Jeannettia D. Spencer poses with her son James.

CHARLESTON – Recourse already exists for a party to have a case that was dismissed to later be reopened, and requirements that attorneys to carry malpractice insurance would have to come from the state Supreme Court, and not the state Legislature, says the head of the state Bar association.

Believing she was twice victimized by malpractice – one medical, and one legal – Jeannettia D. Spencer of Dunbar says she hopes to convince policymakers to make changes to the Rules of Professional Conduct and West Virginia Code of Civil Procedure. Specifically, Spencer says she would like to see attorneys carry malpractice insurance as a condition of being readmitted to the Bar after a suspension or annulment, and that a civil suit be reopened by the court if it can be proved if it was dismissed without the plaintiff's knowledge or consent.

Concerning the latter, Tom Tinder, executive director of the West Virginia Bar, says the Code already allows for a plaintiff to petition a court to reopen a case in which he or she believed was improperly dismissed. Reference to the proper section of the Code to petition for a reopening, Tinder said, would depend on the particulars of the case.

Also, like with the outcome of any case, Tinder said a dismissal is always grounds for appeal to the Supreme Court.

Insurance would have helped

According to court records, a malpractice suit Spencer brought against Charleston physician Dr. Candace McCormick was "voluntarily dismiss[ed]" on April 29, 2003 (Kanawha County Circuit Court, Case No. 00-C-2094). In her suit, Spencer alleged McCormick improperly administered an epidural 13 times in the course of attempting to induce labor on Oct. 29, 1998 when she was pregnant with her son, James.

Spencer avers that she did not agree to dismiss the suit. Instead, Spencer says the dismissal was done without her knowledge or consent by her attorney, Theodore R. "Ted" Dues Jr.

About a month after the dismissal, Spencer filed a complaint against Dues with the Bar's Office of Disciplinary Counsel. Her complaint, along with those of eight other clients, were grounds for the ODC to recommend Dues be disciplined for misconduct.

On March 1, 2004, an 11-point statement of charges was brought against Dues by the Lawyer Disciplinary Board, the Bar's prosecutorial arm. The Supreme Court, which makes the final ruling on cases concerning attorney misconduct, in a 4-1 decision ruled Dues should make restitution to his clients, and have his license to practice law restricted to hearing mental hygiene cases for the next 24 months (Lawyer Disciplinary Board v. Theodore R. Dues, Jr., a member of the West Virginia State Bar, Case No. 31713).

While the Board's statement of charges were pending, Spencer brought suit against Dues for legal malpractice (Kanawha County Circuit Court, Case No. 04-C-2231). After several attorneys with whom she spoke declined to handle the case citing Dues' lack of malpractice insurance, Spencer says she had to act as her own attorney.

In January, Spencer and Dues agreed to mediate the suit with retired Supreme Court Justice Thomas McHugh acting as mediator. When McHugh informed her that Dues lacked scarce financial resources, and that he may not be working in the capacity as a mental hygiene commissioner much longer, Spencer says she agreed to a $2,000 settlement from Dues.

Unbeknownst to Spencer was the Court's ruling from a month earlier. Also, Spencer says she was not aware that three days prior to their settlement on January 26, Dues received a cumulative of $94,236.50 since June 2005 from the Supreme Court, making him the highest paid mental hygiene commissioner in the state.

Coupled with what she believes was deception on his behalf, Spencer says Dues' lack of malpractice insurance resulted in her being denied justice. Had Dues been required to carry malpractice insurance, Spencer believes she could have received a more equitable settlement from him.

Order from the Court

Any mandate that West Virginia attorneys carry malpractice insurance would have to come from an administrative order from the Court, Tinder says. Because the way the state Constitution is written, Tinder says, the Court grants licenses to practice law and governs the conduct of its licensees.

Attempts by any of the two other branches of government, particularly the legislative, would be a violation of the separation of powers, Tinder said.

Currently, Tinder said only one state, Oregon, requires attorneys to carry professional liability insurance as a condition to practice law. West Virginia is one of about 10 states that require attorneys notify its bar association on a yearly basis if they are carrying malpractice insurance, Tinder said.

According to Tinder, about 80 percent of the over 4,000 attorneys licensed to practice law in the state have liability insurance.
A call to the Bar confirmed that Dues is currently without malpractice insurance. A woman who answered the phone said the Bar keeps information for only the current year.

West Virginia joining with Oregon in requiring attorneys to carry professional liability insurance is something Tinder says he personally would like to see happen.

"I think that a lawyer, or any other professional who offers a service to the public, should be required to carry professional liability insurance," Tinder said.

At least one justice, Brent Benjamin, agrees with Tinder. In a footnote to his dissenting opinion in the Court's ruling on Board's charges against Dues, Benjamin said the Court should mandate attorneys to carry malpractice insurance as a condition to practice law.

"I take this opportunity to suggest that we, as a Court, consider creating a rule which would, as a condition of practicing law in West Virginia, mandate all attorneys actively practicing in West Virginia, with some reasonable exceptions, to maintain legal malpractice insurance coverage generally sufficient to protect clients, and to produce of such coverage at the time annual bar dues are paid," Benjamin said.

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