Posted on Jun 04, 2006
Wrong medical photos jolt trial of malpractice case
Estates resident Marlaina Leigh Kim, who died of cancer in 2004 at age 35, was the first witness in her own case, testifying on videotape from her deathbed
By Aisling Swift
Saturday, June 3, 2006
A wrongful-death medical malpractice case nearly ended in a mistrial Friday after the defendant pointed out that three photos that attorneys and experts had relied on were of someone's knee, not a Golden Gate Estates woman's uterus.
The revelation by Dr. Wendy Humphrey, a Naples obstetrician/gynecologist, came after she'd testified nearly five hours as an adverse witness for Miami attorney Jeremy Alters, who represents the estate of Marlaina Leigh Kim.
Kim, who died of a rare form of uterine cancer June 12, 2004, at age 35, was the first witness in her own trial, testifying from her deathbed on videotape Thursday about how she used pads, tampons and Depends for two years for heavy bleeding, which ended only after a February 2002 hysterectomy.
Alters contends that if the hysterectomy had been performed months earlier, it would have prevented the cancer from spreading and saved Kim's life.
Instead, Kim, a retired F-16 Air Force mechanic, underwent a second dilatation and curettage, a D&C, in January 2002, only after she'd rushed to Humphrey's office, bleeding heavily with a golf ball-size mass hanging out of her uterus.
Humphrey, who treated Kim from December 1999 to April 2002, had given the sheet of four photos to Alters after he requested color hysteroscopy photos showing Kim's uterus during the first D&C on March 21, 2000.
Alters wanted the photos to question Humphrey about a yellow hue she'd referred to in her notes as fatty tissue, which would be abnormal. Since Thursday, Alters had asked several times why she hadn't provided the fatty tissue to a pathologist and why she'd left it in the uterus if she'd felt a possible small mass. The uterus photo was a murky dark red, while what appeared to be a yellow hue was shown in the other, clearer photos.
After Humphrey pointed out the photos were not Kim's, the six jurors and two alternates were led out and attorneys spent 20 minutes arguing about the photos and whether they should seek a mistrial.
"This is the first that we are hearing ... that all of these don't belong to Marlaina Kim," Kimberly Boldt, who is assisting Alters, argued to visiting Circuit Judge Dwight Geiger in Collier County Circuit Court. "To say they are, in fact, some other part of someone else's body is horrible."
Alters and Boldt contended defense attorneys and Humphrey withheld that information, arguing no one ever mentioned only one photo was Kim's during repeated discussions about the photos.
"Photos" were discussed and mentioned in letters, Alters and Boldt argued, but no one corrected them. Alters accused Ralph Marchbank, a Sarasota attorney who represents Humphrey and her practice, Southwest Women's Group, of knowing all along, pointing out Marchbank told jurors during his opening statement Thursday that he would focus on one photo.
"That is appalling to me," Alters said, adding that he wanted to question the defense expert about what he knew. "We want to show that we've been duped."
But Marchbank argued he hadn't known and his experts would support that. The only reason he'd mentioned one photo, he said, was that his expert advised him only one photo helped him reach a conclusion. Marchbank admitted it was "embarrassing."
"I was laboring under the mistaken belief that all four represented Marlaina Kim's procedure," Marchbank said. "I did not know. Maybe I should have known. Maybe it was an assumption."
Bruce Stanley of Fort Myers, who represents Naples Medical Center, where Humphrey worked until February 2001, maintained he hadn't known.
Alters then questioned Humphrey, asking why she hadn't mentioned it during her deposition. "You never asked me the question or I would have answered it for you," she testified as Kim's mother, Brenda Bryan, and Kim's husband and father of their two children, Chang Soo Kim, listened in astonishment.
Alters asked why she wrote "pics" in her notes, when there was only one. "It's an abbreviation," Humphrey said. "It's not meant to be plural."
Humphrey appeared on the verge of tears Thursday as Alters hammered away at her, questioning her treatment. On Friday, she was more composed, methodically detailing what she'd done and how she'd relied on pathology test results that showed only benign growths, until one suggested a precancerous mass that concerned her.
Citing attorney-client confidentiality, Marchbank prevented Alters from questioning Humphrey about what she'd told him about the photos. Alters even pointed out they'd all discussed "photos" during mediation, just before Naples Community Hospital and DSI Laboratories settled this year (claims against a local pathology group were dismissed).
The attorneys requested a mistrial, all claiming their side would be harmed if they proceeded. Alters argued that defense attorneys would attack his expert's credibility, but defense attorneys agreed not to bring up the photos because they'd all relied on them. In the end, Geiger denied the defense request for a mistrial and wouldn't withhold a mistrial ruling for Alters and Boldt, who opted to proceed.
Jurors, who'd seen Alters' astonishment over Humphrey's revelation, returned. To remedy the damage in jurors' eyes, Alters elicited testimony to show neither Humphrey nor her nurse removed the three unrelated photos from the page. Jurors also heard Humphrey testify that she used "pics" as an abbreviation for one photo and that she'd discussed that photo with Kim.
During cross-examination, Marchbank focused on discounting Alters' contention that Kim had 18 visits and phoned 11 times. He showed Humphrey or a nurse made the majority of calls and that Kim skipped an appointment for a Depo-Provera shot, which was prescribed to control the heavy bleeding. Humphrey testified she believed Kim's bleeding was caused by the birth control pill, but also could be a side effect of Depo-Provera. She testified the missed shot caused bleeding to return.
Marchbank also had Humphrey outline all the tests and procedures she performed on Kim, procedures Humphrey testified were a "more aggressive" approach than gynecologists normally would take because she wanted to rule out cancer. Humphrey has said she tailored her treatment to Kim's history of benign polyps.
Humphrey, who also will testify as a defense witness, will be under cross-examination Monday.