CHARLESTON – A lawsuit against a physician alleging it was responsible for an infant's death has been removed to federal court.
The notice of removal states that the federal court has original jurisdiction over the action because the amount in controversy exceeds $75,000 and that because one of the defendants in now a resident of Utah and the other is a business in Kentucky, there is diversity in citizenship of the parties.
The notice also states that Marshall Independent Physician Services LLC was improperly identified as a non-incorporated trade name, MESA of TeamHealth Inc.
The plaintiffs are suing Dr. Richard A. Ferguson after they claim he failed to recognize what was wrong with their five-day-old infant until it was too late.
On Feb. 14, 2014, Elijah Allen Moore was born to Amethyst Dawn Kimble Moore and Timothy Allen Moore, according to a complaint initially filed March 10 in Wood Circuit Court and removed to federal court on April 14.
The plaintiffs claim Amethyst Moore suffered from a genetic condition known as hemophilia that her father also had.
When Amethyst Moore's obstetrician's office requested a hemophilia history from her pediatrician and was wrongly informed that it was Amethyst Moore's brother that had hemophilia and not her father, according to the suit.
The plaintiffs claim Elijah Moore underwent a traumatic birth, including vacuum assisted delivery and the use of scalp-placed monitors, neither of which a baby who is suspected to be a hemophiliac is allowed to have.
In the nursing notes from Feb. 14 through Feb. 17, the bruising and growing contusion of Elijah Moore's head were properly documented and it was also documented that his bilirubin had gone down slightly, but based upon the time he was on the bili-blanket, it should have improved significantly, according to the suit.
The plaintiff claims despite the signs and symptoms of an internally bleeding child, the discharge papers were signed on Feb. 17, 2014, and instructed the parents to bring Elijah Moore to the bilirubin clinic at 8 a.m. on Feb. 19, 2014, and to see the pediatrician on the same date.
When Amethyst Moore arrived at the clinic, she reported that Elijah Moore was not feeding well, that he was restless and that he was not acting right, according to the suit.
The plaintiffs claim the bilirubin clinic nurse documented lethargy, significant bruising and a climbing bilirubin level, which are signs and symptoms of a child who is suffering from internal bleeding.
As instructed, Amethyst Moore went to Elijah Moore's pediatrician, who examined him and found him in good health, according to the suit.
The plaintiffs claim at 2:38 p.m., on Feb. 19, 2014, they took Elijah Moore to the emergency department of the local hospital after he had had two episodes they believed were seizures.
Ferguson was assigned to provide care for Elijah Moore, according to the suit.
The plaintiffs claim Ferguson was not board-certified in emergency medicine and, because of this, Elijah Moore did not receive the best medical care available.
For 40 minutes, time was lost because Elijah Moore was in the waiting room with his parents because the emergency department, operated by MESA TeamHealth, was understaffed by physicians to provide the care he needed, according to the suit.
The plaintiffs claim Ferguson's documented physical exam did not mention the bruising Elijah Moore had and did not order a Factor VIII or a CT scan on the infant.
Ferguson did not know to order these tests because he was not properly trained in emergency medicine and was not properly trained by MESA, according to the suit.
The plaintiffs claim Elijah Moore's pediatrician was called and arrived at the hospital at 7:23 p.m. and requested Elijah Moore be transferred to one of West Virginia's two hemophilia treatment centers.
Ferguson failed to recognize the importance of the information that was presented to him until it was too late for the child, according to the suit.
Elijah Moore needed additional treatment before he could be transported to West Virginia University Hospital and was put on life support, according to the suit. Upon the advice of every doctor who saw him, his parents removed him from life support on March 3, 2014, as there was no chance he was going to recover from the brain bleed.
The defendants breached the applicable standard of care and were negligent, according to the suit.
The plaintiffs are seeking compensatory and punitive damages. They are being represented by David A. Sims of the Law Offices of David A. Sims PLLC.
The defendants were represented by Tamela J. White and Dustin C. Haley of Farrell, White & Legg PLLC; and Stephen S. Burchett of Offutt Nord Burchett PLLC.
The case is assigned to District Judge John T. Copenhaver Jr.
U.S. District Court for the Southern District of West Virginia case number: 2:15-cv-04531