POINT PLEASANT – A perusal of the court file would reveal to anyone why it took a Henderson couple seven years to serve notice of a malpractice suit against a Point Pleasant urologist, says their attorney.
On Aug. 13, Rob J. Aliff and Laurie K. Miller, attorneys for Dr. Shrikant K. Vaidya, filed a motion to dismiss the civil suit Frank Eugene and Virginia Meadows filed against him on July 19, 2000.
Because Vaidya was not served with notice of the suit until seven years later on July 18, 2007, Bright and Miller, with the Charleston law firm of Jackson Kelly, say this goes well beyond the time frame allotted for effecting service of process.
"Rule 4(k) of the West Virginia Rules of Civil Procedure requires that service of process of a summons and civil complaint be made within 120 days after the filing of complaint," Miller and Bright say in their motion. "Although Rule 4(k) permits a court to extend the time for service of process for an appropriate period if a plaintiff shows good cause for failure to serve within 120 days, the Plaintiffs have not made any effort to show any good cause for their failure to serve under Rule 4(k) – nor can they."
"It has been seven years since this Complaint has been filed," Miller and Bright add. "Further, there can be no argument that an extension of time of seven years to serve would be an appropriate time for service of this lawsuit."
However, the Meadows' attorney, Robert W. Bright, with the Story Law Office in Pomeroy, Ohio, says the argument can be made that the suit should go forward despite taking seven years to serve notice. In his response filed Sep. 10 to Miller's and Aliff's motion, Bright says it took them that long to find substitute counsel.
"As the Court is undoubtedly aware, Plaintiffs' initial Counsel was David Nibert, Esq.," said Bright. "However, to Plaintiffs' present Counsel's understanding, Attorney Nibert was elected Circuit Court Judge very near the time of the filing of Complaint."
"The case was then transferred to Judge [Thomas] Evans and it was Plaintiffs' understanding that Judge Evans had issued an Order stating that this case could remain open until Plaintiffs obtained Counsel," Bright added.
According to court records, Bright filed notice of substitution on June 14.
Also, Bright says that at anytime during the last seven years Vaidya could have made a motion to dismiss, or the Court could have ordered the case struck from the docket due to inactivity. Yet, neither was done.
"At no time since the filing of the complaint and prior to service of the same did the Defendant file a Motion to Dismiss," Bright said. "At no time during since the filing of the Complaint has the Court given notice to the Plaintiffs that the Complaint was going to be dismissed."
Turning the tables
Furthermore, Bright says it his clients, and not Vaidya, who are inconvenienced by a seven-year delay in moving forward with the suit.
"The Defendant is not prejudiced by the delay in service of the Complaint as the facts and underlying claims are identical and have not changed since the filing of the Complaint," Bright said. "If anything, the Plaintiffs are the ones prejudiced by the delays for the last seven years the Plaintiffs have suffered from the damage caused by the Defendant and the Plaintiffs have received no compensation."
According to court records, the Meadows' filed their malpractice claim against Vaidya alleging he failed to properly treat Frank in 1998 for a case of Peyronie's Disease, a build-up of plaque in the penis which makes an erection painful, and sex difficult or impossible. Virginia was listed as a co-plaintiff in the case due to her being "deprived of consortium" with Frank.
In a prior interview with The West Virginia Record, Frank said he was successful in finding an attorney who would agree to take his case. However, Meadows said it was conditional on him finding an another physician who would testify as an expert witness on his behalf.
According to Meadows, virtually every physician with whom he spoke declined to serve as expert for fear of being sued by Vaidya. Though one in Morgantown expressed a willingness to do so, Meadows said he could not reach a conclusion due to the vagueness of Vaidya's notes.
Awaiting word on decisions
The Meadows' case is the second malpractice suit pending against Vaidya. The other involving Dr. Danny R. Westmoreland, a Mason family physician, is currently on appeal to the Supreme Court.
In that case, in which Bright also serves as plaintiff's counsel, Westmoreland alleges he developed a case of Peyronie's Disease when Vaidya removed a stent from his urterer in 2003.
Kanawha Circuit Judge Tod J. Kaufman, who was appointed to hear Westmoreland's case after Nibert and Evans recused themselves, dismissed it last year citing Westmoreland's failure to obtain a certificate of merit as required by the Medical and Professional Liability Act of 2003.
In his appeal, Westmoreland argues, among other things, the MPLA is unconstitutional because it creates an undue burden on plaintiffs.
Much like Meadows, Westmoreland maintains urologists with whom he consulted were reluctant to go on record to say malpractice may have occurred. Those who did, Westmoreland avers, would do so only for a fee of $40,000.
Though both Bright and Vaidya's legal team of Aliff, Thomas J. Hurney and Amber Hoback, have filed their respective legal briefs, the Court has not ruled on the appeal, or given any indication if it desires to hear oral arguments in the case. Likewise, Evans has not ruled, or scheduled a hearing on Miller's and Aliff's motion to dismiss the Meadows' suit.
Mason Circuit Court Case No. 00-C-132