Westmoreland

Vaidya

CHARLESTON – Without commenting on constitutional issues raised, the state Supreme Court remanded a Mason County case dealing with the Medical Professional Liability Act back to circuit court for trial.

On Feb. 14, the Court issued its opinion in the case of Westmoreland v. Vaidya. In its ruling delivered per curium, the Court found that while the trial judge was correct in determining MPLA applied in the case, he erred in dismissing it prior to the plaintiff obtaining a certificate of merit.

"The circuit court was correct in determining that Dr. Westmoreland's case is controlled by the provisions of the MPLA," the Court said. "However, due to Dr. Westmoreland's good faith and reasonable reliance on the exception to the certificate of merit requirement, namely, W. Va. Code 55-7B-6(c), Dr. Westmoreland should have been afforded a reasonable time to secure a certificate of merit after the trial court ruled that and expert is required and that a certificate of merit is mandated."

In concluding its ruling, in which Justice Larry V. Starcher concurred in part, dissented in part and reserved the right to file a separate opinion, the Court remanded the case back to Mason Circuit Court "for further consideration consistent with this opinion, and to afford Dr. Westmoreland a reasonable time of thirty days to secure a certificate of merit."

Dispute enters fifth year

The case originated in June 2003 when Dr. Danny R. Westmoreland, a Mason family physician, consulted with Dr. Shrikant K. Vaidya, a Point Pleasant urologist for kidney stones. According to court records, Vaidya placed a temporary stent in Westmoreland's ureter on June 13, 2003, and removed it three days later.

In the course of the June 16 cystoscopy, Westmoreland alleges that Vaidya injured him. The cystoscopy, Westmoreland alleges, took much longer than expect, and resulted in him developing Peyronie's Disease and renal failure.

Court records show Westmoreland filed a malpractice suit against Vaidya on June 10, 2005. Prior to filing the suit, Westmoreland, acting as his own attorney, filed a hand-written "notice of intent to bring suit on May 2, 2005."

In that notice, Westmoreland referred to the portion of the MPLA which stated that certain suits could precede to trial without a certificate of merit in which "a claimant or his or her legal counsel, believes that not screening certificate of merit is necessary because the cause of action is based on a well-established legal theory of liability."

Court records show Vaidya filed a motion to dismiss the suit on June 30, 2005 based largely on Westmoreland's failure to file certificate of merit. After conducting a hearing on Vaidya's motion on Oct. 25, 2006, in which both sides agreed to discuss a settlement, Kanawha Circuit Judge Tod J. Kaufman dismissed the suit the next day.

In his ruling, Kaufman, who was appointed to hear the case when both Mason Circuit judges David W. Nibert and Thomas C. Evans III recused themselves, said MPLA applied "because of the specialized nature of the medical practice of urology." Thus, "[b]ecause Plaintiff has failed to meet the pre-filing requirements in this action, the case must, as a matter of law, be dismissed," Kaufman concluded his ruling.

After hiring Robert W. Bright with the Story Law Office in Pomeroy, Ohio, Westmoreland filed a motion for Kaufman to reconsider his ruling. In his motion, Westmoreland asked for the case to go forward based on his "good faith belief" that his suit did not require a medical expert, or, in the alternative, be allowed an opportunity to obtain a certificate of merit.

On Dec. 13, 2006, Kaufman denied Westmoreland's motion.

In March 2007, Westmoreland filed an appeal to the Supreme Court. In May, the Court agreed to accept the appeal, and heard oral arguments in the case on Jan. 22.

Tackling some issues, dodging others

In filing the appeal on Westmoreland's behalf, Bright cited nine reasons for reversal. Among them included the unconstitutionality of the certificate of merit requirement, and that slander, fraud and battery claims Westmoreland made in his suit fell outside MPLA.

Because some of the urologists with whom Westmoreland consulted wanted an exorbitant fee for signing a certificate of merit, Bright argued that portion of MPLA would "deny citizens' access to the courts."

In claiming slander, fraud and battery, 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."

In respective footnotes on the issues raised, the Court said it declined "to address the constitutionality of the MPLA pre-suit requirements" because "In the present case, the constitutional issue is not the controlling issue."

Also, the Court found "the record is not sufficiently developed for this Court to adequately address the fraud, slander and battery claims."

Instead, the Court said the "core of this discussion will necessarily center on the trial court's dismissal of the suit based on Dr. Westmoreland's failure to comply with the pre-suit notice requirements of W. Va. Code 55-B-6 (b)." In its ruling, the Court found Westmoreland's understanding of subsection (c) of MPLA to be sufficient reason why the trial court should have provided him the opportunity to obtain a certificate of merit before dismissing the case.

"While his reliance on such subsection was in error due to the complexities of the underlying medical issues in this case, Dr. Westmoreland had no way of knowing how the trial court would rule on the matter until it eventually ruled on the dismissal order that an expert and certificate of merit were required," the Court said.

"The first point in time when a court set forth that Dr. Westmoreland would not be permitted to rely on subsection (c) in lieu of a certificate of merit was the same point in time that the case was dismissed for failure to comply with such requirement," the Court continued. "Thus, Dr. Westmoreland was never afforded an opportunity to correct the error."

Reaction from legal counsel

In commenting on the Court's ruling, Bright said he and Westmoreland were certainly pleased. Though he was hopeful the Court would consider the constitutional issues he raised, Bright said "that issue is understandable given the Court's general policy to refuse to consider the constitutionality of a statute if the relief requested can be granted on other grounds."

Regardless, Bright said he foresees having a certificate of merit signed by the Court's deadline.

"We are currently in contact with two physicians in Pennsylvania, one of which is at Johns Hopkins, in order to obtain a certificate of merit to satisfy the Supreme Court's finding that the case is governed by the MPLA."

Though he was pleased that the Court found that MPLA applied, Thomas Hurney, Vaidya's lead counsel with the Charleston law firm of Jackson Kelly, said he was, nevertheless, disappointed the case was remanded.

"This has been a long and frustrating process for Dr. Vaidya," Hurney said. "We're disappointed in the remand, but we respect the Court's decision and we'll abide by its ruling."
When asked if a possible settlement may be offered, Hurney said it was too soon to comment.

"We'll wait and defend Dr. Vaidya in the circuit court," he said.

West Virginia Supreme Court of Appeals Case No. 33459

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