Case already on court followers' radar screens

By Lawrence Smith | Jun 15, 2007



CHARLESTON – As the state Supreme Court agrees to hear a possible challenge to a medical malpractice reform law, those who supported and opposed it say they plan to watch the case closely.

"I think us along with everyone else will watch it," said Jeffrey T. Jones, president of the West Virginia Association for Justice, formerly known as the West Virginia Trial Lawyers Association.

The case to which Jones was referring is Westmoreland v. Vaidya. Dr. Danny R. Westmoreland, a Mason County family physician, is appealing the dismissal of his malpractice case against Dr. Shrikant K. Vaidya, a Point Pleasant urologist.

On Oct. 26, Kanawha Circuit Judge Tod J. Kaufman, who was appointed to hear the case when both Mason Circuit judges David W. Nibert, and Thomas C. Evans III recused themselves, dismissed the case because of Westmoreland not filing a certificate of merit as required by the Medical and Professional Liability Act of 2003. The Court on June 6 agreed to hear Westmoreland's petition for appeal.

In an attempt to steam the outflow of physicians from West Virginia who claimed skyrocketing premiums for malpractice insurance were harming their ability to practice medicine, the Legislature took under serious consideration H. B. 2122. Known as the Medical and Professional Liability Act of 2003, the bill, among other things, required a plaintiff to take certain measures before filing a suit.

Among the pre-suit provisions are requiring a plaintiff provide the defendant a 30-day notice to bring suit. Also, MPLA required 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.

Despite passing MPLA, then-Gov. Bob Wise vetoed it, objecting to technical language in the bill. The Legislature overrode Wise's veto by a vote of 95-4 in the House and 33-1 in the Senate.

Ironic test case

Because the case is starting to work its way through the appeals process, Jones says he doesn't have enough information to say whether he agrees with Westmoreland that MPLA should be overturned.

Also, he said as his tenure as the Association's president comes to end, it will be the job of the new leadership to determine, should to occasion arise, to file a friend-of-the-court brief in the case.

Likewise, watching the case is the West Virginia Chamber of Commerce. The MPLA was a piece of legislation the Chamber worked as part of a coalition to pass, said Chamber president Steve Roberts.

Because MPLA has aided in keeping doctors in the state and making insurance more affordable, Roberts says he's concerned that "the good work of the Legislature could be trumped by the courts in West Virginia."

"We will be watching with great interest and concern as the case moves forward in this manner," Roberts said.

Nevertheless, Jones said the case will be worth watching given the fact that the first serious challenge to a law meant to help shield doctors from frivolous suits is filed by a doctor.

"It does seem kind of funny that a doctor would challenge the statute," Jones said. "That wouldn't be the first test case I would have expected."

No comment

Not everyone with an interest in the Westmoreland case is talking. Both sides in a second case from Mason County challenging the certificate of merit requirement either declined or were unavailable for comment.

In that case, Ralph A. Barcus of Gallipolis, Ohio alleges Dr. Jack Levine committed malpractice by leaving the remnants of a catheter in his chest. The subsequent pain Barcus experienced in his chest, says his attorney Michael A. Eachus, was a direct result of Levine's negligence in not completely removing the catheter.

Because Barcus had no chest pains prior to the catheter's insertion, Eachus maintains that the doctrine of res ipsa loquitur, or "the thing speaks for itself" takes precedent over the MPLA, and thus a certificate of merit is not needed.

However, Levine's attorney Barry M. Taylor disagrees, and, in addition to denying Levine was responsible for Barcus' condition, "asserts all of the limitations, restrictions and requirements that are set forth in MPLA."

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