Maynard

CHARLESTON – So long as a 2003 medical malpractice reform law remains constitutional, it, and its component parts, will remain "a moving target" said West Virginia's chief justice.

Elliott E. "Spike" Maynard, chief justice of the state Supreme Court, was among the five High Court candidates on-hand for a forum co-sponsored by WESPAC, the political action committee of the West Virginia State Medical Association on Jan. 26. The forum was part of the Association's mid-winter conference held at the Charleston Marriott.

Maynard, along with Beth Walker, Margaret Workman, Robert M. Bastress Jr. and Menis E. Ketchum were allotted 15 minutes to not only introduce themselves, but also asked to state their position on medical malpractice and tort reform.

As a sitting judge, Maynard said it would be improper for him to discuss cases the Court are or may be considering. However, he said he had no reservations about discussing where he stood on cases where the Court has rendered a decision.

Though the Court, to date, has found the Medical Professional Liability Act of 2003 constitutional, the Court has been flexible in interpreting some of its provisions such as the pre-filing certificate of merit.

"I think it's safe to say that a fair evaluation of the opinion is that the Court has upheld the requirement that a medical malpractice action plaintiff must have a pre-filing certificate of merit if it's a case where the MPLA applies," Maynard said. "The Court has opened the door there to allow for filings in certain cases where you don't have to have a certificate, and that's what I voted for."
Maynard gave some examples where MPLA might not apply.

"I think we'd all agree that if a physician went into a patient's room and stole $5,000 out of the drawer by the bed, and patient sued the doctor, the MPLA wouldn't apply to that," Maynard said.
"Likewise, if you were a visitor walking down the hallway, slipped and fell and broke your hip, you wouldn't think the MPLA would apply, would you?"

Also, without referencing any specific cases, Maynard said MPLA could be trumped by the legal principle of res ipsa loquitor, or "the thing speaks for itself."

"Then there's a class of cases where the negligence occasionally is so clear that you don't need a medical expert to say that there's negligence here," Maynard said.

Finally, Maynard said that the failure of a plaintiff to file a certificate of merit is not automatic grounds for dismissal.

"But, the Court did say if the plaintiff gets it wrong, they either don't think the MPLA applies or if they get the certificate wrong, they've got to have an opportunity to amend it and straighten it out," Maynard said. "I think that's fair, and I voted for that."

Maynard's remarks came four days after the Court heard oral arguments in the Westmoreland v. Vaidya case. There, Dr. Danny R. Westmoreland, a Mason family physician, appealed Kanawha Circuit Judge Tod J. Kaufman's Oct. 26, 2006 decision dismissing Westmoreland's malpractice case against Dr. Shrikant K. Vaidya, a Point Pleasant urologist.

Kaufman was appointed to hear the case when both Mason circuit judges David W. Nibert and Thomas C. Evans III recused themselves from the case.

In his original complaint and lawsuit, Westmoreland alleged that he developed Peyronie's Disease, and went into renal failure as a result of Vaidya removing a stent from his ureter in June 2003.

Less than two days after the sides agreed to discuss a settlement, Kaufman dismissed the case citing Westmoreland's decision to not file a certificate of merit, in which the specialized nature of urology would require one.

In his appeal brief, Westmoreland's attorney, Robert W. Bright, did make an argument for MPLA to be declared unconstitutional based on the $40,000 fee other urologists wanted to sign a certificate of merit would "deny citizens' access to the courts." However, he cited eight other reasons why the Court should remand the case, including how Westmoreland's claims of battery and slander are governed by different statutes.

In his suit, Westmoreland alleged that Vaidya's assistant restrained him in the course of the cystoscopy. Also, he alleges that Vaidya, in his reply to the complaint Westmoreland filed against him with the state Board of Medicine, wrote that Westmoreland performed intravenous sedation on himself, and that the removal of the stent was "uneventful."

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