WEST VIRGINIA RECORD

POINT PLEASANT – A pending malpractice case against a former Mason County physician appears to be headed to trial without a requisite certificate of merit.

On May 16, Mason Circuit Judge Thomas C. Evans III entered a scheduling order in the case of Barcus v. Levine. A pre-trial conference is slated for Jan. 14, 2008, with trial set to commence two weeks later on Jan. 29.

Evans' order comes as Levine's legal counsel has raised no new objections to the case moving forward without a certificate of merit, and the state Supreme Court is set to hear a constitutional challenge to the 2003 law requiring such in malpractice cases.

Common law challenge to MPLA

In the case now in circuit court, Ralph A. Barcus, of Gallipolis, Ohio, alleges that Dr. Jack M. Levine failed to totally remove a catheter from his chest in May 2001 after originally inserting it in November 1999. The insertion and removal of the catheter, court records show, took place at Pleasant Valley Hospital, where Levine had staffing privileges until December 2001.

Sometime after the catheter's removal, court records show Barcus began experiencing chest pains. Upon consulting with another physician in 2004, Barcus discovered that remnants of the catheter were left in his chest.

According to court records, Barcus underwent surgery at Ohio State University's Medical Center in October to remove what was left of the catheter. Later that month, though his attorney Michael Eachus, of the Gallipolis law firm of Eachus and Finley, Barcus notified Levine, who since moved to Shelbyville, Illinois to practice medicine, and PVH, that he intended to bring a malpractice suit.

Barcus, court records show, did just that on Dec. 12.

Though he provided both Levine and PVH, who has since been dismissed from the suit, with a pre-suit notification, Barcus did not file an accompanying certificate of merit as required by the Medical and Professional Liability Act of 2003. In an effort to thwart frivolous claims, the MPLA requires anyone bringing a malpractice suit to obtain a written opinion from another physician that the suit has some merit.

However, in the original complaint he filed on Barcus' behalf, Eachus maintains that the legal doctrine of res ipsa loquitur, or "the thing speaks for itself," trumps MPLA. To buttress his point, Eachus cited the Court's 1991 opinion in the case of Farley v. Meadows, M.D. in which it determined "When a surgical sponge or scalpel shows up in the chest of a veteran of open-heart surgery, the only inference that can be drawn is that the foreign object was left in the chest from surgery."

In their reply dated Jan. 18, Levine's legal counsel, Barry M. Taylor and Gary A. Matthews of the Huntington law firm of Jenkins Fenstermaker, denied any wrong-doing on Levine's behalf. In addition to challenging the use res ipsa loquitur in the case, Taylor and Matthews said their client "asserts all the limitations, restrictions and requirements that are set forth in MPLA."

Constitutional challenge to MPLA

Since filing their initial reply, Taylor and Matthews have not renewed their objection that the case move forward without a certificate of merit. In fact, they have participated in the process of discovery by submitting to Barcus a set of interrogatories in which, court records show, he replied on May 7.

When asked if submitting the interrogatories was acknowledgement the case was moving forward without a certificate of merit, Taylor declined to comment. Also, Eachus was not immediately available for comment on the case moving forward.

The timing of a possible trial in the case is rather fortuitous in that the case of Westmoreland v. Vaidya is pending before the Court. Though the Court has not decided if it will hear oral arguments in the case, both sides have submitted briefs in preparation for its Fall term which begins Sept. 10.

In the case, Dr. Danny R. Westmoreland, a Mason family physician, alleges that Kanawha Circuit Judge Tod J. Kaufman improperly dismissed his malpractice case against Dr. Shrikant K. Vaida, a Point Pleasant urologist. The Court appointed Kaufman to hear the case after both Evans, and fellow Mason Circuit Judge David W. Nibert recused themselves.

Though initially getting both Westmoreland, and Vaidya's legal counsel Rob J. Aliff, of the Charleston law firm of Jackson Kelly, to agree to discuss a settlement during a status conference on Oct. 25, Kaufman dismissed the case a day later. In his order dated Oct. 26, Kaufman said the case was controlled by the MPLA "because of the specialized nature of the medical practice of urology."

Much like Barcus, Westmoreland, who filed his case against Vaidya pro se, argued common law trumps statutory law. In his original complaint filed in June 2005, Westmoreland alleges Vaidya violated the "no means no" principle when he refused Westmoreland's repeated requests to stop a cystoscopy Vaidya performed on him two years earlier.

Since then, Westmoreland retained Robert W. Bright with the Story Law Office in Pomeroy, Ohio. In his initial brief for appeal filed in March, Bright argued, among other things, that MPLA 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."

On June 6, the Court unanimously agreed to hear Westmoreland's petition for appeal.