Teays Valley attorney cited before for not following through on med mal cases

By Lawrence Smith | Sep 17, 2007

Attorney Frank Armada's office in Teays Valley.

CHARLESTON – A Leon woman is not the only person who has issues with the way her attorney kept her informed about the status of her medical malpractice case.

Records show the West Virginia State Bar Association cited a Teays Valley attorney multiple times for the lack of diligence in which he handled his clients' cases, including three that involved medical malpractice.

Recently, The West Virginia Record reported on the malpractice case Urata A. Singleton filed against former Mason County physician Dr. Jack M. Levine in October 2001. In her suit, Singleton alleged Levine, who left Point Pleasant shortly after the suit to practice medicine in Shelbyville, Ill., permanently damaged her left foot when removing a Ganglion cyst in April 2000.

The suit, which named Pleasant Valley Hospital as a co-defendant, remained active for almost 2½ years. On March 29, 2004, the day before the case was slated for trial, court records show Singleton's attorney Frank Armada, made a motion to dismiss the case against Levine.

Court records indicate that Armada's motion was based on his inability to use a "confidential and privileged document" he obtained from PVH. Mason Circuit Judge Thomas C. Evans III ordered portions of the case file containing the document sealed.

Also on March 29, Levine's attorneys Barry M. Taylor and Max Corley III with the Huntington law firm of Jenkins Fenstermaker, made a motion that Armada return the document. Though Evans denied the motion, records show he barred Armada or Singleton from disclosing or discussing it, and ordered the case closed on May 3, 2004.

Up until March 2004, Singleton says Armada did a good job of keeping her informed on the status of her case. According to Singleton, about the time he made the motion to dismiss the case against Levine, Armada called her and said Evans wasn't going to hear the case against Levine, but the case against PVH was "hanging by a thin thread."

However, Singleton said she later learned second-hand that that Evans closed out the case against Levine and PVH. To date, she says she has not spoken with Armada, and his office has not returned repeated telephone calls she has left for him.

Singleton's case is not the only one where a breakdown in communications has occurred between Armada and his clients. According to records on file with the Office of Disciplinary Counsel, the Bar's investigative arm, eight complaints have been filed against him between 1985 and 2003.

Though all eight cases against him were closed without bringing a formal statement of charges, records show the ODC in six of the cases "warned," "cautioned" or admonished Armada for either not diligently handling cases or effectively communicating with his clients. Like Singleton, three cases involved medical malpractice.

Lack of diligence

The complaints in those cases were lodged between 1993 and 1996. In the latter two, ODC issued Armada a mild rebuke for the way the handled them.

In her complaint filed June 6, 1996, Claudia R. Young of St. Albans alleged that Armada, despite filing a suit on her behalf, failed to keep her informed of any actions for the next two years and two months. Also, she alleged that after she retained new counsel, Armada delayed transferring her case for three weeks.

The records in her case, Young alleged, "were scrambled, [and] copies were not legible."

In his reply, Armada said his initial discovery in the case led him to conclude, "pursing the case would be fruitless." Records show Armada's discovery included deposing the doctor, and hiring a document examiner to review his notes "to determine if they had been altered or rewritten."

After informing Young of his conclusions, he cancelled a scheduled hearing and pre-trial conference. However, records show four days later Young called Armada back and decided she wanted to pursue the case.

Though no dates are provided, Armada filed a motion to withdraw as counsel from the case after Young decided to move forward with the case.

Again, with no dates provided, records show, a hearing was held to rule on Armada's motion to withdraw, and a motion made by opposing counsel to enforce the previous agreement for dismissal, and summary judgment. After the hearing, Armada telephoned Young to inform her the judge granted both his motion to withdraw, and the motion for summary judgment, based partly on her failure to appear at the hearing.

"However, due to an error in Respondent's [Armada's] office, the Complainant was never served with a copy of the notice and motion of the hearing," records say.

Because of the error, Young made a motion for the Court to reconsider its ruling dismissing the case. Provided she could find new counsel within 10 days of its order, the Court granted Young's motion.

Young's new counsel, records show, "did timely file a Notice of Appearance."

In closing its case against him on Jan. 9, 1997, ODC noted that Armada "had been neighbors with the Complainant's son for more than fifteen years and he believed they shared more than an attorney-client relationship."

"Because of his ongoing relationship with Complainant's family," ODC added, "Respondent may have been less formal in documenting the case with his client."

In concluding its findings, ODC said "While it is clear that Respondent took the necessary steps to protect the Complainant's interest, the Investigative Panel cautions Respondent to communicate clearly and carefully with his clients to ensure that the client's intentions and expectations are met."

About two years prior to Young, Richard L. Dillon Jr. of MacClenny, Florida lodged his complaint against Armada. According to his complaint filed May 31, 1994, Dillon alleges he paid Armada and Richard Allen $400 in 1984 to represent him in a malpractice claim.

Though he does not say when, Dillon maintains that Allen dismissed himself from the case after taking a job with the state of West Virginia. Since filing his suit, Dillon alleges he attended only one deposition hearing, and received one offer to settle the case for $1,000.

Though no date was provided, Dillon said in his complaint that he "got a letter from Mr. Armada asking me what to do about a motion to dismiss because 'we' had failed to produce an expert witness."

Despite his attempts to contact him about the motion, Dillon alleged that Armada failed to return his repeated telephone calls.

On Sept. 10, 1994, ODC closed its case against Armada. In its findings, ODC noted that Armada "admits to a certain amount of lack of diligence" in pursing Dillon's case. Because his conduct "appears to be an isolated instance," ODC "warned" Armada "to avoid such delays in the future."

Failure to depose

However, a complaint filed 15 months prior to Dillon's shows that Armada's conduct was not so isolated. In this instance, he was formally admonished for neglecting to diligently handle a malpractice suit.

According to her complaint filed Feb. 2, 1993, Eva Griffith Mullins of Ozark, Alabama says she sought to bring a malpractice claim against the Richwood Area Medical Center in Nicholas County. In both her complaint and lawsuit, Mullins alleges her husband, Lyman E. Griffith, on Jan. 26, 1989 died as a result of being denied medical treatment from the hospital's staff.

In her complaint, Mullins initially consulted with Steve Thompson about handling her case. After listening to her case, Mullins says he referred her to his partner, J. David Cecil.

Eventually, Cecil, who now works for the law offices of James Humphreys, suggested that Armada handle the case since he "was an expert in malpractice cases and had more experiences that [sic] anyone in their firm."

According to her complaint, Armada agreed the case was worth pursing, and took it on a contingency fee basis. Records show that Cecil served with Armada as co-counsel in the case.

Despite assurances he gave to Mullins in Feb. and May 1990, Armada did not file the suit until Jan. 11, 1991. The reason he was unable to file the suit in February and May 1990 as promised, records show, was because of other pending matters, and a heart attack and quadruple by-pass surgery, respectively.

After filing the suit, Armada learned the hospital filed for Chapter 11 bankruptcy in September 1990. Records show Armada did make a concerted effort to reach an agreement with its attorney to have the automatic stay in the bankruptcy proceedings lifted so he could proceed with discovery.

Eventually, records show the stay was lifted on March 11, 1993. In the process of discovery, Armada learned from the hospital's legal counsel that it had no malpractice insurance, and was wholly owned by Dr. Nunzio Pagano, who served as both CEO and chief of staff.

After learning that piece of information, Armada "attempt[ed] to schedule a deposition in order to obtain Dr. Pagano's statement under oath relative to whether he had malpractice insurance and to explore the possibility of other available sources to satisfy potential judgment."

However, records show in April 1994, Armada was involved in a car accident and underwent a craniotomy. He did not return to work until September 1994.

When ODC contacted him in May 1995 about the status of the case, Armada informed them he was still attempting to take Pagono's deposition. However, records show Armada stated to ODC he had made no attempts since March 1993 to subpoena Pagono to appear for a deposition.

Because he did not file the suit in "an expeditious manner as he had agreed to," and his failure to depose Pagono two years after the lifting of the bankruptcy stay, Armada was "admonished for neglecting the suit and is cautioned to timely proceed with all future cases." ODC's admonishment came on June 10, 1995 when it closed the case against him.

Despite closing the case, ODC warned Armada it "reserves the right to reopen this matter for further consideration should Respondent continue to neglect Complainant's malpractice case."

A mysterious end

Two days after ODC ordered Mullins' complaint closed, Armada filed a notice to take deposition from Pogono with the Court. However, according to the circuit clerk's office, that was the last action recorded in the case.

Though no final order was entered, records show Nicholas Circuit Judge Gary Johnson dismissed the case on July 29, 1993, due to inactivity. Despite Armada filing a motion on Aug. 12, 1993, to reinstate the case, Johnson never ruled on it.

As of press time, Armada was not immediately available for comment.

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