Writer sues Cabell officials over access to records

HUNTINGTON – A freelance journalist is asking a judge to compel release of the death certificate of a woman who died at the hands of a former Mason County physician with a long history of malpractice.

Cabell County Clerk Karen Cole and the Cabell County Commission are named as co-defendants in a Freedom of Information Act lawsuit filed by Jay Lawrence Smith.

In his complaint filed Dec. 19 in Cabell Circuit Court, Smith, a regular contributor to The West Virginia Record, is seeking an order compelling the release of the death certificate of Helen Zielger, who until her death in 2000, was a patient of Dr. Jack M. Levine.

In his suit, Smith alleges his attempt to get Ziegler's death certificate, as part of his ongoing investigation into Levine's history of malpractice that extends over 20 years and three states, has been stymied by Cole's misinterpretation of a 2006 revision to state law dealing with vital statistics.

According to his suit, Smith requested malpractice and disciplinary history on Levine from the state Board of Osteopathy in December 2008. The Board provided the information to him on Dec. 17 which listed six malpractice cases Levine self-reported.

Of the six cases, Smith was aware of four for medical malpractice, but not of two for wrongful death. Upon conducting a search of records in Mason County, where Levine worked at Pleasant Valley Hospital from 1989 until 2001, Smith was able to find one from 1992 involving the estate of Kandi Tweedy.

However, he was unsuccessful in finding the other involving Ziegler from 2000. According to Levine's handwritten notes, Ziegler's estate filed suit against him in Dec. 2000, and settled on an unspecified date for $400,000.

Because PVH was part of the Genesis Hospital System with Cabell Huntington and St. Mary's hospitals at the time, Smith checked records in Cabell County. A search for wrongful death suit involving Zeigler's estate also proved unsuccessful.

However, Smith did discover a lawsuit Dr. Maria Antigua-Martinez, a former PVH anesthesiologist filed against Levine, four other physicians – including Bret Morgan and Shrikant K. Vaidya – Genesis and two of its administrators for, among other things, sex discrimination and tortuous interference with a contract in May 2001. Upon perusing the file, Smith says he discovered an answer Martinez gave to an interrogatory in which she claimed to be a witness to Levine's culpability to Ziegler's death.

According to his suit, Smith later that day went Cole's office to look for Ziegler's death certificate. Though he was successful in finding it on the computerized index, her last name was spelled "Zeigler."

After finding reference to a book and page number for Ziegler's death certificate, Smith asked an unidentified deputy where he could look at it and make a copy. The deputy told Smith he could find it on the computer. When he informed the deputy he already did, but wanted to see the complete death certificate, she said, "We don't make those public."

According to his suit, when Smith asked since when were death certificates no longer public, the deputy replied, "It's been that ways for sometime now." Despite informing the deputy he has been able to look at death certificates in other counties, including Kanawha, she replied, "Well, that's Kanawha County."

Smith then asked to see the policy or law that prohibited the public from seeing death certificates. The deputy told Smith to wait while she got a supervisor. After several minutes, Smith says the deputy returned to say that he would need to speak with "Terry" who was out to lunch at that time. Instead of waiting, Smith left Cole's office and sent her a FOIA request dated Jan. 1, 2009, for Ziegler's death certificate.

About a week later, Smith says he received a reply from Cole which consisted of "two photocopied pages of a vague reference to a policy or law regarding the public's access to death certificates." Three weeks later, Smith wrote Cole back saying her reply to his FOIA request was insufficient, and informed her how he was able to view death certificates in Kanawha, Wood and Putnam counties.

According to his suit, Cole responded in a letter dated Feb. 9 with a response she "received from Mr. Gary Thompson, State Registrar for the West Virginia State Vital Registration Department, regarding this matter." However, Smith avers "no such letter was contained in Cole's reply."

Nevertheless, in her reply Cole said "West Virginia law only allows certain information regarding birth, death and marriages to be public information." Furthermore, she said county clerks are not permitted to issue a copy of a death certificate "to anyone who is not permitted to obtain it under Vital Office Rule 11.1, or until a period of fifty years has lapsed as mandated by West Virginia Code §16-5-27(d)."

However, Smith said he was able to obtain death certificates on two separate occasions following Cole's letter.

On June 29, 2011, Smith wrote Cole again asking her to make available Ziegler's death certificate. In his letter, he included a copy of both Phillips' and Myers' death certificates, and the receipts the clerks provided him.

Also in his letter, Smith said the counties where he was able to either look at or make copies of vital records, including death certificates, included Mason and Jackson. He gave Cole a deadline of July 7 to respond.

In a letter dated July 6, William Watson, the Commission's attorney, responded citing West Virginia Code §16-5-27 (d) and §16-5-28 (b) as reason Cole could not release Ziegler's death certificate. Also, he said "[t]he other counties that are providing such copies are operating outside the statutory provisions."

In his suit, Smith claims that Cole has misinterpreted the public's access to vital statistics. The provision Watson cited in his July 6 letter only limits access to "certified" copies.

Smith avers that at no time, including his original FOIA, did he request a certified copy of Ziegler's death certificate.

Also, Smith took issue with the claim he was improperly provided copies of death certificates from the other counties. To accuse the county clerks of Mason, Jackson, Putnam, Wood, Marion and especially Kanawha of "conducting unethical and illegal acts since 2006, when the Code section Watson made reference to was updated, is so patently absurd it's laughable."

In his suit, Smith alleges Cole and the Commission have "wantonly, maliciously, deliberately and vexatiously" attempted to circumvent the FOIA law through a misinterpretation of revisions to the vital statistics code. Since his interest in obtaining Ziegler's death certificate to inform the public about one of Levine's acts of malpractice outweighs Cole's and the Commission's arguments for non-disclosure, Smith seeks an order compelling its release.

Along with an order releasing Ziegler's death certificate, Smith seeks a permanent injunction requiring Cole and the Commission "to undergo training for better public records management, and implementation of a plan for better handling of public records requests, and disputes."

Smith is representing himself. The case is assigned to Judge David Pancake.

Two days after his complaint, Cole and the Commission filed their answer. In it, they continue to assert the revisions to the vital statistics code prevents release to only certain individuals, including immediate family, and after the passage of 50 years.

They ask the suit be dismissed and recovery of court costs and Watson's attorney fees.

The suit is the third Smith has filed in the last two years naming the Commission as a defendant. In 2010, Smith filed two suits seeking details on lawsuit settlements involving the Cabell County Emergency Medical Services squad.

After denying his repeated requests for a year, Smith filed his first suit on Jan. 4, 2010, for details in the wrongful death of a black, pregnant Huntington woman. In September 2008, the Crawford family agreed to settle the suit they filed the year before against CCEMS alleging two paramedics, Frank Pierson and J.N. Rimer, failed to provide any assistance to Kristy Crawford when she experienced a seizure at her sister's home the morning of Jan. 4, 2007.

Crawford died en route to the hospital, and her baby, Jayden, who was delivered via Caesarean section upon arrival, died the next day.

In November 2010, the Commission agreed to release the details of the settlement. Information provided to Smith through its attorney, Lee Murray Hall, showed its insurance carrier paid Crawford's sister, Pamela Prout, and her parents, Kenny and Constance Crawford, a combined $3.6 million.

In May 2010, Smith filed his second FOIA suit against the Commission seeking details of a wrongful termination suit it reached in September 2009 with Donald Jobe, a former paramedic. In his suit filed in December 2007, Jobe alleged CCEMS failed to make reasonable accommodations for his back problems.

Judge Jane Hustead ordered release of the settlement in July which showed the Commission, through its insurance carrier, paid Jobe $50,000.

Cabell Circuit Court case number 11-C-935