Jeannettia D. Spencer poses with her son James.

DUNBAR – Had she known Ted Dues was on track to becoming the highest paid mental hygiene commissioner in West Virginia, a Dunbar woman says she would not have settled a malpractice suit against him earlier this year.

In January, Jeannettia D. Spencer agreed to settle a lawsuit she filed against South Charleston attorney Theodore R. "Ted" Dues, Jr. (Kanawha County Circuit Court, Case No. 04-C-2231). According to court records, Spencer brought the suit in 2004 almost a year after Dues agreed to "voluntarily dismiss" a medical malpractice suit she filed against a Charleston physician in 2000.

Hoping to receive $75,000 from Dues – less than 25 percent of the damages she hoped to receive from her medical malpractice claim – Spencer says she agreed to settle for $2,000 believing that he was financially destitute. However, records provided by the state Supreme Court show that on Jan. 23, three days before Spencer reached her settlement with Dues, he received a check for $9,808.50 for work he performed as a mental hygiene commissioner in Kanawha County.

In fact, including the Jan. 23 check, Dues was compensated a cumulative of $94,236.50 for his services since June 2005. At the close of the fiscal year on June 30, 2006, records show Dues was compensated a grand total of $113,103.25.

When Spencer was shown these records, she shook her head in disbelief.

"I would never have settled it," Spencer said. "He's making a lot of money to be an ill man."

13 unsuccessful attempts to administer epidural

Spencer's journey through the court system started on Oct. 29, 1998, when she was admitted to CAMC's Women and Children's Hospital to give birth to her son, James. Because of toxemia, Spencer says doctor's suggested she give birth six weeks early.

As the company for which she was working at the time was going trough some downsizing, Spencer, 42, says she and her then-fiance decided to take some time off and have their baby in West Virginia.

At the time, Spencer says she was living in Cary, N.C., a suburb of Raleigh, and taking business classes at St. Augustine College with the hope of soon being admitted to pharmacy school.

When attempts to induce labor were unsuccessful, Spencer says the decision was made to deliver James via Caesarean section. That, too, was almost unsuccessful as Spencer says Dr. Candace McCormick, the attending anesthesiologist, attempted 13 times to administer an epidural.

Writing in pain from multiple needle sticks, Spencer says she pleaded for McCormick to stop, and requested another physician administer the epidural. Dr. Donna Jean Slayton was successful in her first attempt, Spencer says.

Thought still in pain several days after her discharge from the hospital, Spencer says family members and medical professionals reassured her it would eventually subside. However, Spencer says, by the end of the year, she returned to West Virginia after the pain became so intense that it severely limited her ability to perform certain functions such as walking, sleeping, bathing and even dressing.

Chronic pain puts crimp in lifestyle

Since then Spencer says she's been diagnosed with radicular neuropathy, nerve damage which results in chronic pain and swelling of the joints. The pain, which Spencer describes as having "an ice pick in your back," is most acute in her lower back – near where the epidural was administered – but extends all the way down her right leg.

The pain, Spencer says, has led to both mental and financial stress. The former comes from not being able to be as active a participant in her son's life as she would like, Spencer says.

Though she could hold him as a baby, Spencer says she couldn't walk and hold James at the same time. Now that he's able to do many things on his own, doing other things like going to the grocery store, and watching him play football are still an ordeal.

"I don't want my son to remember me as a mom who couldn't do anything," Spencer tearfully said.

Also, Spencer says the loss of a $40,000 yearly salary has had its impact. In addition o the child support she receives from James' father, Spencer says she receives a $970 monthly disability check.

Until recently when Medicare started taking care of it, Spencer says $300 went toward prescriptions. Also, Spencer says Medicare took care of some of them, but she is still saddled with over $18,000 in unpaid medical bills.

Malpractice case filed, then "dismissed"

In an attempt to avoid the predicament in which she now finds herself, Spencer filed suit against McCormick in 2000 (Kanawha County Circuit Court, Case No. 00-C-2094). Had her case gone to trial, Spencer says she would have asked for $350,000 in damages to include pain and suffering and lost wages.

After speaking with several attorneys, Spencer says she gave her case to Charleston attorney Thomas G. Wilson, now with the law offices of James H. Humphreys and Associates. However, expressing dissatisfaction with the way he was handling the case, she says she dropped him after two years.

Upon the recommendation of Shelly Freeland-Eddie, an attorney-friend from church, Spencer says she hired Dues to handle her case. However, Spencer says Dues turned out to be a disastrous choice as he did little if anything in her case during the six months he was her attorney.

After unsuccessfully attempting to get in touch with him in early 2003, Spencer says she received a call from a friend on about April 4 or 5 who saw Dues at the Tri-State Racetrack and Gaming Center in Cross Lanes. Spencer says she went there and found him in "a festive mood" and "with a drink in hand."

According to Spencer, when she asked how he was doing, Dues replied, " 'I'm feeling better than I've ever felt.'"

Dues, Spencer said, reassured her the case was coming together. However, in order to bolster it, Spencer said Dues asked for an additional $10,000 to hire an expert witness.

After mulling over how she was going to find the money, Spencer says she called Judge Louis H. "Duke" Bloom's office to check for the next deadline or hearing. When she did, Spencer said she was shocked to find out that on April 29, 2003, she agreed to "voluntarily dismiss" her case against McCormick.

Suit brought against Dues for legal malpractice

When attempts to reach Dues for an explanation were unsuccessful, Spencer filed a complaint on May 13, 2003 with the Office of Disciplinary Counsel, the investigative arm of the state Bar Association. Ironically, eight of Dues' other clients filed similar complaints with the ODC in 2003, resulting in an 11-point statement of charges filed against him by the Lawyer Disciplinary Board, the Bar's prosecutorial arm, on March 11, 2004.

As she awaited the Supreme Court to make a ruling on Dues' fitness to practice law, Spencer decided to file a malpractice suit against him. Because no attorney would agree to take her case since he was without malpractice insurance, Spencer says she had to act as her own attorney.

All seven Kanawha County Circuit judges recused themselves from the case citing their professional relationship with Dues. On Nov. 19, 2004, Chief Justice Elliott E. "Spike" Maynard appointed Berkeley County Circuit Judge Christopher C. Wilkes to hear the case.

A little over a year later, the Court ruled on the charges filed against Dues by the Board (Lawyer Disciplinary Board v. Theodore R. Dues, Jr., a member of the West Virginia State Bar, Case No. 31713). According to court records, though it agreed Dues should make some restitution to his clients, the Court in a 4-1 decision rejected the Board's recommendation Dues' license be suspended for 18 months.

Instead, the Court opted to restrict Dues' license to mental hygiene work for 24 months in which he would be supervised by the circuit court's chief judge.

About a month after the Court's ruling on Dues' license, he and Spencer agreed to mediate the lawsuit with retired Justice Thomas E. McHugh serving "voluntarily" as mediator, records show. According to his biography, McHugh, now with the Charleston law firm of Allan, Guthrie, McHugh and Thomas served on the Court from 1981-1997, and has served as senior status judge for Kanawha County since 2003.
According to court records, McHugh was chief justice in 1992 when Dues was disciplined for pleading guilty in 1990 for failure to file his 1985 income tax return (The Committee on Legal Ethics of the West Virginia State Bar v. Theodore R. Dues, Jr., a member of the West Virginia State Bar, Case No. 21424). In a 4-1 decision, the Court voted to publicly reprimand Dues instead of suspend his license for three months as the Bar recommended.

Former justice: Dues 'has nothing'

After she made her initial offer of $75,000, Spencer says Dues countered with an offer of $500. According to Spencer, McHugh told her that was the best offer he could make since he was only working one to two days a week and might not be at the mental hygiene office much longer.

Spencer avers that McHugh said, " 'Believe me, Ms Spencer, he [Dues] has nothing.'"

Nevertheless, Spencer said McHugh asked her if he could get Dues to agree to settle for $2,000 would she take it? Spencer said yes, and, according to court records, Dues agreed to pay her in two $1,000 installments, the first on Feb. 15 and the last on March 15.

Though she was undecided if Dues deceived McHugh about his financial status, Spencer gave him credit for following through on the case.

When Dues was delinquent on making his first payment, Spencer said McHugh called Dues to remind him about the need to make good on his commitment.

Attempts to reach McHugh and Dues were unsuccessful as McHugh was not immediately available for comment, and Dues did not reply to faxed request for an interview.

Working for legal reforms

There is a plus side to her ordeal, Spencer says. She has spent so much time researching the law in the three years since her original malpractice suit was dismissed that she could be applying to the Bar Association today.

Though not formally a member, Spencer says that won't stop her from making her name known to Bar members. In the coming months, she plans to encourage both the Bar and the state legislature to enact changes to the Rules of Professional Conduct and Rules of Civil Procedure.

Among the reforms Spencer would like to see made are allowing a case that was dismissed without the plaintiff's knowledge and consent to be reopened. Also, Spencer believes that any attorney whose license is suspended or annulled should be required to carry malpractice insurance as a condition of readmittance to the Bar.

"Who's out there protecting the common citizen?" Spencer said. "We can't allow the clients to suffer at the hands of a mentally incapacitated lawyer."

Her hope in pressing for these changes, Spencer says, it to eliminate for others the frustration she's endured. Despite all her frustration, Spencer says she's thankful she has something to live for.

"I'm still blessed anyhow," Spencer said. "You have to learn there's going to be good days and bad days."

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