When thirty-six-year-old Megan Espinoza went in for breast augmentation surgery, could anyone have guessed that the loving mother of two young boys would never return home again? In the early afternoon of December 19, 2018, Megan Espinoza’s surgery began with plastic surgeon Dr. Carlos Chacon, at his private surgery center, Divino Plastic Surgery, in Bonita, California. It was supposed to be a routine surgery, but 85 minutes into the procedure, Megan Espinoza went into cardiac arrest, or as the defense maintains respiratory arrest, and by days end was transported to the hospital in critical condition. Never regaining consciousness, and left in a persistent vegetative state, six weeks later her family made the heartbreaking decision to let her pass, and she died on January 28, 2019. What exactly happened during that fateful surgery and the hours and days that followed?
That is a question which is currently being examined in a San Diego courtroom. Although Megan Espinoza’s family filed a wrongful death and malpractice action against Dr. Chacon, and his nurse, Heather Lang Vass, the San Diego District Attorney’s Office filed manslaughter charges against both on December 16, 2021. Then in a move which shocked many, on April 6, 2023, the charges for Dr. Chacon were elevated to second-degree murder, for which a conviction carries a sentence of 15-years-to-life. Dr. Chacon is now 48 years old. Nurse Vass pled guilty to involuntary manslaughter on May 16, 2023, and will be sentenced later.
On September 21, 2023, Dr. Chacon’s preliminary hearing began in the courtroom of San Diego Superior Court Judge Maryann D’Addezio. Representing Dr. Chacon was attorney Marc Carlos, a veteran of high-profile criminal trials. At his side were attorneys David Rosenberg and Chad Edwards, specialists in representation of health care professionals, as in addition to the criminal charges, Judge D’Addezio would determine if Dr. Chacon’s medical license would be suspended. The prosecution was led by Deputy District Attorneys Gina Darvis and Hector Jimenez.
Although a preliminary hearing is not a full trial, but merely meant to determine whether probable cause exists to order the accused to stand trial, the hearing took on trial like proportions, lasting two weeks. Were answers finally revealed as to what really happened on that terrible day?
Medical Expert, Surgeon John Shamoun, Takes the Witness Stand
The prosecution called their first witness: Dr. John Shamoun. A handsome plastic reconstructive surgeon from Newport Beach, he stated he holds six board certifications and has performed 15,000 – 20,000 surgical procedures. He was on the stand all day and at times clashed with attorney Rosenberg, raising his voice in anger and passionate contention, but never deviating from the belief Megan Espinoza need not have died.
Dr. Shamoun was retained by the California Medical Board to review the case, and stated he reviewed evidence including charts, reports, medical records, depositions, and video of the surgery itself.
Dr. Chacon used conscious sedation with a nurse
Before getting into the specifics of the surgery, Dr. Shamoun began his testimony by stating Dr. Chacon failed to achieve board certification as he failed the examination. He then went on to say Dr. Chacon admitted to no formal education in conscious sedation, which is a drug-induced depression of consciousness which allows patients to still respond to commands and to breathe on their own. Megan Espinoza’s surgery was under conscious sedation administered by nurse Vass.
The surgery was performed by placing the prosthesis underneath the pectoral muscle, and although the surgery has risks as the surgeon is working over the heart and lungs, Dr. Shamoun stated the surgery is commonplace. He also said it is usually done with an anesthesiologist. A certified registered nurse anesthetist (CRNA) can administer the anesthesia but under the supervision of an anesthesiologist.
Explaining further, Dr. Shamoun said the majority of surgeons use general anesthesia as it is safer, and the muscles do not move. He himself has performed more than 5,000 breast augmentations, but never under conscious sedation and never with a registered nurse. He believes in this case the nurse was used to save the expense of hiring an anesthesiologist.
Dr. Shamoun found eight extreme departures from the standard of care
Megan Espinoza had exertional asthma, but otherwise was in good health. She should have survived, said Dr. Shamoun definitively. In his review for the California Medical Board, he found eight extreme departures from the standard of care.
During the surgery, Espinoza’s oxygen levels dropped suddenly. When a pulse could not be detected, Dr. Chacon began CPR. Dr. Shamoun said irreversible damage is done after five minutes of oxygen loss. Intubation is the quickest way to get oxygen to the lungs, but neither Dr. Chacon nor nurse Vass intubated Espinoza, which could have saved her life. Dr. Chacon had not intubated since his residency and nurse Vass did not know how. Dr. Chacon’s inability to rescue in extremis was a substantial cause of death.
Dr. Shamoun said Dr. Chacon did not properly handle the life-threatening situation. Although he was right to perform CPR, once the vital signs were restored, there must be transfer to an urgent care center. You call 911. Dr. Chacon did not call 911 in a timely fashion. Although Espinoza was given nine doses of Narcan, she did not wake up. She needed to be in a hospital as you don’t know what was going on. “There’s no reason to wait,” said Dr. Shamoun emphatically.
Moving on, Dr. Shamoun said Dr. Chacon did not employ a competent registered nurse and the incompetence of nurse Vass was a substantial factor in Espinoza’s death. He stated a nurse is not licensed to inject narcotics in California, and Vass was not a certified registered nurse anesthetist (CRNA). Yet she administered Fentanyl, Demerol, and Ketamine.
Dr. Shamoun next said Dr. Chacon did not employ a competent surgical team and the incompetent surgical team was a substantial factor in Espinoza’s death. It was “essentially a circus when this occurred,” he stated animatedly. “I just don’t think they knew what was going on and they weren’t competent to take care of anything that was going on at that time.”
Dr. Shamoun came back to the delay in calling 911 stating Dr. Chacon failed to timely implement an emergency response. There was a three-hour delay in calling 911. “There’s no excuse for that!” he declared. Dr. Chacon called other doctors but gave them partial information.
When asked the cause of death, Dr. Shamoun said it was respiratory depression caused by oversedation and not oxygenating for over five minutes. “Should she have survived?” asked Attorney Darvis. “Yes,” responded Dr. Shamoun.
Prosecutor Darvis lists failures by Dr. Chacon which were dangerous to human life
Closing the direct examination, prosecutor Darvis listed the failures found by Dr. Shamoun. As Darvis addressed each point, she asked Dr. Shamoun: Is it dangerous to human life? Should Dr. Chacon know it is dangerous to human life? Does it show disregard to human life? To every question, Dr. Shamoun gave a resounding, “Yes.” The failures included:
- Failed to provide a competent anesthetic provider.
- Failed to provide a competent surgical team.
- Failed to prepare for emergencies during surgery.
- Failed to have ability to rescue.
- Failed to employ proper monitoring and observation of the patient.
- Failed to stay in the surgical room while the patient was in extremis.
- Failed to employ Advanced Cardiac Life Support procedures.
- Failed to call 911 in a timely manner.
And with this list ringing in everyone’s ears, it was now time for the defense to ask their questions.
Cross-Examination by Defense Attorney David Rosenberg
In a cross-examination which was at times combative, attorney David Rosenberg was prepared to go the distance having 22 pages of questions. In short order, he asked if conscious sedation was legal. Dr. Shamoun answered, “Yes.” When Rosenberg stated, “Conscious sedation is not beneath the standard of care?” Dr. Shamoun agreed it was not. Rosenberg then got Dr. Shamoun to acknowledge he himself has used a nurse for conscious sedation, although never for breast augmentation surgery.
Rosenberg next questioned the amount Dr. Shamoun received as an expert. Dr. Shamoun replied $600 – $800 an hour, but stated he was only paid $150 an hour by the California Medical Board to review the case. His work had been about 50 hours of review. He made sure to note he was not receiving any payment for his courtroom testimony.
Rosenberg then moved onto other reasons why Megan Espinoza could have experienced breathing problems. He stated she was taking the sleep sedative Lunesta and the antidepressant Lexapro which can interfere with breathing and can compound the effects of anesthesia. Dr. Shamoun agreed they could. Rosenberg asked if the nurse failed to obtain this information or failed to give this information to Dr. Chacon, if that would be below the standard of care. Dr. Shamoun answered, “Yes,” but then added the doctor was the one in charge and should know.
Rosenberg then addressed the consent documents Espinoza signed. A listed risk was death, another possible brain damage. Dr. Shamoun agreed, but stated this was “boiler plate” language. He then said, “This patient in my opinion had no idea how she was going to go to sleep.” Rosenberg countered she did know as nurse Vass told her she was going to administer the drugs.
Rosenberg moved on to Espinoza’s condition, discussing her being reactive, moving and groaning. At this point, Dr. Shamoun lost his patience, and practically shouted that when the paramedics picked her up, she had a Glasgow Coma Scale of 3, which is the lowest possible score. “Dead,” he declared. Not to be deterred, Attorney Rosenberg said at the hospital her eyes were reactive and she was moving and groaning. Dr. Shamoun said it could be seizure activity.
Rosenberg next centered on the time Dr. Shamoun said there was a hypoxic brain injury. At 1425 (2:25 p.m.) Espinoza had 100% oxygen levels, but at 1428 (2:28 p.m.), she had 40%. Rosenberg said they lost a pulse and Dr. Chacon gave 10 compressions and her blood pressure returned. “Would that indicate to you, no cardiac arrest?” Dr. Shamoun grew impatient stating if there is no pulse, there is no heartbeat, and that’s cardiac arrest. Again Dr. Shamoun said it takes five minutes to cause irreversible brain damage, to which Rosenberg countered the neurologists said there was no brain damage, and the autopsy report listed the cause of death as “Accidental.”
Rosenberg then showed the efforts Dr. Chacon made for Espinoza, including connecting an AED, giving her CPR, Norcan, Epinephrine, fluids, and using an Ambu bag. Would he have done these things if he had no concern for her life? Dr. Shamoun answered Dr, Chacon did some things appropriately but many things he did not and added Espinoza was subjected to an inordinate amount of risk.
Explaining further, Dr. Chacon stated nurse Vass said she deviated from the standing orders, giving Ketamine and Zofran. Neither were listed on Dr. Chacon’s drug schedule. Holding the drug chart Dr. Chacon used as a standing order for all patients, but which was devoid of specific orders for each patient, Dr. Shamoun exclaimed, “This chart is dangerous, very dangerous!” Rosenberg then asked, “If Vass never told Dr. Chacon she was given more medication, would that affect your opinion?” Dr. Shamoun said he would still say Dr. Chacon acted inappropriately.
Next Rosenberg moved to Espinoza’s cause of death. When Espinoza arrived at the hospital, she was reactive to stimuli and there was no determination of brain damage, said Rosenberg. He emphasized her date of death was January 28, 2019, six weeks after she left Dr. Chacon’s center and her death was from capping of the tracheal tube, even though she had vital signs. Dr. Shamoun would have not of it and said there was irreversible brain injury, and then nearly shouting exclaimed, “Vital signs have nothing to do with brain death!” She died from a hypoxic event during surgery and by not transferring her, insisted Dr. Shamoun. He then said he had evidence from the video taken during the surgery, and stated there was “multiple incompetence,” so much “I don’t even know where to start,” he concluded.
Rosenberg addressed the calling of 911, emphasizing anyone could have made that call. Dr. Shamoun disagreed, stating the doctor is the captain of the ship and has to make that call.
As the day was winding down, Rosenberg returned to the time “the event happened.” At 1425 (2:25 p.m.) Megan Espinoza had 100% oxygen levels, but by 1428 (2:28 p.m.) it was 40%. Brain injury occurs within 5-10 minutes and Espinoza went 15 minutes. “Even if the ambulance got there within two minutes, the injury already occurred?” questioned Rosenberg. Dr. Shamoun responded it is on-going and that’s why there’s a protocol, to get them to the hospital. Delaying three hours gave no opportunity to improve, for any recovery, he stated. She needed to be intubated.
Rosenberg moved again to the cause of death, focusing on Dr. Shamoun’s report, where he wrote it could have just been an adverse reaction, or Espinoza could have had a seizure or heart arrythmia from natural disease. Dr. Shamoun now testified the adverse reaction was a red herring, and the seizure and heart arrythmia were low possibilities. He finished by definitively stating it was a sustained prolonged hypoxic event from oversedation.
It was now near 4:30 in the afternoon and it was time for the court to conclude. The preliminary hearing would take a two-week break, and as Dr. Shamoun would be out of the country, he would testify virtually at a later date.
Dr. John Perri Told Megan Espinoza’s Family to Contact a Lawyer
Dr. John Perri is an osteopathic doctor specializing in critical care, pulmonary, and sleep medicine. He treated Megan Espinoza at Scripps Mercy Hospital while she was in intensive care. When he first saw her, she was critically ill, unresponsive, on a ventilator, had two lung injuries including a pneumothorax (collapsed lung), and had symptoms of anoxic brain injury. It was very confusing as to what had happened to her. But then he received the medical records from Divino, and he was horrified.
There were 15 minutes of oxygen saturation which were in the 40’s. She was bagged, but not intubated. What astounded him was that she was maintained in that position for approximately three hours. Dr. Perri said that if you have 5-10 minutes without oxygen, you will have damage. “I was just astounded, horrified. I had never seen anything like this. I couldn’t believe what I was reading.” Espinoza was a 3 on the Glasgow Coma Scale. “This is a picture of someone dying,” he stated.
On cross-examination, Marc Carlos questioned if he told the Espinoza family, “You should get a lawyer, because what he did was wrong.” Dr. Perri agreed he told the family they should get a lawyer, but he didn’t recall saying because what he did was wrong, although that is how he felt because it was so below the standard of care. When asked if he prayed with the family, he said he did not recall doing that.
Carlos went on to question whether it was a cardiac arrest or pulmonary depression. Dr. Perri believed it was a cardiac arrest.
Rosenberg rose to question and asked if Espinoza’s hypoxic injury could have started during the time her oxygen saturations fell to 48. Dr. Perri agreed it could. Rosenberg then asked whether Dr. Chacon took appropriate actions to try to rescue by doing CPR, using an Ambu bag, giving Narcan and Epinephrine. Again, Dr. Perri agreed. When asked if the nurse gave excessive medication and should have given that information to Dr. Chacon, Dr. Perri answered, “Yes.”
On redirect, Dr. Perri stated whether Espinoza had a cardiac arrest or respiratory depression, it would not have changed how he treated her. He said according to the American Heart Association Basic Life Support Guidelines, you call 911 before you resuscitate. Carlos countered it may take time to call as you do things to save the life and the anoxic injury could occur while doing life-saving measures.
Medical Assistant Describes What Happened During Espinoza’s Surgery
Carla Hernandez, a young woman with bright blue hair, took her place on the witness stand. She worked at Divino from June 2018 until August 2019. When asked if she ever thinks about Megan Espinoza’s surgery, she answered, “All the time.” “Does it upset you?” “Yes.”
On the day of Espinoza’s surgery, she worked as a scrub tech. She draped Espinoza and injected her with lidocaine. She had experience from a previous job and was trained by medical assistant Stephanie Cruz, but she held no licenses or certificates. She didn’t feel confident injecting patients but was told to do so. She was also instructed to suture.
During the surgery, music was playing very loud, and it was hard to hear. After the second implant was placed and Dr. Chacon was suturing, the monitor started beeping. She noticed Espinoza’s chest starting to turn a blue purplish color. Dr. Chacon gave the instruction to change the monitor and Stephanie brought in a new one. The prosecution displayed a photo of Dr. Chacon checking Espinoza’s pulse and placing an AED (Automated External Defibrillator) on her. Carla saw the AED said to give a shock and Dr. Chacon told everyone to stand back. Dr. Chacon then gave 10 chest compressions. The surgery was being recorded and Carla stopped the recording, but Dr. Chacon told her to turn it back on.
Dr. Chacon stepped outside the room two times leaving her, Stephanie, and Zenia in the room. He was gone 10-20 minutes. Carla asked nurse Vass if someone should call 911, but Vass said, “No, it’s doctor’s orders.”
After the second time Dr. Chacon left, Espinoza’s legs began to really shake, and they had to hold her down. She looked really pale and was cold to the touch. Her feet turned inwards and her body arched. Dr. Chacon came back in and loudly gave instructions for medications, which Stepanie administered. Hannah came in to say Espinoza’s husband called. Dr. Chacon said to tell him we’re still in surgery.
When asked why she thought 911 should be called, she said, “The patient was in distress. She was unconscious. It was the right thing to do.”
In August 2019, Carla left Divino. She was pregnant and asked for accommodation, but it wasn’t given. Carla testified she was basically fired, but a week later was asked by Dr. Chacon and Laura to write a resignation letter.
On cross-examination attorney Rosenberg showed Carla the letter she wrote on August 12, 2019. It said she was taking maternity leave and expected to return. Right then, Dr. Chacon pulled up another letter on his computer which was written after Carla had given birth and gave it to Carlos. The letter said she was not coming back, but that she was grateful to them for the work. Under questioning, she agreed the real reason she was not coming back was she was suffering from post-partum depression.
Although Carla testified a shock was given, Rosenberg stated the medical records listed no shock was given. Carla also never heard Dr. Chacon say, “Don’t call 911.”
When prosecutor Darvis asked, “Why didn’t you call 911?” Carla grew emotional and near tears said, “I wish I did.” In a small voice she added, “I was waiting for doctor’s orders.” Tears came to her eyes, and she reached for a kleenex.
Medical Examiner, Dr. Glenn Wagner, Offers Stunning Testimony
Dr. Glenn Wagner was the Chief Medical Examiner of San Diego in 2019 and supervised the autopsy done on Megan Espinoza on February 1, 2019, which included an examination of her brain with a neuropathologist. He testified Espinoza was healthy and normal, and when asked if she should have survived, answered, “Yes.”
Dr. Wagner stated the cause of death was ischemic encephalopathy. Explaining what that meant, he said it was a brain injury due to lack of oxygen. The manner of death was listed as “Accident.” The medical records from Divino were faxed to him, and it was his review of the notes which caused him to change the manner of death to “Homicide” because the manner of care showed gross negligence.
On cross-examination, attorney Rosenberg raised the fact he already had the records when he wrote “Accident.” Dr. Wagner responded he changed his opinion after talking with the district attorney and reviewing other information.
Rosenberg moved on, stating nurse Vass never told Dr. Chacon she exceeded the amount of dosing, and he was never told the true saturation levels. At 1425, Megan Espinoza had 100% oxygen saturation, but within 5 minutes, she dropped to 48%. Rosenberg asked if she suffered a hypoxic brain injury within that time. Dr. Wagner answered she would have a brain injury and went on to say with the respiration and oxygen saturation levels low, it made him think it was a drug overdose. On the Glasgow Coma Scale for brain injury, she was a 3 when the paramedics picked her up and she remained a 3 at both hospitals.
Rosenberg then asked questions regarding Espinoza’s state just three days prior to her death. She was responsive to light and painful stimuli and had not been on a ventilator for one month. Dr. Wagner agreed her vital signs were viable with life, but added she remained comatose.
Then came the kicker. Dr. Wagner said it was possible Espinoza could wake up, although she would not be the same. Her direct cause of death was the capping of the tracheal tube on January 28, 2019, at 2226 (10:26 p.m.).
Attorney Carlos then rose to confirm the major cause of the drop to the hypoxic state was the overdose by nurse Vass. On redirect, Dr. Wagner stated the doctor is always captain of the ship. It was a phrase he referred to numerous times. Was the doctor responsible for knowing and for the dosage? He is the captain of the ship.
Jiminez then focused on what brought about the change in Espinoza’s condition. Dr. Wagner said it was seizures. Paramedics had a hard time trying to control the seizures, and they were unable to intubate. Although the initial neurological tests were normal and did not show ischemic, seizures continued and would change that.
Dr. Wagner summed it up: Megan Espinoza had respiratory arrest from oversedation, she was brought back, but had low oxygen and seizures. They were able to stabilize her, but she was in a coma with a brain injury. He looked at the brain with a neuropathologist, and there was global and scattered ischemia, which happened over time.
“Did the family kill her or did Dr. Chacon?” asked prosecutor Jimenez. “It all starts with the surgery,” answered Dr. Wagner. Although she never met the definition of brain dead, the brain injury was a substantial factor in causing her death.
But Rosenberg would have the final word. “Is it possible she could have woken up?” Dr. Wagner answered, “Yes.” “She would have lived if the family hadn’t capped?” Again, the answer was, “Yes.”
And with that the day came to a close. But Carlos looked around with incredulity. Was this manna from heaven for the defense?
The Defense Asks for Dismissal of Charges Based on Dr. Wagner’s Testimony
The next morning, attorney Carlos rose and asked for dismissal of the murder charge based on Dr. Wagner’s testimony. Carlos argued since Dr. Wagner testified the direct cause of death was the capping of the tracheal tube, it was a factual and legal impossibility Dr. Chacon caused the death.
Prosecutor Darvis responded they filed a motion to preclude testimony on removal from life support and all prior testimony on this issue. Sounding surprised, Judge D’Addizio questioned if they were asking to strike any evidence of causation when that’s elements of the charge. She took a recess to read the motion.
After the recess, attorney Rosenberg argued the prosecution’s motion was wrong as Megan Espinoza was not on life support, she was breathing on her own. There was causation as the capping of the tracheal tube was an active step. But for the capping, she may have woken up.
Judge D’Addizio denied the prosecution’s motion stating the case has an issue of whether there was a dependent intervening cause of death or an independent intervening cause of death. It was introduced by the prosecution’s witness. She also denied the defense’s motion to dismiss the murder charge, stating it was premature as they still had the whole hearing to go.
Paramedic Alexander Linde Was Alarmed By Megan Espinoza’s Condition
Alexander Linde is a firefighter and paramedic for the City of Santee. At 5:24 p.m. on December 19, 2018, his unit received a call to respond to Divino Surgery Center. They arrived in 10 minutes. He had been told there was a 30-year-old woman who was conscious and breathing in the surgical room. That is not what he found. When he saw Megan Espinoza he was alarmed. Her skin was molten from a lack of oxygen, and she was unconscious. He felt Dr. Chacon was being evasive as he was not present when they arrived and someone had to go find him.
Linde performed a trapezoid pinch, but Espinoza was not responsive. She had shallow breaths and her saturations were in the 60’s. Her Glasgow Coma Scale was 3, which is the lowest. “This was a sick patient. I needed to move,” he testified. He used a valve mask to help her breath as he could not intubate as her mouth was clinched and he could not open it. They spent six minutes at Dr. Chacon’s and took Espinoza lights and sirens to the hospital.
Afterwards, he questioned why there was such a delay in calling 911. He was uncomfortable about what had happened, so he told his supervisor, who initiated a complaint against Dr. Chacon with the California Medical Board.
On cross-examination, Carlos questioned his concern was he did not want to get sued. He agreed that was correct. But he was also concerned because no one answered his questions about what happened between the time of 1422 (2:22 p.m.) to 1724 (5:24 p.m.) when 911 was called. The staff just said the patient was maintained and to ask Dr. Chacon. Dr. Chacon did tell him what medications had been given.
Carlos emphasized Espinoza was breathing on her own and that he delivered a live patient to the hospital. Rosenberg raised “maintained” meant medical monitoring, and then went through the list of everything that had been done.
What Did Anesthesiologist Dr. Dinh Tell Dr. Chacon To Do?
District Attorney Investigator Micheal Brown testified about his interview with Dr. Dinh. Dr. Dinh is an anesthesiologist who provided anesthesia for Dr. Chacon from 2017 until January 2019, doing major surgeries with him, including breast augmentation. Dr. Chacon paid him $200 per hour.
On December 19, 2018, Dr. Dinh answered a call from Dr. Chacon at 4:49 p.m. He saw he had already missed calls from him. Dr. Chacon said he had done surgery and provided the vital statistics, which were low. Dr. Dinh told him to call 911 and have the patient intubated. At 5:03 p.m., Dr. Chacon called again and repeated the vital statistics, which were really low. Again, Dr. Dinh told Dr. Chacon to call 911 and have the patient intubated. Dr. Dinh was never informed of the cardiac arrest and that CPR had been performed. He learned those facts when he was named in the civil lawsuit the Espinoza family filed.
On cross-examination, Rosenberg raised Brown’s interview with Dr. Dinh was four years after Espinoza’s surgery, and Dr. Dinh was in the middle of a surgery when he provided this information. Undeterred, Brown said Dr. Dinh told him if he had the numbers Dr. Chacon had, he would see it as life-threatening. Dr. Dinh described Dr. Chacon’s demeanor as robotic.
What Did Dr. Chacon Say In His Deposition?
District Attorney Investigator Amelia Mitcalf took the stand next and answered questions about Dr. Chacon’s deposition, which was taken on February 10, 2020. In his deposition, Dr. Chacon said Megan Espinoza suffered a cardiac arrest. When asked why he did not call 911, he stated he had stabilized Espinoza and she was improving. He had given her reversal agents and he was watching her come back. She was initially showing progress, but once she turned, she was transferred immediately.
Dr. Chacon said he did not give Vass specific orders at the start of the anesthesia, but they had an understanding from their working together. When asked if it was illegal to allow a medical assistant to administer anesthesia, Dr. Chacon answered unless there was supervision by a doctor, but then clarified they cannot administer local anesthesia.
On cross-examination, Rosenburg went through all the things Dr. Chacon did to rescue Espinoza. Carlos emphasized Dr. Chacon and nurse Vass had done hundreds of cases together and had an understanding. The chart was just a guideline.
What Did Nurse Vass Tell the District Attorney?
District Attorney Investigator Amelia Mitcalf said Heather Vass became a cooperating individual, and she and her attorney met with the prosecution. This conversation became known as “Heather Vass’s Free Talk.” Vass said she was not a certified registered nurse anesthetist, just an RN. She had worked at Otay Lakes Surgery Center and did sedation but was told the specific amounts to use. She stated she knew she was practicing outside her scope at Divino.
For Espinoza’s surgery, Dr. Chacon did not give her the specific drugs or amounts to use. During a surgery, if the patient needed more sedation, he would just say, “It was a little lite.” She would then choose which drug to administer. She admitted she gave Espinoza too much, and stated she had never given that much before.
She first noticed there was a problem when the saturation levels began going down. She told Dr. Chacon and he said to bring in a new monitor. The saturation levels were still low. Espinoza’s lips were turning blue and her skin color was changing. There was no pulse.
When asked why she did not call 911, she said she was hopeful Espinoza would get better and the thought went through her mind Dr. Chacon would turn her in.
Investigator Mitcalf next discussed another incident with anesthesia. On June 29, 2018, a surgery concluded and Dr. Chacon told Vass to leave even though the patient was not awake. After she left, she received a text from Dr. Chacon. “U snowed her hard.” She responded it took a lot to get her down as she was a marijuana use. Dr. Chacon asked her what drugs to give. She told him Narcan should help. He asked, “1 cc only?” At 7:56 p.m. she texted asking if everything was okay. Dr. Chacon told her the patient had just left and was not sure if it was the Narcan or just time. Investigator Brown would later finish the story of what happened with this patient.
Returning to Megan Espinoza, Mitcalf testified Vass said she never progressed, and they were playing Russian Roulette by the way they were operating.
On cross-examination, Rosenberg asked what nurse Vass meant when she said she was acting outside the scope. Mitcalf responded Vass had free rein to give medications as she saw fit. Rosenberg countered Dr. Chacon gave her the chart and that he did give her guidelines. Mitcalf replied, “I don’t agree.” When asked if they asked Vass why she gave more than the guidelines said, Mitcalf answered, “No.” But Vass did say, “I wanted to put her into a deep sleep.” She never told Dr. Chacon she gave an extra dose of Fentanyl at the end.
Vass knew Espinoza was not going to get better, but she never told Dr. Chacon this. She never heard Dr. Chacon tell anyone not to call 911.
Judge D’Addizio then asked her own question as to whether Vass conversed with Dr. Chacon about the chart. There was no conversation with Dr. Chacon about specifics to give to Espinoza.
Was Another Patient Oversedated by Nurse Vass?
District Attorney Investigator Micheal Brown returned to the stand where he recounted the story of Natalie R. On June 29, 2018, Natalie had breast augmentation surgery with Dr. Chacon. The sedation began with Vass at 3:45 p.m. and the surgery ended at 5:50 p.m. At this point, attorney Carlos stood and objected to further testimony about Natalie. Judge D’Addezio overruled the objection stating the evidence goes to implied malice and whether Dr. Chacon knew the sedation was dangerous to human life.
Brown continued, stating he interviewed Natalie’s mother, Maribel. When she arrived to pick up her daughter, she initially had to wait, but then was taken to see her daughter, who was in a dental type of chair and not awake. Dr. Chacon tapped Natalie’s cheeks and then placed a cotton ball with something on it, underneath her nose. She did not wake up. Dr. Chacon said she needed more time and left. He returned 30 minutes later and again tried the cotton ball, but she still did not wake up. He left and returned an hour later. He told Maribel the office was closed and he needed to leave. He helped “drag” Natalie out to the car and gave Maribel his cell phone number. Two to three hours later, Dr. Chacon checked in to see how Natalie was doing. She was still not awake. It was another two to three hours before she woke up.
On cross-examination, Carlos clarified Dr. Chacon helped Maribel walk Natalie to the car. She was not dragged. He then confirmed Natalie recovered fine from the surgery, with no complications.
Dr. Chacon Left Megan Espinoza to See Other Patients
Investigator Brown testified Dr. Chacon saw other patients in the afternoon of December 19, 2018. Amaliya B. had a 3:15 p.m. follow up appointment. Tracy D. met with Dr. Chacon at 3:30 for a post-op liposuction. Samantha V. had a pre-op appointment for a breast augmentation. Dr. Chacon wrote he had a thorough discussion with her.
Dr. Chacon Called Anesthesiologist Dr. Lazano Who Offered to Come In
Investigator Brown testified about his interview with anesthesiologist Dr. Lazano. Dr. Chacon and Dr. Lazano were friends whose families socialized together. Dr. Lazano even cosigned for Dr. Chacon’s home of over 1 million dollars. They did 75-100 procedures together, and Dr. Chacon paid Dr. Lazano $200 an hour.
On December 18, 2018, Dr. Lazano was at home when he saw he had missed calls from Dr. Chacon. At 3:42 p.m. Dr. Lazano sent a text to Dr. Chacon writing, “What’s up bro?” Dr. Chacon asked him to call. When Dr. Lazano called, Dr. Chacon told him that he had a patient who was slow to respond coming out of anesthesia and provided low oxygen levels. He said there was no loss of pulse or blood pressure, but he had used the AED, which confused Dr. Lazano. Dr. Chacon’s demeanor seemed really calm and Dr. Lazano did not perceive it as an emergency. He told Dr. Chacon to use Narcan and gave the dosage.
Dr. Chacon called back and said he had administered Narcan and it had not helped. Dr. Lazano offered to come in, but Dr. Chacon said it was not necessary. Later when the investigation was being conducted, and he found out the oxygen saturation level was 48, he said that’s an emergency. You want all the resources, all the help you can get. If he had known, he would have called 911 himself. “It’s scary. Call 911 so intubation can occur.” He learned Megan Espinoza’s heart stopped when Dr. Lazano was named in the lawsuit brought by her family.
Dr. Shamoun’s Testimony Continues
Dr. Shamoun continued his testimony, this time virtually as he was in Dubai. Although he was testifying remotely, he was just as fiery as ever.
After going through all the things Dr. Chacon did to try to rescue Espinoza, Rosenberg said Heather Vass failed to monitor, to which Dr. Shamoun replied dismissively, “That’s obvious.” Dr. Shamoun then said the American Society of Plastic Surgery recommends general anesthesia for breast augmentation for the safety of the patient, to control their airway. He said there is a high risk with an RN, and you need someone who knows how to intubate. The amounts of Fentanyl, Ketamine, Demerol were in combination excessive for Megan Espinoza who weighed 104 pounds and was 4 feet 11 inches.
Rosenberg then moved into when brain death occurs. He stated Megan Espinoza did not qualify as brain dead, to which Dr. Shamoun said, “That is true.” Dr. Shamoun explained brain death is a cessation of full brain and brain stem activity and absence of apnea (ability to breathe). Espinoza had some brain stem activity as she was breathing on her own. Dr. Shamoun repeatedly said brain death was a moot point here as Megan Espinoza experienced an irreversible brain injury which put her into a vegetative state.
Carlos rose to cross-examine and asked if Dr. Shamoun ever reviewed any documents indicating Espinoza was brain dead? Dr. Shamoun said he did not recall and then added, “I don’t think it’s relevant.” Carlos pressed on, asking again. “I don’t recall,” came the response, to which Carlos said he would take as a “No,” prompting Judge D’Addezio to admonish Carlos.
Carlos said her brain stopped functioning at the time of the hypoxic event, and would that be 5-7 minutes? Dr. Shamoun said 5-10 minutes would be severe enough to be irreversible. As she was dropping to 48, she was developing the brain injury. When Carlos stated the airway was properly maintained, Dr. Shamoun had had enough. He answered sarcastically, if that was true, she would walk through the door right now.
On redirect Jimenez asked if Espinoza was in a persistent vegetative state because of the errors and omissions by Dr. Chacon and nurse Vass, to which Dr. Shamoun answered, “Yes.” Carlos had the last word, asking if Megan Espinoza was alive at the hospital.
Judge D’Addezio had her own questions for Dr. Shamoun, including whether a surgeon has a duty to specify the drugs, and not just give a chart. “Yes.” When asked if a patient has not woken up, can you send them home, Dr. Shamoun grew indignant. “Absolutely not!” For an out-patient facility, the patient must be awake. Judge D’Addezio continued, asking if that informs of too much sedation. Dr. Shamoun answered, “Of course.” Adding, “That should be against the law.”
Patient Angelica O. Testified Dr. Chacon Looked Through Her
Angelica O. was a patient of Dr. Chacon, having surgical procedures on her eyes in 2018 and late April of 2019. On December 19, 2018, she arrived at 4:40 p.m. as the last patient of the day. She waited awhile to see Dr. Chacon, and when he walked in he looked white, seemed very nervous, in a hurry, and was not himself. When he looked at her eye, it was like he was looking through her.
After her appointment, as she sat in her car, she saw Dr. Chacon standing at the top of the stairs, pacing. Soon she heard sirens and saw an ambulance. She saw them walk in with a stretcher, with Dr. Chacon leading them in.
What Was Said On The 911 Tape?
At 5:22 p.m. Dr. Chacon called 911. The full recording was played in court, and at one point, the 911 operator asks if she is awake, to which Dr. Chacon responds, “She is not following commands.” Again the operator asks, “But is she awake or unconscious?” Dr. Chacon responds, “She’s not following commands. She’s being bagged. She’s, you know, waking up from anesthesia. Her eyes are open. She’s making movements and moaning. That’s what we have here.” When the operator asks, “So, is she conscious or no?” Dr. Chacon responds, “She’s conscious, yes.”
What Did The Medical Assistants Believe About Calling 911?
Investigator Brown resumed the witness stand and testified about his interviews with medical assistants Stephanie Cruz and Zenia De Los Santos. Brown said Cruz believed Dr. Chacon ordered not to call 911 the entire time. After Dr. Chacon performed CPR and Espinoza’s heartbeat returned, nurse Vass told Cruz what medicine to give to Espinoza. Cruz administered doses of Narcan. Cruz admitted to suturing on October 28, 2021, and November 4, 2021.
Brown moved on to the statements of Zenia De Los Santos. Zenia did not finish high school, dropping out in her third year. She completed a nine-month course to be a medical assistant and worked as a circulator for Dr. Chacon. During Espinoza’s surgery, when she asked, “Do we call 911?” Dr. Chacon responded, “We’re not calling anyone yet.” When they ran out of the reversal medications, she asked if they should call the pharmacy. Dr. Chacon said, “Don’t call anyone.” She said she felt helpless and abandoned. She felt extremely guilty for not calling 911, but she was afraid she would face Dr. Chacon’s wrath.
On cross-examination, Carlos emphasized Dr. Chacon said, “Don’t call anyone yet.” Attorney Edwards followed up that Cruz had worked for Dr. Chacon for five years, and he had taught her little by little how to suture.
Defense Expert, Dr. David Gutman, Places the Blame Squarely On Nurse Vass
Although the prosecution was not yet done with their case, due to scheduling issues, the defense needed to call one of their medical experts. Dr. David Gutman, who had just flown in from South Carolina, had a youthful appearance but a curriculum vitae extremely lengthy. He is a board-certified anesthesiologist who currently works as an Associate Professor of Anesthesiology at the Medical University of South Carolina.
Dr. Gutman testified he reviewed documents in the case, and prior to the surgery, Dr. Chacon administered Valium and Percocet. Then nurse Vass gave Fentanyl, Medeval, Demerol, and Ketamine. Dr. Gutman said a nurse can administer under the prevue of a physician, but Vass never told Dr. Chacon she administered more medication. Megan Espinoza went into respiratory arrest at 1430 (2:30 p.m.) and was given Narcan.
Rosenberg walked Dr. Gutman through the California Medical Board’s findings. One finding was the failure to monitor. Dr. Gutman said Vass was the one who should monitor as the doctor is doing the surgery. Another finding was failure to document the level of consciousness. Again, Dr. Gutman said it was Vass who should have monitored.
For the failure to prescribe medication, the Board found it to be an extreme departure, but Dr. Gutman said he found it to be minor. Dr. Chacon and Vass had a working relationship from all their surgeries together and Dr. Chacon had given a prescribed matrix.
The Board further found there was a failure to provide adequate ventilation. Dr. Gutman disagreed. He said at 1425 Espinoza had 100% oxygenation, and at 1430 it was 48%. Dr. Chacon used the AED, which advised no shock was necessary, and performed CPR. Espinoza was given Epinephrine and Narcan. Her oxygenation rose to 95% at 1440. He said surgeons don’t intubate. They did everything they could.
Dr. Gutman then testified he believed Espinoza had a respiratory arrest instead of a cardiac arrest. He said a cardiac arrest is when the heart stops and it takes a lot to get the person back. The 10 compressions Dr. Chacon performed would not have been enough to bring her back. It was his opinion oversedation caused the respiratory arrest. In regard to the failure to call 911, Dr. Gutman said it was an error in judgment.
Rosenberg moved on to the cause of death. Why did Megan Espinoza die? Dr. Gutman said she was given comfort care and the tracheal tube was capped.
Dr. Gutman said Vass admitted during her free talk she exceeded her scope of practice by giving more medications. Dr. Gutman went on to list her other failures. She failed to tell Dr. Chacon she gave more medications. She failed to monitor the capnography. She failed to inform of the patient’s true status. Plain and simple, Heather Vass’s overdosing and failure to monitor caused the hypoxic brain injury. Sometime between 1425 and 1430 is when the hypoxic injury occurred. It takes 5-7 minutes.
On cross-examination, prosecutor Darvis asked what he meant when he said an RN can provide sedation under the purview of a physician. Dr. Gutman said it was under the guise of the doctor who says what drugs to use and the dosage. “Did that happen in this case?” “No.”
Dr. Gutman agreed the drug chart did not provide specific orders for Megan Espinoza. Sounding astounded, Darvis asked why Dr. Chacon bears no responsibility even though he did not give Vass specific orders. Dr. Gutman said it was a breach in the standard of care to have this procedure, and he wrote in his report Dr. Chacon’s medical supervision of Vass was below the standard of care.
Darvis got tougher stating Vass picking the drugs was not in the scope, that it was Dr. Chacon’s job. “Isn’t he the more reckless as he’s the M.D.?” Dr. Gutman answered he had no control over what she was actually giving. Darvis responded Vass was his employee, who he was supposed to direct and supervise. When asked whether Vass was egregious. Dr. Gutman responded, “Yes.” When asked if Dr. Chacon was egregious, he said he doesn’t know if Dr. Chacon knew what he was supposed to do. The prosecutor then read from the accreditation regulations and asked if it was his duty to know. “Yes.”
Darvis moved on to patient Natalie, asking if it was appropriate to send her home. Dr. Gutman said, you don’t discharge if not ambulatory.
As the day came to a close, Darvis focused on how much Dr. Gutman was being paid. He said his fee is $600 an hour, and he has invoiced $36,000, which included $5,000 to fly out and testify. And with that, Dr. Gutman was done for the day. He would continue testifying virtually as he was returning to South Carolina.
Once testimony resumed, Darvis asked, “Isn’t it true every area you found the nurse errored, the doctor errored?” Dr. Gutman said, “No,” as the surgeon’s job is to operate. He has to supervise but the matter is frequency. He agreed conscious sedation without capnography is dangerous to human life.
On redirect, Rosenberg asked pointedly, “Did Dr. Chacon save this patient’s life?” Dr. Gutman said the compressions, the Ambu bag, and Epinephrine saved her life. A hypoxic brain injury takes 5-7 minutes and even with CPR and other measures, the injury had already occurred. Dr. Chacon provided capnography and assumed Vass was using it to access Espinoza.
Rosenberg ended with, “Do you think Dr. Chacon made clinical errors?” Dr. Gutman answered, “Yes.” But when asked if it was wanton and willful disregard, Dr. Gutman said, “No,” explaining he cared for the patient and did the best he could with the resources he had.
Judge D’Addezio had her own questions, specifically addressing the case of patient Natalie, stating she practically had to be carried to the car and didn’t wake up until hours later. Dr. Gutman said this would be below the standard of care. If a patient is not waking up, an outpatient clinic has a duty to get the person to a hospital. Judge D’Addezio continued, asking if this would provide knowledge the nurse oversedated. Dr. Gutman said he would need more information about the dosage. “Wouldn’t it change your practice, causing you to follow the rules?” asked Judge D’Addizio. After a long silence, Dr. Gutman said it would, but normal practice would resume.
Rosenburg asked if he had any information the patient was overmedicated. Dr. Gutman answered, “No.” Darvis then asked if the word “snowed” was slang for overmedication. Dr. Gutman said he would not say it was overmedication, but large amounts of medications were given.
Dr. Vilke: “Not calling 911 was what ultimately killed her.”
Dr. Gary Vilke is board certified in emergency medicine, works as an emergency room doctor at U.C.S.D. Medical Center, and is an expert in cardiac arrest. He was asked by the prosecution to review the case to give his opinion on the standard of care. He said Megan Espinoza was in good health and should have survived.
Dr. Vilke said Dr. Chacon put Espinoza at risk by how the sedation was set up. The nurse used the chart instead of the doctor giving specific orders. The drugs used had respiratory effects, with Ketamine having high risks. Ketamine can cause aringo spasms (airway blockage) so one must know how to intubate. Carbon dioxide is the earliest indicator and by the time oxygen drops, “you are behind the eight ball.” In regard to Dr. Chacon’s duties, he said, “You don’t pass duty off. You’re the captain of the ship.”
A lot of medications were given within a short period of time to a petite woman causing pulseless hypoxic arrest, said Dr. Vilke. If 911 had been called, she would have survived. No call to 911 for three hours in which she had low saturations caused the assault to her brain to continue. “Not calling 911 is what ultimately killed her.”
The cause of death was oversedation which caused the arrest, compounded by three hours of hypoxia which continued to worsen her condition. There were signs that it was not a respiratory arrest, as she was not improving, her oxygen remained low, she was twitching and had spastic movement, and was not waking up. At the time of the capping of her tracheal tube, she was in a persistent vegetative state. In the opinion of her treating physicians, she had a less than 1% chance of recovery.
On cross-examination, Rosenberg countered not calling 911 did not kill her as she lived another 41 days. He went through everything Dr. Chacon did to rescue her and she was making improvements. Rosenberg said you can have respiratory arrest without a cardiac arrest and at no time did the patient not register a blood pressure.
Espinoza’s death was caused by capping and the medications of comfort care. When asked if she would be alive today, Dr. Vilke responded, “I suspect not, but to die at that moment, no.” He continued, three hours of a hypoxic brain injury is what caused her death. Rosenberg said the MRI did not show a hypoxic brain injury to which Vilke said he would have to review it again.
Carlos on his questioning also disputed the failure to call 911 is what killed her. It was the capping and the medications. She was alive and lived 41 days. Then Darvas asked, “What do you consider a save?” Dr. Vilke answered, “Leaving the hospital neurologically intact.”
Defense Expert, Dr. Mofad, Testifies Dr. Chacon Is Safe To Practice Medicine
Dr. Mehrdad Mark Mofad was called as the defense’s medical expert to address the issue of Dr. Chacon’s license. Dr. Mofad graduated from Harvard Medical School and is board certified as a plastic surgeon and facial plastic reconstructive surgeon. He is an assistant professor at Johns Hopkins Medical Center, has his own surgery center, and has done reviews for the California Medical Board. He has also worked for the American Association for Accreditation of Ambulatory Surgical Facilities for 10 years He has received many honors and awards, including being a named by Newsweek as a Top 100 surgeon and won the Gold Congressional Award for service to children.
Dr. Mofad was hired by the defense to evaluate the safety of surgeries at Dr. Chacon’s practice. On May 17, 2022, he observed Dr. Chacon performing surgery at Sessions Plastic Surgery, and on July 6, 2022, he visited the Divino facilities. He found Dr. Chacon was in compliance and did not believe he is a danger to the public. He also did a random chart review and found Dr. Chacon met the standard of care. In his opinion, Dr. Chacon is completely safe to perform surgery. When asked, “Any reservation that he is safe to practice medicine in the State of California?” he answered, “No.”
On cross-examination, Dr. Mofad agreed an owner has to know the policies or people may die. The policies and procedures for emergencies were there, but if the doctor does not follow them, then people may die.
Nurse Kenneth Nealy Describes Failures By Nurse Vass
The defense called registered nurse Kenneth Nealy, who works as an emergency nurse in Albany, Oregon. He previously worked in critical care and as a flight nurse. He has done conscious sedation the last six years, and works with drugs such as Merced, Fentanyl, Ketamine, Propofol, and Etomidate. He reviewed nurse Vass’ curriculum vitae and testified she had significant experience in conscious sedation. He reviewed the dosage chart and it was in line with the manufacturer’s recommendations. When asked if you are allowed to give more medications than ordered, he answered, “No,” but if one does, one must tell the physician.
He then went into failures by nurse Vass. She failed to take into account Espinoza was given benzodiazepines by Dr. Chacon before she administered medication. She gave Ketamine without an order and did not tell anyone. There is no reversal agent for Ketamine. She continued to give Fentanyl even after the respiratory rate dropped to 10, and the surgery was coming to a close. She failed to use the capnography machine to monitor Espinoza’s carbon dioxide, failed to assess Espinoza’s level of consciousness, and to document the level of consciousness. She was not prepared to give respiration assistance as she did not have an Ambu bag mask at her bedside.
On cross-examination, nurse Nealy stated Dr. Chacon did not give nurse Vass drug orders. “Is that a safe practice?” It is not, and he would not give medication without an order. When asked if it was an unreasonable risk of death by giving the chart, allowing administering of whatever drugs in whatever amount, Nealy answered it was below the standard of care, but not an unreasonable risk of death.
Judge D’Addezio had her own questions, asking if he had an agreement with a doctor to give medications and Nealy answered, “No.” When asked how a doctor makes orders, he answered they are put into the electronic medical record, specifying the drugs and amounts. He has never been handed a chart like the one Dr. Chacon had.
Neurosurgeon Dr. Scott Lehry Testifies Espinoza Was Never Brain Dead
Dr. Scott Lehry is a neurosurgeon who specializes in neurological surgery and trauma. He has dealt often with traumatic brain injury. He has been listed as a top doctor in America, has made national news for his work, and speaks all over the world on neurosurgery. He testified he has done 6,000 major surgeries.
After his review of the case, he rendered his opinion Dr. Chacon was not wanton and reckless, the delay in calling 911 would not have made any difference, Megan Espinoza was never brain dead, and she died from respiratory failure.
Attorney Rosenberg then went painstakingly through each finding. In regard to his opinion Dr. Chacon was not wanton and reckless, he said Dr. Chacon acted immediately and took steps to rescue Espinoza when he was notified at 1430 her oxygen saturation was 48. Once again, Rosenberg walked through all the efforts Dr. Chacon made, asking whether he would have done these actions if he didn’t care. More questions followed to show Espinoza was improving, at 1445 her oxygen saturation was 95% and her blood pressure was in the normal range.
Dr. Lehry moved on to the issue of brain death, stating, at no time was Megan Espinoza brain dead. She still had some measure of brain activity, as her pupils were reactive to light, she had a cough reflex, she opened her eyes, and she could breathe on her own.
When asked if the delay in calling 911 would have affected the outcome, Dr. Lehry said, “I don’t think so,” explaining the time to intervene was in the setting. At 1425 Espinoza’s oxygen saturation was 100%, at 1430 it was 48%. 1427 was a reasonable estimate of the hypoxic brain injury. Even if 911 was called within minutes, the injury had already occurred.
Next, Dr. Lehry addressed the cause of death. In the days leading up to Megan Espinoza’s final day, she was doing better. Her vitals were normal and she was breathing on her own. On January 23, 2019, the family met with the hospice team, but needed time to decide. Espinoza was given Fentanyl and Versed to make her comfortable and peaceful, but Dr. Lehry said they can also suppress the ability to breathe, so she was trying harder to breathe. The day before her death, a morphine drip was started. On January 28, 2019, the day she died, she was given Versed and Morphine and the tracheal tube was capped. At 2226 (10:26 p.m.) she died of respiratory failure.
Rosenberg asked if a patient can live with anoxic brain injury. Dr. Lehry said, “Yes.” He further testified it was more likely than not that she would still be alive. Dr. Lehry then addressed the statements of Dr. Shamoun where he said she had no neurological function. That was not accurate. Neither was it true that vital signs have nothing to do with brain death.
On cross-examination, Jimenez went point by point through Espinoza’s oxygen saturation levels, culminating in 100 minutes where her oxygen levels were severe. Moving on to the cause of death, he asked wasn’t the autopsy the gold standard to arrive at a reliable cause of death. The autopsy listed the cause of death as ischemic encephalopathy, and her brain was dissected by a forensic neuropathologist who found acute multiple focal ischemic. Dr. Lehry said he was not disputing she had ischemic encephalopathy, but there was more to it than just the autopsy.
Jimenez stated Espinoza was in a coma at Scripps Hospital and her doctors wrote her neurological function remained very concerning due to seizures and there was a life-threatening deterioration.
The day ended and Dr. Lehry was ordered to return the next morning, which he stated he could not do as he had surgeries. After much back and forth, he said he would reschedule a surgery and return in the afternoon. Subsequently, the prosecution agreed to waive any further cross-examination.
Consultant Dropped Dr. Chacon As a Client
Patricia Ferrigno works as a consultant helping medical facilities to achieve accreditation. In 2017, she took on Dr. Chacon as a client, charging $10,000. She provided Dr. Chacon with her policies which he was required to adopt, including 911 must be called upon a Code Blue and only a credentialed and licensed anesthesia provider could be used. However, a facility could use a registered nurse for conscious sedation.
She was notified by Cheryl Pistone of Triple A about Espinoza’s death and she subsequently advocated for Dr. Chacon with both the accreditation board and medical board. It wasn’t until February 15, 2023, when she was interviewed by investigator Brown that she found out about the three hour delay in calling 911. At this point she decided she would no longer keep Dr. Chacon as a client.
On cross-examination, Edwards showed Dr. Chacon’s surgery center received accreditation in 2017 and 2020 (it is every 3 years). On redirect, Ferrigno explained Dr. Chacon’s accreditation was taken away on March 21, 2022, but she advocated for it and got it back, although Dr. Chacon does not have Triple AHC accreditation at this time.
Dr. Chacon’s Former Nurse Describes Problems At His Center
Briana Hines is a registered nurse who worked for Divino for one month in June 2021. She observed things which caused her great concern. Instruments were not sterile. She found flesh and dried blood on suture kits. She observed Dr. Chacon not scrub in before surgery, not washing or just using soap and water. She was asked to scrub in, but she did not know how. Eight times in the operating room, she observed medical assistant, Stephanie Cruz, suturing patients. They also didn’t account for instruments used in surgery.
She felt Dr. Chacon was reckless with his patients. He revised a tummy tuck in an exam room instead of a sterile operating room. Another patient who came in for a post-op tummy tuck was pregnant, yet Dr. Chacon had never done a pregnancy test. When she questioned about this, he said he accepts their word and if they come in for surgery, they probably are not keeping the pregnancy anyway. She was so disturbed by Dr. Chacon’s comment, she quit.
On cross-examination, she agreed her and Dr. Chacon did not get along. She did not agree he criticized her performance, he thought she was not dealing with patients in a professional manner, and she was late. She did acknowledge she had 7 jobs in the last 11 years and has not been at Divino in 2 ½ years so she does not know how the surgery center looks now.
Prosecutor Jimenez: “This is a case of Russian Roulette”
Attired in his customary bow tie, prosecutor Jimenez began by displaying a huge photograph of a gun on the courtroom screen. “This is a case of Russian Roulette,” he said before stating it was not surprising Megan Espinoza ended up dead. Dr. Chacon was guilty as the elements of implied malice were present before the surgery and after, he continued.
Dr. Chacon created an incredibly dangerous situation. He failed to employ a competent anesthesiologist and treated the RN as a doctor. He gave her the chart with the only guide being a maximum dosage. He knew she had a history of overmedicating. “U snowed her hard,” was his text. He also knew she was using Ketamine. “He simply didn’t care.” An anesthesiologist could rescue, they could not.
He failed to monitor. He had the capnography machine but failed to use it. He failed to respond when informed of the low oxygen saturation. Instead, he ordered a new monitor, and for almost four minutes he did nothing to help. After the emergency, he failed to call 911, and told his employees, “No one is calling.”
Jimenez said the defense can call it whatever they want, but Dr. Chacon believed she had a cardiac arrest. He said so in his deposition and he performed CPR. Dr. Gutman said when you realize your patient is having a cardiac arrest, you call 911. Instead, Dr. Chacon called Dr. Dinh and Dr. Lazaro, but he lied and misrepresented to them. He declined Dr. Lazaro’s help.
He “abandoned his ship,” seeing four patients was completely inexcusable, said Jimenez with force. He was more concerned about his business than Megan Espinoza’s life. For 100 minutes her oxygen saturation levels were under 85, so there’s no surprise she died of a hypoxic injury.
There is consciousness of guilt. Dr. Chacon lied to the 911 operator, lied to the medical board, and lied to the accreditation board. People were horrified by his conduct, paramedic Linde, Dr. Perri, and Dr. Shamoun.
“Any surprise here is that he had never killed anyone else,” concluded Jimenez.
Defense Attorney Carlos: “This is not a homicide case”
Attorney Carlos began by saying a negligence case is where this case belongs. “This is not a homicide case,” he insisted. In order to have murder, there must be malice which requires an act where the defendant knows the conduct endangers human life and acts with conscious disregard. There is nothing that he harbored conscious disregard.
The red herring is the 911. “It looks bad,” said Carlos and they admit it. Dr. Chacon would have done it differently, but it would not have made any difference. Dr. Wagner said it is the 5-7 minutes when irreversible brain damage occurs. It would have been irreversible regardless of what he had done. Not calling 911 was a mistake, but not conscious disregard. “He made huge mistakes, huge,” Carlos continued, but those were ones you get sued for, not go to prison for. The things that look terrible have no bearing on the case.
For causation, for one to be responsible, it has to be foreseeable and the act has to be criminal. Vass is primarily responsible. She overmedicated and didn’t communicate to Dr. Chacon. They did hundreds of surgeries together and there were no issues, none. As soon as Carlos emphasized none, Judge D’Addizio interrupted, “No issues? What about the woman who was dragged to her car?” Carlos responded, “Was 911 called?” to which Judge D’Addizio responded, “Should have.”
She continued, “Don’t you think it puts him on notice he should do his job?” Carlos replied, “You mean one time?” “Sure,” was the response. She further added it puts him on notice to pay for someone who does conscious sedation. Then with disdain in her voice she said, “A complete abdication of responsibility and then blames her?” Carlos raised you don’t know if overmedicated, to which Judge D’Addizio said Dr. Chacon used the word, “snowed.” He told us.
Carlos resumed his argument saying her ultimate demise was the family decides. Megan Espinoza was not on life support. She lived to day 41. Dr. Wagner said she may wake up. “We don’t know what might have happened to Megan Espinoza.” Judge D’Addizio jumped in to discuss cases the prosecution cited, including one where a patient was in a persistent vegetative state due to actions of the defendant, caught pneumonia, the decision to stop antibiotics was made, and the patient died. The court found a dependent intervening cause of death. Carlos did not agree, stating the family took action, and it was a superseding act.
Carlos closed with Dr. Chacon’s conduct looks horrible, but it was not conscious disregard. Megan Espinoza died because the family made the decision.
Prosecution Rebuttal: “He could have saved her life”
Even though Dr. Chacon set up this tragedy by playing Russian Roulette, he could have saved her life, said Darvas. If he had acted in those first 10 minutes, she would have survived. The first paramedic fireman arrived in three minutes. Instead, he left her with an untrained, unskilled team. He put his own interests, ego, and reputation above her.
Darvis moved on to causation. Was this defendant’s action or inaction the proximate cause? The “But For” test. But for the incompetence and the arrogant doctor. It was 100 minutes of severe oxygen deprivation which eventually sealed her fate, and she was unconscious for the rest of her life. By January, she was in a persistent vegetative state, with a less than 1% chance of recovery, from an arrogant, unremorseful defendant.
What Did Judge D’Addizio Order?
Judge D’Addizio found probable cause to believe Counts 1-7 were committed. Dr. Chacon will stand trial on second-degree murder, involuntary manslaughter, and other charges.
Should Dr. Chacon’s Medical License Be Suspended as a Condition of Bail?
Attorney Keith Shaw appeared on behalf of the California Medical Board. He said Dr. Chacon had a blatant disregard of safety measures and the killing of Megan Espinoza should be enough to suspend his license. Judge D’Addizio interjected the standard is probable cause the defendant poses an immediate risk and questioned why the Board had not done anything when they brought their case years ago. Shaw stated the Board agreed to follow after the criminal case.
Shaw returned to his argument, saying six months earlier, Dr. Chacon had full notice. A patient was snowed and did not wake up for 6-8 hours. He didn’t learn. “He didn’t change a thing!” exclaimed Shaw.
“The facts around Megan Espinoza’s death are so egregious it boggles the mind,” he continued. The testimony of Breana showed Dr. Chacon willfully breaks the law every step of the way. In court, Dr. Chacon could not even follow her rulings, and the court had to admonish him almost every day.
Shaw said Dr. Chacon continues to represent danger, and the part that makes him so dangerous is he knows better. But he doesn’t care about his patients. He jokes about snowing a patient, not keeping a baby, abandons when life is in jeopardy, and lies to medical professionals who could save. Does he represent danger? “Astounding, yes,” said Shaw before asking if you would feel confident sending a loved one to Dr. Chacon. “That’s enough.”
Judge D’Addizio then raised Dr. Chacon has abided by the stringent conditions of his bail. Shaw said he hides the notice he is required to give patients of the charges against him in consent documents.
Rosenberg Argues for Dr. Chacon’s License
Rosenberg said the Medical Board waited five years, and they could have brought an interim action if they thought Dr. Chacon was such a risk. The standard for suspension is an immediate risk of harm, and there has been no harm in the past years.
Judge D’Addizio then questioned about patient Natalie, saying the patient couldn’t wake up, but he shows no concern. The person who gave the anesthesia left, Dr. Chacon doesn’t know what was given or what to do. He arrogantly joked, “U really snowed her” and includes emojis. “How do you not change your ways and ask yourself, I really took a chance with someone’s life?” Rosenberg said there was a different story, but as he began to relate it, Judge D’Addizio said she had to look at the evidence presented. Rosenberg then said the patient could have had an adverse reaction, and 1 in 100 is not enough.
Rosenberg argued the only evidence the court has is Dr. Chacon is safe now and he has abided by the strict conditions the court imposed. Judge D’Addizio said it is sneaky for him to put the notice in with the other pages, and he could not follow her orders to be off the phone in the courtroom. It shows arrogance.
Judge D’Addizio then raised the testimony of nurse Hines and stated her testimony brought a whole new batch of concerns. “What area of medicine, his duty, does he take seriously?” Rosenberg emphasized it was 2½ years ago and Dr. Chacon has strictly followed all the rules now. Judge D’Addizio said, “I am worried about protecting the public. Aren’t we just saying, let’s keep our fingers crossed?” Rosenberg said there is no evidence a patient has been harmed.
Attorney Shaw finished by saying there was so much overwhelming evidence Dr. Chacon continues to put patients at risk. We are crossing fingers, rolling the dice.
Judge D’Addizio said she would take the matter under submission and called for a court recess. It appeared she was going to suspend Dr. Chacon’s medical license.
Did Judge D’Addizio Suspend Dr. Chacon’s Medical License?
Judge D’Addizio did not suspend Dr. Chacon’s medical license. She said she could not find probable cause Dr. Chacon poses an immediate risk of harm. There was no evidence he violated any terms of the conditions imposed by the court.
However, she modified the conditions of his bail, ordering the written notice provided to patients must be in a stand-alone document informing them he has been charged with second-degree murder and involuntary manslaughter of a former surgical patient. She went on to modify the conditions upon which Dr. Chacon could perform surgery, which all became moot when attorney Shaw asked that Dr. Chacon not be allowed to perform any surgery. Judge D’Addizio agreed and so ordered.
Dr. Chacon’s Trial Is Set
Although prosecutor Jimenez requested the bail amount be raised to five million arguing Dr. Chacon is now a flight risk, Judge D’Addizio left it at the $500,000. He remains out of custody.
Dr. Chacon pled not guilty. His trial is set for April 1, 2024.
About Aleida K. Wahn, Esq.
I am an attorney, award-winning true crime writer, and legal analyst of criminal cases. I cover criminal trials and write stories and books about compelling, gripping, and unforgettable cases that impact our world. I take you into the courtroom in high-profile murder trials, rape cases, crimes of passion, cases involving mental illness, deviant behavior, and more. I have a deep passion for true crime, criminal law, and all aspects of the criminal justice system. I have appeared as an expert on true crime shows, including “48 Hours,” “Snapped,” and “The Dead Files,” and provided legal analysis on high-profile criminal trials on Court TV, the Law & Crime Trial Network, Fox 5 News, ABC 10 News, and KUSI News. I also create and host shows with the Del Mar Television Producers Group, addressing criminal justice and social issues in recent criminal trials.
I provided my insight and legal analysis on Court TV and the Law & Crime Trial Network of the high-profile trial of former NFL star Kellen Winslow Jr. It was a trial that captured the nation as the heralded ex-football star with fame, fortune, and a famous name stood accused of multiple rapes and other sex crimes involving five women. As the trial delved into shocking facts, complicated legal issues, and unexpected twists and turns, I was there for every minute. After the trial, I wrote a book on the case, going behind the headlines to share the extraordinary details of what happened inside the courtroom. Judging Winslow Jr.: From NFL Star to Serial Rapist? Inside the Shocking Rape Trial of Kellen Boswell Winslow II is now available on Amazon.
I am passionate about telling true crime stories, as these penetrating stories have the power to move us all, while highlighting societal issues which need to be addressed. I have personally seen the human devastation which is present in each trial and believe there is a lesson to be learned in every single case. It is through awareness and examining critical issues society can effect change and even make new laws. To learn more, please visit: https://www.aleidalaw.com.
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