Med mal reforms face Supreme Court challenge

By Lawrence Smith | Jun 15, 2007

Westmoreland CHARLESTON – The state Supreme Court has agreed to hear a Mason County case that could challenge the constitutionality of a medical malpractice reform law.



CHARLESTON – The state Supreme Court has agreed to hear a Mason County case that could challenge the constitutionality of a medical malpractice reform law.

On June 6, the Court agreed to accept the case of Mason County physician Danny R. Westmoreland, who brought suit against Point Pleasant urologist Shrikant K. Vaidya for malpractice.

The suit was dismissed in October when the judge in the case ruled that Westmoreland failed to follow the requirements of the Medical and Professional Liability Act of 2003 in filing a certificate of merit. In both of his original suit and appeal, Westmoreland maintains that urologists with whom he consulted either were unwilling to sign a certificate or for an exorbitant fee.

In accepting Westmoreland's appeal, the Court moved it past the motions docket straight to the arguments docket. Often after agreeing to accept a case, the justices will ask the petitioner to make a five-minute presentation to the Court for them to decide to hear additional arguments in the case or make a final decision.

Westmoreland's attorney, Robert J. Bright, of the Storey Law Offices in Pomeroy, Ohio, says he's looking forward to coming to Charleston even if it means waiting until the fall, as the Court nears adjournment of its 2007 on June 29 and a scheduling order in the case has yet to be announced.

"I'm pleased that Dr. Westmoreland is going to get an opportunity to go before the Supreme Court," Bright said. "I believe that there are other errors made the judge that should give Dr. Westmoreland his day in court."

Case coincides with enactment

According to court records, the dispute between Westmoreland and Vaidya started in June 2003 when Vaidya treated Westmoreland for removal of a stent from his urterer. During the procedure Westmoreland maintains he experienced pain and repeatedly told Vaidya to stop.

In this suit, Westmoreland claims the procedure, which should have lasted 15 seconds, took 15-20 minutes. After the procedure, Westmoreland alleges he developed a variety of aliments including Peyronie's Disease, a condition that makes an erection painful.

Court records show that after serving Vaidya with a hand-written "notice of intent" on May 2, 2005, 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."

Eventually, Vaidya's legal counsel, Charleston attorneys Thomas J. Hurney and Rob Aliff, filed a motion to dismiss the case based on Westmoreland's failure to file a certificate of merit as required by the MPLA.

In his reply, Westmoreland maintained that Vaidya deviated from the applicable standard of care so much that one was not needed.

Also, Westmoreland alleged that getting a urologist to sign-off on a certificate was nearly impossible. Of the 12 urologists with whom he consulted, Westmoreland said 10 declined to sign, and the remaining two wanted a fee of $40,000.

Eventually, Kanawha Circuit Judge Tod J. Kaufman ordered a status conference on the case for Oct. 25. Kaufman was appointed to hear the case when both Mason Circuit judges -- David W. Nibert and Thomas C. Evans -- recused themselves from the case.

In their latter dated Oct. 5, 2005, Evans, speaking on behalf of Nibert, cited "considerable contacts" with Westmoreland, and Vaidya being a "well known urologist in the local community."

Court records show prior to being elected judge in 2000, Nibert was counsel to Frank Eugene Meadows of Henderson who brought a malpractice suit against Vaidya. The case remains open as Meadows has been unable to locate a replacement for Nibert, and no dismissal order is contained in the court file.

The status conference was concluded with both sides agreeing to discuss a settlement. However, less than 24 hours later, Kaufman dismissed the case, granting Aliff's motion.

"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."

After Kaufman's dismissal, Westmoreland hired Bright to handle an appeal to the Supreme Court. When Kaufman on Dec. 13 denied Bright's motion to reconsider his dismissal order, Bright filed an appeal on Feb. 15.

Other grounds for appeal

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 MPLA 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 said in his brief.

"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."

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

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, but also 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."

Vaidya's counsel confident

When reached for a comment on the Court agreeing to hear Westmoreland's appeal, Aliff said he would prefer to answer any questions until additional briefs have been filed.

"I don't have an initial reaction," Aliff said. "We're confident in our legal positions."

In their 34-page reply filed with Court March 19, Vaidya's legal team cited previous Court rulings affirming the MPLA and its pre-suit requirements. They cited the Court's findings in the cases of Hinchman v. Gillette and Elmore v. Triad, in which 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."

Also, Aliff said that Westmoreland's claim that urologists with whom he consulted wanted a $40,000 fee was "nothing more than self-serving hearsay." If Westmoreland had difficulty finding a urologist, then he should have noted such in his original 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."

West Virginia Supreme Court Case No. 071152

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