Hospital defends against malpractice, competition

By Lawrence Smith | Nov 22, 2006

POINT PLEASANT – A Mason County hospital finds itself involved in two civil actions, one filed against it and a local physician for malpractice and another filed by it in opposition to a competing home health agency.

Pleasant Valley Hospital and Dr. Clyde J. Rorrer are named as co-defendants in a lawsuit brought by Phyllis Mitchell. In her suit filed May 5, Mitchell, 64, of Leon, alleges both committed malpractice when Rorrer failed to properly treat her for a respiratory problems.

According to court records, Mitchell went to see Rorrer on March 21, 2003 after choking on a peanut that contributed to difficulties breathing. According to court records, Rorrer diagnosed Mitchell with bronchitis, released her and "did not order any additional medical care."

Over the next year, court records show, Mitchell "continued to suffer from respiratory problems that she attributed to bronchitis, per Dr. Rorrer's diagnosis." On May 12, 2004, Mitchell sought the advice of Dr. Loay Al-Asadi, who discovered Mitchell aspired on the peanut.

Likewise, court records show Al-Asadi's diagnosis found fragments of the peanuts contributed to an acute case of pneumonia. This resulted in Mitchell having to undergo a partial lobectomy, or removal of the lung.

Believing Rorrer and PVH deviated from the "applicable standard of care" which contributed to her suffering "serious harm that could have been prevented with a timely diagnosis and referral to an appropriate specialist," Mitchell attempted to reach an out-of-court settlement with them.

When mediation efforts failed, court records show, Mitchell brought her malpractice suit.

Mitchell's attorney, James Akers II of the Akers Law Office in Charleston, alleges because of PVH's and Rorrer's negligence, Mitchell "suffered serious and permanent injuries and scarring to her body, physical weakness, unnecessary major surgery, loss and use of function, permanent disfigurement, pain, emotional distress and an impairment of the capacity to enjoy life both past and present."

No monetary damages are specified in Mitchell's suit, records show.

In their reply, both PVH and Rorrer deny any wrongdoing. According to court records, both state "Defendant's care and treatment of the plaintiff met or exceeded the applicable standard of care" and Mitchell's "injuries, to the extent existed were proximately caused by persons or entities other than this defendant."

The Huntington law office of Farrell, Farrell and Farrell is representing both PVH and Rorrer.

Dueling statistics

In addition to defending itself in a lawsuit, PVH has brought one against a state agency that oversees health care licensing. On February 9, PVH appealed a decision rendered by the West Virginia Health Care Authority's Office of Judges granting a certificate of need to Ohio Valley Home Health to conduct business in Mason County.

According to court records, OVHH, which is a subsidiary of Family Home Health Plus of Gallipolis, Ohio filed for a CON on June 28, 2004 to supply residents of Mason County with home health services. The Authority granted the CON on July 21, 2005.

PVH appealed the decision to the Authority's Office of Judges.

Court records show on January 9 the Office of Judges affirmed the Authority's decision.

In his brief appealing the Office of Judges' decision, PVH's attorney Thomas G. Casto of the Charleston law offices of Lewis, Casey and Rollins, said based in the Need Methodology Formula defined in the State Health Plan, "clearly indicates that there is no need for the Subject Project in Mason County."

A CON for home health services, Casto said, must meet the "229 threshold" in which "at least 229 home health recipients must occur in the county before consideration will be given to issuing another certificate of need for the county."

In his brief, Casto pointed to a decision the Office of Judges rendered in the 1996 case of In re: Critical Care Nursing Home. According to court records, the Office of Judges denied a CON to a Wayne County home health agency where the number of unmet need was 224.

Casto cited OVHH'S CON application showing an unmet need of 198.
OVHH's attorney, Robert Thomas of the Charleston law office of Jackson Kelly, found none of PVH's arguments persuasive. In fact, in the brief he filed Aug. 21 in reply to PVH's motion, Thomas turned their arguments against them.

"Pleasant Valley Hospital's argument reads the 229 figure wholly out of context," Thomas said. "Based on the plain language of the above-styled provisions of the State Health Plan standards for Home Health Services, the 224 figure becomes relevant only if there are agencies in the proposed county which received CON approval within the previous 12 months."

Because that's what happened in the Wayne County case, Thomas argues, "[t]his result was not inconsistent with the Authority's other cases."

Furthermore, Thomas said the "credibility of PVH's argument under the Need Methodology is further undermined by PVH's own prior CON application." Court records show Thomas referred to the 2001 case In Re: Pleasant Valley Hospital d/b/a Pleasant Valley Home Health and Pleasant Valley Private Duty in which the Authority granted a CON to PVH to expand its home health services into Wayne, Jackson, Putnam and Lincoln counties based on an unmet need of 75, 127, 386 and 97 patients, respectively.

Both cases are before Judge David W. Nibert.

Mason Circuit Court case numbers: 06-AA-20 (Health Care Authority) and 06-C-72 (Mitchell)

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