Appeal in dismissed Mason malpractice case raises constitutional issue

By Lawrence Smith | Mar 1, 2007



CHARLESTON - An appeal of a dismissed Mason County malpractice case may provide the state Supreme Court an opportunity to decide on not only the constitutionality of requiring pre-suit notification, but also a state law designed to curb malpractice suits.

On Feb. 15, Dr. Danny R. Westmoreland filed an appeal with the Court in his malpractice case against Point Pleasant urologist Shrikant K. Vaidya (Mason County Circuit Court, Case No. 05-C-97).

Westmoreland's appeal, prepared by his attorney Robert W. Bright of the Story Law Office in Pomeroy, Ohio, asks the Court to reverse and remand Kanawha County Circuit Judge Todd J. Kaufman's Oct. 26 order dismissing the case.

Kaufman was appointed by the Court to hear the case when both Mason County Circuit judges David W. Nibert and Thomas J. Evans recused themselves.

In the 67-page brief he filed with the Court, Bright makes Westmoreland's case for reversal based on nine issues. Eight deal with perceived errors on Kaufman's behalf with the ninth asking the Court to find the Medical Professional Liability Act unconstitutional.

"The certificate of merit requirement found in WV Code 55-7B-6(B) of the Medical Professional Liability Act is unconstitutional because it restricts or denies citizens' access to the courts by requiring plaintiffs to pay exorbitant amounts of money in order to obtain a certificate of merit," Bright says in his brief.

$40,000 buys expert testimony

In an attempt to steam the outflow of physicians from West Virginia who claimed skyrocketing premiums for malpractice insurance where harming their ability to practice medicine, the Legislature in 2003 passed and then-Gov. Bob Wise signed the MPLA into law. Among MPLA's provisions are requiring a plaintiff provide the defendant a 30-day notice to bring suit.

Also, MPLA requires pre-suit notifications to contain a certificate of merit outlining a theory of liability. The certificate must be signed by a physician whose field of medicine includes that of the defendant.

The intended purpose of the pre-suit requirements was to thwart frivolous lawsuits, and encourage mediation in more substantive cases.

In his brief, Bright maintains that Westmoreland consulted with 12 urologists to sign a certificate of merit. Though 10 declined, two said they would for $40,000.

Prior to filing an appeal with the Court, Bright filed a motion with Kaufman to reconsider his dismissal order. According to court records, Kaufman denied that motion on Dec. 13.

In his reply to the motion to reconsider, court records show Vaidya's attorney Rob J. Aliff, with the Charleston law firm of Jackson Kelly, said such a fee is "little money" and a "reasonable expectation" for "compensating a medical expert for his time." If such a fee is the going rate for certificates of merit, Bright says in his brief, it would have the effect of violating most West Virginian's right to trial.

"According to the U.S. Census Bureau ... West Virginia had a per capita income of $16,477 in the 2000 census," Bright says. "In light of that figure, does the Defendant honestly believe that $40,000 is a 'little money?'

"After all," Bright adds, "if Plaintiffs in West Virginia are required to expend more than 2 1/2 years of their pre-tax income in order to file a suit against Vaidya, it certainly guarantees that here will be very few malpractice suits against him. It is beyond doubt that very few Plaintiff's attorneys would take medical malpractice cases on a contingent fee it the attorneys had to front $40,000 to even file a notice of the suit."

Case law cited for reversal

Should the Court choose not to rule on the constitutionality of MPLA, Westmoreland maintains his case is still validated by other provisions of the state code. Among them are his allegations against Vaidya for battery.

In his original complaint filed June 10, 2005, Westmoreland alleges a cystoscopy Vaidya performed on him in 2003 for removal of a stent from his ureter, resulted in Westmoreland developing Peyronie's Disease, a condition which results in curvature of the penis. Such distortion causes pain during an erection and sex difficult or impossible.

The procedure, Westmoreland alleges, was done without anesthesia, which Vaidya assured him he'd done before. Vaidya also assured Westmoreland the procedure would take less than a minute.

However, the procedure lasted 15-20 minutes, in which Westmoreland says he repeatedly told Vaidya to stop. He alleges during that time, Vaidya's assistant restrained him.

Westmoreland's withdraw of consent for the cystoscopy, Bright says in his brief, makes the case "a battery claim rather than a malpractice claim." Citing applicable case law from not only West Virginia, Virginia, Georgia, Kentucky, Illinois and Wisconsin, Bright says MPLA doesn't govern cases involving battery.

"Westmoreland filed this case as a malpractice claim -- and rightly so, for as far as the procedure began, it was clear to Westmoreland that Vaidya was breaching the applicable standard of care," Bright said. "However, when Westmoreland withdrew his consent to the medical procedure within mere seconds of the beginning of that procedure, the continuation of that medical procedure by Vaidya was a battery which exists outside the scope of medical malpractice."

Two different views

Nevertheless, the Court seems poised to test MPLA's constitutionality. At least two justices in separate cases have expressed discontent with pre-suit requirements.

In November, the Court was presented with a possible constitutional challenge to MPLA. In the case of Sarina L. Davis, admx. v. Mound View Health Care, Inc., the Court in a 4-1 decision reversed and remanded Marshall Circuit Judge John Madden's dismissal of Davis' case (Case No. 33104).

Mound View moved the case be dismissed when they were not served with a 30-day notice of suit. Ronald Kasserman, Davis' attorney, opposed the motion based on the fact the failure rested on Davis' prior attorney who shut down her law firm after taking Davis' case.

Dissenting from the Court's ruling was Chief Justice Robin Jean Davis. Because the issue was raised in the dismissal, Davis believed the Court should have decided on MPLA's constitutionality.

"In this case, the plaintiff's complaint was dismissed solely upon the grounds that she did not serve a notice of claim on the defendant, thirty days before filing the action, as required by the Medical Professional Liability Act," Davis said. "On appeal to this Court, the plaintiff challenged the dismissal of her complaint on the grounds that the pre-suit requirements of the Act were unconstitutional.

"In resolving this case, the majority opinion decided not to address the constitutional issue raised by the plaintiff," Davis added. "Instead, the majority affirmed the dismissal on the basis that the plaintiff could refile her complaint after complying with the Act."

"As I stated in Hinchman, the pre-suit requirements of the Act encroach upon this Court's constitutional authority to promulgate procedural rules for litigating in the courts of this State. Consequently, and for the reasons more fully set out in my concurring opinion in Hinchman v. Gillette, I respectfully dissent."

On Valentine's Day, the Court heard oral arguments in Adda Motto, Marie Carey, David Carey, Kristi Carey, and Sharon Runyon v. CSX Transportation Inc., and West Virginia Department of Environmental Protection, Office of Abandoned Mine Lands and Reclamation, a West Virginia government entity (Case No. 061342). Though it was not raised by the plaintiff's attorney, Justice Joseph Albright hinted a constitutional challenge may be raised to the 30-day requirement in notifying state agencies of pending lawsuits.

"I don't see any way to address this outside of the constitutionality of the statute," Albright said.

The plaintiffs, though their attorney Bernard Layne III, filed suit in Logan County Circuit Court against CSX Transportation and the state Department of Environmental Protection in 2005. They allege CSX and DEP were partially responsible for a 2003 flood which destroyed their homes.

After the case was transferred to Kanawha County because of its involvement in the suit, DEP moved to have the case dismissed because it was not served with the 30-day notice. The case was assigned to Kaufman.

After granting a motion by Layne to stay the case so the pre-file notice could be served, Kaufman asked the Court to determine if the pre-suit notification was a jurisdictional or procedural question.

In October, the Court agreed to hear the case.

Despite siding with the majority in the Mound View case, Albright mimicked Davis' sentiments about pre-suit filing requirements. Though the circumstances are different in the Motto case, Albright said the pre-suit filing requirement for state agencies is "a rather draconian statute" because it infringes on the Court's ability to make rules for litigation.

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