CHARLESTON – Circuit Judge Philip Jordan must let Grant County jurors decide whether to believe a doctor who signed a death certificate and later swore he made a mistake, the West Virginia Supreme Court of Appeals ruled on April 21.

The Justices reversed Jordan, who would not have allowed Dewey Bensenhaver to change his original conclusion on the cause of death for Elva Goldizen.

Her family blames Grant County Nursing Home for her death.

The court's unsigned opinion accused Bensenhaver of trying to "undermine the integrity and accuracy of our vital statistics records."

They wrote that he sought to amend the death certificate by deposition testimony rather than in accordance with law.

Rather than throw him out, they decided jurors should measure his credibility.

They wrote, "While it is the case that Dr. Bensenhaver has given inconsistent statements on causation, such inconsistencies go to the weight to be afforded his testimony."

"It is for a jury to decide what weight to give that testimony."

Jordan may need to read and reread a footnote to figure out how to proceed.

"The issue of whether Dr. Bensenhaver should be permitted to testify in a manner that would constructively amend Ms. Goldizen's death certificate is not before us and we, therefore, will not address that issue except to say that it is an issue that should be addressed upon remand," the footnote advised.

In 2003, as Goldizen ate lunch, she stiffened and put her hands to her chest.

Someone asked if she had chest pain, and she said yes.

Staff took her to her room, where nurses noticed bits of fish in her mouth.

Swabbing removed some particles, and a Heimlich maneuver produced more.

An ambulance arrived and took her to a hospital.

The intake report noted, "EMS reports possible aspiration of fish."

Emergency room physician Robert Gaudet tried suction and pulled out more fish bits, but Goldizen died.

Bensenhaver, medical director of the nursing home, certified acute aspiration as the immediate cause of death.

Her family sued, claiming staff knew she had trouble eating solid foods.

The family listed Bensenhaver as their expert on causation.

In a deposition, Bensenhaver said he no longer believed the immediate cause of death was acute aspiration.

He said he didn't believe her airway was obstructed because emergency room records indicated "agonal respirations."

The nursing home moved for summary judgment, and Jordan granted it.

The family appealed, and the Justices took their side.

"It is clear to us that a genuine issue of material fact exists as to causation," they wrote.

David Cecil, of Barth and Thompson in Charleston, represented the family.

Rita Biser, of Moore and Biser in South Charleston, represented the nursing home.

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