Elkins doctor denied new trial

By Chris Dickerson | May 10, 2006

Kent Carper

ELKINS – A Randolph County physician was denied his request for a new trial after he and a hospital were found responsible for blinding a man in a January judgment with an $1.85 million award.

Melvin Heckel lost his vision from a 2002 surgery at Davis Memorial Hospital in Elkins. The surgery was performed by Elkins osteopath Kenneth D'Amato.

In previous court documents, Heckel says D'Amato performed elective back surgery after Heckel complained about back pain. After leaving the recovery room, Heckel immediately began complaining about vision loss. Now, he is legally blind.

Heckel previously received a $350,000 settlement from the hospital

D'Amato, who was represented by attorney Kenneth J. Barton, based his request for a new trial on several factors.

First, he said the court erred by failing to strike the entire panel of jurors "after one member of the panel advised the court that Dr. D'Amato had operated on her daughter and had a bad outcome or as the defendant states an 'unfavorable result,'" according to the denial order issued Tuesday May 2.

When counsel requested this dismissal during a bench conference at trial, the judge asked the remaining panel members if they were biased by the comment. All of them responded that they weren't, according to the order.

"This court believes that the jury was intelligent, fair, impartial and hardworking," Judge John Henning wrote in the order. "This court further believes that the jury fairly tried the issues in the case and a verdict against the defendant … was properly returned by the jury."

D'Amato also claims "irrelevant and highly prejudicial information" against him was used. While the exact nature of this information isn't disclosed in the order, it does mention that D'Amato testified that he returned to West Virginia because he missed his home and friends. But that prior to trial, the plaintiff's counsel learned D'Amato had his privileges restricted by the hospital for which he was working in Maine. When he returned to West Virginia, he was granted a probationary license by the state Board of Osteopathic Physicians based on information he had given the board.

"Dr. D'Amato's problems in Maine became relevant when Dr. D'Amato stated the reason he left the State of Maine," Henning wrote in the order. "At best, Dr. D'Amato's testimony was inaccurate or at worst, Dr. D'Amato testified falsely about the reasons during his deposition and when he was on the stand."

The order also discusses the testimony of Dr. Kenneth Lippman and Dr. Rick Vaglienti.

D'Amato argued that Lippman, an orthopedic surgeon, testified outside of his area of expertise by testifying about ophthalmology and anesthesiology.

Henning say she referred to West Virginia Rules of Evidence Rule 702, which permits opinion testimony by experts when the witness is "qualified as an expert by knowledge, skill, experience, training or education" and "if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue."

Henning writes that Lippman was qualified under Rule 702.

He "had specialized knowledge that would assist the jury in understanding the medical evidence, the standard of care and the breaches of the standard of care committed by the defendant and that those breaches of the standard of care were a proximate cause of Melvin Heckel's injuries and damages," Henning wrote. "For those reasons, this Court is of the opinion that Dr. Lippman was properly qualified to testify on the subjects he testified on at trial."

As for Vaglienti, D'Amato argued that he was not a certified life-care planner. Vaglienti is an anesthesiologist.

Again, Henning says he referred to Rule 702.

"In addition to anesthesiology, Dr. Vaglienti is a board certified independent medical examiner whose training, education and experience make him qualified to determine the life-care needs of Melvin Heckel," Henning wrote. "Dr. Vaglienti testified that he personally met with and evaluated Melvin Heckel to determine his life-care needs.

"The Court recalls that defense counsel made all of these arguments to the jury during his cross-examination of Dr. Vaglienti and during his closing argument. The Court also recalls that defense counsel stipulated to the admissibility of the life-care plan presented by Dr. Vaglienti so that the defense life-care plan could be admitted."

D'Amato also argued that the jury verdict form was prejudice against him by having "so many blank lines and that the jury was led to believe that if it found for the plaintiffs, it should fill in each line item with some damages amount."

Henning wrote that the only objection raised by the defense at trial was that the verdict form had "too many lines on it."

"As the defense never raised these arguments prior to the verdict, they are now waived," Henning wrote.

The judge also says that there were no errors committed during the trial and that relief under the cumulative error doctrine is not warranted.

"I'm very grateful to the jurors and to Judge Henning for a fair trial," said Charleston attorney Kent Carper, one of Heckel's lawyers along with Elkins attorney David A. Sims.

Carper said the judgment, handed down on Jan. 13, was the highest medical malpractice award ever in Randolph County and the first verdict that favored a patient there in five years.

Carper said D'Amato failed to take any special measures to protect Heckel, who is anemic, during a prolonged spinal surgery in which he was in a prone position and lost blood.

Carper called the case one of the most significant ones since the state Legislature passed more restrictive medical malpractice laws last year.

"There are significantly less (malpractice) cases being filed because the caps have made it difficult," Carper said at the time of the verdict. "Most lawyers aren't capable of bringing the cases. The insurance companies have become empowered.

"Some insurance carriers have made corporate decisions to try anything. The citizens of this state were promised that the (state) Insurance Commission would come down hard on companies doing that. I'm not aware that they're doing that."

The verdict of $1,558,300 for Heckel included money for medical expenses, pain and suffering, emotional pain, lost wages and a future life care plan. The $300,000 awarded to his wife was for loss of society, companionship and services and for care and services provided.

Carper said D'Amato's insurance company didn't try to settle the case before it went to trial.

Carper praised Heckel, a retired Elkins contractor who was active in the community, and the jury that deliberated for more than five hours to reach its verdict.

"The jury was very tentative and worked very hard," he said. "They deliberated until 8 05 p.m. They refused to eat after lunch. They just wanted to do their work."

Randolph Circuit Court case number: 04-C-163

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