CHARLESTON – Perhaps to coincide with the beginning of the season, legal counsel for a Point Pleasant urologist say the reasons provided by Mason physician for why his malpractice case should be reinstated resemble that of a baseball team manager going deep into his pitching rotation to salvage the game.
"You need a scorecard to keep up with the different versions of events being asserted," said Rob J. Aliff, lead counsel for Dr. Shrikant K. Vaidya. "Now the Petitioner looks to this Court for additional time to do what he knew he needed to do over five years ago -– retain an expert."
Aliff's remarks were contained within the reply he, along with co-counsel Thomas J. Hurney Jr. and Amanda Hoback from the Charleston law office of Jackson Kelly filed with the state Supreme Court to Dr. Danny R. Westmoreland's petition for appeal. On Feb. 15, Westmoreland petitioned the Court to overturn Kanawha Circuit Judge Tod J. Kaufman's Oct. 26 order dismissing the case.
Kaufman was appointed to hear the case after both Mason Circuit Judges David W. Nibert and Thomas Evans recused themselves.
In their 34-page reply filed with Court March 19, Vaidya's legal team says Westmoreland's appeal is without merit. Westmoreland not only failed to follow the guidelines set forth for filing a malpractice suit in the Medial Professional Liability Act of 2003, but also changed his story about why he failed to follow those guidelines.
"The Petitioner's decision to sit on his laurels should not be rewarded by taking this matter up on appeal." Aliff said. "Instead, the Petitioner concentrated his efforts on espousing one reason after another for why he did not serve a Certificate of Merit or retain an expert. In furtherance of this point, the record shows: 1) the Petitioner first claimed no urologist would execute the Certificate; 2) then, he claimed 2 out of 12 would, but one required a $40,000 fee; 3) soon after, he went back to claiming no urologist would sign; 4) later, the Petitioner claimed he was able to secure and expert, but apparently elected not to; 5) next, he claimed 2 agreed to execute the Certificate, but both demanded a $40,000 fee; and 6) finally, the Petitioner now asserts that he is qualified to appear as his own expert."
2003 origin of suit
According to court records, Westmoreland filed suit for malpractice against Vaidya in 2005. In his suit, Westmoreland alleges that a cystoscopy Vaidya performed on him in 2003 to remove a stent from his urterer lasted 15 to 20 minutes instead of the usual 15 seconds.
During the procedure Westmoreland maintains he experienced pain and repeatedly told Vaidya to stop. After the procedure, Westmoreland alleges he developed a variety of aliments including Peyronie's Disease, a condition which makes an erection painful.
With the exception of Vaidya being the direct cause of Westmoreland's ailments, both sides agree to those facts. Also, both sides agree that in lieu of filing a notice of claim and certificate of merit as set forth in MPLA, Westmoreland on May 2, 2005, served Vaidya with a handwritten "notice of intent."
Court records show that Westmoreland filed his suit on June 10, 2005. In addition to claiming malpractice, Westmoreland's suit alleged Vaidya committed rape when he didn't remove the scope after being told to do so, and falsification of medical records when he wrote that the procedure was "uneventful."
Hearsay not grounds for review
In addition to challenging his factual claims, Vaidya's legal team challenges Westmoreland's constitutional claims against MPLA. In his petition for appeal, Westmoreland's attorney Robert W. Bright with the Story Law Office in Pomeroy, Ohio, said the $40,000 fee urologists Westmoreland consulted with to sign a certificate of merit violated Westmoreland's right to trial.
However, citing the Court's findings in the cases of Hinchman v. Gillette and Elmore v. Triad, Aliff said that, in the previous case, "statutes enacted by the Legislature are presumed to be constitutional", and in the later "the Court suggested the MPLA pre-suit requirements were constitutional, stating they are valid and outside the scope of the Court's constitutional authority to promulgate rules for trial courts."
Furthermore, Aliff said Westmoreland's assertions of a $40,000 is "nothing more than self-serving hearsay." If the urologists with whom Westmoreland consulted quoted such a fee, Aliff asked, why did he fail to note that in his notice of intent?
"If, in fact, one or two urologists agreed to execute a Certificate for an 'exorbitant fee,' why wasn't that included in the Notice of Intent?" Aliff queried. "In any event, there is absolutely no admissible evidence on the record substantiating these assertions and the Petitioner should not be permitted to attack the constitutionality of a statute using inadmissible hearsay as his vehicle."
"This characterization is especially true given that the Petitioner has provided inconsistent versions to explain why he failed to server Dr. Vaidya with a Certificate of Merit," Aliff added.