PVH settles malpractice case out-of-court, receives victory in CON appeal

By Lawrence Smith | May 21, 2007

Pleasant Valley Hospital

POINT PLEASANT – Two lawsuits involving Pleasant Valley Hospital have come to a conclusion, one resulting in an out-of-court settlement, and another in its favor.

On Dec. 26, Mason Circuit Judge David W. Nibert dismissed with prejudice a malpractice claim Phyllis Mitchell on May 5, 2006. In her suit, Mitchell named Dr. Clyde J. Rorrer as a co-defendant.

According to court records, Mitchell accused PVH and Rorrer of malpractice when Rorrer improperly diagnosed her breathing problems as bronchitis. Her suit alleged that a follow-up examination by another physician discovered her breathing problems were a result of the remnants of a peanut being lodged in her lung, which later resulted in an acute case of pneumonia, and partial removal of the lung.

On Dec. 13, Paul Farrell with the Huntington law firm of Farrell, Farrell and Farrell, which was representing both PVH and Rorrer, asked PVH be dismissed from the suit.

Nibert granted Farrell's motion noting that the case "has been fully compromised and settled."

Meeting the 229 threshold

About three months later, Nibert ruled on another case involving PVH.

In that case, Nibert handed them a victory in their appeal of the state Health Care Authority's decision to approve a certificate of need to a competitor to its home health service.

According to court records, Ohio Valley Home Health, 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. The Office of Judges, records show, affirmed the Authority's decision on Jan. 9, 2006.

On Feb. 9, PVH, through its attorney Thomas G. Casto of the Charleston law office of Lewis, Casey and Rollins, filed an appeal to Mason Circuit Court.

In their respective briefs, both Casey and Robert Thomas, with the Charleston law office of Jackson Kelly, and representing OVHH, cited Authority rulings supporting their claims why Nibert should rule in their favor based on the Authority's "229 threshold."

This benchmark set by the Authority, Casto said is where, "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."

Casto pointed to one case in 1996 where the Office of Judges denied a CON to a Wayne County home health agency where the unmet need was 224. Because OVHH's unmet need application was 198, the CON should be denied.

In his Aug. 21 brief, Thomas said the 229 threshold "becomes relevant only if there are agencies within the proposed county that received CON approval within the last 12 months." That's what happened in the Wayne County case, Thomas said.

Also, Thomas said the "credibility of PVH's argument under the Need Methodology is further undermined by PVH's own prior CON application." He cited a 2001 case in which PVH applied for and received a CON to expand its home health services to Wayne, Jackson, Putnam and Lincoln counties based on an unmet need of 75, 127, 386 and 97 patients, respectively.

'Arbitrary and conflicting'

In his 10-page ruling, Nibert seemed to use Thomas' argument for the crux of his decision. The 12-month rule, Nibert said, in conjunction with the Authority's three other steps in the Need Methodology creates an inherent conflict to the Authority's mission to avoid duplication of health services.

"As noted previously, the Authority's interpretation of the regulation and the selective enforcement and non-enforcement of the fourth part of the need methodology necessarily results in absurd and conflicting decisions," Nibert said. "It is possible for the Authority to approve an application where the projection of unmet need is between 1 and 228 available new patients and also deny one with the same projected result."

"The result depends upon whether there has been a recently approved provider in the market in the previous twelve months and, thus, depends on whether the fourth step is utilized or ignored," Nibert added.

In his ruling, Nibert pointed out that the application of the Authority's standards, and not the standards themselves, were being called into question. Nevertheless, because of the conflicting way they interpreted the standards, Nibert reversed and remanded the Authority's and Office of Judges' decisions.

"Because the Decisions of the Authority and OOJ in this matter are arbitrary, capricious, constitute an abuse of discretion, are otherwise not in accordance with law, are manifestly contrary to the Standards and are not in accordance with the Standards, the decisions are due no deference," Nibert said.

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

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