West Virginia Record

Monday, February 17, 2020

Sides gear up for future showdown on MPLA challenge

By Lawrence Smith | Sep 14, 2007



CHARLESTON – A legal grudge match pitting two doctors against each other may hold as much at stake over the future of medical malpractice cases as last week's Friends of Coal Bowl had for bragging rights as to who would be the state's No. 1 football team.

And both sides in the case have done their own version of smack-talking via legal briefs in preparation for their own game day yet to be announced.

Among the cases the Court will consider sometime during its 2007-08 term, which started last week, is Westmoreland v. Vaidya.

Dr. Danny R. Westmoreland, a Mason family physician, is appealing the dismissal of his malpractice suit against Dr. Shrikant K. Vaidya, a Point Pleasant urologist, from Mason Circuit Court.

Prior to completing its 2006-07 term in June, the Court voted unanimously to accept Westmoreland's petition for appeal.

As the case involves two physicians, it presents an ironic test case on the constitutionality of the Medical and Professional Liability Act of 2003, a law designed to curb frivolous suits against doctors. The heart of the MPLA includes a requisite 30-day pre-suit notification, and certificate of merit from another qualified physician.

Though MPLA's constitutionality is but one issue involved both sides site a host of sources to make their case including an opinion piece from the Record.

Similar statutes voided elsewhere

In arguing for appeal, Westmoreland, via his attorney Robert W. Bright, with the Story Law Office in Pomeroy, Ohio, lists nine reasons why the Court should reverse Kanawha Circuit Judge Tod J. Kaufman's Oct. 26 order dismissing Westmoreland's suit. Kaufman was appointed by the Court to hear the case after both Mason Circuit judges David W. Nibert and Thomas C. Evans III recused themselves.

Kaufman's dismissal came one day after both sides initially agreed to discuss a possible settlement. In his dismissal order Kaufman said, "because of the specialized nature of the medical practice of urology" the case "is controlled by the "MPLA" and must meet the requirements in filing this malpractice action, including a certificate of merit and providing an expert witness to testify to the deviation of the standard of care."

Bright argues Westmoreland attempted to obtain a certificate of merit from a urologist. However, of the 12 with whom he consulted, only two were willing to sign one, and for a fee of $40,000.

"The consequences of such a fee would clearly restrict or deny citizens' access to the courts," Bright said.

In his brief, Bright asks the Court to consider recent decisions by the supreme courts in Oklahoma and Arkansas finding all or part of their certificate of merit requirements unconstitutional.

The case which fits closely to Westmoreland's, Bright argues, is the Oklahoma Supreme Court's 2006 decision in Zeier v. Zimmer, Inc.

According to Bright's brief, in that case, the plaintiff initiating malpractice suit relating to knee replacement surgery declined to attach a affidavit of merit as required by state statute.

In her reply to the physician's motion to dismiss, the plaintiff argued that the underlying cause for negligence fell under the principle of res ipsa loquitur, or "the thing speaks for itself."

Likewise, the statute, in effect, created a "special law" thus creating a monetary barrier to her access to the courts.

According to Bright's brief, the Oklahoma Supreme Court agreed.

Along with other portions, Bright cited the Oklahoma Court's ruling saying "Treating medical malpractice plaintiffs with rules inapplicable to all other negligence claims interjects a degree of arbitrariness which sabotages equal access to the courts."

"[The affidavit of merit statute] creates the potential for a medical expert to usurp the functions of the judiciary and the trier of fact."

In the case of Summerville v. Thrower, Bright said the Arkansas Supreme Court in on March 15 found that state's affidavit of merit requirement invalid for two reasons. According to his brief, the Arkansas Court found the "statute was in conflict with Civil Rule 3 regarding commencement of actions" and "unconstitutional based on conflict with the rulemaking provisions of the Arkansas Constitution."

According to Bright, the Arkansas Court based its decision on Summerville on the Oklahoma Court's finding in Zeier. Given how provisions in both the Oklahoma and West Virginia Constitutions regarding access to the courts are similar, Bright argues West Virginia's justices should follow their colleagues' lead.

"The relevant provisions in Oklahoma and West Virginia are virtually equivalent," Bright said. "The only question that remains is whether this Court will interpret the relevant statutes in the same manner as the Oklahoma Supreme Court did."

Other issues involved

Should the Court decide not to tackle the constitutional issue, Bright argues several eight more reasons why the case should be remanded back to the circuit court for trial. Among those include Bright's argument that the claims of battery, fraud and slander Westmoreland raised in this initial suit are not governed by MPLA, but by other civil statutes.

In his original complaint, Westmoreland alleged that shortly after Vaidya inserted the scope into his penis, be began to feel pain.

Despite his repeated requests to stop, Westmoreland said that Vaidya continued with the cystoscopy for another 15-20 minutes.

The result, Westmoreland alleges, led to him developing Peyronie's Disease, a build-up of plaque in the penis which makes an erection pain, and sex difficult or impossible, and renal failure. The latter, Westmoreland alleges, led to him losing 80 pounds, and nearly dying.

"After Westmoreland withdrew his consent, even if the procedure had been performed perfectly by Vaidya, the withdrawal of consent by Westmoreland made Vaidya's acts after the withdrawal a civil battery," Bright said.

In his brief, Bright made note that the Court had yet to address the issue of withdrawal of consent. However, he cited case law from Virginia, Georgia, Wisconsin, Illinois and Kentucky. The latter in the 2000 case of Vitale v. Henchey cited U.S. Supreme Court Justice Benjamin Cordozo's opinion in Schloendorff v. Society of New York Hospital as its holding opinion that lack or withdrawal of consent are not medical malpractice actions.

The Record quoted as a source

In rebutting Bright's arguments, Rob J. Aliff, the lead attorney for Vaidya's legal team from the Charleston law firm of Jackson Kelly, stands by arguments he made in prior briefs that the Court should deny Westmoreland's appeal. Those reasons include inconsistent versions as to why he did not accompany his suit with a certificate of merit, and his claim of $40,000 fee are "inadmissible hearsay."

"Whatever the reasoning, one thing is absolutely clear, the Appellant [Westmoreland] never produced a Certificate of Merit, and under West Virginia law, a Certificate of Merit is required when a medical professional liability action is brought and no exception to the Certificate applies," Aliff said.

Though he acknowledges certain claims for battery fall outside MPLA, Bright argues Westmoreland's case does not.

"Whether Dr. Vaidya could simply stop the cystoscopy at issue when the plaintiff "withdrew his consent" is a complex medical judgment which requires expert testimony," Aliff said. "Only a urologist could answer this question because the medical negligence and battery claims are inseparable and require expert testimony to prove."

As far as the constitutionality of MPLA is concerned, Aliff pointed to cases in Florida, Illinois and Louisiana where courts upheld similar statutes. To counter Bright's argument that the Oklahoma Supreme Court's Zeier decision found that state's affidavit of merit requirement to violate the constitutional provision of open access to the courts, Aliff cited Illinois Supreme Court's 1992 decision in DeLuna v. St. Elizabeth's Hospital.

"The court found no violation and held that the legislature may, consistent with the separation of powers principle, impose requirements governing matters of procedure and the presentation of claims," Aliff said.

In quoting from the Illinois Court's ruling, Aliff said, " '[i]t is well established that the legislature may impose reasonable limitations and conditions upon access to the courts,' and that 'the provision is essentially no different from the parallel requirement generally applicable in malpractice cases that the plaintiff in such an action present legal testimony to demonstrate the applicable standard of care and its breech.' "

"Clearly, the MPLA at issue does not prevent a plaintiff from accessing the court to seek redress for "an injury done to him," Aliff added. "Rather it merely requires plaintiffs to provide proof as to the validity of their claim, which is a prerequisite to recovery in the first place."

Furthermore, Aliff agues that has a duty to balance the rights of all citizens. The purpose of MPLA was "to balance the rights of our individual citizens to adequate and reasonable compensation with the broad public interest in the provision of services by qualified health care providers who can themselves maintain the protection of reasonably priced and extensive liability coverage."

To buttress his point, Aliff quoted from the June 18 editorial in The Record titled "Leave It Alone" saying as the editorial demonstrates "the costs to obtain a Certificate of Merit requirement hardly seems unreasonable given the dire state of affairs due to the flood of medical malpractice claims that were being filed."

MPLA: Unintended consequences

In a follow-up brief Bright filed with the Court on Aug. 28, he rebutts some of the arguments Aliff makes. Among them are the alleged inconsistent statements about not filing a certificate of merit, and the $40,000 fee being hearsay.

In his rebuttal, Bright points to transcripts of hearings, particularly on Feb. 10, 2006, in the case prior to its dismissal.

Not only was there "much discussion of the $40,000 fee," but also "there is not a single objection from Vaidya's Counsel to such statements by Westmoreland," Bright says.

Also, Bright says that Aliff's reference to the Record editorial "is irrelevant to this Appeal." However, in concluding his rebuttal, Bright says which while the West Virginia Legislature may have had good intentions on protecting doctors like himself from frivolous lawsuits, it's had the effect of denying he and other citizens access to the Court.

"However," Bright says, "the road to hell is paved with good intentions.' Further, legislatures across the country enact statutes and laws that have unintended consequences – the bootlegging that accompanied prohibition of alcohol comes to mind – and in may cases, wise legislatures and courts overturn statutes for that very reason."

West Virginia Supreme Court of Appeals Case No. 33459

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