert will testify that given how quickly Morris became pregnant, there wouldn't have been enough time for the tube to regrow if the ligation had been done correctly.

Ten minutes have passed and Barry now approaches the jurors.

The physician's attorney tells the jury the evidence will show the standard of care was met. Dr. Diakos and the resident saw that the tube had blanched, a sign that the blood supply was successfully cut off. They even checked it a second time before ending the procedure. Dr. Diakos' expert will testify that the fallopian tube recanalized.

"Mrs. Morris is one of the small number of patients where the sterilization failed because the body is a remarkable vessel that has the ability to heal itself," Barry tells the jury.

At 9:50 a.m., the plaintiffs call their first witness: Dr. Diakos. The petite physician steps onto the witness stand. She testifies that she doesn't remember the initial visit with Morris, nor does she recall the exact procedure. Relying on her exam notes and postoperative report, she says she knows the procedure was done correctly.

Jurors listen closely, some leaning forward to get a better look as Dr. Diakos pulls out her surgical tools to demonstrate the process.

At 11:15 a.m. -- nearly 90 minutes after taking the witness stand -- Dr. Diakos steps down. The Morrises each take the stand, spending about 30 minutes explaining they are seeking money because a procedure they chose to have went wrong. Given Earlene's pregnancy complications in the past and the fact they had two healthy children, the Morrises each tell the jury that they made a conscious decision not to have any more children.

They love the daughter who resulted from the unexpected pregnancy and are happy to have her. But they want to be financially compensated for the failed sterilization and the physical hardship of the pregnancy and delivery that resulted, the Morrises testify.

"This pregnancy and delivery was a lot different [than the first two]," Dannie Morris tells the jury. "She was constantly complaining about pain. Not just labor pain. She was always hurting."

The jury breaks for lunch. When they return, they'll hear from the first expert witness.

The verdict will come down to which side's expert they believe.

1:05 p.m.: The plaintiff's expert

William Matviuw, MD, opens and steps through the wooden gate separating the spectator portion of the courtroom from the judge, the jury and the plaintiff and defense tables.

The plaintiff's expert tells the jury he was board certified in obstetrics-gynecology in 1972 and now practices in suburban Chicago. He's reviewed several documents considered key to the case: Dr. Diakos' postoperative report, a report from a physician who performed a second sterilization after Morris gave birth and a pathology report done after the second sterilization.

"Have you formed an opinion?" the Morrises' attorney asks.

"The procedure was inappropriately performed and did not meet the standard of care," Dr. Matviuw answers.

He cites three reasons for that opinion. First, Morris conceived so quickly after the surgery was performed. He believes that a year would be the absolute minimum for recanalization.

Second, based on the report done after the second sterilization, the ring wasn't around the fallopian tube. And third, the pathology report had no notation about scar tissue.

"It suggests that it was not applied properly and it failed to create sterilization," said Dr. Matviuw, adding that just because the tissue changed colors doesn't mean enough of the tube had been cut off.

Most of the jurors are listening closely. Several take notes.

At 1:30 p.m., cross-examination begins and Dr. Diakos' attorney wants to know what studies back up Dr. Matviuw's opinion that it's impossible for a tube to recanalize in less than a year.

"Do you have a study with you today?" Barry asks.

"No," Dr. Matviuw answers.

Barry now moves on to the pathologist's report completed after the second sterilization. It concluded that the ring was applied to the right section of the tube and that the tube recanalized.

"I accept [the pathologist's] report, I don't accept her conclusion," Dr. Matviuw said.

Barry asks Dr. Matviuw if he's been hired as a plaintiff's witness 23 times in the past 15 years and asks if he has testified in 18 different states.

"It could be," Dr. Matviuw answers.

"When's the last time you performed a tubal ligation?" Barry asks.

"8 a.m. today," Dr. Matviuw says.

Barry is surprised, and presses Dr. Matviuw, who then admits there was at least a decade between that morning's tubal ligation and his previous one.

Several jurors' heads pop up.

At 2:15 p.m., the plaintiffs rest their case.

Court is set to resume at 9 a.m. Monday with testimony from Dr. Diakos' expert witness.

8:55 a.m. Monday: The defense

The courtroom is quiet. The heat kicks on, and a soft whooshing sound echoes through the courtroom. Dr. Diakos' attorney sets up an easel. Shortly after 9 a.m., the judge announces a juror is sick, but the trial will continue.

Dr. Diakos' fate now rests with 10 jurors -- six men, four women

It's 9:15 a.m., Melvyn A. Bayly Jr., MD, a board-certified ob-gyn at Chicago's Northwestern Memorial Hospital, takes the stand as Dr. Diakos' expert witness. He tells the jury he's performed at least 100 tubal ligations in his career and that over the past five years, he's performed two or three per year. He testifies that he has reviewed 40 to 50 malpractice cases since 1978, 40% for plaintiffs and 60% for defendants.

He's scrutinized the same records as Dr. Matviuw. But his opinion differs.

"The standard of care was met in this case," Dr. Bayly tells the jury. "The tube was adequately visualized and the ring was put on in the correct way."

He acknowledges things can go wrong but he said that didn't happen in this case. The pathology report shows the band was applied to the correct portion of the tube, based on where the ring was found, he says.

"You believe the tube recanalized?" Barry asks.

"I do," Dr. Bayly responds.

"Would you expect scar tissue or to see the tube be connected by a small opening?" Barry asks, following up on the other expert's testimony. "Not necessarily," Dr. Bayly answers.

Cross-examination begins at 9:55 a.m. and Morris' attorney asks Dr. Bayly a series of questions.

"Do you admit it will fail if the ring is improperly placed?" "Do you admit that blanching doesn't mean the ring was properly placed?" "Do you admit it is more likely to be improperly placed by residents?"

Dr. Bayly answers yes to each.

"Could recanalization occur in six months?"

"It happens," Dr. Bayly states.

After two hours on the stand, Dr. Bayly steps down and the defense rests.

The Morrises' attorney gets the first chance to make a closing argument. He raises doubts: They don't know how many times the resident had done the procedure. The operative report doesn't give specific sizes and measurements.

He tells the jury that the case is not about how often Dr. Matviuw performs the procedure or how often he has testified for plaintiffs, but about his knowledge in the field. And, he says, it is hard for plaintiffs to find physicians to testify for them.

"You don't just get pregnant within six months if it is done right," the Morrises' attorney reiterates.

Then he tells the jury what his clients are seeking: $3,916 for missed work; $12,944 for medical expenses and $140,000 for pain and suffering.

It's 12:10 p.m. and time for the defense to make its closing argument. Barry tells jurors the reports document that Dr. Diakos did the procedure correctly. He says they will have to decide which of the witnesses was more credible. He reminds them of Dr. Matviuw's statement that he performed a tubal ligation that morning.

Barry noted the physician took a woman into surgery just so he could tell a jury he'd done the procedure recently. "What about his patient?"

The Morrises' attorney gives a second closing argument at 12:45 p.m. And 15 minutes later, the judge gives the jury their final instructions.

Dr. Diakos is nervous.

"When I saw the amount they were asking for and that they were asking for about $156,000, I thought the jurors would know I have insurance and decide to give them money," she said.

1:55 p.m.: The verdict

It's been less than an hour since the judge handed the case to the jury. Dr. Diakos' phone rings as she returns the surgical instruments used in court to the hospital.

"I thought, 'How could this be good for me?' " she said.

Back in courtroom 2006, the judge doesn't wait for Dr. Diakos to return. The jurors walk in, take their seats and the foreman reads the verdict: Not guilty. (See correction.)

Dr. Diakos comes through the door several minutes later. Barry gives her a thumbs up.

"The verdict clearly tells me that people were listening and that they understood the evidence," Dr. Diakos said. "I give them credit for that."

When the jurors went to the jury room, eight believed Dr. Diakos was not negligent; one believed she was and one wasn't sure.

Once the jurors started going over the evidence, though, it didn't take long for those two to agree there was no negligence.

"There was no evidence, we felt, to show, in fact, that she was negligent," the jury's foreman, a banker, said after the trial was over.

Several jurors said they were sympathetic to the Morrises and several questioned why they decided to keep the child (something the judge decided shouldn't be explained to the jury), but they said they knew that they had to base their decision on the facts.

"We were trying to focus on the evidence and not focus on the 'why' question," said juror Cheryl Hill-Morgan, a nurse.

Several jurors said it did come down to one expert witness being more credible in their minds. The jury's foreman said he didn't find Dr. Matviuw credible. "He hurt them more than he helped them."

Jurors said Dr. Matviuw wasn't willing to concede other possibilities for a bad outcome, while Dr. Bayly was. And they said the evidence seemed to support everything was done according to the standard of care.

Dr. Matviuw also came across more as an expert than a practitioner, jurors said. The fact that he testified that he hadn't done a tubal ligation in years and then did one that morning did not sit well with them.

"Why would he do something like that on the day he testified?" juror Robert Issel said. "It just didn't seem right."

The aftermath

Despite the "win," Dr. Diakos said she didn't feel like celebrating. "I'm glad it's over," she said a few days after the trial. "But this was not a cost-free case for us."

The insurance company had to pay to defend the suit and Dr. Diakos lost about a week's worth of office time, using vacation days for the deposition and trial.

She said the experience -- to a degree -- also changed the way she approaches her day. Because Dr. Diakos learned just how valuable her notes were in defending herself, she finds that she takes even more detailed accounts of patient exams and surgeries. If she is sued again, she'll be even better armed.

"I write pages and pages of what I instruct my patients. Before this experience, I wouldn't write one-quarter of what I write now. I strongly believe my documentation saved me."

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