WEST VIRGINIA RECORD

CHARLESTON -- For at least the third time in the case, a doctor's request for a new trial in a medical malpractice case has been denied.

This time, the state Supreme Court of Appeals turned down Dr. Kenneth D'Amato's request. The order was signed Oct. 24 by Clerk Rory Perry.

In January 2006, a Randolph County jury awarded Melvin Heckel $1.85 million, the highest medical malpractice award ever given in the county. D'Amato operated on Heckel's spine in 2002 at Davis Memorial Hospital in Elkins. After leaving the recovery room Heckel began to complain of sight loss, and he sued the doctor and the hospital. The hospital settled for $350,000.

In August, Randolph Circuit Judge John Henning denied D'Amato's request to set aside the verdict. The doctor, through Huntington attorney D.C. Offutt Jr., argued that it should have been tossed aside because Heckel had tried to defraud the court by faking blindness.

D'Amato sought that relief in February after sending Henning a videotape apparently showing Heckel working seven days at a construction site. Heckel apparently took out an Elkins city permit for a commercial building on Martin Street. According to Offutt, private investigator Bill Pauer videotaped Heckel at the site for 50 hours on seven days from Dec. 11 to Dec. 19.

"He is seen reading, supervising, measuring, lifting, hammering, shoveling, raking, using a wheelbarrow, operating dangerous power equipment, operating heavy equipment, operating a motor vehicle, and guiding truck drivers as they deliver loads of gravel and pipe," Offutt wrote in his motion. "Melvin Heckel, a man 69 years of age, is in outstanding physical condition. For seven consecutive business days, Melvin Heckel was seen arriving at the construction site early in the morning and staying into the evening. …

"Time after time, Melvin Heckel can be observed doing the exact activities he consistently testified under oath that he could no longer perform," Offutt wrote in his motion.

Henning apparently didn't see it that way.

"The Court cannot agree with the defendant's current assertions that the plaintiff represented he was totally blind," the judge wrote. "The plaintiff's actual testimony clearly demonstrates that the defendant was forthcoming about his limited visual abilities and did not discuss total blindness."

Henning then wrote that D'Amato's team apparently didn't supply all of the videotaped footage of Heckel it could have.

"The defendant failed to include footage of the plaintiff struggling to exit and walk down steps from a public building in Elkins with the assistance of his wife. This footage again supports the contention that the plaintiff Melvin Heckel has severe visual impairment as a result of the surgery conducted by the defendant, Dr. Kenneth D'Amato. …

"Under the level of proof required to mandate a finding of fraud … the defendant has not approached the necessary 'clear and distinct proof' standard, nor has the defendant been able to present an argument that would rise to the lesser standard of 'preponderance of the evidence' which is required in most civil cases in West Virginia."

Henning went on to describe some of the problems he had with the videotape, comparing it to testimony from the case.

He wrote that the videotape shows Heckel measuring distances on lumber. Heckel had testified that he had purchased a special tape measure with large numbers for people who are visually impaired.

The tape also shows Heckel looking at his watch to check the time. Heckel had testified that he has a special watch that audibly gives the time when a button is pushed.

Noting that he worked construction during college, Henning wrote that Heckel seemed to be doing tasks expected of a man who had been in the profession for nearly 50 years.

"Heckel's functioning at the job site is of a very minor nature and is more of a presence than an actual contributor and is not in any way inconsistent with the plaintiff's testimony and the other evidence offered at trial."

Going on to describe Heckel's slower and deliberate movement on the video, Henning says he recognizes that people "tend to try and remain active and to do those things that they did for their working life."

"This Court cannot force an individual to remain cloistered in his house after suffering a catastrophic visual injury simply to prove he was injured," Henning wrote. "There has never been an allegation that the plaintiff was totally without vision …"

Henning then takes D'Amato's team to task over the word "blind" and defines total blindness and legal blindness.

"Plaintiff also correctly points out that the defendant's trial counsel never challenged the plaintiff's vision during trial," the judge wrote.

Henning says he also considered the testimony of several expert medical witnesses, noting that the defendant's own expert corroborated the vision loss. Court records from last year's trial show that Heckel's treating physician referred him to the Cleveland Clinic, West Virginia University and Johns Hopkins.

"The plaintiff is legally blind, but as this Court has repeated ad nauseum in this order, that does not equate to total blindness," Henning wrote.

In May 2006, four months after the verdict, D'Amato also had a request for a new trial denied. D'Amato, who was represented by attorney Kenneth J. Barton, based that request on several factors.

First, he said the court erred by failing to strike the entire panel of jurors "after one member of the panel advised the court that Dr. D'Amato had operated on her daughter and had a bad outcome or as the defendant states an 'unfavorable result,'" according to the May 2 denial order.

D'Amato also argued that two doctors testified outside of their areas of expertise and that the jury verdict form was prejudice against him by having "so many blank lines and that the jury was led to believe that if it found for the plaintiffs, it should fill in each line item with some damages amount."

Charleston attorney Kent Carper and Elkins attorney David Sims represented Heckel.