N.C. doctor takes malpractice case to federal court

By Thomas Kallies | Mar 25, 2014

BLUEFIELD -- A North Carolina doctor is removing a West Virginia lawsuit to federal court.

Matthew Kelly, as the administrator of the estate of Brenda S. Kelly, filed suit Jan. 17 in McDowell Circuit Court naming Sherwood P. Leo MD as the defendant, citing medical malpractice.

Leo is now removing this matter to the U.S. District Court Southern District of West Virginia on diversity grounds. Kelly apparently was under the impression that Leo was a resident of West Virginia. Leo however claims to be a citizen of North Carolina.

Because the parties in the matter hail from different states and there is more than $75,000 worth of damages at stake, Leo is exercising his right to try the case in federal court.

According to the original suit, Brenda Kelly, the plaintiff's mother, visited the emergency room of Welch Community Hospital multiple times, where she was treated by the defendant. The claim alleges that the defendant failed to diagnose and properly treat Brenda Kelly's bronchopneumonia and sepsis, and ordered an antibiotic that was contraindicated by her allergies listed in her medical history.

Due to the defendant's failure to diagnose and treat Brenda Kelly, she experienced a rapid deterioration of her condition and ultimately died July 26, 2012, at St. Mary's Hospital in Huntington, according to the claim.

Matthew Kelly is seeking more than $75,000 in damages. Leo is being represented by W.E. Sam Fox II.

U.S. District Court Southern District of W. Va. Case No. 14-cv-11041.

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