WEST VIRGINIA RECORD

POINT PLEASANT – In addition to remaining tight-lipped about how a recently accepted appeal to the Supreme Court may effect their case, attorneys for a former Mason County physician, now practicing medicine in Illinois, aren't talking about one of his previous malpractice cases currently under seal.

Last week, The Record reported that Dr. Jack Levine, who until December 2001 practiced family medicine in Point Pleasant, was sued five times for malpractice between 1994 and 2001. A sixth suit was brought against Levine, who now practices in Shelbyville, Ill., in December.

In the latter suit, the plaintiff, Ralph A. Barcus of Gallipolis, Ohio alleges Levine in 2001 failed to removal all of a catheter he originally placed in Barcus' chest in 1999. In his complaint, Barcus' attorney Michael Michael A. Eachus, of the Gallipolis law office of Eachus and Finley, says Levine's negligence was so gross, that a certificate of merit as required by the Medical and Professional Liability Act of 2003 is not necessary.

Though with slightly different logic, Dr. Danny R. Westmoreland, also a family physician, maintained the malpractice case he brought against Point Pleasant urologist Shrikant K. Vaidya in 2005, could proceed without a certificate of merit because of Vaidya's deviation from the applicable standard of care. However, Kanawha Circuit Judge Tod J. Kaufman, who was appointed to hear the case after Mason Circuit judges David W. Nibert and Thomas C. Evans III recused themselves, disagreed, and dismissed the case on Oct. 26.

On Feb. 15, Westmoreland, via his attorney Robert J. Bright with the Storey Law Offices in Pomeroy, Ohio, appealed Kaufman's decision to the Supreme Court. On June 6, the Court agreed to hear Westmoreland's petition for appeal.

Neither Eachus, nor Barry M. Taylor, with the Huntington law firm of Jenkins Fenstermaker, and co-counsel with Gary A. Matthews to Levine, would comment on how Westmoreland's appeal may impact their case. Likewise, neither counsel for Levine nor the parties in the 2000 case now under seal would discuss how and why the case got that way.

Little details offered

According to court records, the first three cases against Levine were in some way settled. In two cases, the plaintiffs reached an out-of-court settlement with Levine with the third agreeing to voluntarily dismissing the suit against him.

Following the dismissal of the third suit on Aug. 19, 1999 was the case now under seal. All that is known about it is that Delores Clonch filed it on Dec. 27, 2000, Richard M. Lewis, of Jackson, Ohio and Robert Q. Sayre of Charleston, represented her and Levine and Pleasant Valley Hospital were named as co-defendants.

Tamela White of the Huntington law firm of Farrell, Farrell and Farrell served as Levine and PVH's counsel. The case was dismissed on Oct. 19, 2001, and placed under seal by Nibert.

However, the Mason Circuit Clerk's office has no information as to who requested the records sealed.

About two weeks prior to the dismissal in the Clonch case, Urata A. Singleton sued Levine. In her suit, filed Oct. 4, 2001, Singleton alleged that Levine filed to properly remove a ganglion cyst from her left foot on April 7, 2000.

The suit appeared to be headed for trial until Singleton's attorney, Frank Armada of Teays Valley, made a motion on March 29, 2004 to voluntarily dismiss her claims against Levine. Though it is not immediately clear, but it appears Singleton's case depended on a "confidential and privileged document" Armada obtained from PVH.

Prior to the March 29 hearing, records show Levine's co-counsel, Taylor and Max Corley III, asked the Supreme Court to place the entire file under seal. The Court denied their request, but left intact those portions of the file Evans placed under seal.

During the March 29 hearing, Taylor and Corley asked Evans for a protective order to compel Armada to return the document. On May 3, 2004, in his dismissal order Evans denied Taylor and Corley's request for a protective order, but barred Armada and Singleton from discussing the document.

Though legal counsel for each side in the Clonch case aren't barred from discussing the case, none are willing to do so. White did not return repeated telephone calls seeking a comment, and Sayre declined to comment, "because it was so long ago."

Exception, not rule

Though the "default position" for malpractice cases is openness, judges will place the file under seal for any variety of reasons especially if an issue of privacy is involved, said Robert Bastrass, a professor of law at West Virginia University. The reason for sealing a file is case-specific.

"It could be that the plaintiff didn't want certain conditions disclosed," Bastrass said.

Especially in cases like Levine's where a defendant has had multiple suits filed against him or her, open court records aid the public, Bastrass said. In order to protect the rights of all parties involved in case, including the public, "the presumption should be for openness."

"Documents should be kept open unless there is a compelling reason not to," Bastrass said.

In his 33 years of practicing law in West Virginia, Bastrass says he's been pleased with most judges observing Article III, Section 17 of the state Constitution observing the right of citizens to open courts.

"I have a couple of issues with West Virginia practices and procedures, but overall I believe the courts have done a good job of keeping records open," Bastrass said.