WEST VIRGINIA RECORD

POINT PLEASANT – After first ordering the parties to discuss a settlement, the judge hearing a malpractice suit between two Mason County physicians has ordered the case dismissed.

Kanawha County Circuit Judge Tod J. Kaufman granted a motion by Robert Aliff, legal counsel for Point Pleasant urologist Fhrikant K. Vaidya, to dismiss a malpractice suit brought against him by Mason osteopathic physician Danny R. Westmoreland. Aliff, of the Charleston law office of Jackson Kelly, made the motion shortly after the suit was brought in 2005, and again asked for a dismissal during a status conference held Wednesday Oct. 25.

Based on clear language in the Medical Professional Liability Act of 2003 requiring plaintiffs to file a certificate of merit and provide an expert witness to testify on the deviation of the standard of care, Aliff said Westmoreland's "compliant is insufficient and should be dismissed."

In an order dated Thursday Oct. 26, Kaufman –- who was appointed by the state Supreme Court after both Mason County judges David W. Nibert and Thomas C. Evans recused themselves from the case -– agreed that the law's language is clear.

"Therefore the Court has determined, after extensive review of the record and the Plaintiff's claims, that this case is controlled by the "MPLA" and must meet the requirements in filing this malpractice action, including filing a certificate of merit and providing an expert witness to testify to the deviation of the standard of care," Kaufman said in his order. " This is particularly true because of the specialized nature of the medical practice of urology."

Sides agree to attempt settlement

Acting as his own attorney, Westmoreland brought suit against Vaidya in 2005 alleging the removal of a stent from his ureter left permanent damage. Attempts were made to comply with the law, Westmoreland said, but the $40,000 fee some of the urologists said they would charge to testify was unreasonable.

Nevertheless, Westmoreland said that Vaidya's continuance with the procedure despite his demands to stop fits the legal definition of rape.

"I just think that 'no' means 'no'," Westmoreland said during the hearing.

Kaufman seemed to give credence to Westmoreland's claim that the case could proceed without a certificate of merit. When he asked Aliff if there were any cases where one would not be needed, Aliff said "I'm sure there are."

"It's basically one word against the other," Kaufman said.
To bolster his motion that the case should be dismissed, Aliff produced a report from the state Board of Medicine showing an investigation it undertook into a complaint Westmoreland filed against Vaidya found no probable cause. When Westmoreland challenged the validity of the Board's investigation, Kaufman scoffed at him.

"Ronald Walton [the Board's former executive director] did so much to run doctors into the ground that the New York Times wrote about them [the Board]," Kaufman said.

Regardless, Kaufman asked Aliff to call Vaidya and ask him if he was willing to settle the case. After leaving the courtroom for a moment, Aliff returned to say that Vaidya would agree to discuss a settlement.

Westmoreland said he, too, would be willing to discuss a settlement.

Prior to adjournment, Kaufman strongly suggested that both sides agree to some form of settlement. If no settlement could be reached, Kaufman said he would make a ruling on Aliff's motion to dismiss.

"I owe you [Westmoreland] and this doctor an obligation to decide on this case," Kaufman said.

After receiving Kaufman's order on Nov. 2, Westmoreland he was "totally bewildered at what this judge has done."

Some type of response to the dismissal order would be forthcoming, Westmoreland said.